REPUBLIC OF FRANCE

Ministry of Posts, Telecommunications and Space

 

TELECOMMUNICATIONS ACT OF 1996

 

Article 1.

Article L. 32 of the Posts and Telecommunications Code shall be amended as follows:

 

"Chapter I

"Definitions and Principles

 

"1) Telecommunications.

"Telecommunications means any form of transmission or reception of signs, signals, text, image, sound or other information, by wire, optical fibre, radio or other electromagnetic means.

 

"2) Telecommunications Network Infrastructure.

"Telecommunications Network Infrastructure means any form of installation or group of installations which ensure either the transmission or the transmission and routing of telecommunications signals and the associated exchange of the control and operational information, between network termination points.

 

"3) Public Network.

"Public network means a telecommunications network established or used for the provision of public telecommunications services.

 

"4) Independent Network Infrastructure.

"Independent network infrastructure means a telecommunications network intended for private or shared use.

"An independent network infrastructure is "privately used" when it is reserved for use by the private individual or corporate entity which established it.

 

"5) Internal Network Infrastructure.

"Internal network infrastructure means an independent network infrastructure installed inside the user’s premises and not using the public domain - including radio frequency spectrum - or any third party premises.

 

"6) Telecommunications Service.

"Telecommunications service means a service including the transmi sion or routing of signals or a combination of these functions using telecommunications processes. Entertainment telecommunications services are not subject to this provision insomuch as they are governed by the Freedom of Communications Act n° 86-1067 of 30 September 1986.

 

"7) Public telephone service.

"Public telephone service means the commercial provision to the public of a service consisting in the conveyance of direct, real-time voice telephony between public switched telephone networks for mobile and fixed users.

 

"8) Telex service.

"Telex service means the commercial provision to the public of a system of direct, real-time typed message transmissions in the form of telegraphic signals, between users connected to termination points of a telecommunications network.

 

"9) Interconnection.

"Interconnection means reciprocal services provided by two public network operators in order to allow all users to communicate freely amongst themselves, regardless of the networks to which they are connected or the services they use.

"Interconnection also means the network access services provided for the same reason by a public network operator to a public telephone service provider.

 

"10) Terminal Equipment.

"Terminal equipment means equipment intended to be connected directly or indirectly to the termination point of a network in order to send, process or receive information. Equipment intended for access to radio or cable TV broadcast entertainment services is not included in this definition, unless such equipment can also be used for access to telecommunications services.

 

"11) Radio Network Infrastructure and Terminal Equipment.

"Network infrastructure and terminal equipment are described as radioelectric when they use radio frequencies for the transmission of radio waves in an open space. Notably, networks which use satellite capacity are defined as radio networks.

 

"12) Essential Requirements.

"Essential requirements means the specifications which must be met, in the public interest, to guarantee user safety, the safety of employees of telecommunications network operators, network security and protection, the exchange of the associated control and operational information, as well as, where appropriate, the proper use of the radio spectrum and in certain cases, the interoperability of services and terminal equipment, data protection, environmental protection and the fulfillment of town and country planning requirements.

 

"13) Operator.

"Operator means a natural or artificial person authorised to run a public network or to provide a telecommunications service to the public. "

 

 

Art. 2.

Article L. 32-1 of the Posts and Telecommunications Code shall be worded as follows:

 

"Art. L. 32-1.

"I - Under the conditions laid down in this code:

"1) Telecommunications activities shall be carried out freely, in accordance with the terms of the licences and declarations provided for in chapter II, which shall be granted or verified in an objective, transparent, proportional and non-discriminatory manner;

"2) The public service obligations set out in chapter III, which include guaranteeing every person access to the universal service, shall be safeguarded and developed;

"3) Regulation of the telecommunications sector shall be carried out independently of the operation of networks and the provision of telecommunications services. Regulation shall be administered, on behalf of the Government, by the telecommunications minister and the telecommunications regulatory authority, in accordance with the provisions of chapter IV.

 

"II - According to their respective competences, the telecommunications minister and the telecommunications regulatory authority shall be responsible for ensuring the following:

 

"1) - the provision and financing of all the components of the public service in the field of telecommunications;

"2) - effective and fair competition among network operators and telecommunications service providers, in the interests of users;

"3) - job development, enhanced performance and innovation in the telecommunications sector;

"4) - public network access and interconnection conditions which guarantee equal conditions on the market and the possibility of unrestricted communication among users;

"5) - respect by network operators of the confidentiality of communications and neutrality with regard to the information transmitted;

"6) - compliance of network operators and telecommunications service providers with the obligations incumbent upon them in the interests of national defence and public security;

"7) - access to services and equipment in the interests of users and the territories."

 

 

 

Art. 3.

 

Article L. 32-2 of the Posts and Telecommunications Code shall be amended as follows:

 

"I - In accordance with its mission, set out in the Posts and Telecommunications Public Service Act N° 90-568 of 2 July 1990, the public service commission for posts and telecommunications shall contribute to the balanced development of the telecommunications sector and shall also support compliance with public service principles and in particular with the principles of universal service in the telecommunications sector. Besides the opinions, recommendations and suggestions submitted to the minister, the Commission may also be consulted by the telecommunications regulatory authority, and by the standing committees of the two parliamentary chambers, the Assemblée Nationale and the Sénat, on telecommunications issues which are specifically under their jurisdiction. It may also call on the telecommunications regulatory authority to intervene on issues under its jurisdiction with regard to controlling the fulfillment by operators and penalising operators for the non-fulfillment of the public service and universal service obligations incumbent upon them under the legislative and regulatory provisions of this code and the authorisations which they ave been granted.

"In this context it may advise on the conditions and criteria to be applied for licensing the networks and services referred to in articles L. 33-1, L. 33-2, L. 34-1, L. 34-2, L. 34-3 and L. 34-4 of the present code.

"The commission may also propose legislative and regulatory amendments if it considers that these will encourage the technological, economic and social development of the telecommunications industry.

"It may make recommendations to the Government to guarantee fair competition in the telecommunications sector.

"It shall draw up a report to be submitted to Parliament and to the Prime Minister each calander year. This report shall include a review of the public service in the field of telecommunications and in particular a chapter on the universal telecommunications service and a chapter covering the progress made in achieving the public interest missions set out in the third paragraph of article L.35-6. The public service commission for posts and telecommunications shall draft this report after consulting the annual report of the telecommunications regulatory authority. "

 

 

Art. 4.

The third and fourth paragraphs of article 35 of the Posts and Telecommunications Public Service Act n° 90-568 of 2 July 1990 shall be worded as follows:

 

"- seven members of the Assemblée Nationale,

"- seven members of the Sénat, designated by their respective parliamentary assemblies."

 

 

Art. 5.

