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REGULATORY SCORECARD Report on the relative effectiveness of the regulatory frameworks for telecommunications in Belgium, France, Germany, Italy, Ireland, the Netherlands, Spain, Sweden and the United Kingdom By Bernard Amory, Alexandre

  1. V. CORRELATION BETWEEN REGULATORY EFFECTIVENESS AND INVESTMENT AND EMPLOYMENT IN THE TELECOMMUNICATIONS SECTOR.....................................................39 A. C ORRELATION BETWEEN R EGULATORY E FFECTIVENESS & I NVESTMENT PER C APITA ...........................39 B. R ELATIONSHIP BETWEEN I NVESTMENT AND C HANGE IN E MPLOYMENT .................................................40 C. R ESULTS OF R EGULATORY S CORECARD (R ESULTS 2002 & 2004)..........................................................40 CONCLUSION...................................................................................................................................................41 T ABLE OF A NNEXES ANNEX I - BELGIUM........................................................................................................................................1 ANNEX II - FRANCE........................................................................................................................................12 ANNEX III - GERMANY..................................................................................................................................20 ANNEX IV - IRELAND.....................................................................................................................................29 ANNEX V - ITALY............................................................................................................................................39 ANNEX VI - THE NETHERLANDS................................................................................................................48 ANNEX VII - SPAIN..........................................................................................................................................59 ANNEX VIII - SWEDEN...................................................................................................................................68 ANNEX IX - UNITED KINGDOM .................................................................................................................76

  2. I. I NTRODUCTION 1. The purpose of this report is to assess whether the telecommunications regulatory frameworks in selected European countries are effectively applied and enforced to secure certain fundamental objectives. In particular, the report examines whether the regulatory regime in place in June 2002: (i) facilitates the establishment of public telecommunications networks and the provision of public telecommunications services, (ii) encourages investment in telecommunications infrastructure, and (iii) ensures a level playing field for all players to stimulate investment, innovation, and sustainable competitive development. Proper application of this regime should also enhance employment and international competitiveness in these countries and the EU as a whole. With the advent of the new EC framework legislation, the EU telecommunications industry and regulators stand at a critical crossroads. The present review of current effectiveness is therefore particularly timely. 2. This report covers leading economies in the EU: Belgium, France, Germany, Ireland, Italy, the Netherlands, Spain, Sweden, and the United Kingdom. We recognise that this is a wide-ranging report, which will require revision as individual regimes evolve. We would therefore welcome comments from third party operators and national regulatory authorities and others that will allow us to enhance and update the report. Future expansion of the report may include additional Member States, as well as a wide range of non-EU countries. 3. We are particularly grateful for the information provided by BT Ignite in relation to the countries in which it operates and to Houthoff, Bird & Bird, Coudert Brothers, and Schurmann & Grönberg, who supplemented our own research and the research of other third parties (including ECTA, Cullen, and the European Commission). 4. The assessment is based on selected key criteria, including the manner in which the regulator exercises its powers, the availability of access products, the effectiveness of access regulations, and the application and implementation of telecommunications legislation. While these are only some of the many relevant criteria, they provide strong insights into what is necessary to attain the EU's telecommunications objectives. For each of these targeted areas, we have determined objective parameters, which are used to evaluate national legislation and authorities. 5. The report assesses the situation as of June 2002. For most of the relevant criteria, it also attempts to foresee likely changes in the regulatory environment by 2004. These forecasts are based on various sources, including, for example, indications from Ministries or Regulators of planned improvements, or that current failures in implementation reported by the Commission will be addressed. For the majority of the relevant criteria, it is our view that improvements will not occur simply as a matter of evolution, but will require a genuine impetus for reform. In particular, it will require careful implementation of the new EC regime, and steps must be taken to ensure its uniform application across the various EC Member States – something which has been lacking until now, and which has had a marked impact on cross-border investment and the success of the EC regime up to the present day 1 . 1 See Marcus, Scott J., Federal Communications Commission, OPP Working Paper Series, " The Potential relevance to the United States of the European Union's Newly Adopted Regulatory Framework for Telecommunications", at p. 25 : "The new European regulatory regime appears to be both comprehensive and theoretically elegant. Implementation issues might nonetheless significantly -1-

  3. 6. This report first explains the various areas subject to the assessment, the reasons why they were chosen, and their content (Section II). It then describes the methodology used for the assessment (Section III) and applies this methodology in each country reviewed (Section IV). Section IV also presents general conclusions of the in-country assessments and the scoring attributed to the various countries. The scores for each country are based on the replies and comments from local specialists, which are contained in the attached annexes. 7. Part V draws a correlation between the relative regulatory effectiveness scores and the investment and employment levels in telecommunications in each of these countries. There is a clear correlation between the two that highlights the importance of efficient regulation in telecommunications markets. Failures clearly impact competitive forces and critically affect investments in telecommunications 2 . The scores applied to the different countries on the basis of the analysis highlighted below can be graphically depicted as follows: impact its practical effectiveness "; Werner Roeger, " The contribution of information and communication technologies to growth in Europe and the U.S.: A Macroeconomic Analysis ", European Commission DG Economic and Financial Affairs, January 2001; Olivier Boyland, Giuseppe Nicoletti, " Regulation Market Structure and Performance in Telecommunications ", OECD, April 2000. 2 See inter alia Communications Outlook Reports, http://www.oecd.org/. -2-

  4. Report on the effectiveness of national regulatory Negative for Investment/Innovation Source: Beaufort International Limited frameworks and investment impact Neutral/Scope for improvement Positive S eeex p lan atio no f sc o ri n g b elo w Regulator: General Access: Products R egul at or: D i s put e s et t l em ent A cces s : R egul at i on C om pl i ance 2002 2004 2002 2004 2002 2004 2002 2004 2002 2002 2004 -6 -16 Belgium -12 -9 France +2 +6 Germany -6 +4 Ireland -12 -7 Italy -1 5 Netherlands -11 -4 Spain -1 +3 Sweden +15 +16 UK Scoring System: Each category (pie slice) is scored separately. A score in the range of 61% - 80% inclusive is considered neutral (yellow) and scores 0. Anything above scores +1 (green), anything below scores -1 (red). The Compliance column is the only exception (61% - 80% scores 0, but above that scores +4 and below that scores -4). Scores for 2004 Compliance have not been forecasted, as this is not readily predictable, but for the purposes of the total score column, each country is deemed to have scored the same for 2004 as for 2002. The total score column is the sum of all scores for that year. -3-

  5. II. A REAS OF ASSESSMENT 8. The five chosen areas of assessment reflect the main principles set out in the 1996 WTO Reference Paper on Telecommunications, 3 to which the EC is a signatory and which underpins the regulatory regimes in place in the EC, the US, and the majority of the developed countries. In this regard, the first two areas of assessment in this survey pertain to the regulator, its modus operandi and effectiveness. The third relates to the availability and quality of access products. The fourth area deals with the manner in which access rules and regulations are applied. The fifth addresses the application and enforcement of EC telecommunications legislation. A. Effectiveness of the regulator in relation to the exercise of its general powers 9. Many of the regulator's tasks pertain to granting authorisations (services/networks licenses, frequency and number authorisations) and enforcing significant market power (SMP) regulations ( e.g. , ex ante approval of standard interconnection offers, compliance with cost accounting rules, etc.). These functions can differ greatly from the regulator’s role as a dispute settlement body. Therefore, as in the WTO Reference Paper cited above, these two functions are treated separately here. The effectiveness of the regulator is, essentially, a function of its (i) degree of independence, (ii) speed of process, (iii) transparency of activities, and (iv) effectiveness of sanctions and scale of resources. These can be graphically represented as follows: Independence Speed of process Effectiveness of Transparency sanctions & scale of resources B. Effectiveness of the regulator as a dispute settlement body 10. The regulator also fulfils a dispute settlement role in the event of conflicts between operators ( e.g. , in relation to interconnection). Evaluation of the efficiency with which it fulfils its functions can be assessed on the basis of criteria similar to those used to assess its general powers including its (i) degree of independence, (ii) speed in exercising its powers, (iii) respect of due process rules, and (iv) effectiveness of sanctions and scale of resources. This can be graphically represented as follows: 3 For a copy of the reference paper, see www.wto.org. Principles include the prevention of anti- competitive practices in the telecommunications sector by providing that interconnection with a major supplier be ensured at any feasible point of the network, on non-discriminatory terms, on an unbundled basis, and on cost based tariffs. It also mandates an effective dispute settlement procedure overseen by an independent regulator. -4-

  6. Independence Speed of process Effectiveness of Due process sanctions & scale of resources C. The existence and availability of key access products 11. The size and scope of operator networks in the EU vary among networks and across borders. As a general rule, however, new entrants/competitive carriers do not have direct physical connections to all or even the majority of end-users. The scope and scale of alternative end-user infrastructure varies widely, as does its availability to third parties; for example, there is no mandated, EC-wide rule on access to cable infrastructure. Therefore, in order to secure customer access (regardless of whether such access is used for call collection or call termination purposes, data services or their equivalents), new entrants/competitive carriers rely fundamentally on access to other networks, and, in the absence of substitutes, on incumbent networks. This section focuses on assessing the availability and effectiveness of the various access products available from the incumbent. The products highlighted are widely recognised as playing an important role in ensuring competitive markets. Furthermore, it is generally accepted that such products form part of a continuum of services driving investment in alternative networks, innovation, and ultimately, international competitiveness. For example, new entrants may enter a market relying on third party infrastructure to develop a client base and then migrate those customers on to their own network once certain economies of scale have been developed. The availability of key products from monopoly providers, on mandated terms, is crucial to stimulating investment in competing infrastructures. These products/services include: (i) voice interconnection, (ii) partial private circuits (also known as half links, data tails or wholesale leased lines) and leased lines, (iii) local loop unbundling, and (iv) wholesale DSL services. The scoring also recognises any barriers to their effective provision. These services can be graphically represented as follows: Voice Partial private circuits interconnection and leased lines Access to Local loop unbundling wholesale DSL services D. Application of access regulation 12. Given the importance of access issues, the effectiveness of the regulatory framework hinges on the actual application and enforcement of access rules. The application of such access rules can be best assessed by considering the following components: (i) compliance -5-

  7. with cost orientation obligations, (ii) compliance with cost accounting regulations, (iii) the scope of information disclosure allowing private enforcement, (iv) the existence or availability of procedures allowing the effective and timely satisfaction of special or ad hoc access requests and interconnection, and (v) the availability of effective rights of way. These components can be graphically represented as follows: Cost accounting Cost orientation Availability of Availability of rights of way information Effective & timely satisfaction of ad hoc access requests and interconnection E. Compliance with and implementation of EC telecommunications legislation National implementation of the various EC telecommunications directives and regulations has been the engine for liberalisation and regulation in the telecommunications sector. Indeed, application and implementation of these rules at the national level are crucial indicators of the effectiveness of the regulatory framework. This criterion has been objectively assessed on the basis of the number of actions taken against particular Member States by the EC institutions. III. M ETHODOLOGY 13. This section explains the methodology used for assessing each of the areas described in Section II. Generally, each area of assessment is given a combined grade of 100, broken down among the various components. A. Regulator 4 - General functions 14. The respective weight given to each criterion under this section is as follows: independence (30), speed of process (20), transparency (25), and effectiveness of sanctions and scale of resources (25). 1. Independence 15. The independence of the regulator can be assessed, inter alia , on the basis of the potential and actual extent of political intervention, the duration of office of NRA management, grounds for removal, and eligibility requirements for appointments. The clarity of objectives given to the NRA may also have some influence on NRA independence and its 4 Also referred to hereafter as the "NRA". -6-

  8. relative effectiveness. The grading scale applied reflects the respective importance of these criteria. 16. Political influence is the most direct means of influencing the regulator. The mere possibility of political intervention may put the regulator under pressure. Such pressure is likely to increase when the political authority overlooking the regulator is also responsible for a wholly or partially government-owned telecommunications entity (for example, as is the case in Germany). Indeed, it cannot be overlooked that in most EU countries, the telecommunications environment is still characterised by existing or former government- owned dominant enterprises. In many of these countries, liberalisation has only been in place for approximately 3-4 years. Nonetheless, it is undeniably difficult to objectively quantify the influence on NRAs of factors such as government ownership of the incumbent telecommunications operator. Other criteria such as the duration of appointments also affect regulator independence, although to a substantially lesser degree than the preceding criterion. The following weighting is therefore applied. Criteria Weight Comments Absence of intervention from 0 to 12 +12 if no likelihood of interference political authority other than through removal 0 if likelihood of interference or evidence of same Duration of office of NRA 0 to 3 A duration of 5 years is taken as a reference: management +3 if duration exceeds or is equal to 5 years 0 if duration below 5 years Grounds for removal of NRA 0 to 5 +5 if for fraud or serious fault or equivalent management 0 if for general interest reasons Eligibility requirements for NRA 0 to 5 +5 if conditions maximising quality, specialisation and management independence 0 if no conditions foreseen Objectives given to NRA 0 to 5 +5 if clear objectives 0 if conflicting or no objectives given 2. Speed of process 17. One of the best ways of assessing efficiency is to evaluate the speed at which the regulator delivers necessary authorisations. The process for reviewing and approving standard interconnection offers, as well as the average time for negotiation of new services by new entrants are also good indications of a regulator’s efficiency and/or its resources. The speed of process and the respect of and existence of transparent, defined timeframes are both critical to encouraging investment and competitive market entry. -7-

  9. Criteria Weight Comments Average timeframe for obtaining 0 to 5 + 5 for two best countries reservation of numbers +4 for two second best countries +1 for two subsequent countries 0 for three worst countries Average timeframe for reviewing 0 to 5 +5 for two best countries standard interconnection offers, assessed over the past three years +4 for two second best countries +1 for two subsequent countries 0 for three worst countries Average timeframe for negotiation of 0 to 10 +10 for two best countries new interconnection services by new entrants +8 for two second best countries +4 for two subsequent countries 0 for three worst countries 3. Transparency 18. The transparency of a regulatory regime is contingent on the regulator's obligation to: (i) make public consultations prior to deciding on issues of general interest, (ii) effectively explain the details underlying its decisions, and (iii) publish them upon their adoption. Furthermore, the existence and publication of a “management plan” ( i.e. , a forward-looking plan setting out regulatory priorities on, for example, an annual basis) also ensures higher transparency of regulatory activities. These factors all benefit investment, which requires clear and transparent rules and outcomes. Criteria Weight Comments Recourse to public consultation 0 to 5 +5 if general obligation to use public consultation Intermediate score if occasional recourse to public consultations on ad hoc basis 0 if no practice of recourse to public consultations and no legal requirement for same Explanation of details underlying 0 to 10 Scoring dependant on the scope of the obligation to issue decisions and effectiveness of appeal in reasoned decisions and the quality of the arguments event of failure to provide detailed developed and disclosed explanation General obligation to publish all 0 to 5 +5 if obligation exists as a matter of general decisions administrative law or legislative requirement Intermediate score if self-imposed obligation which is -8-

  10. generally complied with 0 if no such obligation exists Existence of management plan 0 to 5 +5 if there is a public management plan Intermediate score if some statement of objectives in “after the event” annual report 0 if no public management plan 4. Effectiveness of sanctions and scale of resources 19. The effectiveness of a regulator is also a function of the powers entrusted to it, its ability to recruit a sufficient number of competent personnel, as well as its access to outside expertise, where needed. It should be noted, however, that the number of personnel cannot be used as an absolute reference. Indeed, some NRA functions are purely technical or not within the ambit of economic telecommunications regulations ( e.g. , spectrum management). Therefore, personnel in these areas should not be taken into account for the purpose of assessing the headcount of the NRA's workforce effectively available to fulfil regulatory functions. Consideration is also given to relative workloads and any delays due to lack of resources. Criteria Weight Comments Total number of employees used for 0 or 5 Scores have been given on a scale of 0 to 5 depending general regulatory issues (excluding on the number of staff that can effectively be used for frequency and numbering management) market regulation purposes (excluding technical aspects such as numbering and frequency management). This grade scale is broken down into an objective parameter (up to 3 points) depending on the total number of employees (a maximum grade of 3 points is awarded to countries with more than 30 staff members) and a subjective parameter (up to two points) factoring in an assessment as to whether the NRA has sufficient resources to adequately perform its role. Existence of procedures for selecting 0 to 2,5 +2,5 if control over selection criteria by NRA employees 0 if no control over selection criteria by NRA +10 if possibility of imposing effective sanctions 5 Effectiveness of sanction powers 0 to 10 0 if no possibility of imposing sanctions Powers of regulator defined by law 0 to 2,5 +2,5 if powers are clearly described 0 if not clearly described Salaries and benefits able to attract and 0 to 2,5 +2,5 if able to attract and retain key staff retain key staff – in particular, pay and 0 if not able to benefits commensurate with external market Access to outside expertise 0 to 2,5 +2,5 if access and sufficient resources for outside expertise 0 if no access 5 Including, inter alia , effective fines or interim measures ( e.g ., the ability to suspend commercial launch of services) in case of failure to comply with regulatory obligations. -9-

  11. B. Regulator - Dispute settlement 20. The respective weight given to each criterion in this section is as follows: independence (25), speed of process (25), due process (25), and effectiveness of sanctions and amount of resources (25). NRAs differ greatly in their ability to impose effective sanctions to ensure the enforcement of their decisions. The ability to mandate and enforce its decisions, as well as the use of sanctions, is ultimately the key criterion for measuring the effectiveness of the regulator acting in the capacity of dispute settlement body. 1. Independence 21. The main criterion for assessing independence is the absence of intervention, actual or potential, from political authority. The following table is self-explanatory. Criteria Weight Comments Absence of intervention from political authority 0 to 25 +25 if no possibility of intervention 0 if possibility of intervention or evidence of same 2. Speed of process 22. The main criterion for assessing the speed of process is the average timeframe for obtaining a decision 6 . The possibility to impose interim measures is also pertinent. Criteria Weight Comments Average timeframe for obtaining a 0 to 15 Determined average timeframe for obtaining a decision decision over the past two years: +15 for two best countries +10 for two second best countries +4 for two subsequent countries 0 for three worst countries Possibility to impose effective interim 0 or 10 +10 if possible measures 0 if not possible 6 The ITU also advocates in favour of this criterion. See ITU, " Trends in Telecommunication reform 2002: effective regulation ", document 58-E, January 2002. -10-

  12. 3. Due process 23. The main criteria for assessing due process and procedures are the extent to which parties are given the right to be heard and the possibility to appeal NRA decisions. Criteria Weight Comments Right to respond / access to documents 0 to 13 +13 if general obligation to communicate documents to other parties 0 if no general obligation to communicate documents to other parties Availability of appeal procedures 0 to 12 +12 if decisions can be appealed on the merits Intermediate score if judicial review but no appeal 0 if no appeal/judicial review 4. Effectiveness of sanctions and scale of resources 24. The main criteria for assessing effectiveness under this heading are the ability of NRAs to impose appropriate sanctions ( e.g. , fines, suspensory powers, or periodic penalty payments) and to enforce their own decisions. Automatic suspension of an NRA decision following appeal can also seriously limit NRA effectiveness as a dispute settlement body. This can lead to inappropriate use of appeal procedures or undue delays in applying sanctions or obligations. Criteria Weight Comments No automatic suspension following appeal 0 or 5 +5 if no suspension 0 if suspension Effectiveness of sanction powers 0 to 10 +10 if right to impose fines or periodic penalty payments or to suspend particular conduct, and the effective use of these powers 0 if no right to impose fines or periodic penalty payments, no suspensory powers, or no effective use of these powers Power to enforce decisions 0 to 10 +10 if power to enforce decisions 0 if no power to enforce decisions C. Key access products 25. The respective weight given to criteria for key access products is: voice interconnection (25), partial private circuits and leased lines (35), local loop unbundling (15), -11-

