EML’s position as a wholesale operator and the characteristics of the respective provision are deserving of more in-depth analysis.
In fact, EML is still in an early stage, searching potential partnerships with national service providers so as to ensure the provision of its services, as for this reason this Authority does not yet know how the service will be provided to end users, in the allocated frequencies. However, under ECL (articles 108 and 109), ANACOM is entitled to request from EML all information related to its activity, and this company must provide such information within the time limits, and in the form and to the level of detail required by the Regulatory Authority, the requests of which must be proportional and duly substantiated. This information duty, which in fact EML, informally and on its own initiative, immediately undertook to fulfil, will allow the Regulatory Authority to monitor the development of EML’s business partnerships, as well as how retail services will be provided, albeit indirectly.
Retail service providers are also necessarily bound to the general authorization regime, being required to declare their activity to ANACOM.
The fact that EML aims only to provide a wholesale offer is thus not considered to be a deterrent factor for the award of a RUF. On the one hand, Decision No 626/2008/EC, as regards the supply of MSS in the territory of Member States - last milestone to be met, under paragraph 2b) of article 7 of the Directive - establishes that the applicant shall provide clear evidence that it is effectively providing the continuous commercial MSS within the territories of the Member States. A wholesale offer is undoubtedly a commercial offer. On the other hand, ECL does not prevent the award of a RUF for an exclusively wholesale provision of electronic communications services.
Moreover, EML intends to use the same business model in all Member States, holding already, according to the information provided by the company, authorization to provide services in 26 of these countries, a factor which must be taken into consideration, given that this is a pan-European service.
In this context, a RUF is awarded for the purpose of the wholesale activity declared by EML, and this is reflected in general conditions that apply to the respective activity. Where EML wishes later to commmence the provision of retail services, it must inform ANACOM of this intention, and comply with the procedures provided for in article 21 of ECL.