Article L. 32-4 of the Posts and Telecommunications Code shall be amended as follows:

 

I - For the beginning of the first paragraph there shall be substituted the following provisions:

 

"In carrying out their functions the telecommunications minister and the chairman of the telecommunications regulatory authority may collect from private individuals and corporate entities which operate telecommunications services any information or document required to ensure that the said individuals and entities respect the principles set out in articles 32-1 and 32-3 as well as the obligations incumbent upon them due to legislative and regulatory provisions or arising out of the operating licence granted to them;

"The telecommunications minister and the chairman of the telecommunications regulatory authority may conduct inquiries concerning the said individuals and entities; they may delegate powers of investigation to civil servants to conduct such enquiries under the provisions of article 40.

"The telecommunications minister and the chairman of the telecommunications regulatory authority shall be responsible for ensuring that the information gathered under the terms of this article is not disclosed when the said information is protected as confidential under article 6 of the Freedom of Information Act n° 78-753 of 17 July 1978. "

 

 

 

Art. 6.

Chapter II of Title I of Book II of the Posts and Telecommunications Code shall be worded as follows:

 

 

"Chapter II

"Legal Regime

"Section I

"Networks

"Art. L. 33 - Telecommunications networks shall be established under the conditions laid down in this section.

"This section shall not apply to the following:

"1) - network infrastructure established by the Government in the interests of national defence and public security, or using frequency bands or frequency spectrum allocated by the Prime Minister to an administration for its own requirements, in accordance with article 21 of the Freedom of Communications Act n° 86-1067 of 30 September 1986;

"2) - network infrastructure referred to in articles 10 and 34 of the same law. Network infrastructure of this type used for the provision of public telecommunications services shall be subject to the provisions of this code governing the operation of public networks, only insofar as it is used for the provision of telecommunications services.

 

"Art. L. 33-1.

"I - The establishment and operation of public networks shall be authorised by the telecommunications minister.

"Licences may only be refused on the grounds of public order or in the interests of national defence and public security, or as a result of technical constraints due to the limited availability of frequencies, or when the applicant does not have the technical and financial capacity to sustainably meet the obligations resulting from the conditions under which its activity is carried out, or when it has been the subject of one of the penalties referred to in articles L. 36-11, L.39, L. 39-1, L. 39-2 and L. 39-4.

"Licences shall be granted subject to compliance with the provisions contained in the schedule of conditions governing the following:

 

"a) - the nature, characteristics, service coverage area and network extension schedule;

"b) - the operating hours, quality and availability of the network and access conditions, particularly for public pay phones;

"c) - the conditions of confidentiality and neutrality of the service with regard to the information transmitted;

"d) - the standards and specifications for networks and services, particularly European standards when appropriate;

"e) - the provisions required for the protection of the environment and for town and country planning objectives, including, where appropriate, conditions governing the occupation of the public domain and the sharing of facilities;

"f) - provisions required in the interests of national defence and public security;

"g) - the contribution of the operator to research and training in the field of telecommunications;

"h) - the use of the radio spectrum, the fees related to this use and the costs of spectrum management and monitoring;

"i) - the allocation of individual numbers or numbering ranges, fees due for the management and control of the numbering plan, under the conditions laid down in article L. 34-10;

"j) - universal service obligations incumbent on the licence holder in accordance with articles L. 35-2 and L. 35-3, and with regard to the mandatory services set out in article L.35-5 ;

"k) - the provision of the information required to establish and manage the universal directory referred to in article L. 35-4;

"l) - the rights and obligations of the operator with regard to interconnection;

"m) - the conditions necessary to ensure fair competition;

"n) - the conditions necessary to ensure the equivalent treatment of international operators in accordance with the provisions of III and IV below;

"o) - the conditions necessary to ensure the interoperability of services;

"p) - the obligations incumbent upon the operator to allow the telecommunications regulatory authority to enforce the operator’s schedule of conditions;

"q) - fees payable for the grant, management and control of licences under the conditions stipulated in the Finance Act;

"r) - the equal treatment and provision of information to users, particularly concerning the contractual conditions under which the service is provided, and allowing for compensation to the consumer in case of breach of the quality requirements specified in b).

 

"Licences shall be granted for a period of fifteen years. At least two years before the date of expiry of the licence the minister shall notify the licence holder of the licence renewal conditions or of its reasons for refusing renewal. In the case of the establishment and operation of experimental networks, of the modification or adaptation of the licence or when so requested by the applicant, the licence may be granted for a duration shorter than fifteen years; in this case the schedule of conditions shall specify the minimum time within which the licence holder shall be notified of the renewal conditions or the reasons for refusing renewal.

"A decree, issued following the opinion of the public service commission for posts and telecommunications, shall specify which of the clauses enumerated above must conform with standard clauses of which it shall determine the content. The provisions of the draft decree relating to the clause referred to in m) above shall be submitted for opinion to the competition authority.

 

"II - An operator with an annual turnover exceeding a threshold set by the telecommunications minister and the minister for the economy shall be required to keep separate accounts for the authorised activity.

"Moreover, if the competition authority considers that an operator enjoys a monopoly or dominant position in a sector other than the telecommunications sector, and the infrastructure used for this activity may be separated, the operator shall be required to separate this activity from his telecommunications activities on a legal basis for the purposes of fair competition.

 

"III - Subject to international agreements signed by France comprising a clause of reciprocity applicable to the telecommunications sector, the licence referred to in this article, when relating to a network using radio frequencies, may not be granted to a company in which more than 20% of the share capital or the voting rights are held, either directly or indirectly, by foreign nationals.

"Furthermore, a foreign national may not make any transaction the result of which is to increase, either directly or indirectly, the share held by foreign nationals in a licensed company to more than 20% of the share capital or the voting rights at the annual general meeting.

"For the purposes of this article, a foreign national means a natural person of foreign nationality or an artificial person whose majority of shares is not held, either directly or indirectly, by natural or artificial persons of French nationality.

"The provisions of this paragraph shall not apply to natural or artificial persons who are nationals of a member state of the European Union or a member state of the European Economic Area.

 

"IV - Subject to international agreements concluded by France, the telecommunications minister and the telecommunications regulatory authority shall ensure that operators licensed to route international traffic to and from French public networks enjoy equivalent treatment, in particular with regard to interconnection conditions to the French and foreign networks to which they request access.

"Subject to the same reserve, they shall also ensure that the rights conferred by operators in countries outside the European Union upon the operators licensed in accordance with this article and with article L. 34-1, are comparable with the rights they enjoy on the national territory, particularly with regard to the interconnection conditions laid down in this code.

 

"V - The number of licences may be limited owing to technical restrictions due to the scarcity of frequencies.

"In this case, the telecommunications regulatory authority shall propose the terms and conditions governing the licensing procedure, which shall be published by the telecommunications minister.