  13. and access to wholesale DSL services (25). The ability to obtain ad hoc access services is an additional important feature also taken into account. 1. Voice interconnection 26. Among the access services, NRAs are probably most familiar with voice interconnection. Leaving aside the specificity of each standard interconnection offer, which may vary from country to country ( e.g. , in relation to forecasts, implementation timeframes, etc.), the key differentiating factors are (i) tariffs, (ii) the existence of a detailed cost orientation model, and (iii) the possibility for operators to negotiate alternative access products not explicitly provided for in the standard reference interconnection offer. The existence of an effective Service Level Agreement ("SLA") is also relevant. With these factors in mind, the following weighting is applied. Criteria Weight Comments Comparison of level of interconnection tariffs 0 to 10 Grades applied on the basis of the level of tariffs for single transit call termination (on a scale of 0 to 10, 10 being awarded to the lowest and 0 to the highest tariffs.) Intermediate grades have been given depending on the level of the tariff in comparison with the lowest and highest tariffs Existence of a detailed cost orientation model 0 to 5 +5 if detailed cost orientation model exists and publication of key parameters Intermediate score depending on level of details of cost orientation model and publication of key parameters 0 if no detailed cost orientation model Availability of standard procedure for 0 to 5 +5 if such procedure exists negotiation of new services 0 is no procedure exists Existence of effective SLA 0 to 5 +5 if effective SLA 0 if no SLA 2. Leased lines and partial private circuit (data tails / wholesale leased lines) offers 27. Wholesale partial private circuit ("ppc") offers from the incumbent are still not available in all countries, despite the mandate under EC telecom rules 7 , or where they do exist the restrictions on their use are such as to make them impractical and/or discriminatory. It is therefore an important distinguishing factor between different countries. Leased lines and partial private circuits are key factors for connecting predominantly commercial customers to 7 See EC Directive 97/33 of 30 June 1997 on Interconnection in Telecommunications with regard to Ensuring Universal Service and Interoperability through Application of the Principles of Open Network Provision, O.J., 26.7.97, L199 which mandates the availability of appropriate interconnection offerings (see Articles 6 and 7). -12-

  14. new entrants' networks. Where publicly available, tariffs for such products have also been taken into account. Other elements, such as the existence of an effective SLA or data on provisioning and lead times, are also relevant. Criteria Weight Comments Existence of effective wholesale partial 0 to 15 +2 for published offer for wholesale private lines private circuits ("ppcs") offers +2 for clear migration rules for existing retail circuits, no time limit +1 if more than 50% circuits eligible for migration are/were migrated within 6 months of launch +2 if long run incremental cost ("LRIC") based access pricing for access tails +2 if trunk circuit available on interconnect terms +2 if no restrictions on use e.g. , not tied to end to end ppc provision +2 if ability to share existing interconnect infrastructure +2 if range of interconnect options available e.g. , ISH, CSH, ISH extensions, etc. Comparison of tariffs for wholesale leased 0 to 10 Comparison of tariffs: line offers for 2 Mbits/s on average distance of 2 km +10 for two best countries +8 for two second best countries +4 for two subsequent countries 0 for three worst countries Effective measures to prevent 0 to 5 +5 if public disclosure of provisioning times by discrimination in provisioning for ppcs and the incumbent to prevent internal discrimination leased lines 8 0 if no public disclosure Existence of SLAs for leased lines and 0 to 5 +5 if SLA ppcs 0 if no SLA 3. Local loop unbundling 28. The effectiveness of local loop unbundling as an access product can be measured on the basis of the number of unbundled lines, as compared with other means of delivering broadband/DSL access for both new entrants and the incumbent, e.g ., unbundled lines vs. 8 e.g. , existence of reporting obligations imposed on incumbent operators allowing verification of absence of discrimination. -13-

  15. wholesale DSL lines or unbundled lines vs. incumbent DSL lines. Other criteria for assessment could have included the mean time for connecting new local exchanges and limitations on the technology which can be connected to the copper pairs. However, these issues were critical when local loop unbundling was first implemented, but NRAs in a number of countries have already largely addressed these "operational issues". Therefore, they would not properly reflect the core differences in implementation of national legislation. 29. Therefore, the key criterion for evaluating the effectiveness of a local loop unbundling offer is the number of unbundled lines in comparison with total lines, wholesale DSL lines, and incumbent DSL lines. Scores are given from a maximum of 5 points to the country with the highest percentage of unbundled lines in each category, and then in descending order from 4 to 1 for each subsequent highest scoring country. Countries not in the top 5 in each category score 0. Criteria Weight Comments Number of unbundled lines as a percentage 0 to 5 Score proportionate to number of unbundled lines (see of total lines above) Number of unbundled lines as a percentage 0 to 5 Score proportionate to number of unbundled lines (see of wholesale DSL lines used by non- above) incumbent operators Number of unbundled lines as a percentage 0 to 5 Score proportionate to number of unbundled lines (see of incumbent DSL lines above) 4. Wholesale DSL products 30. The availability of wholesale DSL offers is scored in the following fashion. DSL is an access technology which allows various speeds of access across existing copper infrastructure. It is most common in its aDSL form, which is generally best-suited to consumer or SME use. Other forms of DSL, such as sDSL or hDSL are more suited to commercial requirements. The means of scoring, however, does not require a breakdown by type. In this regard, the scoring mechanism seeks to ascertain the extent to which a wholesale equivalent to an incumbent internal or retail offer is available on the market and the ability of third parties to use such wholesale offering. Future versions of this report will take into account the extent of the roll out of the different technologies among the countries assessed. Criteria Weight Comments Is wholesale offer launched to enable 0 to 5 +5 if wholesale offer is published to enable launch at launch at same time as incumbent retail same time as incumbent retail offer offer 0 if no publication Demonstrably equivalent terms to 0 to 10 +10 only if product offerings are demonstrably incumbent retail arm equivalent for incumbent and new entrant operations 0 if no equivalent terms -14-

  16. No restrictive volume order requirements 0 to 5 +5 if no volume order requirement per site per site 0 if such requirement Access option at nearest ATM node i.e ., no 0 to 5 +5 if access option at the nearest ATM node compulsory ATM backhaul 0 if no such access D. Application of access regulation 31. The various criteria in this category are weighted as follows: cost orientation (30), cost accounting separation (30), availability of information (20), availability of procedures for the satisfaction of specific interconnection requests (15), and the availability of free rights of way (5). 1. Cost orientation 32. The main criteria for assessing the effectiveness of cost orientation are the existence of cost models and the type of cost accounting methodology used. In particular, it is generally recognised that the forward looking long run incremental costs methodology ("LRIC") is the most appropriate methodology for encouraging rapid development of an open and competitive market 9 . Additionally, the regulator's ability to monitor retail tariffs is an important criterion. 33. The methodology for evaluating cost orientation is the following: Criteria Weight Comments Existence of detailed cost model for SMP 0 to 10 +10 if detailed cost orientation model exists and is operators fully published Intermediate score if detailed cost orientation model exists but publication is limited to key parameters 0 if no detailed cost orientation model exists Cost accounting methodology used 0 to 10 +10 if LRIC-based Intermediate score for partial application of LRIC cost accounting methodology 0 in all other instances Power of regulator to seek cost orientation of 0 to 10 +10 if such power exists retail tariffs for SMP operators 0 is such power does not exist or is not exercised 2. Cost accounting separation 34. Most national legislation contains some sort of cost accounting separation obligations. However, in many countries, such legislation is unclear. In a few cases, it is non-existent. 9 See Commission Communication on interconnection pricing in a liberalized telecommunications market, O.J., 19.3.98, C84/3. -15-

  17. Alternately, the mechanisms used are not transparent, preventing third parties from taking effective action to secure the regulatory commitments made by the incumbent or from identifying anti-competitive activities. Generally, the majority of Member States have done very little to actually enforce cost accounting obligations. This is due, to a large extent, to the fact that the applicable EC legislation is substantially lacking in detail. Unfortunately, this is also the case in the new EC framework legislation. Notwithstanding this ambiguity, the EC has been forced to take enforcement actions against a number of Member States in response to the absence of any real rules in this crucial area 10 . The lack of an effective regime has, in particular, hindered proper cost orientated pricing. It has also impeded effective third-party enforcement of the rules (non-discrimination rules in particular). In other words, it is very hard to determine, without the relevant information, if the rules are being broken. In many jurisdictions, even the main parameters used by the NRAs are not known. 35. The assessment of cost accounting obligations is undertaken on the basis of the following criterion: Criteria Weight Comments Effective enforcement of cost accounting 0 to 30 Score based on effectiveness of enforcement of the obligations by regulator cost accounting rules and extent to which pricing is subject to such obligations. See verification notes for further information. 3. Availability of information 36. The availability of information on operator compliance with cost orientation and accounting separation obligations is probably the most essential factor in ensuring the effective application of such obligations. Indeed, information allows competitors to verify compliance with these obligations and facilitates the application of rules prohibiting cross- subsidisation and undue discrimination. In this regard, it is essential that all third parties be informed of the parameters used for assessing cost models. These include, for instance, the number of subscribers, the weighted average cost of capital ("WACC"), and the key for cost allocation between the network's various parts, etc. Also important is the availability of separate published accounts drawn in accordance with cost accounting separation obligations. 37. The criteria for assessing the effective disclosure of information on cost orientation and cost accounting separation are given the following weightings: Criteria Weight Comments Effective disclosure of parameters used for 0 to 10 +10 if assumptions communicated allow third assessing cost accounting ( e.g. , number of parties to understand cost model subscribers, key for cost allocation between network components, WACC) Intermediate score if limited disclosure of parameters 0 if competitors unable to use information communicated for purpose of assessing compliance with applicable regulations 10 e.g., Belgium. -16-

  18. Publication of accounts in accordance with 0 to 10 +10 if information published cost accounting separation obligations 0 if not published 4. Procedures satisfying access requests and interconnection in an effective and timely fashion 38. This criterion is verified on the basis of whether interconnection agreements with the incumbent, or with other SMP operators, provide an effective procedure for negotiating new access services in a timely fashion. An additional factor is based on the existence of a defined timeline for negotiating interconnection agreements. Criteria Weight Comments Defined timeline for negotiation of 0 to 5 Score is a function of the existence and extent of a interconnection defined timeline for negotiation of interconnection Existence of effective procedure for 0 to 10 +10 if such procedure exists negotiation of new access services in a timely fashion 0 if no such procedure exists 5. Rights of way 39. New entrant operators benefit from entitlements to rights of way (in particular, to free rights of way over public land). Conversely, operators suffer from uncertainty over the availability of free rights of way. Criteria Weight Comments Free rights of way 0 to 5 +5 if free rights of way guaranteed by law 0 if no free rights of way or significant uncertainty E. Compliance with and implementation of EC telecommunications legislation 40. The Commission enforces Member States' Community obligations by way of legal proceedings which are referred to the European Court of Justice ("ECJ"). The number of cases commenced or completed by the Commission for Member State failure to implement EU telecommunications directives provides a reasonable indication of national implementation of Community legislation. 41. The EC rules are the building blocks for the move from regulation to effective competition in the EC. Non-application of these rules has a dual harmful effect. First, investors are dissuaded from investing in a country where there is no guarantee that rules are being applied. Second, the failure to implement rules for enhancing the market environment even further hinders investment ( e.g ., by discouraging efficient infrastructure build out, by -17-

  19. slowing the development of suitable interconnection offers, or by shielding unfairly bundled product offerings). These criteria are given the following weight 11 . Criteria Weight Comments Cases decided by ECJ 0 to 25 Score based on number of cases (highest score given to country with lowest number of cases) Cases commenced by the Commission 0 to 25 Score based on number of cases (highest score given to country with lowest number of cases) 11 Scores could not be given for 2004 for this Section since future compliance with the new EC framework is unforeseeable. -18-

  20. IV. I N - COUNTRY ANALYSIS (For detailed responses on particular questions, see annexes ) A. Regulator - General functions 1. Independence Criteria Weight Belgium France Germany Ireland Italy the Netherlands Spain Sweden United Kingdom 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 Absence of intervention 0 to 12 7 9,5 7 7 7 9,5 8,5 9,5 8,5 8,5 8,5 9,5 6 9 9,5 9,5 9,5 10,5 from political authority other than through removal 12 Duration of office of NRA 0 to 3 3 3 3 3 3 3 2 2 3 3 0 0 3 3 0 0 2,5 3 management Grounds for removal of 0 to 5 5 5 5 5 5 5 5 5 5 5 4 4 5 5 3 3 5 5 NRA management 2,5 13 Eligibility requirements 0 to 5 3,5 5 3,5 3,5 5 5 5 5 3,5 3,5 5 5 4,5 2,5 2,5 3,5 3,5 for NRA management Objectives given to NRA 0 to 5 2,5 2,5 5 5 5 5 3 5 5 5 5 5 5 5 5 5 4 5 TOTAL COUNTRY 30 21 25 23,5 23,5 25 27,5 23,5 26,5 25 25 22,5 23,5 21,5 26,5 20 20 24,5 27 12 In the majority of Member States, regulators have formal independence. Nonetheless, the potential for intervention always remains, particularly in the face of sensitive political issues. Therefore, no regulator scores 12 on this criterion. Particular issues arise in countries with continued state ownership of the incumbent, where there is an even higher potential for conflict of interest between government ownership and regulatory intervention. This is particularly the case as intervention may impact the financial value of the incumbent. 13 In theory, appointments are made amongst telecoms experts, but in reality they are subject to political considerations. -19-

  21. 2. Speed of process Criteria 14 Weight Belgium France Germany Ireland Italy the Netherlands Spain Sweden United Kingdom 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 Average timeframe for 0 to 5 2 6 1 week 3 8 6 weeks 8-10 6 to 8 4 obtaining reservation of weeks weeks weeks weeks weeks weeks weeks numbers 5 5 1 1 5 5 4 4 0 0 1 4 0 0 0 0 4 4 Average timeframe for 0 to 5 22 24-32 10 8-12 28 24 36 24-36 N.A. N.A. reviewing standard weeks weeks weeks weeks weeks weeks weeks weeks interconnection offers, assessed over the past three 4 15 years 4 4 0 0 5 5 5 5 1 1 1 1 0 0 0 0 4 Average timeframe for 0 to 10 16 24 24 40 12 16 16 16 16 negotiation of new weeks 17 weeks weeks weeks weeks weeks weeks weeks weeks interconnection services by new entrants 16 4 4 4 4 8 8 0 10 10 10 8 8 8 8 8 8 8 8 TOTAL COUNTRY 20 13 13 5 5 18 18 9 19 11 11 10 13 8 8 8 8 16 16 14 Unless otherwise noted, no changes expected for 2004. 15 Parties may ask the Director General of Oftel to set timescales, which must be equitable. It is notable that Oftel is often the forum in which new complex issues arise for the first time in Europe ( e.g . partial private circuits or flat rate internet access ("FRIACO")). As such, extension times for some resolutions can be expected. Benefiting from Oftel's initial review of new issues, subsequent analysis of similar issues in other jurisdictions may be more straightforward and require a shorter analysis period. Thus, Oftel's scores may unfairly represent its position. BT's interconnection offers are no longer reviewed on a regular basis, but rather when and if a complaint arises (C. 45.2 and C. 48.5 of PTO license), or if the NRA decides to mount an investigation on its own motivation. This reflects (i) the fact that BT interconnection prices are already set on LRIC+EPMU basis (and that BT has an accounting separation system giving Oftel transparent visibility of network components, etc), (ii) the absence of disputes in relation to RIO type products, given that the UK has a long history of interconnection negotiations, and (iii) many of BTs wholesale products are price managed on a RPI-x 'price cap' basis which, once set, ensures that the charges offered are consistent with Oftel's forecast of market conditions over a defined time. The low score thus represents at lack of regular Oftel involvement, and the absence of defined timeframes in the PTO license. The score given may be misleadingly low given Oftel's power to initiate an investigation at any time and to set tight deadlines if required. 16 The scoring methodology could not be followed since 5 countries have the same timeframe of 4 months. Therefore, these countries all received score of 8. 17 New services which Deutsche Telecom ("DT") refuses to offer, tend to be requested on the basis of Section 33 of the German Telecommunications Act ("TKG"). The German telecommunications regulator ("RegTP") has discretion in opening a case under Section 33 and, in certain cases, has shown reluctance to do so. Also, once opened, there is no deadline for reaching a decision. Therefore, the score given may be artificially high. -20-

  22. 3. Transparency Criteria Weight Belgium France Germany Ireland Italy the Netherlands Spain Sweden United Kingdom 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 Recourse to public 0 to 5 3 3 3 3 1 1 3 3 3 3 3 3 3 3 3 3 3,5 18 3,5 consultation Explanation of details 0 to 10 6 6 6 6 8 8 6 7 8 8 8 8 8 8 8 8 7 8 underlying decisions and effectiveness of appeal in event of failure to provide detailed explanation General obligation to 0 to 5 2 2 5 5 5 5 3 4 4 4 5 5 5 5 5 5 5 5 publish all decisions Existence of 0 to 5 3 4 2,5 2,5 0 2 5 5 0 0 2,5 2,5 0 0 0 2 5 5 management plan TOTAL COUNTRY 25 14 15 16,5 16,5 14 16 17 19 15 15 18,5 18,5 16 16 16 18 20,5 21,5 18 No legal obligation, but substantially used in practice. -21-

  23. 4. Effectiveness of sanctions and scale of resources Criteria Weight Belgium France Germany Ireland Italy the Spain Sweden United Netherlands Kingdom 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 Total number of employees 0 or 5 25 30 130 130 <1000 <1000 40 40 <150 <150 75 75 > 100 > 100 30 30 >200 >200 used for general regulatory issues (excluding frequency 0 3 5 5 5 5 3 5 5 5 3 3 5 5 5 5 5 5 and numbering management) Existence of procedures 0 to 2,5 2,5 2,5 2,5 2,5 2,5 2,5 2,5 2,5 1 1 2,5 2,5 2,5 2,5 2,5 2,5 2,5 2,5 for selecting employees Effectiveness of sanction 0 to 10 5 8 5 5 5 5 5 8 5 5 10 10 5 8 10 10 10 10 powers 19 Powers of regulator 0 to 2,5 2,5 2,5 2,5 2,5 2,5 2,5 2,5 2,5 2,5 2,5 2,5 2,5 2,5 2,5 2,5 2,5 2,5 2,5 defined by law Salaries and benefits 0 to 2,5 0 1 1,5 1,5 2 2 2,5 2,5 1,5 1,5 1,5 1,5 1,5 1,5 1,5 1,5 1 2 able to attract key staff Access to outside expertise 0 to 2,5 1 1 2,5 2,5 2,5 2,5 2,5 2,5 1 1 2,5 2,5 2,5 2,5 2,5 2,5 2,5 2,5 TOTAL COUNTRY 25 11 18 19 19 19,5 19,5 18 23 16 16 22 22 19 22 24 24 23,5 24,5 19 Amongst others: fines, suspension of commercial launch, licence suspension or withdrawal. -22-

  24. Regulator - General functions Regulator - General functions Independence Speed of process Transparency Effectiveness of sanctions & scale of resources Belgium France Germany Ireland Italy the Netherlands Spain Sweden UK 21 13 23,5 5 25 18 23,5 9 25 11 22,5 10 21,5 8 20 8 24,5 16 2002 11 14 19 16,5 19,5 14 18 17 16 15 22 18,5 19 16 24 16 23,5 20,5 26,5 25 13 23,5 5 27,5 18 26,5 19 25 11 23,5 13 8 20 8 27 16 2004 18 15 19 16,5 19,5 16 23 19 16 15 22 18,5 22 16 24 18 24,5 21,5 -23-

