As referred above in point I - 2.3 to 2.12, Cabovisão takes the view that ICP-ANACOM lacks material competence to assess this dispute as its subject does not concern obligations arising from the electronic communications regulatory framework, but rather an option which operators must take in compliance with rules on protection of personal data and privacy.
Paragraph 1 of article 12 of ECL lays down that the cross-border dispute resolution mechanism applies in the event of a dispute arising in respect of the obligations resulting from the regulatory framework on electronic communications between undertakings which are subject thereto and established in different Member States.
This provision transposes paragraph 1 of article 21 of the Framework Directive, which determines that this procedure is applied "in the event of a cross-border dispute arising under this Directive or the Specific Directives between parties in different Member States".
Recital 32 of Directive 2002/21/EC is also very clear, laying down that "In the event of a dispute between undertakings in the same Member State in an area covered by this Directive or the Specific Directives, for example relating to obligations for access and interconnection or to the means of transferring subscriber lists, an aggrieved party that has negotiated in good faith but failed to reach agreement should be able to call on the national regulatory authority to resolve the dispute". This ruling applies also to cross-border disputes, the material scope of application of which coincides with the one defined for disputes between undertakings in the same State.
This implies that the relevant issue for the application of the cross-border dispute resolution procedure is the fact that the conflict concerns a matter governed by the electronic communications framework, especially compliance with sector obligations provided for, by companies subject to them, and the fulfilment of the corresponding rights which the law can grant to companies that do not provide electronic communications networks or services. The dispute under consideration concerns compliance by Cabovisão of the obligation set out in paragraph 4 of article 50 of ECL, which results from paragraph 2 of article 25 of the Universal Service Directive, which is one of the specific directives referred to in the quoted article 21 of the Framework Directive. This obligation falls on companies that assign telephone numbers to subscribers and benefits providers of publicly available directory enquiry services and directories, a category in which EDA is included 1.
It should be remembered that the provision of directories and directory enquiry services is open to competition 2, thus the regime of the Universal Service Directive, on the one hand, gives subscribers the right to have their personal data included in a printed or online directory and, on the other, ensures that all service providers that assign telephone numbers to their subscribers are obliged to make relevant information available in a fair, cost-oriented and non-discriminatory manner, as laid down in recital 35 of the referred Directive.
It is thus clear that the provision in paragraph 4 of article 50 of ECL is not framed within the scope of the universal service. In fact, account should be taken of the fact that article 89, which concerns the universal service directory and enquiry service, lays down on undertakings providing publicly available telephone services specific obligations to transmit information of their subscribers to the universal service provider (cf. paragraphs 2 and 3 of the referred article).
For this reason, the argument that this dispute concerns exclusively rules on the protection of personal data and privacy, and not the electronic communications regulatory framework, must also be rejected, without prejudice, naturally, to the fact that the ECL itself safeguards compliance with such rules (cf. paragraph 5 of article 50).
In the light of the above, it must be concluded that ICP-ANACOM is competent to resolve this dispute.
1 Although the conclusion reached by ICP-ANACOM remains unchanged, it should be referred that, in the letter sent by EDA to Cabovisão in January 2011, the former informs that it is registered as provider of electronic communications services, activity which however is not mentioned in the request for dispute resolution submitted to ICP-ANACOM.
2 Cf. article 5 of Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services.