"All cases of frequency allocation shall provide for conditions of effective competition.

 

"Art. L. 33-2.

"The establishment of independent networks, other than those referred to in article L. 33-3, shall be authorised by the telecommunications regulatory authority.

"A decree, issued following the opinion of the public service commission for posts and telecommunications, shall set out the general conditions governing the establishment and operation of these networks, in relation to the essential requirements, provisions in the interests of public security and defence and the terms governing the installation of the network to be observed by independent network operators. It shall also set out the conditions under which the latter, together with those referred to in article L.33-3, may be connected to a public network, without allowing the conveyance of calls between persons other than those for whom use of the network is reserved.

"A licence may only be refused in the event of non-conformity with one of the conditions governing the establishment of networks. Failing an express decision within two months following the licence application, the latter shall be deemed to be acquired.

"When the licence concerns an independent network using radio frequency spectrum allocated to its operator, the licence shall be explicit and shall be accompanied by a schedule of conditions concerning the provisions referred to in item h) of point I of article L. 33-1, which shall specify the obligations incumbent on the licence holder, as laid down in the decree provided for in the second paragraph of this article.

"The operator of an independent network may not open its network to the public without the prior authorisation issued under the conditions laid down in article L. 33-1. In the event of a breach of these conditions the operator may be penalised in accordance with the provisions of articles L. 36-11 and L. 39.

 

"Art. L. 33-3.

"The following may be set up without restriction, on condition that they conform with the provisions of this code:

"1) private networks;

"2) pay phones not installed on the public highway;

"3) local independent networks, other than radio networks, whose termination points are less than a certain distance apart, as defined by the telecommunications minister;

"4) low power, short range radio network infrastructures whose categories are determined jointly by the ministers for telecommunications, for defence and for the interior;

"5) radio network facilities which do not use an individual frequency assignment.

The operating conditions for the above-mentioned radio facilities shall be set outin the provisions of article L. 36-6.

 

"Art. L. 33-4.

"The publication of lists of subscribers or users of telecommunications networks and services shall be unrestricted, subject to the protection of the rights of the persons concerned.

"These rights include the right of individuals to oppose the inclusion of their details in the published lists of subscribers or users, to oppose the inclusion of the full address of their domicile in these lists, to prohibit the use of personal information concerning them in commercial operations, and to obtain the said personal information and to demand that it be rectified, completed, clarified, updated or deleted under the conditions laid down in articles 35 and 36 of the Data Protection Act n° 78-17 of 6 January 1978.

 

"Section 2

"Telecommunications services

"Art. L. 34.

"This section shall apply to the provision of telecommunications services to the public.

 

"Art. L. 34-1.

"The provision of a public telephone service shall be authorised by the telecommunications minister.

"Authorisation may only be refused on the grounds of public order, in the interests of national defence and public security, when the applicant does not have the technical and financial capacity to sustainably meet the obligations arising out of its operating conditions, or when it has been the subject of one of the penalties referred to in articles L. 36-11, L. 39, L.39-1, L.39-2 and L. 39-4.

"Authorisation shall be subject to compliance with the schedule of conditions concerning the points referred to in point I of article L. 33-1, with the exception of e) and h).

"When the provision of a service presupposes the establishment of a public network, the licence granted in application of article L. 33-1 shall authorise the provision of the service.

 

"Art. L. 34-2.

"The provision of public telecommunications services other than the telephone service shall be unrestricted, on condition that there is conformity with the essential requirements and with national defence and public security requirements.

"The services referred to in article L. 34-3 shall be subject to a licence and the services referred to in the first paragraph of article L. 34-4 shall require a declaration.

"A State Council decree shall set out the content of the declaration and licence application and shall specify in the licence conditions the technical specifications to be met in order to ensure conformity with the essential requirements.

 

"Art. L. 34-3.

"The provision of a public telecommunications service using radio frequency spectrum shall be subject to a licence under the following conditions:

"1) - when the provision of the service presupposes the establishment of a new network or changes to a network which has already been licensed, the provisions of article L. 33-1 shall apply;

"2) - when the service is provided by a network using radio frequency spectrum allocated by an authority other than a telecommunications authority, a licence shall be required, which shall be subordinated to the provisions referred to in article L. 33-1. The licence shall be issued by the telecommunications minister after approval from the authority responsible for allocating radio frequency spectrum.

 

"Art. L. 34-4.

"The provision of public telecommunications services other than the telephone service, over networks established in accordance with the Broadcasting Act n° 82-625 of 29 July 1982 and article 34 of the aforementioned law of 30 September 1986, shall be subject to a declaration with the telecommunications regulatory authority, after informing the local authorities which established or authorised the establishment of the network.

"The sole purpose of this declaration shall be to enable the telecommunications regulatory authority to control the nature of the service provided and the facilities used.

"When the service proposed is the public telephone service, the provision of the service shall be licensed in accordance with the provisions of article L. 34-1. In this case, the licence shall be granted after consultation with the local authorities which have established or authorised the establishment of the network.

"When the purpose of the service proposed is directly concerned with the provision of radio and television services broadcast over the network, the provisions of the first paragraph of article 34-2 of the aforementioned law n° 86-1067 of 30 September 1986 shall apply.

"Arrangments in force which prohibit the provision of telecommunications services over the networks mentioned in the first paragraph above or which impose restrictions of a legal or technical nature, shall be brought into conformity with this article by 1 January 1998 at the latest. These same arrangements shall guarantee the owner the proper remuneration of these networks to cover the cost of providing the service and the cost of the investments undertaken for this purpose. They shall specify the means of making additional capacity available when necessary and the technical conditions governing the use of these networks. The telecommunications regulatory authority may be called upon to settle disputes according to the provisions of article L. 36-8.

 

"Section 3

"General provisions

 

"Article L. 34-5.

"Two specialised consultative commissions shall be set up by the telecommunications minister and by the telecommunications regulatory authority, one in the field of radio networks and services, and the other for other networks and services. These commissions shall consist of equal numbers of service providers’ representatives, business service users’ and individual users’ representatives, and qualified persons appointed by the telecommunications minister.

"The relevant consultative commission shall be consulted by the telecommunications minister and by the telecommunications regulatory authority on all proposals concerning licensing procedures, setting out or modifying technical and operating conditions and technical specifications and requirements concerning the services which lie within its field of competence, as well as the services relating to interconnection and numbering referred to in articles L. 34-8 and L. 34-10. The commissions’ conclusions shall be sent to the public service commission for posts and telecommunications.

"A decree shall set forth the composition, the functions and the operating conditions of these two consultative commissions.

"Art. L. 34-6.

"A licence granted to a person under sections 1 and 2 of this chapter may not be transferred to any other person.