  25. B. Regulator - Dispute settlement 1. Independence Criteria Weight Belgium France Germany Ireland Italy the Netherlands Spain Sweden United Kingdom 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 Absence of intervention from political authority 20 0 to 25 25 25 25 25 25 25 25 25 25 25 25 25 25 25 25 25 25 25 2. Speed of process Criteria 21 Weight Belgium France Germany Ireland Italy the Netherlands Spain Sweden United Kingdom 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 Average timeframe for 0 to 15 16 12-20 10 12-24 12 8-16 6-12 16 12-24 weeks 23 weeks weeks weeks weeks weeks 24 weeks weeks weeks obtaining a decision 22 10 25 4 4 4 4 15 15 0 0 10 10 10 15 15 4 4 0 0 Possibility to impose 0 or 10 10 10 10 10 10 10 10 10 0 0 10 10 10 10 0 0 10 10 effective interim measures TOTAL COUNTRY 25 14 14 14 14 25 25 10 10 10 10 20 20 25 25 4 4 10 10 20 In dispute settlement procedures. 21 Unless otherwise noted, no changes expected for 2004. 22 Since three countries have an average of sixteen weeks, all these countries received a score of 4. 23 For interconnection and rates approval procedures, 90% of disputes are settled within 10 weeks, and 10% settle within 6 months. However, RegTP has discretion pursuant to Section 33 TKG as to whether to open a case. In practice, complaints are often not processed, not formally opened or substantially delayed. For instance, BT Ignite brought a complaint against discrimination in the provision of leased lines. Relating to conduct commencing in 2000, BT Ignite made a formal complaint on 18 September 2001. The RegTP only commenced formal proceedings on 4 February 2002 after substantial lobbying by the complainant. 24 The average timeframe differs significantly according to the subject matter of the dispute. 25 This score may improve as OPTA has expressed its intention to expedite decisions. -24-

  26. 3. Due process Criteria Weight Belgium France Germany Ireland Italy the Netherlands Spain Sweden United Kingdom 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 Right to respond/access 0 to 13 13 13 13 13 5 26 5 13 13 13 13 13 13 13 13 13 13 10 10 to documents 10 27 Availability of appeal 0 to 12 6 12 12 12 12 12 10 12 12 12 12 12 12 12 12 10 12 procedures TOTAL COUNTRY 25 19 25 25 25 17 17 23 23 25 25 25 25 25 25 25 25 20 22 4. Effectiveness of sanctions and scale of resources Criteria Weight Belgium France Germany Ireland Italy the Netherlands Spain Sweden United Kingdom 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 No automatic suspension 0 or 5 5 5 5 5 3 3 5 5 5 5 5 5 5 5 5 5 5 5 following appeal Effectiveness of sanction 0 to 10 5 10 10 10 5 8 5 9 10 10 10 10 3 10 10 10 8 10 powers Power to enforce 0 to 10 4 7 10 10 2,5 5 5 9 7 7 10 10 7 7 5 5 10 10 decision TOTAL COUNTRY 25 14 22 25 25 10,5 16 15 23 22 22 25 25 15 22 20 20 23 25 26 Problems in relation to Section 33 of the TKG (see footnotes 18 and 21) also impact on due process because a complaint is not heard sufficiently if the regulator decides not to open a case. 27 Judicial review is available for parties wishing to challenge the manner by which a decision is reached by the Regulator. In addition, some decisions such as those falling under the Irish Licensing and Interconnection regulations can be the subject of an appeal to the Irish Courts. -25-

  27. Regulator - Dispute settlement Regulator - Dispute settlement Independence Speed of process Effectiveness of sanctions Due process & scale of resources Belgium France Germany Ireland Italy the Netherlands Spain Sweden UK 25 14 25 14 25 25 25 10 25 10 25 20 25 25 25 4 25 10 2002 14 19 25 25 10,5 17 15 23 22 25 25 25 15 25 20 25 23 20 25 14 25 14 25 25 25 10 25 10 25 20 25 25 25 4 25 10 2004 22 25 25 25 16 17 23 23 22 25 25 25 22 25 20 25 25 22 -26-

  28. C. Key access products 1. Voice interconnection Criteria Weight Belgium France Germany Ireland Italy the Netherlands Spain Sweden United Kingdom 2002 2004 2002 2004 2002 200 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 4 1,42 29 1,50 30 Comparison of level 0 to 10 1,24 1,23 0,97 1,14 1,03 0,90 0,90 of interconnection tariffs for single 7 31 transit call 4 4 4 4 0 7 7 4 4 7 7 0 0 10 10 10 10 termination 28 Existence of a 0 to 5 2,5 5 2,5 2,5 2,5 2,5 3 4 2,5 2,5 2,5 2,5 2,5 2,5 2,5 2,5 5 5 detailed cost orientation model 2,5 33 Availability of 0 to 5 2,5 2,5 0 0 2,5 32 2,5 2,5 0 0 2,5 2,5 2,5 2,5 0 0 5 5 standard procedure for negotiation of new services 3 34 2,5 35 Existence of effective 0 to 5 5 5 0 0 5 5 3 5 5 5 5 2,5 5 5 5 5 SLA TOTAL COUNTRY 25 14 16,5 6,5 6,5 10 17 15,5 16,5 11,5 11,5 17 17 7,5 7,5 17,5 17,5 25 25 In Eurocents, information as of July 2001 (from 7 th Implementation Report). Prices have fallen subsequently in a number of countries ( e.g., Germany), but this is the 28 most relevant and objective parameter available. Except for countries where there are clear indications that the interconnections tariffs will reduce, the same scores were given for 2004. This reflects a lack of information for a proper assessment of the likely tariffs for this period. It is very difficult to ascertain the likely movements of the tariffs. It may well be the case that the implementation of effective cost accounting models may lead to a reduction in tariffs in these countries. There was a substantial reduction of the level of the interconnection tariffs in Germany after the publication of the 7 th Implementation Report. In January 2002 the 29 price amounted to 0,89 Eurocents. These tariffs have been reduced since the publication of the 7 th Implementation Report. 30 31 EBC pricing from July 2002 is likely to substantially improve German pricing. 32 A standard procedure exists, but is subject to further negotiations with DT. 33 A procedure is available, but ineffective in practice. 34 An SLA is in place, but is not effective. 35 Some quality parameters apply but no ability to enforce effectively or to impose penalties. -27-

  29. 2. Partial private circuits offers and leased lines Criteria Weight Belgium France Germany Ireland Italy the Spain Sweden United Kingdom Netherlands 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 5 36 8 37 Existence of effective 0 to 15 6 15 7 10 5 7 15 2 4 15 8 15 0 15 13 15 wholesale partial private circuit (ppo) offers Comparison of tariffs for 0 to 10 6.247 7.500 4.080 4.571 7.772 13.363 10.625 4.326 4.786 wholesale leased lines offers for 2 Mbits/s on average distance of 2 km 38 4 4 4 4 10 10 8 8 0 0 0 0 0 0 10 10 8 8 4 40 2,5 41 Effective measures to 0 to 5 0 2,5 2,5 2,5 4 4 4 2,5 2,5 2,5 5 5 2,5 2,5 5 5 prevent discrimination in provisioning for ppcs and leased lines 39 2,5 42 5 43 2,5 44 Existence of SLAs for 0 to 5 5 5 0 0 5 2 5 5 5 5 5 5 5 5 5 leased lines and ppcs TOTAL COUNTRY 35 15 26,5 13,5 16,5 21,5 26 19 32 9,5 11,5 15,5 25 13 25 17,5 32,5 31 33 36 In June 2002, the ODTR issued a decision notice on eircom's RIO (ODTR 02/55). As a part of the Decision Notice, the ODTR directed eircom to offer a Wholesale PPC product and further directed that it had to have its PPC proposal formulated by the end of August 2002. 37 Offer only made in June 2002. Its effectiveness is yet to be determined. Prices in Euros per year (7 th Implementation Report). The same scores are given for 2004 as no changes are expected. See also footnote 26. 38 39 Including public reporting of internal provisioning times to allow assessment of any discrimination and contractual/financial compensation for failure to provision in non-discriminatory fashion. 40 Measures are in place for leased lines to calculate delivery times to identify discriminations and sanctions for failure to supply. 41 Obligation to provide data to NRA on the SMP operator, but no ability of other operators to verify. 42 Lacks certain key criteria to ensure full non-discrimination. 43 2004 score reflects SLA's reflective of current leased line provisions. 44 Not enforceable individually by operator and only gives 80% target that does not effectively allow appropriate enforcement by third parties and customers. -28-

  30. 3. Local loop unbundling (ULL) 45 Criteria Weight Belgium France Germany Ireland Italy the Netherlands Spain Sweden United Kingdom 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 Number of unbundled 0 to 5 0,01% 0% 0,2% 0% 0,05% 0,13% 0% 0,04% 0% lines as a percentage of 0,5 3 0 0 5 5 0 1,5 1,5 1,5 3,5 3 0 0 1 0 0 0 total lines Number of unbundled 0 to 5 0,65% 1,57% N.A. N.A. 49,7% 74,12% 0,01% 3,78% 0,33% lines as a percentage of 0 0 0 0 0 0 0 0 3,5 3 5 5 0 0 0,5 2 0 1 wholesale DSL lines used by non-incumbent operators Number of unbundled 0 to 5 0,1% 0,09% 4,35% N.A. 3,02% 6,33% 0% 0,86% 0,12% lines as a percentage of 0 0 0 0 3,5 4 0 3 2,5 2 5 5 0 0 0,5 0 0 1 incumbent DSL lines TOTAL COUNTRY 15 0,5 3 0 0 8,5 9 0 4,5 7,5 6,5 13,5 13 0 0 2 2 0 2 45 It is difficult to predict how ULL penetration will change over the next two years. The scores for 2004 are an estimate based on market experiences in each country, initiatives by the regulator, and the likely reaction of the incumbent. -29-

  31. 4. Wholesale DSL products Criteria Weight Belgium France Germany Ireland Italy the Netherlands Spain Sweden United Kingdom 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 Is wholesale offer 0 to 5 0 5 5 5 0 46 0 2,5 47 5 5 5 0 5 5 5 0 5 5 5 launched to enable launch at same time as the incumbent retail offer Demonstrably equivalent 0 to 0 5 0 10 0 0 0 2 0 5 0 5 5 5 0 5 10 10 terms to incumbent retail 10 arm No restrictive volume 0 to 5 5 5 0 5 0 0 0 5 0 5 0 3 5 5 5 5 5 5 order requirements per site Access option at nearest 0 to 5 5 5 0 5 5 5 0 0 5 5 0 5 5 5 5 5 2,5 5 ATM node i.e ., no com- pulsory ATM backhaul 20 48 22,5 49 TOTAL COUNTRY 25 10 20 5 25 5 5 2,5 12 10 20 0 18 20 10 20 25 46 DT was permitted to launch its retail aDSL offer to the public over two years ago with no wholesale equivalent. A determination was eventually made by the regulator to mandate such an offer but DT is still in negotiations with operators on the terms and conditions of this offer. 47 The RIO requires that Eircom make available a new interconnect product to enable OLOs to launch at the same time. However, this has not to date proved to be effective and a number of services have already been launched by Eircom which do not have a wholesale equivalent (particularly in the CPS market). 48 A recent decision has permitted availability of wholesale DSL. 49 Some wholesale DSL products exist already (hDSL for example). The Oftel decision of 6 June 2002 requires BT to enter into negotiations for xDSL products at the ATM layer. Cf . http://www.oftel.gov.uk/. -30-

  32. Key access products Key access products Voice Partial private circuits Interconnection and leased lines Access to wholesale Local loop unbundling DSL Services Belgium France Germany Ireland Italy the Netherlands Spain Sweden UK 14 15,5 11,5 9,5 17 15,5 13 15 6,5 13,5 10 21,5 19 7,5 17,5 17,5 25 31 2002 5 0 5 8,5 0 10 0,5 2,5 0 10 7,5 0 13,5 20 0 10 2 22,5 16,5 26,5 6,5 16,5 17 26 16,5 32 11,5 11,5 17 25 7,5 25 17,5 32,5 25 33 2004 25 0 5 9 12 4,5 20 6,5 18 13 20 0 20 2 25 2 20 3 -31-

  33. D. Application of access regulation 1. Cost orientation Criteria Weight Belgium France Germany Ireland Italy the Netherlands Spain Sweden United Kingdom 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 Existence of detailed 0 to 10 5 5 5 5 6 10 7 9 5 5 5 5 5 7 5 5 10 10 cost model for SMP operators 0 50 10 51 Cost accounting 0 to 10 0 10 0 10 10 10 5 10 0 10 5 10 10 0 5 10 methodology used 0 52 10 53 0 54 Power of regulator to 0 to 10 0 5 0 0 10 8 10 10 10 10 5 10 10 10 10 seek cost orientation of retail tariffs for SMP operators TOTAL COUNTRY 30 5 20 5 15 26 20 20 29 15 25 20 25 5 22 15 20 30 30 50 Formally, some cost accounting is applied, but no LRIC-based pricing. 51 Highly detailed forward looking model applied. 52 Currently argued by DT that restrictions imposing cost orientation should be lifted, and regulator has hinted that it could become less stringent in the future. 53 See article 25 BOHT (Decree of Leased Lines and Telephony implementing amongst others, the ONP voice directive) as well as the price cap decision of 27 September 1999 and Guidelines on Price squeeze-test (NMa/OPTA). 54 There is a legal obligation to apply cost orientation to retail tariffs. However, not enforced in practice and no legal jurisdiction on CMT in this field. -32-

  34. 2. Cost accounting separation Criteria Weight Belgium France Germany Ireland Italy the Spain Sweden United Netherlands Kingdom 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 Effective enforcement of 0 to 30 10 20 10 20 20 20 20 20 15 20 20 55 30 20 20 20 25 30 30 cost accounting obligations by regulator 55 There are currently many inconsistencies in the model. -33-

  35. 3. Availability of information Criteria Weight Belgium France Germany Ireland Italy the Spain Sweden United Netherlands Kingdom 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 Effective disclosure of 5 56 5 57 parameters used for 0 to 10 5 5 5 5 0 9 8 9 5 5 5 5 0 0 10 10 assessing cost accounting ( e.g. number of subscribers, key for cost allocation between network components, WACC) Publication of accounts 7 58 5 59 in accordance with cost 0 to 10 0 0 0 0 0 9 7 10 0 10 0 5 0 0 10 10 accounting separation obligations TOTAL COUNTRY 20 5 5 5 5 0 18 15 16 10 15 5 15 5 10 0 0 20 20 56 There is partial compliance. Procedure commenced by NRA in March 2002 to determine what information must be disclosed. 57 Partial compliance with no transparency. All figures are confidential. 58 Partial compliance. 59 Procedure commenced by NRA in March 2002 to determine what information must be disclosed. -34-

  36. 4. Procedures satisfying access requests and interconnection in an effective and timely fashion Criteria Weight Belgium France Germany Ireland Italy the Spain Sweden United Netherlands Kingdom 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 Defined timeline for 0 to 5 3 3 0 0 4 4 1 4 0 0 0 0 4 4 0 0 3 4 negotiation of interconnection 60 Existence of effective procedure for negotiation of 0 to 10 3 3 0 0 10 10 2 6 0 0 0 0 0 5 2 2 10 10 new access services in a timely fashion TOTAL COUNTRY 15 6 6 0 0 14 14 3 10 0 0 0 0 4 9 2 2 13 14 5. Rights of way Weight the Criteria Belgium France Germany Ireland Italy Spain Sweden United Netherlands Kingdom 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 Free rights of way 0 to 5 2,5 2,5 2,5 61 2,5 2,5 62 2,5 2,5 2,5 0 0 2,5 63 2,5 0 64 2,5 0 0 5 5 60 For 2004, time scales should improve. Article 20 of the Framework Directive notes that disputes should be heard within the shortest possible timeframe and in any event, unless in the event of exceptional circumstances, within 4 months, Directive 2002/21, O.J., 24.4.2002, L108/33. 61 Free rights of way over private, but not public property. 62 Although the courts have clarified that local authorities cannot charge fees for the granting of rights of ways, these are nonetheless imposed in certain communes. No rights of way over private land. 63 Free rights of way in principle, but multiple supervision in practice results in substantial legal uncertainty. (See OPTA's January 2002 position paper on the supervision of free rights of way). Also, increasing costs are evident. 64 Despite a legal duty, some local authorities do not grant licences. CMT has no authority to rule on such matters nor to give rulings over public authorities. -35-

  37. Application of access regulation Application of access regulation Cost Cost accounting orientation Availability Availability of of information rights of way Effective & timely satisfaction of ad-hoc access requests and interconnection Belgium France Germany Ireland Italy the Netherlands Spain Sweden UK 10 20 5 5 10 26 20 20 15 15 20 20 5 20 15 25 30 30 2002 2,5 5 2,5 5 2,5 0 2,5 15 0 10 2,5 5 0 5 0 0 5 20 6 0 14 3 0 0 4 2 13 20 20 15 29 20 25 20 25 22 20 30 30 20 20 20 30 20 25 2004 5 2,5 5 2,5 5 2,5 16 0 15 2,5 15 2,5 10 0 0 20 2,5 18 6 0 14 10 0 9 2 14 0 -36-

  38. E. Compliance with and implementation of competition law and telecommunications legislation Criteria Weight Belgium France Germany Ireland Italy the Spain Sweden United Netherlands Kingdom 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 2002 2004 Cases decided by ECJ 0 to 25 2 N.A. 2 N.A. 0 N.A. 1 N.A. 2 N.A. 0 N.A. 0 N.A. 0 N.A. 0 N.A. 0 0 25 12,5 0 25 25 25 25 Cases commenced by the 0 to 25 10 N.A. 13 N.A. 5 N.A. 2 N.A. 11 N.A. 7 N.A. 11 N.A. 5 N.A. 1 N.A. Commission 6 0 16,5 23 4 12,5 4 16,5 25 TOTAL COUNTRY 50 6 N.A. 0 N.A. 41,5 N.A. 35,5 N.A. 4 N.A. 37,5 N.A. 29,5 N.A. 41,5 N.A. 50 N.A. -37-

  39. Co om mp pl li ia an nc ce e w wi it th h a an nd d a ap pp pl li ic ca at ti io on n o of f c co om mp pe et ti it ti io on n l la aw w & & C te el le ec co om m l le eg gi is sl la at ti io on n t Implementation of EU telecom legislation Belgium France Germany Ireland Italy the Netherlands Spain Sweden UK 50 41,5 0 0 41,5 35,5 4 37,5 29,5 2002 -38-

  40. V. C ORRELATION BETWEEN REGULATORY EFFECTIVENESS AND INVESTMENT AND EMPLOYMENT IN THE TELECOMMUNICATIONS SECTOR A. Correlation between Regulatory Effectiveness & Investment per Capita 42. This graph shows the relationship between the effectiveness of regulatory regimes as calculated in the Scorecard and investment per capita over the period 1997 – 1999. The graph shows a strong correlation between the two, with a correlation coefficient of 0.76. A correlation does not show the cause and effect, only the relationship. However, it can be assumed that greater regulatory effectiveness is more likely to attract investment than the other way around. This indicates a real benefit therefore of effective regulation: greater investment in the telecommunications infrastructure. Correlation Between Regulatory Effectiveness & Investment per Capita 220 Average Investment 1997 - 200 Netherlands 180 UK Per capita in US$ Ireland 160 140 1999 Germany Italy 120 France Sweden 100 80 Spain Belgium 60 40 200 250 300 350 400 450 Regulatory Effectiveness -39-

