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INTERNODIUM - Pismo EU upuceno Djindjicu povodom Zakona o TK

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icon INTERNODIUM - Pismo EU upuceno Djindjicu povodom Zakona o TK11.02.2003. u 22:18 - pre 214 meseci
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[mod's note: sledi OCR-ovan tekst originalnog pisma Evropske komisije upuæeno premijeru Ðinðiæu povodom procesa koji je pratio izradu novog Zakona o telekomunikacijama. Šef Evropske komisije u Beogradu upozorava premijera u propratnom pismu da predlog nije u skladu sa regulativom EU i STO. U pismu se takoðe naglašava da je EU više puta upuæivala komentare na predloge Zakona o telekomunikacijama, ali da nadležno ministarstvo te primedbe nije ozbiljno uzelo u obzir (zapravo, navodno su sve primedbe uzete na razmatranje, ali do izmena na kljuènim mestima zakona oèito nije došlo, tako da ljudima iz EU nije jasan stav naše vlade u vezi sa njihovim primedbama). --sloba]


Delegation of the European Commission
in the Federal Republic of Yugoslavia

Belgrade, 30 October, 2002
Ref: 1006/02

Prime Minister
Republic of Serbia
Nemanjina 11

Dear Prime Minister,

Thank you for our brief meeting earlier this week. As we agreed, I attach bullet points which summarize the difficulties we see with the current draft of the Serbian Law on Telecommunications. We are convinced that if these issues are not addressed, e.g. amended, opportunities for the telecommunications sector in Serbia to attract investments and develop already during the period that the monopoly is in force, would get lost.

As promised, Mr John Beale, Commission's telecommunications expert from DG INFSO has prepared comments on the most important aspects where amendment is required in order for this to be considered as a fair first step towards EU compatibility. We also refer to the detailed article-by-article comments already provided in the SCEPP report (Sept 2002).

We understand and agree with the Serbian policy of passing a new telecommunications law as soon as possible, in order that the current operational environment can be effectively regulated. However, we must express our concern that the current draft of the law that we have recently reviewed (dated 30.07.2002) still has substantial problems of EU compatibility, and we are also informed that it would not be suitable as a basis for WTO accession.

We have, several times, submitted detailed written comments to the Serbian Ministry of Transport and Telecommunications. Although according to information we have received our comments have now been taken into account, it is by no means clear to us to what extent this is the case.

Therefore, we would greatly appreciate a clear response from the responsible Serbian authorities.

We remain at your, and their disposal, for any further clarification, and can only repeat our request that our earlier and present comments should be seriously considered by your experts, making reference to relevant EU directives.

Yours sincerely,

Acting Head of Delegation

* * *

Date: 30 October 2002

Serbian Telecommunications Law (30.07.2002)

Institutional Arrangements need to be reviewed:

- the Ministry should be given responsibility for proposing policy, developing and proposing primary laws and passing secondary laws; resolving conflicts is the responsibility of the regulator; the telecomms development fund should not be funded by operators,

- In view of Telekom Serbia's influence on the legislative process, there is a need to take a decisive step towards ensuring the independence of regulatory and ownership issues, and to build in safeguards to ensure that the government can ensure this.

- The powers of the Council need to be reinforced in order to require the provision of information from operators, and operators should be obliged by law to provide such information (needed for transparency).

Universal Service should be unambiguously defined in the Law; the provision to cross subsidise the monopoly operator should be removed. For the period after the monopoly, a competitive procedure for identifying the operators with Universal Obligation should be identified and reimbursement should be made taking into account nett costs.

There is no transposition of Directives on Data Protection, Consumer Protection, Unbundling of the Local Loop. Carrier Selection and Pre-selection service requirements are not defined.

The Law should require that SMP operators publish a minimum offering of Leased Lines covering the whole country along with terms and conditions.

There should be a right and an obligation on all operators to interconnect and to provide Access. The Reference Interconnect Offer(s) should be published and rates and quality must not be less favourable than that provided for its own like services.

The Licencing regime is too heavy especially for new market entrants and small operators (ISPs). EU legislation puts a maximum specified set of conditions which may be used in a licence and these may only be applied if justified; the Serbian Law established a minimum list of conditions.

The requirement to have a permit for each radio station in a radio network is too bureaucratic and has no counterpart in EU law. This method of controlling interference should be replaced by the standard method used in the EU (of monitoring) in which all republics of ex-Yugoslavia have considerable experience.

For WTO compatibility a distinction needs to be made between basic, and value added services. This needs to be applied in relevant paragraphs of the Law.


These comments are made against a version of the Law dated 29 Jul 2002 handed to the Commission services by Mr Djindic's Cabinet on 29 Oct 2002.

1. It is not clear that the respective responsibilities of the Federal and Serbian authorities especially on numbering and frequency issues have been defined. Effective liaison is needed which merits special Articles in the Law which should be mirrored in the federal and Montenegrin Laws. For example there will be a need in the future to revise the numbering plan and the mechanism for achieving this with the Federal Authorities should be defined. An effective coordination mechanism on frequency matters is required between the Federal, Montenegrin and Serbian authorities.

2. The international community and the EU have developed standard "Definitions" for use in telecomms regulatory documents. Some definitions in this draft law are different for no obvious reason.

3. A fundamental concept of EU law is that regulatory authorities should be independent from ownership interests. Mr Hiber is both the chairman of the drafting committee and chairman of the Parliamentary legislative committee. This suggests that a defensive position should be taken in order to ensure the necessary independence. In particular:

- Board members of the Council should not have been paid employees or have received any remuneration from telecomms operators in Serbia for some years (say 3 years).

- Candidates for the Board should be chosen from a public competition rather than by Appointment.