"A licence granted under articles L. 33-1, L. 34-1 and L. 34-3, shall be published in the French Official Journal, together with the schedule of conditions appended thereto, where applicable.

"Licence refusals shall be fully reasoned and notified to the parties concerned.

"The suspension, reduction of duration and total or partial revocation of a licence shall be determined by the telecommunications regulatory authority under the conditions set out in article L. 36-11.

 

"Art. L. 34-7.

"Telecommunications infrastructure installed on the public domain or for public service requirements may be operated as a public telecommunications network and used to provide a telecommunications service, subject to compliance with the provisions of this code.

 

"Section 4

"Network Access and Interconnection

"Art. L. 34-8.

"I - Public network operators shall satisfy requests for interconnection from operators licensed in accordance with articles L. 33-1 and L. 34-1 in an objective, transparent and non-discriminatory manner.

"Interconnection may not be refused if the request is reasonable with regard to the applicant's requirements and the operator's capacity to satisfy them. All interconnection refusals shall be fully reasoned.

"Interconnection shall be a matter for agreement between the two parties involved. This agreement shall set out the technical and financial arrangements for interconnection, in accordance with this code and with the decisions concerning its implementation. A copy of this agreement shall be sent to the telecommunications regulatory authority.

"When essential for the purposes of fair competition and the interoperability of services, the telecommunications regulatory authority may ask for the agreement to be modified, after consultation with the competition authority.

"A decree shall set out the general conditions, particularly those relating to the essential requirements and the pricing principles which interconnection agreements must satisfy.

 

"II - The public network operators mentioned in the list established under section 7) of article L. 36.7 shall be required to publish the technical and pricing terms of their interconnection offering, with the prior approval of the telecommunications regulatory authority and according to the conditions set out in the schedule of conditions. Interconnection tariffs shall be cost-oriented and shall cover the effective cost of using the network.

"The above-mentioned interconnection offering shall be composed of a variety of conditions designed to meet on the one hand the interconnection requirements of public network operators and on the other hand the network access requirements of public telephone service providers, taking into account the rights and obligations of each of these categories of operators. The conditions shall contain sufficient detail to show the specific elements necessary to meet the various demands.

"The above-mentioned operators shall provide users and suppliers of telecommunications services other than the public telephone service, with access to their network and to the audiovisual communication services declared in application of article 43 of the aforementioned law n° 86-1067 of 30 September 1986 in an objective, transparent and non-discriminatory manner. They shall also satisfy justified requests from service providers and users for special access corresponding to unpublished technical and pricing conditions.

 

"III - The telecommunications regulatory authority may be called on to settle disputes relating to the refusal of interconnection, interconnection arrangements or access conditions, as laid down in article L. 36-8.

 

"Section 5

"Terminal equipment

" Art. L. 34-9.

"There shall be no restriction on the sale of terminal equipment.

"Equipment intended for connection to a public network and radio network facilities shall be tested for conformity with the essential requirements. The bodies involved in the conformity testing procedure shall be designated in order to allow manufacturers to choose between them and thus ensure their independence in relation to the companies providing goods and services in the field of telecommunications.

"A State Council decree shall determine:

"1) the conditions under which the bodies responsible for issuing certificates of conformity are designated;

"2) the conditions under which the technical specifications for equipment subject to conformity testing are drawn up and published, as well as the conditions governing the connection of equipment to public networks.

"3) the cases in which a technical qualification is required for the connection and bringing into service of equipment and facilities and the conditions enabling this qualification to be guaranteed.

"4) the procedure for assessing conformity and issuing the corresponding certificates, the cases in which conformity is tacitly acquired and the special conditions under which the certificate is issued for facilities intended for connection to the networks referred to in 1) of article L. 33.

"Terminal equipment and apparatus subject to the conformity assessment procedure referred to above may only be manufactured for the European Economic Area, imported for inward clearance from countries outside the latter, kept in view of sale, marketed, distributed free of charge or in return for payment, connected to a public network or advertised, if it has been issued with a certificate of conformity and complies thereto at all times.

 

 

"Section 6

Numbering

"Art. L. 34-10.

"A national numbering plan shall be established and controlled by the telecommunications regulatory authority. It shall ensure equal access for users to the various telecommunications networks and services and equivalent numbering formats.

"The telecommunications regulatory authority shall allocate prefixes, individual numbers and numbering ranges to operators in an objective, transparent, non-discriminatory way, in return for a fee, set by State Council decree, to cover the management costs of the numbering plan and the control of its use.

"The conditions under which prefixes, individual numbers and numbering ranges may be used shall be specified in the schedule of conditions of the operator’s licence, or in the allocation decision.

"The telecommunications regulatory authority shall ensure that the numbers allocated are used efficiently. Prefixes, individual numbers or numbering ranges may not be protected by industrial or intellectual property rights. Numbers may only be transferred with the prior consent of the telecommunications regulatory authority.

 

"As of 1 January 1998 subscribers who change operator without changing their geographical location may retain their number, on condition that there is sufficient transfer capability at this date. Until 1 January 2001 the cost incurred by the initial operator for the transfer shall be paid by the new operator which may then bill the subscriber. No other fee of any kind may be billed to the subscriber by the initial operator. Operators shall include the necessary provisions in the interconnection agreements mentioned in article L. 34-8. The provisions of this paragraph shall not apply to numbers allocated to mobile networks and used to provide mobile services.

 

"As of January 2001 users may, on request:

"- retain their telephone number in the event of a change of operator without a change of geographical location.

"- obtain a number from their operator, which they may retain in the event of a change of operator or geographical location.

"As of the same date, operators shall include the necessary provisions in their interconnection agreements and shall make this facility available to their users, under conditions to be approved beforehand by the telecommunications regulatory authority.

"A public network subscriber may, on request, oppose the identification of his subscriber number by the called party, insofar as this does not occasion the disturbance of the called party and detract from the functioning of the emergency services. "

 

 

 

Art. 7.

 

At the end of article 20 of the Town and Country Planning and Development Act n° 95-115 of 4 February 1995 there shall be added a paragraph, worded as follows:

" Moreover, the scheme shall determine the resources necessary and in particular the equipment required to ensure that educational establishments, particularly secondary schools and universities have access to the services offered on the integrated services digital network, to on-line services and to advanced telecommunications services. To ensure that the establishments situated in a rural development area, in an urban redevelopment area and in departments where more than 50% of the territory is classified as a rural development area have access to these services, preferential tariffs shall be accorded for access."

 

 

 

 

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. 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. 35-7. 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.

 

"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 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. 33-3. Decisions taken in accordance with this article shall be published in the French Official Journal, after approval by an order of the telecommunications minister.

 

"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 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. 36-8. Conciliation shall be favoured to all other solution.

"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.