  41. B. Relationship between Investment and Change in Employment 43. This second graph plots the relationship between investment in telecommunications and change in employment in the sector. Again, there is a strong correlation between the two, in this case 0.79. This suggests that the greater the increase in investment, the greater the increase in employment. There appears to be a two stage process: a more effective regulatory environment attracts more investment which in turn leads to an increase in employment. The benefit of effective regulation is not just for its own sake, but feeds through to more jobs. Relationship Between Investment and Change in Employment 60 Change in Employment 95-99 (%) Netherlands 50 Correlation Coefficient 0.79 40 Ireland 30 20 UK 10 Italy Belgium Germany 0 France 50 75 100 125 150 175 200 -10 Sweden -20 Spain -30 Average Investment 97 - 99 (per Capita in US$) C. Results of Regulatory Scorecard (Results 2002 & 2004) This graph shows the score for each country in 2002 and again in 2004. All countries are expected to improve over that period with regulation becoming increasingly effective. Relatively weak countries today, e.g . Belgium and Ireland, are likely to improve most during the period, whilst the UK shows little improvement in its already high base. Regulatory Scorecard Results 2002 & 2004 450 S c o r e sf o r2 0 0 4" I m p l e m e n ta ti o no fE U T e l e c o m L e g i sl a ti o n "a ssu m eth e sa m esc o r ea sf o r2 0 0 2 400 350 300 250 200 150 2 0 0 2 2 0 0 2 2 0 0 2 2 0 0 2 2 0 0 2 2 0 0 2 2 0 0 2 2 0 0 2 2 0 0 2 B e l g i u m F r a n c e G e r m a n y I r e l a n d I ta l y T h e S p a i n S w e d e n U n i te dK i n g d o m N e th e r l a n d s -40-

  42. VI. C ONCLUSION 44. The effectiveness of the various regulatory regimes clearly differs in material respects. The impact of the failings of certain regimes has a material impact on investment in those countries. Indeed, Part V clearly correlates investment and employment levels in telecommunications against the relative effectiveness of these regimes. While this correlation may be clear, the elements behind such wide ranging differences in effectiveness are obviously highly complex, but undoubtedly highly prejudicial to the achievement of both national and EC goals of encouraging effective telecommunications infrastructure build. In certain countries, state ownership of the incumbent, or a desire to protect employment in a state owned enterprise, has probably had a dampening effect on the regulator's effectiveness. It is also true that a large number of the regimes analysed have only been in place for 3 to 4 years and thus are still grappling with various issues, such as cost accounting systems and how to properly cost orient the incumbent's operations. The UK regime, which has been in place for almost 20 years, has had substantially longer to grapple with these notions. 45. Notwithstanding these difficulties, the EC has high ambitions, as espoused at the Lisbon European Council, to become the world leader in telecommunications and related industries. In turn, this leadership is hoped to boost productivity and innovation throughout the EU in all sectors of the economy. However, it is clear that much remains to be done to attain the EC's original objectives in the telecommunications field, let alone the much broader goals of Lisbon. With these many ambitions in mind, it is all the more critical to secure the effective and uniform application of telecommunications rules. In this regard, the new EC framework legislation seeks to enhance consistency in the application of key rules in the telecommunications sector. Indeed, the new framework is expected to diminish differences among Member State regimes even within the next year, but will require substantial efforts by NRAs, national governments and the EU. Harmonisation of application of telecommunications rules across the EU will continue to be essential to the success of the telecommunications sector. -41-

  43. ANNEXES

  44. T ABLE OF A NNEXES ANNEX I - BELGIUM.............................................................................................................................................1 ANNEX II - FRANCE.............................................................................................................................................12 ANNEX III - GERMANY.......................................................................................................................................20 ANNEX IV - IRELAND..........................................................................................................................................29 ANNEX V - ITALY.................................................................................................................................................39 ANNEX VI - THE NETHERLANDS.....................................................................................................................48 ANNEX VII - SPAIN...............................................................................................................................................59 ANNEX VIII - SWEDEN........................................................................................................................................68 ANNEX IX - UNITED KINGDOM ......................................................................................................................76

  45. ANNEX I - BELGIUM A. R EGULATOR - G ENERAL FUNCTIONS A.1 - Independence 1. Is your national telecommunications regulatory authority (hereafter "NRA") subject to any injunctions from political authority (other than through removal), when it grants authorisations (services/networks licences, frequency and number authorisations) or enforces SMP regulations (e.g., ex ante approval of standard interconnection offers, compliance with cost accounting separation)? The Belgian NRA, ("BIPT"), is headed and managed by the Ministry of Telecommunications. The following overview summarises the respective competencies of the Minister of Telecommunications and the BIPT. (i) Regulatory framework (see www.bipt.be): Law of 21 March 1991 on the reform of certain economic public companies ("Telecom Law"): • Art. 72: BIPT is represented and managed by the Minister of Telecommunications. The Minister is competent to perform all acts of management. • Art. 23 and 24: a Commissioner nominated by the Government to the public company, Belgacom, controls Belgacom's compliance with the Telecom Law, its organic status, and implementation of the management contract signed between Belgacom and the State. • Art. 60 (1): the State's participation in Belgacom cannot be less than 50 percent plus one share. • Licensing power belongs to the Minister, who grants individual licenses for voice telephony (Art. 87), mobile telephony (Art. 89), and public network (Art. 92 bis). (ii) Ministerial Decree of 19 May 1995 on the tasks delegated to BIPT by the Minister of Telecommunications. (iii) Letter of 7 March 2001: the Minister of Telecommunications, as head of BIPT, issues a policy statement indicating that he will not use his power to amend decisions proposed by BIPT or its Managing Director. (iv) Consultation on the future of regulation of the postal and telecommunications sectors (20 April 2001): the Minister of Telecommunications launches a market consultation on the reform of BIPT to address its lack of independence and the scope of its powers. 7 th Report on the Implementation of the Telecommunications Regulatory (v) Package: there is no legal guarantee for BIPT's independence as long as potential conflict of interest remains: " The reform of the NRA to avoid a possible conflict of interest involving the Belgian Minister for Public Undertakings, who is the head of the regulator and responsible for the Government's shareholding in the incumbent at the same time, is only progressing slowly ." -1-

  46. (vi) Speech of Mr. Van Heesvelde (Managing Director of BIPT) at the University of Leuven, ICRI, Belgium, on 19 March 2002: " One of the major concerns of the EU is that BIPT is not sufficiently independent from the Minister in charge who is also in charge of the ownership of Belgacom and the Post " (free translation). (vii) In July 2001, the European Commission issued a reasoned opinion against Belgium regarding the lack of operational independence of the BIPT from the public postal operators, as mandated by the Directive on Postal Services (97/67/EC) (see http://www.europa.eu.int/) Improvements in the independence and ability to act of the regulator by 2004 are expected to occur once a new law on the reform of the BIPT is adopted. This legislation is currently under discussion. 2. What is the duration of office of your NRA's management? Is there a possibility of re- appointment? 6 years (Ministerial Decree of 18 March 1993 on BIPT staff). There is no limitation on the possibility of re-appointment. 3. What are the grounds for removal of your NRA's management? The Telecom Law does not contain any provision on the removal of the head of BIPT. Thus, pursuant to general principles of administrative law, BIPT's management can only be removed in accordance with the rules applicable to the dismissal of civil servants. Civil servants can only be dismissed as a result of a disciplinary measure. Such measures can be taken if the civil servant committed faults during the execution of his duties or if his conduct threatens the dignity of the office. 4. What are the eligibility requirements for your NRA's management? BIPT management is selected according to their experience (at least 7 years) in the economic, political or legal sectors. Other criteria used to select the managers are age and qualifications. (see Ministerial Decree of 18 March 1993 on BIPT staff). Exclusions from eligibility are provided for pursuant to general administrative law principles. The new proposed law on the reform of the BIPT provides for specific eligibility requirements and exclusions (including a "cooling off" period of two years after holding a position posing a conflict of interest). 5. Are clear objectives assigned to the NRA? Are any of these objectives conflicting with each other? The Telecom Law does not contain specific objectives to be pursued by BIPT. However, Article 79ter §3 contains certain objectives to be pursued by BIPT's dispute resolution chamber (the "Chamber for interconnection") when adopting an administrative decision on an interconnection, special access, unbundling or shared access dispute. For instance, the Chamber for interconnection should take into consideration the end-users’ interest, the necessity to maintain the integrity and interoperability of networks, maintenance of a fair market structure, etc. It is unclear whether the new regulatory regime will include precise objectives. -2-

  47. A.2 - Speed of process 6. What is the average timeframe for obtaining reservation of numbers? 2 weeks. 7. What is the average timeframe for reviewing standard interconnection offers (assessed over the past three years)? 22 weeks. BRIO 2001 was submitted to BIPT for approval by Belgacom on 16 June 2000 and approved by the Minister of Telecommunications in December 2000. BRIO 2002 was submitted on 29 June 2001 and approved by the Minister of Telecommunications on 19 December 2001. 8. In practice, what is the average timeframe for the negotiation of an interconnection agreement for a new entrant which does not yet have an interconnection agreement with the incumbent operator? Maximum 6 months. (see Communication of BIPT on interconnection requests outside the scope of a reference offer, 29 January 2002 (www.bipt.be)). In the beginning, the average timeframe for new entrants to negotiate interconnection agreements could take up to one year. Currently, the average timeframe can be evaluated at approximately 6 months. A.3 - Transparency 9. Is your NRA required to hold public consultations prior to deciding on issues of general interest? There is no general obligation to use public consultations, but it may be used on an ad hoc basis and upon request. However, there is mandatory and ongoing market consultation for interconnection and unbundling offers: • Article 109ter §4 of the Telecom Law; • Royal Decree of 20 April 1999 on the deadlines and general principles applicable to commercial interconnection negotiations, on the conditions of publications of the reference interconnection offer and on the mandatory provision of the interconnection agreements; • Art. 108bis on yearly market consultation of the new unbundling offers in Royal Decree of 22 June 1998 on public telecommunications networks, and Art. 6ter to 6nonies BRUO (Belgacom Reference ULL Offer) and BROBA (Belgacom Reference Broadband Offer). 10. Is your NRA required to effectively motivate its decisions? If so, is there any possibility of appeal in the event of NRA's violation of its obligation to motivate its decision? Within what timeframe? -3-

  48. The Law on the formal motivation of administrative acts of 12 September 1991 includes a general obligation to motivate every administrative decision. Absence of motivation is a ground for annulment. However, in practice the degree of detail can be limited. 11. Is your NRA required to publish all its decisions upon their adoption? No general obligation to publish all decisions. Certain decisions are published on BIPT's website. 12. Does your NRA have a "management plan"? If yes, is it public? Yes, a management plan has been published on a bi-annual basis since January 2002 (see BIPT Communication of 2 January 2002 (www.bipt.be)). A.4 - Effectiveness of sanctions and scale of resources 13. What is the number of employees employed for general regulatory issues (excluding frequency and numbering management)? Around 25. The BIPT has been granted resources during 2001 for additional staff, who are in the process of being recruited. 14. What are the specific procedures for selecting NRA's personnel? (Specific exams/ general State recruitment exams) See Ministerial and Royal Decree of 18 March 1993. General and specific exams (see Question 4). 15. Is your NRA entrusted with the power to impose fines? Yes : • Art. 109quater Telecom Law. • Art. 21 of Royal Decree of 22 June 1998 on public telecommunications networks. The law on the reform of BIPT provides for increased possibilities for BIPT to impose fines. There is also a trend towards imposing fines to ensure compliance with regulatory obligations. 16. Are the powers of your NRA clearly defined by law? Art. 75 Telecom Law and Ministerial Decree of 19 May 1995 on the tasks delegated to BIPT by the Minister of Telecommunications. 17. Does your NRA have the financial freedom to set levels of remuneration to attract appropriate staff? BIPT staff are civil servants. Nonetheless, it is possible for BIPT to hire on an ad hoc basis external persons under contractual status (Art. 71 and 73 of Telecom Law and Royal Decree of 18 March 1993). Regardless of status, BIPT is limited in its pay-scale and -4-

  49. cannot match private sector compensation levels. Additional resources were granted during 2001 for the recruitment of additional staff. 18. Can your NRA have recourse to outside expertise such as consultants? While allowed by law, outside experts are only used on a limited basis due to budget restrictions. B. REGULATORY DISPUTE SETTLEMENT B.1 - Independence 19. Is your NRA subject to any injunctions from political authority when it acts as a dispute settlement body in the event of conflicts between operators (e.g., in relation to local loop unbundling or interconnection)? No, BIPT's independence is guaranteed by Art. 79 ter §1 of the Telecom Law and the Royal Decree of 4 October 1999 organising the procedure before the Chamber for interconnection, special access, unbundling and shared access. B.2 - Speed of process 20. What was, over the past two years, the average timeframe for obtaining a decision from your NRA acting in a capacity as a dispute settlement body? Average of 4 months. • Mobistar v. Belgacom: 5 months (16 December 1999 to 20 June 2000) • GTS v. Belgacom: 4 months (16 February 2000 to 5 June 2000) • Codenet v. Belgacom: 3 months (3 August 2000 to 27 October 2000) • Telenet v. Belgacom: 4 months (8 February 2002 to 3 June 2002) 21. Can your NRA adopt interim measures? Yes, as provided in Art. 79 ter §4 Telecom Law and the Royal Decree of October 4, 1999 organising the procedure before the Chamber for interconnection, special access, unbundling and shared access. Rarely used in practice. B.3 - Due Process 22. Is the dispute settlement process subject to the principle of contradiction? Yes, under Art. 79 ter of the Telecom Law and the Royal Decree of 4 October 1999 organising the procedure before the Chamber for interconnection, special access, unbundling and shared access. The Chamber for interconnection does not accept the submission of information on a confidential basis; all information is disclosed to the other party. 23. What are the possibilities to appeal a decision of the NRA acting as dispute settlement body? -5-

  50. Appeal is limited to judicial review (see Art. 160 of the Belgian Constitution and the laws organising the Council of State, consolidated by the Royal Decree of 12 January 1973). B.4 - Effect 24. Does the appeal of a NRA decision suspend the binding effects of the decision in question? There is no automatic suspension, but suspension can be ordered by the Council of State upon specific request (see Art. 17 of the consolidated laws on the Council of State). 25. Is your NRA entitled to impose fines or periodic penalty payments? BIPT can only impose fines and enjoin an infringing operator from certain conduct. BIPT can also ultimately suspend connection to the public network or halt the provision of services (see Telecom Law, Art. 109quarter §3). 26. Does your NRA have the power to enforce its own decision? BIPT has a limited ability to enforce its decisions since it has no power to impose periodic penalty payments on infringing operators. It should also be noted that Belgacom has challenged the legality of the Chamber for interconnection. It requested the annulment before the Council of State of the Royal Decree of 4 October 1999 organising the procedure before the Chamber for interconnection on the ground that it is unconstitutional. Such alleged illegality casts doubts on the possibility to effectively enforce the decisions of the Chamber for interconnection. C. KEY ACCESS PRODUCTS C.1 - Voice interconnection 27. What is the level of interconnection tariffs for carrier select, carrier pre-select and call termination with interconnection at the tandem switch level? 1.24 Eurocents (7 th Implementation Report). 28. Do detailed cost models for SMP operators exist? Some information on Belgacom's cost model is contained in the “ Description of the BIPT cost model for the calculation of interconnection tariffs ” for the years 2000 and 2001, Communications of BIPT of 14 December 1999 and 21 December 2001, (see http://www.bipt.be/). However, the information provided is far from complete. 29. Is there a standard procedure available for operators to negotiate alternative access products/services not explicitly provided for in the standard reference interconnection offers? The procedure is set forth in the " Communication of the BIPT on interconnection requests outside the scope of a reference offer " dated 29 January 2002. The Communication provides that in case of a request for an interconnection service for which a retail service is available on the market by an SMP operator, the underlying interconnection service must be made available from the launch date of the retail service by the SMP operator. In case there is no retail service available yet, the following timetable must be respected: -6-

  51. 1. Introduction of request (J); 2. Written confirmation of receipt of request (J + 10 working days); 3. Significant progress made (J + 3 months); 4. Agreement reached (J + 6 months); 5. Implementation on case by case basis. 30. Are there SLAs in place for voice interconnection? Yes, provided in Belgacom Reference Interconnection Offer (BRIO) 2002, (Point 10: Quality of service) (see http://www.belgacom.be/). C.2 - Leased lines and partial private circuits offer 31. Are there any wholesale private line offers ("ppcs") in your country? Yes, provided in BRIO 2002, approved by the BIPT. ("Belgacom half links"). In its Communication on half links of 30 July 2002, BIPT indicated that there should be no restriction on the use of half links. This was not included for the scoring for 2002 (which reflects the situation on 1 June 2002), but has been accounted for in the increase of the score for 2004. 32. Comparison of tariffs for wholesale leased lines offers for 2Mbits/s on average distance of 2 km? EUR 6,247 per year (7 th Implementation Report). 33. Are there effective measures to prevent discrimination in the provision of ppcs and leased lines? No public reporting on provisioning times. 34. Are there SLAs for leased lines and ppcs? Yes, provided in BRIO 2002 (Chapter 13). C.3 - Local loop unbundling 35. What is the number of unbundled lines as a percentage of total lines? 0.01 % (ECTA ULL Scorecard April 2002). 36. What is the number of unbundled lines as a percentage of wholesale DSL lines used by non- incumbent operators? 0.065 % (ECTA ULL Scorecard April 2002). 37. What is the number of unbundled lines as a percentage of incumbent DSL lines? 0.1 % (ECTA ULL Scorecard April 2002). C.4 - Wholesale DSL products 38. Is a wholesale offer published so as to enable launch at same time as the incumbent? -7-

  52. No. Belgacom launched its retail aDSL product in 1999. In 2000 the “Belgacom Turboline Wholesale” product, which is a simple aDSL resale product, was made available to Operators. In 2001 a wholesale aDSL product was launched in the context of the BROBA (“Belgacom Reference Offer for Bitstream Access”). The Communication of the BIPT on interconnection requests outside the scope of a reference offer of 29 January 2002 provides that in case of a request for an interconnection service for which a retail service is available on the market by an SMP operator, the underlying interconnection service must be made available from the branch of the retail service by the SMP operator. 39. Are the terms of the wholesale offer equivalent to the terms benefited by the incumbent downstream operating retail arm? No information publicly available to verify. 40. Are there volume order requirements per site? No. 41. Is there an access option at the nearest ATM mode? Yes. D. APPLICATION OF ACCESS REGULATION D.1 - Cost orientation 42. Is there a detailed model for SMP operators? No. Some information is contained in the “ Description of the BIPT cost model for the calculation of interconnection tariffs ” for 2000 and 2001, Communications of BIPT of 14 December 1999 and 21 December 2000, (see www.bipt.be), but it is incomplete. 43. What is the type of cost accounting methodology used? Cost accounting method is presently based on Current Cost Accounting; in the future it should be based on LRIC (Long Run Incremental Costs). The following provide details on the use of the cost accounting methodology used: Description of the BIPT cost model for the calculation of interconnection tariffs for the years 2000 and 2001 (Communications published on the websites of the BIPT on 14 December 1999 and 21 December 2000); Consultation of LRIC bottom-up model for interconnection; BIPT Communication of 8 April 2002 regarding the planning for the development of the bottom-up model for interconnection. 44. Does the NRA have the power to seek cost orientation of retail tariffs? − Advice of 29 September 2000 of the BIPT to the Minister of Telecommunications on the tariff modifications which Belgacom planned to introduce as from 1 October 2000, page 7: " The BIPT reminds that with the current regulatory framework it cannot oppose itself against the new tariff list -8-

