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PR(99)21: The EFTA Surveillance Authority requests Norway to ensure proper separation between regulatory functions and ownership functions within its telecommunications sector

30.9.2002

The EFTA Surveillance Authority has on 8 December 1999 sent a reasoned opinion to Norway for failing to comply with EEA rules in the field of telecommunications, in particular the Telecommunications Services Directive (90/388/EEC) and the ONP Framework Directive (90/387/EEC) as amended by Directive  97/51/EC.

The present case originates from a complaint alleging that the Norwegian telecom-munications regulatory system is not in compliance with the independence requirement in Article 7 of the Telecommunications Services Directive.

The Norwegian Ministry of Transport and Communications is presently the owner of the Norwegian telecommunications operator Telenor.  The same Ministry is also the appeals body for certain decisions taken by the Norwegian Post- and Telecommunications Authority in individual cases, as well as being vested with certain regulatory functions.

The Authority sent on 24 March 1999 a letter of formal notice to Norway, stating that the present Norwegian regulatory regime was not in compliance with the independence requirement set out in two of the Directives in the telecommunications sector.  Norway was invited to state its view on the matter, and replied to the Authority on 10 June.  The Authority has reviewed the reply from the Norwegian Government, and concluded that its concerns have not yet been rectified. In the Authority's view the position of the Ministry of Transport and Communications is incompatible with the requirements of Article 7 of the Telecommunications Services Directive and Article 5a of the amended ONP Framework Directive.  These provisions stipulate that national regulatory authorities in the field of telecommunications shall be legally distinct from and functionally independent of all operators providing telecommunications networks and services.  If an EFTA State retains ownership of a telecommunications operator, a structural separation between ownership functions and regulatory functions shall be ensured. As regards decisions taken by the regulator in individual cases, the right of appeal to an independent appeals body shall also be ensured. 

In the view of the Surveillance Authority, the merger between Telenor and Telia AB of Sweden, or the announced Initial Public Offering following the merger, does not remove the problems of the Ministry's role, as the Ministry of Transport and Communications will still have considerable influence over the merged company as well as continued interest in its financial well-being both before and after the merger and the IPO.

Norway has been invited to comply with the reasoned opinion within three months upon receipt.  In the light of the response to the reasoned opinion from the Norwegian Government, the Surveillance Authority will consider whether to bring the matter before the EFTA Court.

For further information please contact Mr. Peter Dyrberg (Legal and Executive Affairs Directorate), telephone (+32)2 286 18 30.




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