"The authority may commission expert evaluations, conduct studies, collect data and carry out any action required to obtain information on the telecommunications sector. To this end the operators which hold a licence granted in accordance with articles L. 33-1, L. 34-1 or L. 34-3 shall provide statistical information on the use, area of coverage and means of access of their service."

 

 

 

Art. 9.

For chapter III of title I of book II of the Posts and Telecommunications Code there shall be substituted chapter V which shall be amended as follows:

 

I - Articles L. 39 and L. 39-1 shall be worded as follows:

 

"Art. L. 39.

"Any person found guilty of one of the violations below shall be liable to imprisonment for a term of six months and to a fine of 500 000 French francs:

"1) - to establish or to have established a public network, without the licence provided for in article L. 33-1, or to continue the operation of such a network in breach of a decision to suspend or withdraw the said licence;

"2) - to provide or have provided a public telephone service without the licence referred to in article L. 34-1 or in breach of a decision to suspend or withdraw the said licence.

 

"Art. L. 39-1

"Any person found guilty of one of the violations described below shall be liable to imprisonment for a term of six months and to a fine of 200 000 French francs:

"1) to establish or have established an independent network, without the licence provided for in article L. 33-2, or to continue the operation of such a network in breach of a decision to suspend or withdraw the said licence;

"2) to cause interference to the radio transmissions of a licensed service, without prejudice to the application of article 78 of the aforementioned law n° 86-1067 of 30 September 1986, by using a radio frequency or infrastructure without the certificate of conformity or the licence provided for in article L. 89, or without conforming to the general regulatory conditions set out in article L. 33-3."

 

II - Article L. 39-2 shall be worded as follows:

"Any person who contravenes the provisions of the second clause of paragraph III of article L. 33-1 shall be liable to a fine of between 100 000 and 1 000 000 French francs."

 

 

III - Article L. 39-3 shall be repealed.

 

"Article L. 39-4 - Any person who, without valid reason, refuses to supply information or documents or who obstructs an inquiry as provided for in article L. 32-4 and L. 40 shall be liable to imprisonment for three months or to a fine of between 2 000 and 200 000 French francs.

 

Article L. 39-5 - In the event of a repeated violation the penalties set out in articles L.39 to L.39-4 may be doubled."

 

IV - If a person is found guilty of violating one of the provision of articles L. 39 and L. 39-1, the Court may order the confiscation or the destruction, at the expense of the guilty party, of the materials and facilities which formed the network or enabled the operation of a service and may bar the said party from applying for a licence, as provided for in sections one and two of chapter II of this title for a maximum of two years, as laid down in articles L.33-1 and L. 34-1.

 

V - "Article 40.

"In addition to the police officers acting in accordance with the provisions of the Criminal Code, civil servants and officials of the telecommunications administration, the telecommunications regulatory authority and the national radio frequency agency with special authority from the telecommunications minister, and put under oath in a manner set out in a State Council decree, may investigate and report the offences referred to in chapter III of this title in accordance with enforcement legislation.

"The telecommunications officials described above shall enjoy free access to professional premises, property and vehicles used by persons subject to article 32-4 above, by those manufacturing, importing or selling equipment or devices described in article 34-9 or by those using radio frequencies as described in article 89, in order to investigate and report the offences, demand the surrender of all types of professional documents, make copies of these and gather all the information and evidence required either by summons or at the place of investigation. The officials shall have access to these premises only during opening hours if they are open to the public, and in other cases, only between 8am and 8pm. They shall not have access to the premises also used as a domicile by the parties concerned.

"The officials referred to in the first paragraph shall inform the public prosecutor of the planned investigations of offences. He may oppose these operations. Reports on the investigation shall be submitted to him within five days following their issue. A copy shall be delivered to the concerned party.

"The officials of the telecommunications administration described in clause V may seize all types of equipment described in article 34-9 above, in the same locations and under the same conditions as those set out in the same clause, if they hold judicial licence issued by order of the President of the High Court or by the Judge delegated by him with jurisdiction over the area in question.

"Requests for the aforementioned judicial licence shall be accompanied by all the information required to justify the seizure of the equipment. Seizure shall be carried out under the authority and control of the aforementioned judge.

"Seized equipment shall be immediately stocklisted. Stocklists shall be appended to the statement issued on the premises. Originals of the statements and the stocklists shall be sent to the judge who ordered the seizure within 5 days.

"The president of the High Court or by the Judge delegated by him may order the return of the seized equipment at any time, or upon request by the owner of the seized equipment."

 

 

 

Art. 10.

 

Title II of book II of the Posts and Telecommunications Code shall be entitled "The establishment of telecomunications networks".

 

 

 

 

Art. 11.

Chapter I of title II of book II of the Posts and Telecommunications Code shall be entitled "Rights of way and servitudes" and shall be amended as follows:

 

I - For articles L. 45-1, L. 46, L. 47, L. 47-1 and L. 48 there shall be substituted four articles worded as follows:

 

"Art. L. 45-1.

"Operators licensed under article L. 33-1 shall enjoy rights of way on carriageways in the public domain and easements on the private properties referred to in article

L. 48, under the conditions set out below.

"Authorities which lease or manage the public domain, with the exception of carriageways, shall conclude conventions to provide access to their property with parties licensed in application of article L. 33-1 in a transparent and non-discriminatory manner and insofar as such occupation is not incompatible with the purpose of the property or with available capacity. The convention giving access to the public domain with the exception of carriageways may not contain provisions relative to the commercial operating conditions. A fee may be payable to the leaseholder or manager of the public domain concerned in conformity with the principle of equality between operators. These fees shall be reasonable and proportionate to the use of the domain.

"The installation of infrastructures and equipment must be carried out in respect of the environment and the aesthetic quality of the site, and with the least damage to private property and the public domain.

 

"Art. L. 46.

"Operators licensed to establish public networks may occupy the public highway by erecting structures, insofar as such occupation is not incompatible with the purpose of the highway.

"The work required to establish and maintain networks shall be carried out in accordance with the highway regulations, and, in particular, with the provisions of article L.115-1 of the Highways Code.

 

"Art. L. 47.

"The occupation of public carriageways shall require a highway permission, issued by the relevant authority, according to the type of highway used, under the conditions set out in the Highways Code. The permission may define the installation and operating specifications necessary for the requirements of public traffic and preservation of the highway.

"The authority referred to in the paragraph above shall take all measures necessary to enable universal service obligations to be fulfilled. It may only refuse rights of way to licensed operators on the grounds of ensuring, within its jurisdiction, compliance with the essential requirements.

"If an operator may be given a right of way, under the same conditions as a licensed occupation, through the use of the facilities of another occupant of the public domain, the authority referred to in the first paragraph may invite the two parties to come to an agreement on the shared use of these facilities. In this case, the owner of the facilities used by the licensed operator shall maintain the infrastructure and equipment needed installed in the premises under his responsibility, in return for the payment of a contribution set after negotiation with the operator. The telecommunications regulatory authority may be called upon to settle any dispute, in accordance with the conditions set forth in article L. 36-8.