  53. which Belgacom plans to introduce" (free translation) and page 9 "at the express request of the Minister of Telecommunications to make the regulatory framework more effective, especially with regard to the tariff applicable to end-users, the NRA suggests modifying the regulatory framework on several points ” (free translation). − Speech of the Director General of the BIPT at the University of Leuven on 19 March 2002, page 4: "Given however the timing of the reform of the BIPT and the timing for transposition of the directives, it is possible that during a certain (preferably short) period there will be no effective price control on the Belgian telecommunications market". (free translation). D.2 - Cost accounting separation 45. Are SMP operators subject to effective cost accounting obligations? − Not yet, although such obligations were considered in the Advice of 19 September 2000 of the BIPT to the Minister of Telecommunications regarding the tariff modifications which Belgacom planned to introduce as from 1 October 2000, page 11: "In article 109 § 7 one could consider inserting an obligation by which the accounting information provided by the operator with SMP would become more verifiable to enable the BIPT to assess more effectively the cost basis of the interconnection tariffs applied by the operator. A procedure could be applied whereby a specialised independent organisation intervenes which is appointed for a certain period and which is given the task to "audit" the accounting information provided by the operator." (free translation) − Infringement proceedings launched by the European Commission in 2002 on: � Cost-accounting obligations, Reasoned Opinion issued. � Cost-accounting 2000, Letter of formal notice issued. D.3 - Availability of information 46. Is there any information available (e.g., number of subscribers, key for cost allocation between network components, WACC) enabling competitors/third parties to understand cost models and assess regulated operators' compliance with their cost orientation and accounting separation obligations? BIPT's document on “ Description of the BIPT cost model for the calculation of interconnection tariffs ” for the years 2000 and 2001 and the Communications of BIPT of 14 December 1999 and 21 December 2000, (see www.bipt.be) contain some information on the cost model used. However, these lack any concrete information which would allow third parties to verify compliance with cost orientation and cost accounting obligations. 47. Are the accounts drawn in accordance with cost accounting separation effectively published? This information is not publicly available. D.4 - Procedures satisfying access requests in an effective and timely fashion 48. What is the procedure for the negotiation of a reference interconnection agreement or standard interconnection agreement with the incumbent. If there is no standard agreement, -9-

  54. please elaborate. What is the timeframe for entering such an agreement - are there any material barriers to entering such an agreement? The Royal Decree fixing the timelines, terms and conditions applicable to commercial negotiations in view of reaching interconnection agreements (20 April 1999) provides that an interconnection agreement should be concluded within 6 months of the request. 49. Is there a specific procedure for requesting services which fall outside the scope of the RIO? If so, does it provide for certain timelines for the conclusion of negotiations and the final decision on the services? What is the average timeline for the addition of such services? (e.g., looking at three recent requests and their outcomes). Are there material hurdles to the receipt of such services - e.g., does regime provide for cooling off periods, limiting the possibility for the dispute settlement body to intervene or a very long period for the conduct of negotiations. Are there other material hurdles to the receipt of such services? This relates to voice and data products. See also question 29 responses. The procedure is set forth in the " Communication of the BIPT on interconnection requests outside the scope of a reference offer " (29 January 2002). The Communication provides that: − in case of a request for an interconnection service for which a retail service is available on the market by an SMP operator, the underlying interconnection service must be made available from the launch date of the retail service by the SMP operator; − in case there is no retail service available yet, the following timetable must be respected: � Introduction of request (J); � Written confirmation of receipt of request (J + 10 working days); � Significant progress made (J + 3 months); � Agreement reached (J + 6 months); � Implementation on case by case basis. In case of a dispute regarding the reasonable character of a request for interconnection, the terms for interconnection, or the timelines on negotiation or implementation of interconnection, the Parties may address their dispute to the BIPT or the Chamber for interconnection. The recent decision of the Chamber for interconnection in the Telenet v. Belgacom case casts doubts, however, on the possibility for an operator to refer to the Chamber for interconnection in case of a dispute on the reasonable character of the request. The Chamber for interconnection held that the operators are required to comply with the 6/3 months negotiating period provided for in the Royal Decree of 20 April 1999 and that each time a new proposal is made, the negotiation period starts running again. The Communication contains a number of parameters which will be taken into account by the regulator when deciding on whether the request does constitute a request for interconnection and whether such request is reasonable. D.5 - Rights of way 50. Are operators entitled to free rights of way? -10-

  55. In principle, rights of way are free but sometimes local authorities (communes) or Regions may impose certain conditions (see Telecom Law, Chapter VII). E. COMPLIANCE WITH AND IMPLEMENTATION OF TELECOMMUNICATIONS LEGISLATION 51. What is over the past five years the number of ECJ decisions finding your country to have failed to implement EU telecom Directives? 2 decisions. − Case C-384/99 Commission v. Belgium of 30 November 2000: subject matter: failure to implement Directive 97/33/EC − Case C-218/94 Commission v. Belgium of 4 May 1995: subject matter: failure to implement 95/47/EC 52. Number of cases commenced by EC Commission. 10 cases. Cases closed by EC Commission: 8 − Case n°1994/5103: subject matter: Monopoly of Belgacom on publication and distribution of phone books − Case n°1997/2217: subject matter: Infringement of Directive 90/388/EC − Case n°1998/2071: subject matter: Universal service − Case n°95/2308: subject matter: Supply of an open network for leased lines − Case n°98/2332: subject matter: Directive 97/66 - telecommunications - data protection − Case n°98/2377: subject matter: Infringement of voice telephony Directive − Case n°98/2381: subject matter: Infringement of leased lines Directive − Case n°98/4818: subject matter: License voice telephony and network Cases currently being investigated by the EC Commission: 2. -11-

  56. ANNEX II - FRANCE A. REGULATOR - GENERAL FUNCTIONS A.1 - Independence 1. Is your national telecommunications regulatory authority (hereafter "NRA") subject to any injunctions from political authority (other than through removal), when it grants authorisations (services/networks licences, frequency and number authorisations) or enforces SMP regulations (e.g., ex ante approval of standard interconnection offers, compliance with cost accounting separation)? The French NRA ("ART") enjoys legal independence. However, politically speaking, government ownership of France Telecom constitutes a risk of State influence over the regulator. This is particularly the case in relation to retail tariffs and universal service for which the Ministry in charge of telecommunications matters is competent and for which ART only has an advisory function. 2. What is the duration of office of your NRA's management? Is there a possibility of re- appointment? 6 years (in principle no possibility for re-appointment). 3. What are the grounds for removal of your NRA's management? Members of the ART board can only be removed for personal misconduct. 4. What are the eligibility requirements for your NRA's management? ART is in charge of recruiting its own personnel. Members of the ART board are selected for their particular expertise in the telecommunications sector. Although there are no specific exclusions from eligibility, principles of general administrative law provide for certain restrictions to avoid conflicts of interests and to ensure the independence of the public administration. 5. Are clear objectives assigned to the NRA? Are any of these objectives conflicting with each other? The ART's objectives, in general terms, are provided for in the telecommunications law. The ART must publish an annual report which, among other things, addresses the accomplishment of these objectives. A.2 - Efficiency of operations 6. What is the average timeframe for obtaining reservation of numbers? The average timeframe is 6 weeks. 7. What is the average timeframe for reviewing standard interconnection offers (assessed over the past three years)? -12-

  57. The process of reviewing France Telecom's ("FT") RIO has taken between 6-8 months. This timeframe has reduced over the years. 8. In practice, what is the average timeframe for the negotiation of an interconnection agreement for a new entrant which does not yet have an interconnection agreement with the incumbent operator? Average of 6 months. A.3 - Transparency 9. Is your NRA required to make public consultations prior to deciding on issues of general interest? Except in certain cases, there is no general obligation to hold public consultations. In practice, the ART tends to hold public consultations when it deems necessary. 10. Is your NRA required to effectively motivate its decisions? If positive, is there any possibility of appeal in the event of NRA's violation of its obligation to motivate its decision? Within which timeframe? Under French administrative law, detailed reasons for all administrative decisions must be provided. However, in practice the degree of detail can be limited. 11. Is your NRA required to publish all its decisions upon their adoption? The ART is required to publish all its decisions. 12. Does your NRA have a "management plan"? If yes, is it public? The ART does not have a management plan. Its purpose and goals are provided for in the telecommunications law. The ART publishes a report to address the accomplishment of these objectives on an annual basis. A.4 - Effectiveness of sanctions and scale of resources 13. What is the number of employees employed for general regulatory issues (excluding frequency and numbering management) ? The average number of employee used for general telecommunications purposes ( i.e ., excluding numbering management) is around 130. This is considered sufficient to efficiently deal with the workload of the ART. 14. What are the specific procedures for selecting NRA's personnel? (Specific exams/ general State recruitment exams) The recruitment procedures differ depending on whether employees are hired under an employment contract or as statutory civil servants. However, ART is in charge of recruiting its own staff and does so on the basis of the qualifications and expertise of the candidates. 15. Is your NRA entrusted with the power to impose fines? -13-

  58. The ART has the power to impose fines and has, on rare occasions, imposed administrative fines. 16. Are the powers of your NRA clearly defined by law? Yes. The ART's powers are provided for in the law. 17. Does your NRA have the financial freedom to set levels of remuneration to attract appropriate staff? The ART must comply with the salary grid of the French State. Financial benefits may therefore be lower than the salaries of the private sector. However, it has not been considered an impediment to recruiting qualified staff. 18. Can your NRA have recourse to outside expertise such as consultants? The ART can hire external consultants and often does so when appropriate. B. REGULATORY DISPUTE SETTLEMENT B.1.- Independence 19. Is your NRA subject to any injunctions from political authority when it acts as a dispute settlement body in the event of conflicts between operators (e.g., in relation to local loop unbundling or interconnection)? In theory, the ART is fully independent. B.2 - Speed of process 20. What was, over the past two years, the average timeframe for obtaining a decision from your NRA acting in a capacity as a dispute settlement body? About 3-5 months. 21. Can your NRA adopt interim measures? Such a possibility exists in theory, but is rarely used in practice. B.3 - Due Process 22. Is the dispute settlement process subject to the principle of contradiction? Yes, the ART's decision follows a hearing of all parties concerned. 23. What are the possibilities to appeal a decision of the NRA acting as dispute settlement body? There is a possibility to appeal decisions before the Court of Appeal of Paris. Appeals are not limited to judicial review. -14-

  59. B.4 - Effect 24. Does the appeal of a NRA decision suspend the binding effects of the decision in question? Appeal does not suspend enforceability of decision, but can be requested. 25. Is your NRA entitled to impose fines or periodic penalty payments? Yes. See Question 16 above. 26. Does your NRA have the power to enforce its own decision? Yes. ART can impose sanctions in case of failure to comply with the regulatory obligations. C. K EY ACCESS PRODUCTS C.1 - Voice interconnection 27. What is the level of interconnection tariffs for carrier select, carrier pre-select and call termination with interconnection at the tandem switch level? 1.23 Eurocents (7 th Implementation Report). 28. Do detailed cost models for SMP operators exist? Some information is published, but the market does not have meaningful information allowing detailed verification of compliance with cost accounting obligations. 29. Is there a standard procedure available for operators to negotiate alternative access products/services not explicitly provided for in the standard reference interconnection offers? No. 30. Are there SLAs in place for voice interconnection? As a general rule, FT does not have SLAs for its wholesale services. C.2 - Leased lines and partial private circuits offer 31. Are there any wholesale private line offers (ppcs) in your country? Yes. FT has offers equivalent to ppcs. The current offer is not satisfactory and is being challenged before the judicial courts. The offer does not provide for clear migration rules. There are restrictions on use, no availability to share existing interconnection infrastructure and limited range of interconnection options are available. The issues relate in particular to quality of service and penalties. While the situation is expected to improve in the future, the maximum score does not seem to be justified, in particular, as prices are not expected to reduce further. 32. Comparison of tariffs for wholesale leased lines offers for 2Mbits/s on average distance of 2 km? -15-

  60. EUR 7,500 (7 th Implementation Report). 33. Are there effective measures to prevent discrimination in the provision of ppcs and leased lines? Leased lines and ppcs are contained in FT's reference interconnection offer. However, individual agreements need not be submitted to the ART, nor is there any publication requirement (only interconnection agreements must be submitted to the ART). However, parties may always request the ART to ask FT to submit all agreements to ensure that it effectively complies with its non-discrimination obligation. 34. Are there SLAs for leased lines and ppcs? Cf. Question 31. C.3 - Local loop unbundling 35. What is the number of unbundled lines as a percentage of total lines? Negligible (ECTA ULL Scorecard April 2002. 36. What is the number of unbundled lines as a percentage of wholesale DSL lines used by non- incumbent operators? 1.57% (ECTA ULL Scorecard April 2002). 37. What is the number of unbundled lines as a percentage of incumbent DSL lines? 0.09% (ECTA ULL Scorecard April 2002). C.4 - Wholesale DSL products 38. Is a wholesale offer published so as to enable launch at same time as the incumbent? Yes. However, the offer was not considered satisfactory. France Telecom was ordered to issue a new offer by the French Competition Council in March 2000. 39. Are the terms of the wholesale offer equivalent to the terms benefited by the incumbent downstream operating retail arm? No. Until July 2002 there was an issue of price squeeze between retail and wholesale tariffs. This will be improved as a result of an intervention by the ART in July 2002. 40. Are there volume order requirements per site? Yes, volume requirements per site are imposed (at least 5 access points must be requested at the same time). These volume requirements will be lifted in the future. 41. Is there an access option at the nearest ATM mode? No. However, this is expected to improve in the second semester of 2002. -16-

  61. D. APPLICATION OF ACCESS REGULATION D.1 - Cost orientation 42. Is there a detailed model for SMP operators? See Question 28. 43. What is the type of cost accounting methodology used? Together with the ART, FT has completed a major project designing a new cost accounting system for use in cost allocations for the different regulated tariffs and for determining cost orientation. The ART certified the 1998 and 1999 accounts using this methodology, but the challenge is now to complete the move to a LRIC-system ( e.g., use bottom up method). 44. Does the NRA have the power to seek cost orientation of retail tariffs? While the ART does not have the power to impose such cost orientation, it can act by way of opinions. D.2 - Cost accounting separation 45. Are SMP operators subject to effective cost accounting obligations? See Question 28. D.3 - Availability of information 46. Is there any information available (e.g., number of subscribers, key for cost allocation between network components, WACC) enabling competitors/third parties to understand cost models and assess regulated operators' compliance with their cost orientation and accounting separation obligations? Some information is available, but it does not allow meaningful review of compliance with such obligations by market actors. 47. Are the accounts drawn in accordance with cost accounting separation effectively published? No. No improvements are expected by 2004. D.4 - Procedures satisfying access requests in an effective and timely fashion 48. What is the procedure for the negotiation of a reference interconnection agreement or standard interconnection agreement with the incumbent. If there is no standard agreement, please elaborate. What is the timeframe for entering such an agreement - are there any material barriers to entering such an agreement? No. See response to Question 49 below. 49. Is there a specific procedure for requesting services which fall outside the scope of the RIO? If so, does it provide for certain timelines for the conclusion of negotiations and the final decision on the services? What is the average timeline for the addition of such -17-

  62. services? (e.g., looking at three recent requests and their outcomes). Are there material hurdles to the receipt of such services - e.g., does regime provide for cooling off periods, limiting the possibility for the dispute settlement body to intervene or a very long period for the conduct of negotiations. Are there other material hurdles to the receipt of such services? This relates to voice and data products. See also question 29 responses. The Ordinance of 17 July 2001 foresees the possibility for any operator to request that the ART determine a term for the negotiation of an interconnection agreement (or an amendment to an existing interconnection agreement). This is not a standard procedure. In addition, operators can only refer to the ART as dispute settlement body if there is a clear refusal to negotiate. This requirement is applied restrictively in practice and allows France Telecom to delay the intervention of the dispute settlement body. D.5 - Rights of way 50. Are operators entitled to free rights of way? Free rights of way exist on land owned by private parties, but not on public land. E. COMPLIANCE WITH AND IMPLEMENTATION OF TELECOMMUNICATIONS LEGISLATION 51. What is over the past five years the number of ECJ decisions finding your country to have failed to implement EU telecom Directives? 2 decisions. − Case C-146/00 Commission v. French Republic of 6 December 2001: subject matter: failure to implement Directive 90/388/EEC, Directive 96/19/EC and Directive 97/33/EC − Case C-151/00 Commission v. French Republic of 18 January 2001: subject matter: failure to implement Directive 97/66/EC 52. Number of cases commenced by EC Commission. 13 cases. Cases closed by EC Commission: 10. − Case n°1997/4187: subject matter: Tariff practices of France Telecom on the French market for voice telephony − Case n°1997/4534: subject matter: Refusal to grant a license for a satellite communication service − Case n°1998/4338: subject matter: Ratification of the France Telecom offer for internet access in schools − Case n°1998/4411: subject matter: Radio messages Ermes: Infomobile against France and France Telecom − Case n°1999/5340: subject matter: Competition in the telecommunications sector − Case n°2000/0480: subject matter: Telecommunications network − Case n°98/4443: subject matter: Calculation of universal service in the French regulatory framework -18-

  63. − Case n°98/2336: subject matter: Directive 97/66 - telecommunications - data protection. − Case n°98/0359: subject matter: modification of ONP framework directive and leased lines directive − Case n°98/0363: subject matter: supply of an open network and universal telecommunications service Cases currently being investigated by EC Commission: 3. -19-

  64. ANNEX III - GERMANY A. REGULATOR - GENERAL FUNCTIONS A.1 - Independence 1. Is your national telecommunications regulatory authority (hereafter "NRA") subject to any injunctions from political authority (other than through removal), when it grants authorisations (services/networks licences, frequency and number authorisations) or enforces SMP regulations (e.g., ex ante approval of standard interconnection offers, compliance with cost accounting separation)? Germany's NRA, the RegTP, has an independent status (Section 66 of the Telecommunications Act ("TKG")). Although subordinate to the Ministry of Economy, the RegTP enjoys freedom since the Ministry may only advise the RegTP in general terms, and not with regard to specific cases (Section 66 para. 5). While the RegTP enjoys freedom of intervention, government ownership of Deutsche Telekom ("DT") has cast doubts on the rigorous application of telecommunications rules. This is expected to improve as a result of the planned sale of the State's stake in DT by the end of 2002 or early 2003. 2. What is the duration of office of your NRA's management? Is there a possibility of re- appointment? 5 years (may be re-appointed). RegTP officials at the non-management level are generally life-time employees. 3. What are the grounds for removal of your NRA's management? The TKG does not provide for removal of NRA management. However, under general principles for the conduct of civil servants, NRA management may be removed for misconduct, e.g. , employee harassment, theft, etc. This procedure is not expected to change during the EC legislative review process in 2003. 4. What are the eligibility requirements for your NRA's management? All staff are appointed on the basis of fair and non-discriminatory proceedings ("equal access to public office"), with regard to special skills and qualifications required for the given position. Criteria for promotion into RegTP management, like other German public authorities, are based on skills, qualifications, aptitude, and seniority (see Section 73 para. 4 TKG). This principle will not change during the EC review in 2003. 5. Are clear objectives assigned to the NRA? Are any of these objectives conflicting with each other? Section 2 TKG sets out six objectives for the regulator, including securing sustainable competition, consumer protection, availability of universal services etc. The regulator pursues these objectives in his decision-making. Will not change during EC review in 2003. -20-

