The Intra-EU Communications (EU Regulation) Regulations 2019

Document Number:2019 No. 980
Coming into force:Coming into force on the 30/06/2019
 
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Statutory Instruments

Electronic Communications

Made

3 rd June 2019

Laid before Parliament

4 th June 2019

Coming into force

30 th June 2019

The Secretary of State makes these Regulations in exercise of the powers conferred by section 2(2) of the European Communities Act 1972(1).

The Secretary of State has been designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to electronic communications(2).

Citation, commencement, saving and interpretation

  1. —(1) These Regulations may be cited as the Intra-EU Communications (EU Regulation) Regulations 2019 and come into force on 30 th June 2019.

    (2) These Regulations cease to have effect immediately before the end of 14 th May 2024.

    (3) In respect of any breach or alleged breach of Article 5 a or of these Regulations occurring before these Regulations cease to have effect, these Regulations continue to have effect as if paragraph (2) were omitted from them.

    (4) In these Regulations—

    “Article 5 a” means Article 5 a of the EU Regulation as inserted by Article 50 of the BEREC Regulation and, with respect to penalties applicable to infringements of Article 5 a and necessary measures, this includes reference to Article 6 of the EU Regulation as amended by Article 50 of the BEREC Regulation.

    “BEREC Regulation” means Regulation (EU) 2018/1971 of the European Parliament and of the Council of 11 th December 2018(3);

    “OFCOM” means the Office of Communications as established by the Office of Communications Act 2002(4);

    “EU Regulation” means Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 th November 2015(5) , as amended by the BEREC Regulation.

    National Regulatory Authority

  2. —(1) OFCOM is the national regulatory authority for the purposes of Article 5 a.

    (2) References in these Regulations to OFCOM’s functions under Article 5 a should be read accordingly.

    BEREC guidelines

  3. In performing its functions under the EU Regulation and these Regulations, OFCOM must take due account of all applicable guidelines issues by the Body of European Regulators for Electronic Communications in accordance with Article 5 a (6).

    Information requirements

  4. —(1) OFCOM may require a person falling within paragraph (2) to provide them with such information as they consider necessary for the purpose of carrying out their function under Article 5 a and these Regulations.

    (2) Any person who appears to OFCOM to have information required by them for the purpose of carrying out their functions under Article 5 a and these Regulations is a person falling within this paragraph.

    (3) A person required to provide information under this regulation must provide it in such manner and within such reasonable period as may be specified by OFCOM.

    (4) OFCOM are not to require the provision of information under this regulation except—

    (a) by a demand for the information that describes the required information and sets out OFCOM’s reasons for requiring it; and

    (b) where the making of a demand for the information is proportionate to the use to which the information is to be put in carrying out OFCOM’s functions.

    (5) A demand for information required under this regulation must be contained in a notice served on a person from whom the information is required (an “information requirement”).

    Notification of breach

  5. —(1) Where OFCOM determine that there are reasonable grounds for believing that a person is breaching or has breached an obligation under Article 5 a or these Regulations they may give that person a notification under this regulation.

    (2) A notification under this regulation is one which—

    (a) sets out the determination made by OFCOM;

    (b) specifies the obligation and the breach in respect of which that determination has been made;

    (c) specifies a reasonable period during which the person notified has an opportunity of making representations about the matters notified;

    (d) to the extent that the notification relates to an information requirement, specifies the information to be provided by the person to OFCOM in order to comply with the requirement;

    (e) to the extent that the notification relates to an obligation which is not an information requirement, specifies the steps that OFCOM think should be taken by the person in order to—

    (i) comply with the obligation; and

    (ii) remedy the consequences of the breach; and

    (f) specifies any penalty which OFCOM are minded to impose in accordance with regulation 7.

    (3) A notification under this regulation—

    (a) may be given in respect of more than one breach; and

    (b) if it is given in respect of a continuing breach, may be given in respect of any period during which the breach has continued.

    (4) Where a notification under this regulation has been given to a person in respect of a breach of an obligation under Article 5 a or these Regulations, OFCOM may give a further notification in respect of the same breach of that obligation if, and only if—

    (a) the breach is one occurring after the time of the giving of the earlier notification;

    (b) the breach is a continuing breach and the subsequent notification is in respect of so much of a period as falls after a period to which the earlier notification relates; or

    (c) the earlier notification has been withdrawn without a penalty having been imposed in respect of the notified breach.

    Enforcement of notification under regulation 5

  6. —(1) This regulation applies where—

    (a) a person has been given a notification under regulation 5 (a “notified person”);

    (b) OFCOM have allowed the notified person an opportunity to make representations about the matters notified; and

    (c) the period allowed for the making of representations has expired.

    (2) OFCOM may—

    (a) give the notified person a decision (a “confirmation decision”) confirming the matters referred to in regulation 5(2); or

    (b) inform the notified person that that they are satisfied with the person’s representations and that no further action will be taken.

    (3) OFCOM may not give a confirmation decision to a notified person unless, after considering any representations, they are satisfied that the person has, in one or more of the respects notified, been in breach of an obligation specified in the notification under regulation 5.

    (4) A confirmation decision—

    (a) must be given to the notified person without delay;

    (b) must include reasons for the decision;

    (c) may require immediate action by the notified person to comply with the obligations specified in the notification under regulation 5 , or may specify a period within which the person must comply with those obligations;

    (d) may require the notified person to pay—

    (i) the penalty specified in the notification under regulation 5; or

    (ii) such lesser penalty as OFCOM consider appropriate in the light of the notified person’s...

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