"The highway permission may not contain provisions relating to the commercial operating conditions. In return for occupation of the public domain fees shall be payable to the local authorities in conformity with the principle of equality between operators.

"A State Council decree shall determine the terms of application of this article and in particular shall specify the ceiling payable for the above-mentioned fee.

 

"Article L. 48.

"The easement referred to in article L.45-1 shall be created in order to allow the installation and operation of network infrastructures both in the communal parts of appartment buildings and estates, and above and below the ground of undeveloped sites.

"Creation of an easement shall be subordinated to a licence issued on behalf of the Government by the mayor, after the owners, or in the case of co-ownership, the householders' association, have been informed of the reasons for creating the easement and the choice of location, and have been invited to make their observations on the project, within a minimum period of three months. Work may only begin after the expiry of this period. In the event of a dispute, the terms of creation of the easement shall be determined by the president of the High Court.

"If it is ascertained that all the benefits relating to the easement of the operator on a private property may be guaranteed by using the facilities already installed on the same property by another easement holder and the use of these facilities would not compromise, where appropriate, the public service mission of the easement holder, the authority concerned mentioned in the first paragraph may invite the two parties to come to an agreement on the technical and financial terms for sharing the facilities concerned. In this case, the owner of the facilities used by the licensed operator shall, within the limits of the contract concluded between the parties, maintain the facilities for which he is responsible, in return for the payment of a contribution negotiated with the operator. The telecommunications regulatory authority may be called on tosettle any dispute between the operators under the conditions set forth in article L. 36-8.

"The installation of the structures described in the first paragraph may not interfere with the right of the owners or co-owners to demolish, repair, alter or enclose their property. However, the owners or co-owners must inform the beneficiary of the easement before carrying out any work which could affect the buildings, at least three months beforehand.

"If employees of the licensed operators require to enter the private property defined in the first paragraph in order to study, establish or operate the facilities, they shall be authorised to do so, in the absence of an amicable agreement, by the president of the High Court sitting in chambers, who shall ensure that the presence of such agents is necessary.

"The beneficiary of the easement shall be responsible for all damage resulting from the network equipment. It shall be required to pay for all direct, unquestionable material damages caused by the installation and maintenance work and by the operation of such structures. Failing an amicable agreement, compensation shall be determined by the court with jurisdiction in matters of expropriation on the application of the contending party.

"A State Council decree shall determine the conditions of application of this article."

 

II - Articles L. 49 to L. 52 shall be repealed.

 

III - In article L. 53, for the word "prefectorial" there shall be substituted the words "relevant authority".

 

 

Art. 12.

Chapter II of title II of book II of the Posts and Telecommunications Code shall be amended as follows:

I - In section 1 here shall be inserted article L. 56-1, worded as follows:

 

"Article L. 56-1.

"Operators licensed under article L. 33-1 shall benefit from radio frequency easements for the protection of telecommunications networks, under the following conditions, with the exception of those concerning the centres designated by the telecommunications regulatory authority which operate in the interests of national defence and public security.

"1) - Easements may apply to properties adjoining radio broadcasting stations in order to ensure the proper propagation of radio waves.

"2) - A radio interference protection plan shall define the radio frequency easements for each station and shall determine the land to which the easements shall apply.

"The plan shall be submitted to the national radio frequency agency for its opinion, and to public consultation. It shall be approved by the Prefect, with the consent of the municipal councils concerned and after the owners have been informed of the reasons for creating the easement and the choice of location, and have been invited to make their observations on the plan, within a minimum period of three months.

"3) - The easements include the obligation to maintain the land, the plantations and the structures at a level at least equal to that provided for by the protection plan mentioned in 2 above and the prohibition to build or install any facilities below this level.

"4) - The creation of an easement shall entitle the owner to compensation for any direct or indirect material damage. In the event of a dispute the sum shall be determined according to the principles of expropriation.

"A State Council decree shall stipulate the terms of the application of this article."

 

II - For the second sentence of article L. 60 there shall be substituted the following complement to the first sentence: "or requiring declaration, according to a procedure determined by a State Council decree."

 

III - Article L. 62-1 shall be added in section 2, worded as follows:

"Article L. 62-1.

"Operators licensed in application of article L. 33-1 shall benefit from easements for the protection of telecommunications networks from radio interference, according to the conditions of this article, with the exception of those concerning the centres, designated by the telecommunications regulatory authority, which operate in the interests of national defence and public security.

"1) - Easements may apply to the area around centres operated by licensed operators, in order to prevent electromagnetic interference.

"2) - A protection plan established under the conditions defined in article L. 56-1 shall determine the easement areas and define such easements.

"3) - Easements shall include the prohibition to commission or use equipment installed subsequently to the protected centre, which might interfere with radio reception.

"4) - The creation of a radio easement shall entitle the owner or user to compensation for any resulting unquestionable, direct material damage. Failing an amicable agreement, the compensation shall be determined and paid according to the rules governing expropriation.

"A State Council decree shall stipulate the terms of application of this article."

 

VI - In article L. 89, for the words, ""with the exception of the cases described in 3) of article L. 33-3" there shall be substituted the words, "with the exception of the cases referred to in article L. 33-3".

 

 

 

Art. 13.

 

I - Article L. 65 of the Posts and Telecommunications Code shall be worded as follows:

 

"Article L. 65.

"The act of moving, damaging or harming in any manner the equipment pertaining to a public network or of compromising the running of such as network shall be liable to a fine of 10 000 French francs.

"If it is an installation comprising several cables, the offending party shall be liable to as many fines as there are cables concerned.

"The offence referred to in the first paragraph shall not be liable to punishement if the location of the existing facilities has not been brought to the attention of the company before the opening of the site.

"Artificial persons may be declared criminally liable under the conditions laid down in article 121-2 of the Criminal Code."

 

II - Articles L. 65-1, L. 68, L. 69, L.69-1, L.70 and L.71 of the Posts and Telecommunications Code shall be repealed.

 

 

Art. 14.

 

Title VII shall be added to book II of the Posts and Telecommunications Code and shall be worded as follows:

"Title VII

"National Frequency Agency

 

"Art. L. 97-1

"I - There shall be established a national radio frequency agency, as of 1 January 1997. This shall be administrative Government agency.

"The function of this agency shall be to plan, manage and monitor the use, including the private use, of public radio frequency spectrum in accordance with article 21 of the Communications Act n° 86-1067 of 30 September 1986, and without prejudice to the jurisdiction of the administrations and authorities to which radio frequencies have been allocated.