  65. A.2 - Efficiency of operations 6. What is the average timeframe for obtaining reservation of numbers? 1 week. 7. What is the average timeframe for reviewing standard interconnection offers (assessed over the past three years)? 10 weeks. 8. In practice, what is the average timeframe for the negotiation of an interconnection agreement for a new entrant which does not yet have an interconnection agreement with the incumbent operator? 4 months. As noted in above Question 6, should negotiations fail, each party may apply to the regulator for dispute settlement proceedings. A.3 - Transparency 9. Is your NRA required to make public consultations prior to deciding on issues of general interest? Public consultation occurs rarely and tends to address general issues (for example, consultation documents were issued on the RegTP's website on the introduction of EBC (element based charging) and DT's cost model for local and national networks in 2000, and market definitions in 2001). Usually, public consultation (or "imminent consultation") takes place during all ongoing proceedings. Such proceedings are open to the public, and any party may contribute to the consultation. 10. Is your NRA required to effectively motivate its decisions? If positive, is there any possibility of appeal in the event of NRA's violation of its obligation to motivate its decision? Within which timeframe? The RegTP is required to provide details underlying its decisions (Section 79 para. 1 TKG). Concerned parties may appeal decisions if the regulator fails to provide a detailed explanation. However, in practice, appeals are virtually unknown, since the regulator usually substantiates its decisions. 11. Is your NRA required to publish all its decisions upon their adoption? Yes. Holdings of all determinations are published in the Official Journal. Full versions (including outcome, underlying details and reasons) are available from RegTP's publication service. 12. Does your NRA have a "management plan"? If yes, is it public? Not yet. The Ministry of Economy's milestone paper on the review process in 2003 discusses details for such a plan. -21-

  66. A.4 - Effectiveness of sanctions and scale of resources 13. What is the number of employees employed for general regulatory issues (excluding frequency and numbering management) ? According to the RegTP's annual report for 2000-2001 (http://www.regtp.de/), it employed 2,440 people in 2001. Among these, 1,050 handled regulatory issues (including 70 for frequency and numbering management). This staff is considered sufficient to deal effectively with the workload 14. What are the specific procedures for selecting NRA's personnel? (Specific exams/ general State recruitment exams) See above Question 4. As with all other public authorities, the criteria for RegTP personnel are skill, qualifications, aptitude, and seniority for promotions. Will not change during EC review. 15. Is your NRA entrusted with the power to impose fines? Under the TKG, the RegTP has a complete range of sanctioning powers: - fines (Section 96); - suspension of commercial launch (Section 33); - licence suspension or withdrawal (Section 15); - declaration of invalidity or contracts and clauses (Section 33). The Competition Act ("GWB") offers the German Competition Authority ( Bundeskartellamt ) further possibilities for sanctions. The Competition Authority has discretionary power to impose these sanctions. In practice, the RegTP and the Competition Authority use their powers rather reluctantly. 16. Are the powers of your NRA clearly defined by law? Yes, the TKG defines the powers of the RegTP (in particular, see Sections 15, 33, 35, 37 and 96). 17. Does your NRA have the financial freedom to set levels of remuneration to attract appropriate staff? The RegTP attracts high quality staff. Compensation for senior positions at RegTP are attractive enough for industry managers; the current President of RegTP is Colt Telecom's former country manager. Attractive fringe benefits include, for example, flexible work hours, job sharing possibilities, etc. 18. Can your NRA have recourse to outside expertise such as consultants? Yes, as provided in Section 70 TKG. This provision is often used in practice. During consultation procedures, the RegTP typically seeks external guidance from universities. -22-

  67. B. REGULATORY DISPUTE SETTLEMENT B.1 - Independence 19. Is your NRA subject to any injunctions from political authority when it acts as a dispute settlement body in the event of conflicts between operators (e.g. , in relation to local loop unbundling or interconnection)? No. There are no indications that RegTP is subject to political injunctions when settling disputes on interconnection matters compared to general processes where the scope for intervention is more apparent. B.2 - Speed of process 20. What was, over the past two years, the average timeframe for obtaining a decision from your NRA acting in a capacity as a dispute settlement body? On average, 90% of disputes settled within 10 weeks for interconnection dispute settlement procedures. For other disputes, including abuse proceeding and sensitive proceedings in particular, the timelines are substantially delayed, since RegTP has discretionary powers to decide to open a case. For example, in the BT Ignite complaint relating to discrimination in the provision of leased lines, a formal complaint was submitted on 18 September 2001. RegTP only commenced formal proceedings on 4 February 2002. It is notable that while Section 37 TKG gives a binding timeframe of 6 weeks (and up to 10 weeks with extension) for interconnection demands and rates approvals, no such timeframe exists for abuse proceedings. 21. Can your NRA adopt interim measures? Yes, these measures are often used in practice. B.3 Due Process 22. Is the dispute settlement process subject to the principle of contradiction? Each interested party in a proceeding has the right to respond. The RegTP must consider responses from an interested party when making a given determination. Considering that RegTP has discretionary power to decide to open a case, the right for parties to be heard can be limited in practice. This will not change during the EC review process. 23. What are the possibilities to appeal a decision of the NRA acting as dispute settlement body? Decisions may be appealed by the parties bound by the decision at three levels ( Verwaltungsgericht , Oberverwaltungsgericht , Bundesverwaltungsgericht ). Additionally, injunctions are available at the level of the Verwaltungsgericht and Oberverwaltungsgericht . B.4 - Effect 24. Does the appeal of a NRA decision suspend the binding effects of the decision in question? -23-

  68. In general, an appeal by the incumbent does not suspend a RegTP decision, but a party may request the decision to be suspended while the appeal is heard. Suspension will be granted where the Court considers that there are sufficient grounds for the appeal to be successful. Despite DT's request for suspension in nearly all appeals, it is rarely granted. When suspension is granted, however, decisions are often suspended for a substantial period of time. This will not change during the EC review process. 25. Is your NRA entitled to impose fines or periodic penalty payments? Yes, see above Question 16. While sanctioning powers are generally sufficient to ensure compliance, RegTP uses these powers overly reluctantly. It is hoped that this will improve in the future. 26. Does your NRA have the power to enforce its own decision? Yes, but enforcement is not very effective in practice. Parties may appeal NRA sanctions and ask the Court for a suspension of the decision. Although sanctions imposed by the NRA are not ineffective, they become encumbered since DT uses the right of appeal excessively. This situation may be alleviated following a review of the TKG in early 2003, which is likely to restrict the use of appeals. C. KEY ACCESS PRODUCTS C.1 - Voice interconnection 27. What is the level of interconnection tariffs for carrier select, carrier pre-select and call termination with interconnection at the tandem switch level? Data collected in Q1/2001 for the 7 th Implementation Report gave a weighted average interconnection tariff of 1.42 Eurocent. With the introduction of EBC billing, single transit call termination costs are 0.89 Eurocent per minute as of January 2002. Figures apply for 2002 and 2004. Cost details are available from the NRA's publication service. 28. Do detailed cost models for SMP operators exist? The cost model was subject to a long consultation process in 2000-2001. Consultation documents ( "Kostenmodell für das Verbindungsnetz", "Kostenmodell für das Anschlußnetz ") are publicly available at the NRA's web site, www.regtp.de. 29. Is there a standard procedure available for operators to negotiate alternative access products/services not explicitly provided for in the standard reference interconnection offers? A standard procedure exists, but it is subject to additional negotiations with DT if services are requested which fall outside of the standard offer. The timeframe for negotiation is fixed at approximately 6 weeks, which may be extended to a maximum of 10 weeks. This is generally not exceeded. 30. Are there SLAs in place for voice interconnection? SLAs for voice interconnection are in place and effective. They form a substantial part of the Interconnection Agreement and include e.g. , provisioning and repair times. -24-

  69. C.2 - Leased lines and partial private circuits offer 31. Are there any wholesale private line offers ("ppcs") in your country? There is a published offer for wholesale private lines which provides for clear migration rules for existing retail circuits. Migrating retail SFV circuits to wholesale CFV circuits is possible. More than 50% of the circuits are eligible for migration within 6 months of launch. Access tails are priced on the basis of LRIC rules. No trunk circuit is available on interconnect terms. The offer provides for certain restrictions on use, and there is no possibility to share existing infrastructure of ILC options available. BT Ignite Germany does not consider DT’s CFV offer as a true ppc due to its lack of a true unbundled, cost oriented tail circuits offering. 32. Comparison of tariffs for wholesale leased lines offers for 2Mbits/s on average distance of 2 km? Rate is EUR 4,080 per year (7 th Implementation Report, equals EUR 340 per month) until July 31, 2002. Rate decreased to EUR 243.74 per month as of August 1, 2002 for a CFV 2 MU type wholesale leased line in the access network (bulk price EUR 1,075 per year plus a supplementary EUR 370 per km) cf. RegTP's determination issued 12 June 2002 (file reference BK 2b 02-009, available from RegTP's publication service). 33. Are there effective measures to prevent discrimination in the provision of ppcs and leased lines? By a determination of 31 May 2002, RegTP imposed strict lead times and delivery dates with uncapped penalties, and also included detailed reporting obligations to RegTP in the area of carrier leased lines. The determination is available from RegTP's publication service. As indicated previously, there is no true ppc offer in place in Germany. 34. Are there SLAs for leased lines and ppcs? The current SLA lacks certain key criteria for ensuring full non-discrimination. As mentioned in Question 33, improvements are expected pursuant to the proceedings initiated by BT Ignite in 2001/2002 for an abuse of dominant position. C.3 - Local loop unbundling 35. What is the number of unbundled lines as a percentage of total lines? 0.2% (ECTA ULL Scorecard April 2002). 36. What is the number of unbundled lines as a percentage of wholesale DSL lines used by non- incumbent operators? N.A. (ECTA ULL Scorecard April 2002). 37. What is the number of unbundled lines as a percentage of incumbent DSL lines? 4.35% (ECTA ULL Scorecard April 2002). -25-

  70. C.4 - Wholesale DSL products 38. Is a wholesale offer published so as to enable launch at the same time as the incumbent? DT was permitted to launch its retail aDSL offer to the public over two years ago with no wholesale equivalent. A determination was eventually made by the regulator mandating such an offer, but DT is still in negotiations with operators on the terms and conditions of this offer. 39. Are the terms of the wholesale offer equivalent to the terms benefited by the incumbent downstream operating retail arm? No, DT has not set forth the requested offer so far. The offer will be under review as soon as DT complies with its obligation. Wholesale DSL is expected to be in place within the next two years. However, it is unlikely that there will be a competitive wholesale offer to match the incumbent's own retail offers. 40. Are there volume order requirements per site? This will be subject to assessment of the offering mandated by RegTP. 41. Is there an access option at the nearest ATM mode? Yes, to the extent that it can be assessed at present, there appears to be an access option at the nearest ATM. D. APPLICATION OF ACCESS REGULATION D.1 - Cost orientation 42. Is there a detailed model for SMP operators? See Question 28. 43. What is the type of cost accounting methodology used? LRIC-methodology. No changes expected by 2004. 44. Does the NRA have the power to seek cost orientation of retail tariffs? Yes. However, DT disputes RegTP's power to seek cost orientation. The Ministry of Economics has hinted that it could become less stringent about cost orientation of retail tariffs in the future since the 1999 review places the application of ex ante retail rates regulation at the Regulator’s discretion - therefore, scoring for 2004 is lower than for 2002. Competitors oppose this position. However, there will be ex post retail rates regulation. D.2 - Cost accounting separation 45. Are SMP operators subject to effective cost accounting obligations? Yes. Scores are only 20 out of 30 since cost data is considered a DT business secret and is only available to the NRA, not to competitors. -26-

  71. D.3 - Availability of information 46. Is there any information available (e.g., change in all sections of subscribers, key for cost allocation between network components, WACC) enabling competitors/third parties to understand cost models and assess regulated operators' compliance with their cost orientation and accounting separation obligations? Required disclosure of such information is expected to be mandated during the EC review in 2003, but is not currently available. 47. Are the accounts drawn in accordance with cost accounting separation effectively published? The accounting model is transparent, but accounting data is not. cf. Question 40. Obligation to publish accounting data is expected to be implemented during EC review in 2003. D.4 - Procedures satisfying access requests in an effective and timely fashion 48. What is the procedure for the negotiation of a reference interconnection agreement or standard interconnection agreement with the incumbent. If there is no standard agreement, please elaborate. What is the timeframe for entering such an agreement - are there any material barriers to entering such an agreement? No formal regulatory procedure exists; however, the RegTP must make a decision within a maximum of 10 weeks in the event of a dispute. 49. Is there a specific procedure for requesting services which fall outside the scope of the RIO? If so, does it provide for certain timelines for the conclusion of negotiations and the final decision on the services requested? What is the average timeline for the addition of such services? (e.g. , looking at three recent requests and their outcomes). Are there material hurdles to the receipt of such services - e.g. , does the regime provide for cooling off periods, limiting the possibility for the dispute settlement body to intervene or a very long period for the conduct of negotiations. Are there other material hurdles to the receipt of such services? This relates to voice and data products. See also question 29 responses. Interconnection negotiations take place between the interconnection contract parties, not with the regulator. If negotiations between the parties fail, each party may apply to the regulator for dispute settlement. This procedure has a defined timeline of six weeks, which may be extended to ten weeks at the longest (Section 37 para. 1 TKG). In practice, the regulator strictly adheres to these timelines. D.5 - Rights of way 50. Are operators entitled to free rights of way? Although the Courts have clarified that local authorities cannot charge fees for granting rights of ways, certain communes continue to charge such a fee. Rights of way over private land exist, but subject to compensation. This will not change with the EC review in 2003. -27-

  72. E. COMPLIANCE WITH AND IMPLEMENTATION OF TELECOMMUNICATIONS LEGISLATION 51. What is over the past five years the number of ECJ decisions finding your country to have failed to implement EU telecom Directives? None. 52. Number of cases commenced by EC Commission. 5 cases. Cases closed by EC Commission: 3. − Case n° 1999/4522: subject matter: Abuse of a dominant position by DT. Aggravated by RegTP decisions fixing interconnection fees and DT's end user tariffs at levels excluding DT's competitors from profitably offering fixed voice telephony services to their customers (cost-price-squeeze) − Case n° 98/4321: subject matter: License taxes concerning telecommunications matters − Case n° 98/2378: subject matter: Infringement of Interconnection Directive Cases currently being investigated by EC Commission: 2. -28-

  73. ANNEX IV - IRELAND A. REGULATOR - GENERAL FUNCTIONS A.1 - Independence 1. Is your national telecommunications regulatory authority (hereafter "NRA") subject to any injunctions from political authority (other than through removal), when it grants authorisations (services/networks licences, frequency and number authorisations) or enforces SMP regulations (e.g., ex ante approval of standard interconnection offers, compliance with cost accounting separation)? Under Section 2(7) of the 1996 Telecommunications (miscellaneous provisions) Act (the "1996 Act"), the Minister for Transport, Energy and Communications (now Minister for Communications, Marine and Natural Resources (the "Minister"), could give directions to the Office of the Director of Telecommunications Regulation (the "ODTR") on a number of specified areas including radio frequency. Under the Communications Regulation Act of 2002 ("2002 Act"), Section 13 provides that the Minister can give policy directions to the new Communications Commission, but only in conjunction with a public consultation setting out the reasons for the proposed policy direction. The introduction of the public consultation requirement constitutes an important safeguard and is a significant improvement on the former regime, which would have existed up until April of this year. 2. What is the duration of office of your NRA's management? Is there a possibility of re- appointment? The 2002 Act provides for a 3-person Communications Commission. Section 15 (3) of the Act provides that every Commissioner may be appointed for a period of not less that 3 years and not more than 5 years. Section 15 (4) provides that a Commissioner can serve up to 2 terms in Office, thereby bringing a Commissioner's potential time in office to up to 10 years. 3. What are the grounds for removal of your NRA's management? Under Section 18 of the 2002 Act, a Commissioner can be removed from office by the Minister if the Commissioner has " become incapable through ill health of effectively performing " his duties or " for stated misbehaviour ". 4. What are the eligibility requirements for your NRA's management? Section 15 of the 2002 Act provides that " a person shall not be appointed as a Commissioner unless the Civil Service and Local Appointments Commissioners, after holding a competition on behalf of the Commission, have selected him or her for appointment as a Commissioner ". 5. Are clear objectives assigned to the NRA? Are any of these objectives conflicting with each other? Section 12 of the 2002 Act, sets out the objectives of the Commission. These objectives essentially mirror the objectives for NRAs set out in the EC Framework Directive. -29-

  74. A.2 - Efficiency of operations 6. What is the average timeframe for obtaining reservation of numbers? 3 weeks. 7. What is the average timeframe for reviewing standard interconnection offers (assessed over the past three years)? 8-12 weeks. 8. In practice, what is the average timeframe for the negotiation of an interconnection agreement for a new entrant which does not yet have an interconnection agreement with the incumbent operator? 10 months. The average timeframe for negotiation of interconnection for new entrants is expected to speed up markedly in 2004. Significant work has already been carried out by OLOs in Ireland, and thus much of the ground work has already been laid through negotiated interconnection agreements with the incumbent and responses to industry consultation on Eircom's RIO. Therefore, for new entrants seeking to negotiate with Eircom, many of the issues traditionally difficult to negotiate as a new entrant will already have been addressed. A.3 - Transparency 9. Is your NRA required to make public consultations prior to deciding on issues of general interest? There is no legal obligation to use public consultation on all issues. It has, however, been the general practice of the ODTR since its inception, to hold public consultations on all matters. Section 14(3) of the 2002 Act provides that the new Communications Commission will be in charge of its own procedures. In matters concerning local authorities, however, Section 57 of the Act provides that public consultation must form part of the Commission's procedure. 10. Is your NRA required to effectively motivate its decisions? If positive, is there any possibility of appeal in the event of NRA's violation of its obligation to motivate its decision? Within which timeframe? Under the Irish Licensing Regulations (Article 5 (10) S.I. 96 of 1998), the ODTR must provide a statement of reasons when notifying an applicant or licence holder of a decision to refuse a licence or to revoke, suspend or amend, or to impose specific measures on a licence holder. An applicant or holder wishing to challenge that decision must appeal to the Court within 28 days of receiving the notification. Where the ODTR intervenes in an interconnection dispute at the parties' request and makes a finding on the issue in question, the ODTR must, if requested, provide a full statement of the decision's reasons. Where a party wishes to appeal an ODTR decision under the Regulations, that party may appeal to the High Court within 7 days of being served with the direction or finding. -30-

  75. In addition to the foregoing, a party may make an application for leave to apply for Judicial Review if it wishes to challenge the administrative procedure through which the decision was reached. The applicable timescales are set out in the Rules of the Superior Courts and will depend upon the remedy sought. Consideration should also be given to the EC Framework Directive's provision for an appeals body, and that Member States must " …ensure that the merits of the case are duly taken into account… " (Article 4). It is hoped that the introduction of a specialist appeal forum capable of considering the merits of a case would further improve the current regime. 11. Is your NRA required to publish all its decisions upon their adoption? To date, it has been the practice of the ODTR to publish all decisions once adopted. Further, specific regulations, such as those relating to interconnection, enable operators to request a full statement of the reasons for a decision where the ODTR takes steps to resolve a dispute between operators (Article 10(10) of S.I. No. 15 of 1998). The publication of all decisions by the ODTR is required by the principle of transparency. Publication of all decisions is therefore likely to remain a feature of the processes adopted by the new Commission once established, having regard to Article 3(3) of the Framework Directive, which states that " Member States shall ensure that national regulatory authorities exercise their powers impartially and transparently ". 12. Does your NRA have a "management plan"? If yes, is it public? The ODTR issues a yearly "Work Programme" in January of each year, which details the different areas that the Office intends to tackle over the course of the year. The Work Programme lists proposed consultations and the relevant months in which the ODTR intends to publish the consultations and gives an indication of the likely timescales for the ODTR's Responses. A.4 - Effectiveness of sanctions and scale of resources 13. What is the number of employees employed for general regulatory issues (excluding frequency and numbering management) per capita of population? There are approximately 120 employees in the ODTR, and approximately 40 of those work on strict regulatory issues as defined in the Report i.e. , excluding those working on frequency and number allocation. ODTR has recently increased the number of employees in order to deal more efficiently with the workload. 14. What are the specific procedures for selecting NRA's personnel? (Specific exams/ general State recruitment exams) Under Section 20 of the 2002 Act, members of the Commission staff are determined by the Commission itself. We are not aware of any other specific procedures for selection of staff utilised by the ODTR/Commission, other than that they appear to be on merit through open competition. 15. Is your NRA entrusted with the power to impose fines? Section 44 of the 2002 Act provides that where an operator commits an offence under the applicable regulations, the Commission can issue a Notice detailing the suspected offence. -31-

