December 16, 2019

Article 69 of the European Electronic Communications Code Directive (2018/1972/EU) provides that national regulatory authorities can impose obligations of transparency in relation to interconnection or access, requiring undertakings to make public specific information, such as accounting information, prices, technical specifications, network characteristics and expected developments thereof, as well as terms and conditions for supply and use, including any conditions altering access to or use of services and applications, in particular with regard to migration from legacy infrastructure, where such conditions are allowed by Member States in accordance with Union law.

According to Article 4 of the BEREC Regulation (2018/1971/EU), BEREC has to publish guidelines on the implementation of the Union regulatory framework for electronic communications, in particular, on the minimum criteria for a reference offer under Article 69 EECC.

In accordance with Article 69, the guidelines should contribute to the consistent application of transparency obligations. Developing the Guidelines, BEREC has to pursue the general objectives set out in Article 3 of the EECC, having regard to the needs of the beneficiaries of access obligations and of end users active in more than one Member State, as well as to any BEREC guidelines identifying transnational demand in accordance with Article 66 of the EECC and to any related decision of the Commission.

The guidelines explain that obligations of transparency can be of particular relevance in order to ensure and promote non-discriminatory behaviour from market players designated with significant market power. According to Article 69 of the EECC, a requirement to publish a reference offer may in particular be appropriate where an undertaking has obligations of non-discrimination, and the reference offer shall in that respect be sufficiently unbundled to ensure that undertakings are not required to pay for facilities that are not necessary for the service requested.

The guidelines state that the objectives of obligations of transparency of terms and conditions for access and interconnection, including prices, are, according to Recital 182 of the EECC, to speed up negotiations, avoid disputes and give confidence to market players that a service is not being provided on discriminatory terms. Furthermore, openness and transparency of technical interfaces can be particularly important to ensure interoperability.

The minimum criteria for a reference offer covered by the guidelines are:

• terms and conditions for the provision of network access;
• details of operational processes;
• service supply and quality conditions; and
• general terms and conditions of the agreement.

To access the guidelines, click here.