"It shall prepare the French position and co-ordinate French representation in international negotiations on radio frequency spectrum issues.

"It shall be responsible for co-ordinating the installation on the national territory of radio stations of all kinds in order to ensure the optimum use of available sites. For this purpose decisions on radio station installation shall only be taken with the consent of the agency and after consultation with the agency when within the field of competence of the broadcasting authority.

"A State Council decree shall determine the period of time at the end of which the said agreement is deemed to be acquired and, where applicable, the categories of intallations for which, for technical reasons, such agreement is not required.

 

"II - The agency shall be administered by a Board of Directors consisting of representatives of various administrations, particularly those which have been allocated frequency bands, the broadcasting authority, the telecommunications regulatory authority and persons chosen for their particular expertise.

"The chairman of the Board of Directors shall be appointed by decree. He may not hold this office if he holds the office of chairman of the broadcasting authority and chairman of the telecommunications regulatory authority.

 

"III - The director-general of the agency shall be appointed by decree after consultation with the chairman of the Board of Directors. He shall be responsible for the technical, administrative and financial management of the agency. He shall represent the establishment in legal proceedings.

 

"IV - The agency's resources shall include the payment of services provided, income from investments and authorised shares, public subsidies and income from donations and legacies. The agency may also charge fees for the use of radio frequency spectrum under the conditions laid down in the Finance Acts.

 

"V - A State Council decree shall define the terms of application of this article. It shall specify the agency's functions, organisation and operating conditions.

"An interministerial order shall stipulate the specific aims to be achieved by the agency under the provisions set out in articles 2 and 6 of order n°59-147 of 7 January 1959 on the general organisation of defence and the special provisions to be taken into account in order to achieve them.

 

"VI - This article shall apply to the island of Mayotte and to the overseas territories, subject to the specific jurisdictions of these territories in accordance with the laws by which they are governed."

 

 

Art. 15.

 

In the aforementioned law n° 86-1067 of 30 September 1986 there shall be inserted an article worded as follows:

 

"Article 43-1 - A person whose function is to provide a connection service or several audiovisual services mentioned in 1 of article 43 shall be required to provide customers with a technical device enabling them to restrict access to certain services or to select them."

 

 

 

Art. 16.

 

Above-mentioned law n° 86-1067 of 30 September 1986 shall be amended as follows:

 

I - At the end of article 21 for the word "those" there shall be substituted the words "the frequency bands or sound or television broadcasting frequencies";

 

II - In the second paragraph of article 22, for the words "to which the allocations or assignments have been entrusted" there shall be substituted the words " allocated or assigned to users of sound or television broadcasting";

 

III - The fourth paragraph of article 26 shall be worded as follows:

" The broadcasting authority and the telecommunications regulatory authority shall allocate respectively for broadcasting frequencies and for transmission frequencies, the additional frequencies required by national programming companies for the fulfillment of their public service missions in priority to the company mentioned in article 51".

 

IV - In the second, third and fifth paragraphs of article 26, after the word "frequencies" there shall be inserted the words "of sound or television broadcasting";

 

V - A paragraph worded as follows shall be added to article 26:

"As of 1 January 1997, the telecommunications regulatory authority shall allocate sound or television broadcasting frequencies under the conditions laid down in article L. 36-7 of the Posts and Telecommunications Code. If the authority allocates, re-allocates or withdraws any of these frequencies it will do so with consideration to the requirements incumbent upon the national programming companies in relation to their public service missions."

 

 

 

Art. 17.

Article 28 of law n° 90-1170 of 29 December 1990 on the regulatory framework for telecommunications shall be amended as follows:

 

I - I shall be amended as follows:

1) At the end of the first paragraph there shall be added the following sentence, "Encryption device means hardware or software designed or modified for this purpose."

 

2) For the second, third, fourth and fifth paragraphs there shall be substituted the following provisions:

"In the interests of national defence and internal and external State security, while protecting data and developing the security of communications and transactions:

"1) the use of an encryption device or service shall be:

"a) unrestricted

"- if the encryption service or device does not provide confidentiality, particularly when its only purpose is to authenticate a communication or to ensure the integrity of the information transmitted;

"- or if the encryption device provides confidentiality functions based solely on secret conventions managed under approved procedures and by an organisation approved under the conditions defined in II;

"b) subject to authorisation by the Prime Minister in any other case.

 

"2) the supply, importation from countries outside the European Union, or exportation of an encryption device or service:

"a) shall be subject to authorisation from the Prime Minister if it performs functions of confidentiality; to obtain an authorisation the supplier may be required to reveal the identity of the purchaser.

"b) shall be subject to declaration in all other cases."

 

"3) A decree shall lay down the conditions under which declarations are made and authorisations granted. This decree shall provide for:

"a) a simplified declaration or licensing regime for certain types of device or service and for certain categories of users;

"b) the substitution of the authorisation by the declaration for the use of encryption devices or services which are not subject to authorisation with regard to the above-mentioned provisions, but which justify supervision.

"c) derogation of all previous formalities for operations concerning encryption devices and services, the technical characteristics and usage conditions of which should not effect the interests mentioned at the beginning of the second paragraph.

"d) The timescale for responses to licence applications."

 

II - For II there shall be substituted II and III, worded as follows:

 

"II - The bodies responsible for managing the secret keys pertaining to encryption devices and services which provide confidentiality, on behalf of third parties, shall be subject to prior approval from the Prime Minister.

"They shall not disclose information brought to their notice while carrying out their approved functions.

"The approval shall specify the resources and services that they may use or provide.

"They shall be required to store the secret keys that they manage. They shall be required to send a copy thereof to the legal authorities and to the authorised bodies, or to implement them, as requested, in application of law n° 91-646 of 10 July 1991 on the confidentiality of information transmitted by telecommunications networks, or within the framework of inquiries conducted under articles chapters I and II of title II of book I of the Criminal Procedure Code.

"If the entities disclose the secret keys under their control during their investigations undertaken under chapters I and II of title II of book I of the Criminal Code, following investigations by the public prosecutor, they shall inform users of this disclosure.

"They shall carry out their activities on the national territory.

"A State Council decree shall define the conditions governing the approval of these organisations and shall set out the procedures and technical provisions required to implement the obligations described above.

 

"III - a) Notwithstanding the application of the Customs Code, a person who provides, imports from countries outside the European Union or exports an encryption device or service without having obtained the authorisation referred to in point I or who does not respect the conditions of the authorisation issued shall be guilty of an offence and liable to imprisonment for a term of six months and to a fine of 200 000 French francs.

"A person who provides encryption devices or services without having obtained the approval referred to in point I or does not comply with the conditions of the approval referred to in point II, shall be guilty of an offence and liable to imprisonment for a term of two years and to a fine of 300 000 French francs.