  76. Within 21 days of receiving such a notice, the operator can remedy the offence to the satisfaction of the Commission, in addition to a EUR 1,000 payment to the Commission. In addition, Section 45 of the 2002 Act amends Section 111(11) of the Principal Act of 1983 and increases potential fines from £1,500 (approx. EUR 1,905) to EUR 3,000 for summary convictions and from £50,000 (approx. EUR 63,500) to EUR 4,000,000 or 10% of turnover for indictable offences. It is hoped that these increased penalties will provide a greater incentive for regulatory compliance. 16. Are the powers of your NRA clearly defined by law? The powers of the ODTR/Commission are set out in the 2002 Act, and all applicable regulations. 17. Does your NRA have the financial freedom to set levels of remuneration? Section 20(3) of the 2002 Act provides that the Commission may, with the consent of the Minister and the Minister for Finance, determine matters such as the remuneration of staff appointed to the Commission. 18. Can your NRA have recourse to outside expertise such as consultants? The ODTR can and does use external consultants extensively for specialist subject areas when needed. Further, Section 22 of the 2002 Act specifically provides that the Commission may engage the services of consultants and advisers as it considers necessary. B. REGULATORY DISPUTE SETTLEMENT B.1 - Independence 19. Is your NRA subject to any injunctions from political authority when it acts as a dispute settlement body in the event of conflicts between operators (e.g., in relation to local loop unbundling or interconnection)? No. In terms of dispute settlement, there is no evidence that any political influence has been exercised. B.2 - Speed of process 20. What was, over the past two years, the average timeframe for obtaining a decision from your NRA acting in a capacity as a dispute settlement body? Unfortunately, there are no industry statistics on this issue at present. It is our experience that decision timescales have improved over the last 8-12 months, such that the average timeframe for the last 2 years could be estimated at approximately 3-6 months. 21. Can your NRA adopt interim measures ? Yes. An example is the recent determination on the hand-over by Eircom of operator non- geographic numbers where interim measures have been mandated, and are likely to be effective. -32-

  77. B.3 - Due Process 22. Is the dispute settlement process subject to the principle of contradiction? Yes. Under the ODTR's dispute resolution process (D11/99), where a party submits a dispute resolution request, a non-confidential version of the request will be forwarded to the other party to allow them to respond to the complaint. Where the ODTR's case officer deems that the dispute involves issues which are of interest to the broader industry as a whole, the ODTR may hold a consultation on the matter. 23. What are the possibilities to appeal a decision of the NRA acting as dispute settlement body? Judicial review is available to parties wishing to challenge the manner in which a decision was reached by the Regulator. In addition, some decisions, such as those falling under the Irish Licensing and Interconnection Regulations, can be the subject of an appeal to the Irish Courts. B.4 - Effect 24. Does the appeal of a NRA decision suspend the binding effects of the decision in question? An appeal of a decision made under the Licensing or Interconnection Regulations does not suspend the binding effects of the decision in question. This is set out in the law by Statutory Instrument and represents a recent development away from automatic suspension. It has not limited the manipulation of the system by the incumbent through taking legal proceedings against decisions. However, all such recent legal actions have been overturned or settled out of court. 25. Is your NRA entitled to impose fines or periodic penalty payments? See Question 15 above. 26. Does your NRA have the power to enforce its own decision? Conditions 3 and 4 of the General Telecommunications Licence make provisions for Compliance and Enforcement. Condition 4.2 provides that where an operator " fails to comply with any Condition or lawful direction issued by the Director from time to time, the Director shall serve written notice on the Licensee (a "Warning Letter") …". Should a party fail to comply with the Warning Letter, Condition 4 provides that the Director can impose a number of sanctions. These include revocation or suspension of an operator's licence and reduction of a licence term. As noted above, the Commission can also seek to prosecute under the 2002 Act an operator who fails to comply with a given direction. C. KEY ACCESS PRODUCTS C.1 - Voice interconnection 27. What is the level of interconnection tariffs for carrier select, carrier pre-select and call termination with interconnection at the tandem switch level? 0.97 Eurocents (7 th Implementation Report). -33-

  78. 28. Do detailed cost models for SMP operators exist? A detailed cost model exists for Eircom’s core network, and one is currently being constructed for Eircom’s access network. The development of cost models for mobile SMP operators forms part of the ODTR’s work program. 29. Is there a standard procedure available for operators to negotiate alternative access products/services not explicitly provided for in the standard reference interconnection offers? Eircom's Standard Reference Interconnection Offer provides for requests for new services by OLOs. However, the procedure is ineffective in practice. 30. Are there SLAs in place for voice interconnection? An SLA exists for interconnection circuits. This SLA is linked to what is known as the Operations and Maintenance Manual (O&M), which is currently under review by the industry. The SLA covers provisioning of such circuits. In addition, there are SLA provisions for interconnection services such as CPS and NP. In a recent decision notice (D10/02), the ODTR stated that " It should be noted that the Director's position is that except in exceptional cases all new RIO interconnection services should have an accompanying SLA ". In addition, the ODTR has indicated that where requested, it will consider SLAs for existing interconnection services. As part of D10/02, the ODTR has determined that it will lead the O&M review (which includes SLAs). It is hoped that continuing work on and development of the O&M Manual at industry level will improve the SLA regime applicable to interconnection services in general. C.2 - Leased lines and partial private circuits offer 31. Are there any wholesale private line offers ("ppcs") in your country? Partial Private Circuits are not available at present, but it has been determined that they are to be made available. In the ODTR's recent Decision Notice (D10/02), Decision 3.3 provides as follows: " Eircom is directed to offer a Wholesale PPC product. The details of the offering will be proposed by Eircom where during an industry forum the product description will be negotiated and agreed and the technical and operational aspects necessary for implementation will be resolved. Eircom is to provide this proposal by end of August 2002. " 32. Comparison of tariffs for wholesale leased lines offers for 2Mbits/s on average distance of 2 km? EUR 4,571 (7 th Implementation Report). 33. Are there effective measures to prevent discrimination in the provision of ppcs and leased lines? The ODTR has consistently emphasised Eircom's obligation to provision and maintain leased lines on a non-discriminatory basis. To this end, the ODTR has determined (ODTR -34-

  79. Decision Notice 2/02) that Eircom must make publicly available on the Eircom web site both an aged analysis of pending orders, along with statistics in relation to compliance with the SLA process points on a monthly basis. In addition, the ODTR determined that Eircom must present it with a bi-annual report on the subject. 34. Are there SLAs for leased lines and ppcs? Ireland has a developed SLAs for leased line provisioning which includes, inter alia , delivery timeframes, specific delivery process points, the payment of uncapped penalties in the event of failure to meet delivery or process point timescales, the inclusion of higher capacity leased lines within the SLA regime, and automatic penalty payments by Eircom. The SLA regime has led to improvements in delivery performance by Eircom since its introduction. Delivery timeframes for leased lines have fallen from approximately 54 days in February 2001 to between 16 and 20 days (ODTR Decision Notice D2/02). C.3 - Local loop unbundling 35. What is the number of unbundled lines as a percentage of total lines? 0% (ECTA ULL Scorecard April 2002). The number of unbundled lines is expected to increase over the coming months as licences have recently been signed to unbundle 40 exchanges. 36. What is the number of unbundled lines as a percentage of wholesale DSL lines used by non- incumbent operators? N.A. (ECTA ULL Scorecard April 2002). 37. What is the number of unbundled lines as a percentage of incumbent DSL lines? N.A. (ECTA ULL Scorecard April 2002). C.4 - Wholesale DSL products 38. Is a wholesale offer published so as to enable launch at same time as the incumbent? Yes. 39. Are the terms of the wholesale offer equivalent to the terms benefited by the incumbent downstream operating retail arm? No. The wholesale product obliges an access seeker to make a minimum build order per exchange of 24 ports. No access to DSLAMs is provided. Access to ATMPoPs can only be made by an incumbent STM1. No operator own build is allowed. For these and other wholesale pricing reasons, no access seeker has taken the wholesale product. 40. Are there volume order requirements per site? Yes (see Question 39). 41. Is there an access option at the nearest ATM mode? -35-

  80. No (see Question 39). D. APPLICATION OF ACCESS REGULATION D.1 - Cost orientation 42. Is there a detailed model for SMP operators? The ODTR carried out an extensive initiative over the past two years, working with the industry to build LRIC cost-oriented models for the core network. This itself built on substantial work done on Accounting Separation, an area in which Ireland trails behind the UK. Following the above cost orientation forming analysis, interconnect rates in Ireland are around UK levels. A new programme, scheduled to conclude in November 2002, is applying LRIC to the access network. To our knowledge, few other countries, except the UK, have reached that standard. Once this programme has been completed, it is hoped that it will enable the ODTR to further ensure the application of the cost orientation principle. 43. What is the type of cost accounting methodology used? Both bottom up and top down LRIC cost accounting is used together with historic accounting in reaching any pricing decision. 44. Does the NRA have the power to seek cost orientation of retail tariffs? Yes. Condition 13 of Eircom's General Telecommunications Licence requires its retail prices to comply with the principle of cost orientation. Progress has been and continues to be made in the area of cost accounting separation. As the level of separation improves, it is hoped that so too will the ODTR's ability to ensure that the principle of cost orientation is strictly adhered to. D.2 - Cost accounting separation 45. Are SMP operators subject to effective cost accounting obligations? Yes, in the fixed sector. D.3 - Availability of information 46. Is there any information available (e.g., number of subscribers, key for cost allocation between network components, WACC) enabling competitors/third parties to understand cost models and assess regulated operators' compliance with their cost orientation and accounting separation obligations? Yes. 47. Are the accounts drawn in accordance with cost accounting separation effectively published? Yes. -36-

  81. D.4 - Procedures satisfying access requests in an effective and timely fashion 48. What is the procedure for the negotiation of a reference interconnection agreement or standard interconnection agreement with the incumbent. If there is no standard agreement, please elaborate. What is the timeframe for entering such an agreement - are there any material barriers to entering such an agreement? In its recent consultation (ODTR Doc No. 02/27), the Director specifically noted that Eircom's current RIO acknowledged the Director's previous decision to the effect that " Eircom shall offer new interconnection services and elements to other OLOs with such notice that the OLOs can order and have the new service delivered by Eircom at the time that the associated retail service is launched by either Eircom or the OLO that initiated the development of the new service " (Decision Notice D7/00). In the consultation document, however, the Director stated her concerns about actual compliance with her direction. In particular, she considered whether Eircom offered associated interconnection service to other operators in advance of Eircom's retail launching of a new service. The Director specifically sought the industry's view on this matter. In addition, the Director stated her belief that when Eircom included " the associated and new interconnection service in the RIO, Eircom must include in the RIO all necessary information, documentation and processes to allow an OLO to order the new interconnection service(s) and be in a position to bring into service at the same time as Eircom or the OLO that initiated the development of the new service launches the new retail services which is based on the new interconnection service " (ODTR Doc No. 02/27). 49. Is there a specific procedure for requesting services which fall outside the scope of the RIO? If so, does it provide for certain timelines for the conclusion of negotiations and the final decision on the services? What is the average timeline for the addition of such services? (e.g., looking at three recent requests and their outcomes). Are there material hurdles to the receipt of such services - e.g., does the regime provide for cooling off periods, limiting the possibility for the dispute settlement body to intervene or a very long period for the conduct of negotiations. Are there other material hurdles to the receipt of such services? This relates to voice and data products. See also question 29 responses. Article 10(9) of S.I. 15 of 1998 provides that where an interconnection dispute arises, the Director must act to resolve that dispute within 6 months of receiving the request. D.5 - Rights of way 50. Are operators entitled to free rights of way? In general, the building of infrastructure across both public and private land will entail some monetary payment either through a licence fee or long-term damage charge. E. COMPLIANCE WITH AND IMPLEMENTATION OF TELECOMMUNICATION LEGISLATION 51. What is over the past five years the number of ECJ decisions finding your country to have failed to implement EU telecom Directives? 1 decision. -37-

  82. − Case C-239/94 Commission v. Ireland of 29 February 1996: subject matter: failure to implement Directive 91/263/EEC 52. Number of cases commenced by EC Commission. 2 cases. Cases closed by EC Commission: 2 − Case n°98/2337: subject matter: Directive 97/66 - telecommunications - data protection − Case n°98/0382: subject matter: Supply of an open network and universal telecommunications service Cases currently being investigated by EC Commission: 0. -38-

  83. ANNEX V - ITALY A. REGULATOR - GENERAL FUNCTIONS A.1 - Independence 1. Is your national telecommunications regulatory authority (hereafter "NRA") subject to any injunctions from political authority (other than through removal), when it grants authorisations (services/networks licences, frequency and number authorisations) or enforces SMP regulations (e.g., ex ante approval of standard interconnection offers, compliance with cost accounting separation)? The Italian NRA, Autorità per le Garanzie nelle Comunicazion ("AGT"), is an independent agency established by and reporting to the Italian Parliament (Senate and Chamber of Deputies), not to the Italian Government. The NRA shares part of the overall competencies for governing and regulating the telecommunications sector (as well as the radio and television broadcasting sectors) with the Italian Ministry of Communications, Ministero delle Comunicazioni (hereafter “MoC”), which is the political governmental authority on the sector. The competencies of the MoC are restricted to certain specific activities and do not overlap with the competencies of the NRA. One of the most relevant activities involving both the NRA and the MoC is the Radio Frequencies Allocation Plan ( Piano Nazionale di Ripartizione delle Frequenze ), which is approved by the MoC with the opinion of the NRA. In granting authorisations and licences or enforcing SMP regulations ( e.g., ex ante approval of standard interconnection offers, compliance with cost accounting separation), the NRA is not subject to any injunctions from the MoC or any other political authority. 2. What is the duration of office of your NRA's management? Is there a possibility of re- appointment? NRA Council members are appointed by the Senate and the Chamber of Deputies for a term of 7 years and cannot be re-appointed. If a member is appointed to replace another Council member departing for any reason, the newly appointed member may be re- appointed if his/her serving term with the NRA is less than 3 years. 3. What are the grounds for removal of your NRA's management? NRA Council members may be removed only in case of conflicts of interest, e.g., should they, (i) carry out other professional or consulting activities; (ii) be appointed as director, be employed, or have a participation in businesses operating in NRA-regulated sectors. 4. What are the eligibility requirements for your NRA's management? NRA Council members are chosen for their high professionalism and competency in the communications sector. Like other independent agencies operating in Italy, NRA Council members are typically university professors, researchers - in the communications sector - or, high magistrates. -39-

  84. 5. Are clear objectives assigned to the NRA? Are any of these objectives conflicting with each other? The Italian Law clearly assigns the NRA's activities and objectives. Article 1 of Law No. 249/97 lists in detail the tasks attributed to the NRA, which may be summarised as follows: - to settle disputes related to interconnection matters; - to verify the maximum levels of radio frequencies compatible with human health and, in general, to verify compliance with the law of products and services provided by each operator; - to issue directives and regulations about the general quality and standards of services and advertising matters; - to verify effective compliance with rules aiming at protecting minors and those related to the right of rectification; - to monitor radio-television broadcasting; - to apply sanctions set forth by the Law No. 223/1990. A.2 - Efficiency of operations 6. What is the average timeframe for obtaining reservation of numbers? The average timeframe is about 2 months. Individual licenses granted by the NRA shall include the release of any specific numbers requested by the applicant. Thus, the time schedule for obtaining reservation of numbers is the same as that of the assignment of frequencies. 7. What is the average timeframe for reviewing standard interconnection offers (assessed over the past three years)? The average timeframe is 7 months. Telecom Italia S.p.A. (“Telecom Italia”) - thus far the only notified SMP operator required to publish a Reference Interconnection Offer (hereafter “RIO”) - issued its 1999 RIO on July 1999, which was approved by NRA resolution in February 2000. The 2000 RIO was issued on April 2000 (approved in November 2000). The 2001 RIO was issued on September 2001 (approved in March 2002). On April 3, 2002, Telecom Italia published its approved 2001 RIO, available for review. 8. In practice, what is the average timeframe for the negotiation of an interconnection agreement for a new entrant which does not yet have an interconnection agreement with the incumbent operator? 3 months is an average negotiation timeframe. However, the law provides no defined timeframe. A.3 - Transparency 9. Is your NRA required to make public consultations prior to deciding on issues of general interest? No public consultation procedure is expressly required under Italian Law. However, recognising the need for public consultations, the NRA adopted Resolution No. 278/99. In accordance with the principles of transparency and public participation, the Resolution sets -40-

  85. out specific rules for conducting public consultations in areas of public interest. From 1999 to April 2002, the NRA conducted 22 public consultations. 10. Is your NRA required to effectively motivate its decisions? If so, is there any possibility of appeal in the event of NRA's violation of its obligation to motivate its decision? Within what timeframe? All decisions by the NRA must be motivated. NRA decisions are subject to appeal before the Administrative Court of the Lazio Region, located in Rome ( TAR Lazio ). 11. Is your NRA required to publish all its decisions upon their adoption? All NRA decisions must be published within 7 days of the date of the last hearing. In practice, this publication period is not always respected. 12. Does your NRA have a "management plan"? If yes, is it public? A management plan is not expressly provided under Italian Law, nor does such a plan exist to our knowledge. A.4 - Effectiveness of sanctions and scale of resources 13. What is the number of employees employed for general regulatory issues (excluding frequency and numbering management) ? The NRA hires 320 employees for general regulatory issues (including employees with temporary contracts). Employees of the NRA include Directors, Officials, Operative personnel, and lower level personnel. Only Directors and Officials (about 30% of all employees) are specifically involved in regulation ( i.e ., staff does not exceed 100 employees). Since the NRA generally performs its duties in a timely fashion, the current staff numbers can be considered sufficient and adequate for its workload. 14. What are the specific procedures for selecting NRA's personnel? (Specific exams/ general State recruitment exams) A maximum of 50% of NRA employees may be recruited by public recruitment examinations. Exam candidates must generally fulfil certain requirements, such as a university degree, depending on criteria for given positions. The remaining 50% of employees are hired directly from other existing public offices. In addition, an additional 60 employees can be hired by individual contracts for a maximum duration of 2 years. 15. Is your NRA entrusted with the power to impose fines? The NRA can impose fines up to EUR 250,000. For more serious violations, the NRA may suspend or revoke licenses. The power to impose fines effectively exists and, since the law has been in force for some years, the NRA is adopting a stricter attitude towards failures to notify. Notwithstanding the existence of fining powers, some economically powerful undertakings may nonetheless choose to disregard fines, thereby rendering the sanctions inefficient. The score of 5 takes into consideration both the provisions of the law and the actual situation. 16. Are the powers of your NRA clearly defined by law? -41-

  86. NRA powers are clearly provided by Italian Law. 17. Does your NRA have the financial freedom to set levels of remuneration to attract appropriate staff? The compensation scale of employees is below the private sector. However, working for the NRA is seen as providing valuable experience, which can be subsequently exploited. In practice, positions with the NRA remain attractive notwithstanding lower compensation than in the private sector. 18. Can your NRA have recourse to outside expertise such as consultants? The NRA can hire external consultants, but rarely used in practice. B. REGULATORY DISPUTE SETTLEMENT B.1 - Independence 19. Is your NRA subject to any injunctions from political authority when it acts as a dispute settlement body in the event of conflicts between operators (e.g., in relation to local loop unbundling or interconnection) ? When acting as a dispute settlement body, the NRA is not subject to any injunction exercisable by the MoC or any political authority. B.2 - Speed of process 20. What was, over the past two years, the average timeframe for obtaining a decision from your NRA acting in a capacity as a dispute settlement body? Theoretically, the terms for obtaining a decision from the NRA may not exceed 45 days, including prior attempts for settlement. A 90-day term applies to disputes regarding interconnection matters. In practice, the parties often exceed these periods in settlement attempts between themselves. Overall, the average timeframe for resolving interconnection disputes is about 3 months. 21. Can your NRA adopt interim measures? Italian Law does not expressly provide for NRA adoption of interim measures. B.3 - Due Process 22. Is the dispute settlement process subject to the principle of contradiction? Yes, the Italian Law provides for the presence of both parties before the competent NRA department in dispute settlements. Confidential documents are not disclosed to the other party. 23. What are the possibilities to appeal a decision of the NRA acting as dispute settlement body? -42-