- Since the independence of the authority also makes it difficult to get rid of it in case it is captured by a Party for his own interests, it is suggestedthattheperformanceoftheCouncilandthe implementation of the Law should be reviewed by June 2005 with the power in the Law to take any necessary corrective action. This wouldbe a strong sign toinvestors that the government is absolutely committed to establishing the credibility of the Council as an INDEPENDENT Regulatory Authority.

4. The Ministries responsibilities should be reviewed to make the Ministry responsible for proposing policy and for preparing Laws and amendments of Laws for submission to government. The Ministry should be responsible for passing secondary legislation.

5. Article 6(5} should not be a responsibility of the Ministry, rather that of the NRA. The Law does not give the powers to the Ministry to arbitrate in such matters effectively. In EU Law such matters are the responsibility of the NRA.

6. The requirement to establish a telecomms development fund has no counterpart in EU legislation. If this is funded from operator's contributions in some way this can only be an unnecessary burden on the sector which is likely to deter market entry.

7. Article 6(4) should be removed. EU Law defines the list of services to be part of Universal Service and this has been stable for some years and will be reviewed only after some time. There is no obvious reason not to define this list of services in the Law.

8. Article 8(2) adopts an objective for the Council which could well be impossible. The Council should be able to prescribe the conditions taking into account the positions of both Parties and according to well defined criteria. In many cases it will be impossible that the conditions imposed would be acceptable to both "Parties".

9. Article 8(10) should require the Council to set tariffs only for SMP operators.

10. Article 9(3) seems to be incompatible with Article 13(4). This is one example where provisions in one Article of the law seem to contradict or be inconsistent with other Articles of the Law. This undermines legal certainty. There are a number of others.

11. Articles 17 and 18 do not provide the Council with powers to require operators to supply information. This is a fundamental aspect of EU Law. It does not require a legal provision to authorise an NRA or any other person to "request" information.

12. Article 21(4) should be replaced by a general provision which ensures separation of companies holding a monopoly or having SMP into entities with separate business interests thereby making cross subsidisation difficult. Such companies must then operate with non-discrimination and transparency with respect to all other companies including its own subsidiaries.

13. Article 21(6) should be expressed in terms of the EU concept of a "Reference Interconnection Offer".

14. Article 21 paragraph 1 and Article 21(9) are responsibilities belonging to the competition authority according to EU law.

15. Article 22 should not allow for amendment or revocation of a Decision. It should be required to consult all Parties adequately before making a Decision, which can then be subject to Appeal.

16. There are no Data Protection provisions in the law.

17. Under the heading of Data Protection (Chapter II) access to private information does not have the strict control provided for in ED Directives (only allowed after Court Order from relevant authority). Access by all other Parties (e.g. operators) should be forbidden.

18. The Licencing regime is too heavy especially for small operators and market entrants. EU law provides for a maximum set of licencing conditions and each is subject to being necessary for the service in question. The Serb Law seems to specify a minimum of conditions. There is no need to define the duration of an Authorisation (Article 32 paragraph 5). The Licencing Regime should be declared to be objective, transparent and non-discriminatory.

19. Article 21 is unnecessarily vague concerning the way in which SMP operators are defined. This is covered in the definitions. It remains only for the Council to ensure that there SMP status is notified publicly.

20. Article 21(5) and Article 40 should establish the right and the obligation of operators to interconnect.

21. Access is not treated in the Law.

22. Article 42 Para 3 is an example where the transparency should automatically be provided by the operator rather than placing an obligation on the operator to publish information at the request of the Council. There are other such cases (e.g. the Reference Interconnection Offer should be PUBLICLY AVAILABLE).

23. The definition of Universal Service does not incorporate the concept of "affordable" price. Article 43 should define Universal Service. Article 44(2) - There should be NO cross subsidisation of a monopoly operator.If the Universal Fund is established for the period after the end of the monopoly there is no need to confer a national US obligation on Telekom Serbia. EU Law requires that the choice of the US provider should not be anticompetitive. Finally if the US Fund is established the concept of nett cost needs to be introduced. Article 45 sometimes refers to operator and others to operators. This gives rise to confusion as to the intention of the Law.

24. Article 46 should delete the need for a special "contract". Telekom Serbia should be obliged to make a minimum set of Leased Lines available nationwide and to publish the conditions for their leasing (Universal Service for Leased Lines). It should be noted that if TS cannot supply the business interests of a company will be blocked. It would be reasonable to allow a company to install its own line if TS refuses to supply for any reason.

25. Article 47 refers to Access in an Article referring to Leased Lines. Access is a subject in its own right but there does not seem to be Articles to cover Access.

26. Article 57 imposes licencing restrictions on operators of radio stations which are too heavy. There is no counterpart in EU law.

27. Article 48 imposes an obligation to use "compatible" programmes. There is no counterpart in EU Law.

28. Article 49 should require operators to publish their Annual Financial Reports.

29. Article 86 provides little consumer protection. These provisions fall far short of provisions in EU law.

30. The Commission has not been provided with a copy of the Contract establishing exclusive rights for Telekom Serbia. However, as a general principle these exclusive rights should not be extended by the Law either in scope or in time. In addition if call back services are not excluded in the Contract, the final phrase of Article 102 paragraph 3 should be deleted.

31. Article 103 (1) should be incorporated into general Article (s) on Access. Article 103{2) should require cost based tariffs immediately.

32. The penalty on Telekom Serbia identified in Article 105 of withdrawing the licence are impossible socially to impose. This whole Article has no counterpart in EU law and should be deleted.

33. The Law defines in some way carrier selection and carrier pre-selection; the numbering plan requires that number space should make this service technically feasible. There does not seem to be a requirement on any operator to make such services available to consumers. Likewise there is no provision for Unbundling of the Local Loop.
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