"A person who provides, imports from countries outside the European Union, or exports an encryption device in order to facilitate the preparation or commission of a crime or an offence shall be liable to imprisonment for a term of three years and to fine of 500 000 French francs.

"Any attempt to commit the offences described in the previous paragraphs shall be liable to the same punishment.

"b) - A natural person guilty of an offence described in this paragraph shall also be liable to the additional penalties provided for in articles 131-19, 131-21 and 131-27 of the Criminal Code.

"c) - An artificial person may be declared criminally responsible for the offences defined in the first paragraph, under the conditions described in article 121-2 of the Criminal Code. The penalties to which artificial persons shall be liable are as follows:

"1) a fine according to the terms set out in article 131-38 of the Criminal Code;

"2) the penalties referred to in article 131-39 of the same code. The prohibition referred to in 2) of article 131-39 above concerns the activity in the exercise of which or at the time of the exercise of which the offence was committed."

 

III - III shall become IV.

For the last paragraph there shall be substituted the following provisions:

"A person who refuses to supply information or documents or to obstruct the inquiries referred to in paragraph IV, shall be liable to imprisonment for a term of six months and to a fine of 200 000 French francs."

 

IV - IV shall become V.

After the word, "authorisations", there shall be inserted the words "and declarations".

 

V - VI below shall be added:

"VI - The provisions of this article shall not prevent the decree of 18 April 1939 laying down the regime governing armaments, weapons and munitions from being applied to encryption devices which are especially designed or modified to permit or facilitate the use or implementation of weapons."

 

VI - V shall become VII.

 

VII - This article shall be applicable to the overseas territories and to the island of Mayotte.

 

 

 

Art. 18.

 

Article 22 of law n° 91-646 of 10 July 1991 on the confidentiality of information transmitted by telecommunications networks shall be amended as follows:

 

I - In the first paragraph, the words, "the entity referred to in article L. 35-4 of the Posts and Telecommunications Code" shall be inserted after the words, "telecommunications service providers";

II - A third paragraph, worded as follows, shall be added:

"A person who refuses, in breach of the first paragraph, to furnish information or documents or who furnishes erroneous information, shall be liable to imprisonment for a term of six months and to a fine of 50 000 French francs. Artificial persons may be declared criminally responsible under the conditions set out in article 121-2 of the Criminal Code for the offence defined in this paragraph. Artificial persons shall be liable to a fine, according to the terms set out in article L. 131-38 of the Criminal Code."

 

 

 

Art. 19.

 

In article L. 113-3 of the Highways Code, for the words "public telecommunications services" there shall be substituted the words "operators of public telecommunications networks and public services".

 

 

Art. 20.

 

In article L.113-4 of the Highways Code, for the words: "L.47 and L.47.1" there shall be substituted the words "L.46 and L.47".

 

Art. 21.

 

The second and third paragraph of article L. 34-2 of law n° 86 1067 of 30 September 1986 on the freedom of communication shall be repealed.

 

 

 

Art. 22.

 

I - The provisions of Article L. 33-1 of the Posts and Telecommunications Code, enabling the establishment and operation of public networks by operators other than France Télécom, in order to provide all telecommunications services other than the public telephone service between fixed points shall come into effect as of 1 July 1996.

Notwithstanding the provisions of the schedule of conditions in force at the date of commencement of this law, the managers of the government’s public domain and the operators and public service concessionaries may as of this date, in accordance with their specific public service obligations, use their facilities for the operation of such networks;

 

II - The provision of a public telephone service between fixed points over licensed networks, in application of article L. 33-1 of the Posts and Telecommunications Code, shall only be authorised as of 1 January 1998, subject to the application of article 2 of law n° 96-299 of 10 April 1996 on experimental trials in the field of information technologies and services. At the request of the operators concerned, licences to provide the public telephone service shall be granted in application of this law as of 1 January 1997 and shall take effect on 1 January 1998.

Operators licensed, on the date of publication of this law, to offer services in competition with France Télécom, shall be entitled, as of 1 July 1996, to use the infrastructure established in application of articles L. 33-1 and L. 33-3 of the Posts and Telecommunications Code, in order to provide such services. At the request of the operators concerned, the telecommunications minister may issue or modify the corresponding licences.

 

III - Decisions which, in application of law n° 96-299 of 10 April 1996 on experimental trials in the field of information technologies and services, authorise the provision of the public telephone service between fixed points, together with the schedule of conditions appended thereto, shall conform with the provisions of this law by 1 January 1998.

 

IV - Licences to establish networks and provide telecommunications services issued for a fixed period of time before the date of publication of this law shall continue to take effect until their stipulated term. The provisions of articles L.36-6 to L.36-13 of the Posts and Telecommunications Code shall be applicable thereto, as well as article L. 34-6 in the event of breach of the obligations required by the legislative and regulatory texts and by the licence decision. The telecommunications regulatory authority shall enforce the compliance thereof.

Holders of concessions or licences for the same purpose as above, issued for an unlimited period of time, shall have one year from the date of publication to conform with the provisions of this law and, when a licence is required, shall make a new application to the relevant authority.

 

V - Staff currently under the authority of the telecommunications minister which are required to carry out the functions conferred upon the telecommunications regulatory authority shall be transferred to the latter.

 

VI - The schools responsible for public sector higher education in telecommunications shall be regrouped as of 1 January 1997 into one or several government owned public establishments. Each of these establishments shall be administered by a Board of Directors composed of government representatives, qualified persons and elected representatives of the teaching staff, other personnel and students.

As of 1 January 1997 the contractual employees of France Télécom which participate in the public service missions relating to higher education in telecommunications shall be put at the disposal of this (these) establishment(s) under conditions set forth in an agreement. As of 1 January 2001 the contractual employees participating in these missions, and the contracts concluded between the personnel and the above-mentioned establishment(s) which are in force at this date shall be transferred to the establishment(s). The latter may recrute contractual staff under public or private law for an undetermined period. A State Council decree shall set forth the procedures for implementing this paragraph and shall specify the missions, organisation and operating conditions of the establishment(s).

The assets, rights and obligations required by the entities responsible for the public service missions of higher education in telecommunications shall be transferred to the abovementioned establishment(s) as of 1 January 1997. A decree issued by the ministers for the economy and for telecommunications shall set out the list of assets, rights and obligations concerned as well as, where appropriate, the entities to which they are assigned.

The transfer of assets, rights and obligations undertaken in accordance with this paragraph shall be carried out free of charge and shall not be grounds for the levying of duties or taxes nor for the payment of salaries or fees.

 

 

Art. 23.

A specific report on the actual coverage achieved, the roll-out schedule and the general operation of mobile communications shall be submitted by the Goverment to Parliament, following the opinion of the telecommunications regulatory authority and the public service commission for posts and telecommunications, before 1 October 1997.