  87. Possibility to appeal decisions before TAR Lazio . The maximum score (12) should be given because the appeal before TAR Lazio is a “full appeal” covering the merit of the dispute and is not solely a judicial review. B.4 - Effect 24. Does the appeal of a NRA decision suspend the binding effects of the decision in question? An appeal does not automatically have a suspensive effect. Suspension orders can be obtained from the Court. 25. Is your NRA entitled to impose fines or periodic penalty payments? Yes. See Question 15. 26. Does your NRA have the power to enforce its own decision? In case of non-compliance with its decision, the NRA may impose sanctions and suspend (up to 6 months) or even revoke a license. With reference to sanctions, please see Question 15 above. The power to suspend licenses has rarely been used in practice. C. KEY ACCESS PRODUCTS C.1 - Voice interconnection 27. What is the level of interconnection tariffs for carrier select, carrier pre-select and call termination with interconnection at the tandem switch level? 1.14 Eurocents (7 th Implementation Report). 28. Do detailed cost models for SMP operators exist? Telecom Italia included cost models in its latest approved 2001 RIO. The cost model is not detailed. 29. Is there a standard procedure available for operators to negotiate alternative access products/services not explicitly provided for in the standard reference interconnection offers? No. 30. Are there SLAs in place for voice interconnection? The SLA for voice interconnection is contained in the latest approved 2001 RIO. C.2 - Leased lines and partial private circuits offer 31. Are there any wholesale private line offers ("ppcs") in your country? Yes, Italy has wholesale private offers. Tarification is very complex, and average tariffs for wholesale private lines are difficult to calculate. Telecom Italia wholesale offer tariffs are publicly available for review. A score of 2 is given in view of the following deficiencies: -43-

  88. - no possibility of migration for existing retail circuits; - no LRIC based access pricing for access tails; - no trunk circuit on interconnect terms; - no ability to share existing interconnect infrastructure; - no interconnect options available; - restrictions on use (connection points must be in the same district and a clearance system must be installed). 32. Comparison of tariffs for wholesale leased lines offers for 2Mbits/s on average distance of 2 km? EUR 7,772 per year (7 th Implementation Report). 33. Are there effective measures to prevent discrimination in the provision of ppcs and leased lines? The NRA imposes various obligations and duties on the SMP operator to prevent discrimination against operators that make use of ppcs and leased lines. In particular, provisions regarding lead times for delivery and repairs, with penalties in case of default, are expressly set forth. Telecom Italia must publish the quality levels of the services offered in the RIO. However, in practice this publication requirement is not sufficient to ensure compliance with Telecom Italia's non-discrimination obligation. Therefore, a maximum score is not justified. 34. Are there SLAs for leased lines and ppcs? SLAs exist in respect of private leased lines and ppcs. On 30 April 2002, Telecom Italia published a specific RIO and SLA, as well as a Procedures Manual, for ppcs. C.3 - Local loop unbundling 35. What is the number of unbundled lines as a percentage of total lines? 0.05% (ECTA ULL Scorecard April 2002). 36. What is the number of unbundled lines as a percentage of wholesale DSL lines used by non- incumbent operators? 49.7% (ECTA ULL Scorecard April 2002). 37. What is the number of unbundled lines as a percentage of incumbent DSL lines? 3.02% (ECTA ULL Scorecard April 2002). C.4 - Wholesale DSL products 38. Is a wholesale offer published so as to enable launch at same time as the incumbent? -44-

  89. Yes. 39. Are the terms of the wholesale offer equivalent to the terms benefited by the incumbent downstream operating retail arm? No ( e.g. , connections are offered per lots). It is not expected that the offer will be fully equivalent in the near future. 40. Are there volume order requirements per site? Yes, volume requirements are imposed. Improvements can be expected on the volume requirements. 41. Is there an access option at the nearest ATM mode? Yes. D. APPLICATION OF ACCESS REGULATION D.1 - Cost orientation 42. Is there a detailed model for SMP operators? Telecom Italia included cost models in its latest approved 2001 RIO. 43. What is the type of cost accounting methodology used? Cost accounting methodology is presently based on Current Cost Accounting; in the future, it should be based on LRIC (Long Run Incremental Costs). Economic conditions prepared by the SMP operator ( i.e ., Telecom Italia) for access to and use of public telecommunication networks and telecommunication services accessible to the public must be based on transparency principles, objectivity, cost orientation, and other principles contained in Law No. 481/95. 44. Does the NRA have the power to seek cost orientation of retail tariffs? Yes, the NRA has the power to investigate the effective application of cost orientation principles for retail tariffs. D.2 - Cost accounting separation 45. Are SMP operators subject to effective cost accounting obligations? Yes, as specified in Articles 8 and 9 of Presidential Decree No. 318/97. However, the criteria that should regulate the cost accounting obligations are still not clearly defined by the law. Accounting obligations are expected to be clarified by 2004. D.3 - Availability of information 46. Is there any information available (e.g., number of subscribers, key for cost allocation between network components, WACC) enabling competitors/third parties to understand -45-

  90. cost models and assess regulated operators' compliance with their cost orientation and accounting separation obligations? Only limited information is available to third parties ( e.g., total costs, total revenues). In March 2002, the NRA began a proceeding to specifically determine information that can be made available to the public. Furthermore, SMP operators ( i.e ., Telecom Italia) are subject to periodic reviews on cost orientation and accounting separation by independent entities selected by the NRA. 47. Are the accounts drawn in accordance with cost accounting separation effectively published? Accounts must be drawn in accordance with cost accounting separation principles and are effectively published and subject to verification by an independent entity appointed by the NRA. This is partially complied with. Compliance is expected to improve as a result of the procedure referred to question 46 on cost accounting information initiated by the NRA in March 2002. D.4 - Procedures satisfying access requests in an effective and timely fashion 48. What is the procedure for the negotiation of a reference interconnection agreement or standard interconnection agreement with the incumbent. If there is no standard agreement, please elaborate. What is the timeframe for entering such an agreement - are there any material barriers to entering such an agreement? Interconnection agreements with the SMP operator generally do not provide for specific effective procedures for the negotiation of new access services. 49. Is there a specific procedure for requesting services which fall outside the scope of the RIO? If so, does it provide for certain timelines for the conclusion of negotiations and the final decision on the services? What is the average timeline for the addition of such services? (e.g., looking at three recent requests and their outcomes). Are there material hurdles to the receipt of such services - e.g., does the regime provide for cooling off periods, limiting the possibility for the dispute settlement body to intervene or a very long period for the conduct of negotiations. Are there other material hurdles to the receipt of such services? This relates to voice and data products. See also question 29 responses. There is no fixed deadline for the parties for reaching an agreement. Based on experience, a term of 3 months appears to be an average negotiation timeframe. However, the object of the agreement may be subsequently modified in light of new terms and conditions provided for in the RIO. There are no specifications for negotiation. At any point, the parties may refer to the NRA or the dispute settlement body. D.5 - Rights of way 50. Are operators entitled to free rights of way? The Italian Law does not entitle operators to a free right of way. -46-

  91. E. COMPLIANCE WITH AND IMPLEMENTATION OF TELECOMMUNICATION LEGISLATION 51. What is over the past five years the number of ECJ decisions finding your country to have failed to implement EU telecom Directives? 3 decisions. − Case C-70/02 Commission v. Italian Republic of 1 March 2002: subject matter alleged failure to implement Directive 97/66/EC (still pending - not included for scoring) − Case C-423/99 Commission v. Italian Republic of 7 December 2000: subject matter: failure to implement Directive 98/10/EC − Case C-422/99 Commission v. Italian Republic of 30 November 2000: subject matter: failure to implement Directive 97/51/EC 52. Number of cases commenced by EC Commission. 12 cases. Cases closed by EC Commission: 9. − Case n°1996/4482: subject matter: Establishment of the interior market of telecommunications services (audiotex services) − Case n°1998/2070: subject matter: Authorization conditions of the mobile telephony DECT − Case n°1998/2080: subject matter: Non-execution of corrective measures agreed in application of the decision of 4 October 1995 − Case n°1998/4678: subject matter: Discrimination by the city of Milan in granting the rights of way − Case n°2000/0578: subject matter: Telecommunications network - Article 1-3 of Directive 1999/64 − Case n°98/5110: subject matter: Trunking network − Case n°98/4775: subject matter: Incorrect transposition of Directive 97/13/EC (performance bond). − Case n°98/0394: subject matter: modification of the ONP Framework Directive and Leased Lines Directive. − Case n° 98/0399: subject matter: supply of an open network and universal telecommunications service. Cases currently being investigated by the Commission: 3. -47-

  92. ANNEX VI - THE NETHERLANDS A. REGULATOR - GENERAL FUNCTIONS A.1 - Independence 1. Is your national telecommunications regulatory authority (hereafter "NRA") subject to any injunctions from political authority (other than through removal), when it grants authorisations (services/networks licences, frequency and number authorisations) or enforces SMP regulations (e.g., ex ante approval of standard interconnection offers, compliance with cost accounting separation)? The Dutch NRA ("OPTA") is an independent administrative body. It fulfils the tasks assigned to it on an independent basis (Article 15 (2) Act on OPTA). It is not subject to injunctions concerning its authorisations or enforcement of SMP rules. Independence of OPTA has been viewed as particularly important because of the financial interest of the State in the incumbent operator KPN. Within the framework of the 4-year evaluation of OPTA by the Ministry of Public Works, Transport and Water Management (the "Ministry"), the Ministry announced that OPTA would be an independent administrative body only up to and including 2005. After 2005, OPTA will become a regulatory chamber of the Dutch Competition Authority ("NMa"). Proposed amendments in the Dutch Competition Act on the independence of the NMa provide more detail on the formation of the regulatory chamber. 2. What is the duration of office of your NRA's management? Is there a possibility of re- appointment? 4 years (possibility of re-appointment). Currently, OPTA's management (minimum of 3 and maximum of 5 members) consists of 3 members. 3. What are the grounds for removal of your NRA's management? OPTA’s management are civil servants and cannot be removed except for "substantial reasons" giving rise to unsuitability for the office. In practice, these grounds for removal are seldom applied in practice and do not limit the independence of OPTA's management. Removal is restricted to the following circumstances: − reaching the age of 65; − inability; − criminal conviction; − being under legal restraint; − dismissal because of "revolutionary conviction or political unreliability"; − re-organisation; − end of term. Removal for purely political reasons is not allowed. 4. What are the eligibility requirements for your NRA's management? -48-

  93. Members of the OPTA management are independent experts of different disciplines. Holding a position at a Ministry, the Lower House, a provincial government, or a municipality is not compatible with OPTA membership. Also, OPTA members may not have any financial interest in a company if this would jeopardise his integrity. 5. Are clear objectives assigned to the NRA? Are any of these objectives conflicting with each other? Clear objectives are assigned to OPTA: − monitor compliance with applicable telecommunications and postal services legislation; − supervise the attribution of (information) numbers; − take decisions with reference to registrations, rights of way, ONP, access to cable networks, and determination of costs for universal service; − take decisions with reference to designations; − settle disputes between parties; − assess (interconnection) agreements. A.2 - Efficiency of operations 6. What is the average timeframe for obtaining reservation of numbers of the Telecommunications Law? 6 weeks (for either reservation of numbers or application of a number) (see Article 4.4. of the Telecommunications Act ("Tw"); Article 4.2, Section 2 Tw). Following implementation of the EU regulatory framework, the timeframe will be limited to 3 weeks. 7. What is the average timeframe for reviewing standard interconnection offers (assessed over the past three years)? Timeframes can differ, with an average timeframe of about 6 months: - Review of RIO for the period 1 July 2000 to 1 July 2001 took 11 months (31 August 2000 - 28 July 2001). - Review of KPN's offer with respect to New Line Services (provided under the local loop obligations) took approximately 6 months (15 December 2001 - 25 June 2002). - Review of the offer for access to the local loop took approximately 1 month (16 May 2001 - 28 June 2001). However, the reference offer had to be published before 1 January 2001, and KPN delayed this publication. 8. In practice, what is the average timeframe for the negotiation of an interconnection agreement for a new entrant which does not yet have an interconnection agreement with the incumbent operator? Approximately four months. The timeframe to negotiate with KPN may be short if a reference offer exists, and the new entrant does not want to deviate from the reference offer. However, amending the -49-

  94. reference offer may require lengthy negotiations. In practice, parties tend to enter into an interconnection agreement on a provisional basis, leaving certain outstanding issues to future negotiation. This was, for example, the case for a bank guarantee clause contained in KPN's reference offer, which typically constitutes an issue for new entrants. OPTA is also empowered to set a timeframe for the negotiation of interconnection agreements. A.3 - Transparency 9. Is your NRA required to make public consultations prior to deciding on issues of general interest? OPTA is not obliged to hold public consultations prior to making its decisions. In practice, however, OPTA will generally consult the public under its obligation to act with due care. 10. Is your NRA required to effectively motivate its decisions? If positive, is there any possibility of appeal in the event of NRA's violation of its obligation to motivate its decision? Within which timeframe? OPTA is required to effectively motivate its decisions. If it fails to do so, an appeal may be brought within a timeframe of 6 weeks following the decision. 11. Is your NRA required to publish all its decisions upon their adoption? The OPTA is required to publish its decisions upon their adoption. 12. Does your NRA have a "management plan"? If yes, is it public? While there is no published management plan as such, OPTA must publish an annual report on its policies and the efficiency of its activities. Additionally, every 4 years, the Ministry must publish and present to the Lower House of Parliament an evaluation report on OPTA. A.4 - Effectiveness of sanctions and scale of resources 13. What is the number of employees employed for general regulatory issues (excluding frequency and numbering management) ? Approximately 75 persons (departments for interconnection and special access, consumers, numbers and registration). OPTA considers the number of employees insufficient. Its annual report (2001) states that even though the budget accounted for an increase in personnel, it was difficult to find employees for many vacancies. 14. What are the specific procedures for selecting NRA's personnel? (Specific exams/ general State recruitment exams) OPTA is in charge of recruiting its own personnel and does so on the basis of the qualifications and experience of the candidates. There are no specific exams for higher positions. 15. Is your NRA entrusted with the power to impose fines? -50-

  95. Yes, OPTA has the power to impose a fine of up to EUR 450,000. 16. Are the powers of your NRA clearly defined by law? Yes, OPTA's sanctioning powers are clearly defined by law. Further enumeration of OPTA powers continues to be the subject of legislative discussions, for example, concerning OPTA authority to regulate tariffs for mobile terminating access. 17. Does your NRA have the financial freedom to set levels of remuneration to attract appropriate staff? OPTA staff are civil servants subject to standard civil servant pay-scales. Although financial compensation is lower compared to the private sector, other employee benefits ( e.g. , average 36 hour work week) are sufficiently attractive to recruit qualified personnel. However, it has proven more difficult for OPTA to retain experienced staff due to limited career prospects. 18. Can your NRA have recourse to outside expertise such as consultants? Yes. OPTA has used this possibility extensively. OPTA annually uses economic experts for SMP research. About twice a year, it asks for help from accountants to do research in various disputes. In addition, OPTA also benefits from legal assistance provided by the State Lawyer ( landsadvocaat, i.e. , an outside legal counsel providing services to the administration) in court procedures. It also consults an expert lawyer on media law. B. REGULATORY DISPUTE SETTLEMENT B.1 - Independence 19. Is your NRA subject to any injunctions from political authority when it acts as a dispute settlement body in the event of conflicts between operators (e.g. , in relation to local loop unbundling or interconnection)? No, and after 2005, the NRA will be a regulatory chamber of the Dutch Competition Authority (“NMa”). The proposed amendments in the Dutch Competition Act on the independence of the Dutch Competition Authority provides greater detail on the formation of the regulatory chamber. B.2 - Speed of Process 20. What was, over the past two years, the average timeframe for obtaining a decision from your NRA acting in a capacity as a dispute settlement body? OPTA is required to decide disputes on interconnection and special access within 6 months (Article 6.3 (3) and Article 6.9 of the Tw). Disputes concerning the obligation to accept installations and the maintenance and clearance of cables must be decided within 8 weeks (Article 5.3(3) Tw). For other disputes such as site-sharing, duct-sharing, leased lines and (conditional) access to the cable, OPTA must decide these disputes within 8 weeks. OPTA also has the possibility to follow a simplified procedure for cases similar to cases previously handled by OPTA. -51-

  96. Given the large number of cases lodged with and decided by OPTA's dispute settlement body, it can be considered that market players consider this an efficient dispute settlement procedure. However, OPTA has occasionally exceeded its time limits because of the complexity of certain interconnection and special access disputes, or because of the lack of procedural rules for dispute settlements within OPTA. In July 2001, OPTA published such rules and hopes these rules will accelerate its decision-making (Annual Report 2001). Article 20 of the new EC Framework Directive stipulates that in the event of a dispute arising in connection with obligations arising under this Directive or the Specific Directives between undertakings providing electronic communications networks or services in a Member State, NRAs shall issue a binding decision to resolve the dispute in the shortest possible time frame and, in any case, within four months except in exceptional circumstances. 21. Can your NRA adopt interim measures ? For interconnection and special access disputes, OPTA will occasionally render a provisional decision in urgent cases which will apply between the providers until the final decision (Article 6.3(3 sub b) to 6.9 Tw). Over the last two years, OPTA took seven decisions ordering provisional measures. The Telecommunications Act does not have further provisions authorising OPTA to take interim measures in other subject matters. B.3 - Due Process 22. Is the dispute settlement process subject to the principle of contradiction? The principle of contradiction applies unless OPTA applies the "simplified procedure". The simple procedure can be used, for example, in cases similar to cases previously decided by OPTA. 23. What are the possibilities to appeal a decision of the NRA acting as dispute settlement body? Parties can ask OPTA to review its decision. If OPTA confirms the decision, an appeal may be lodged before the Court of Rotterdam and the College voor Beroep voor het Bedrijfsleven (see procedure noted in Question 11). The judge is only limited by restricted review when OPTA has discretionary powers. B.4 - Effect 24. Does the appeal of a NRA decision suspend the binding effects of the decision in question? An appeal of a decision of the NRA does not suspend the binding effects of the decision. In urgent cases, operators can separately apply for a preliminary court decision to suspend the decision of the NRA. However, the effect of a decision to impose a fine will be suspended until the period for administrative appeal has expired, or, if an appeal has been brought, until the administrative appeal has been decided on. (Article 15.12 of the Tw). This means that a fine need not be paid until the decision to impose it has become final. Article 4 of the -52-

  97. EC Framework Directive stipulates that pending the outcome of an appeal, the decision of the NRA shall stand, unless the appeal body decides otherwise. 25. Is your NRA entitled to impose fines or periodic penalty payments? OPTA can issue decisions imposing administrative fines of up to EUR 450,000. The decision must stipulate the sum to be paid and substantiate the amount of the fine (must correspond to the seriousness and duration of the violation, as well as to the degree of fault). An administrative fine may not be imposed if criminal proceedings have already commenced and if the trial has already started. On the other hand, criminal proceedings may not be brought if an administrative fine has already been imposed for the same violation. Although not regulated in the Telecommunications Act, OPTA may also impose an administrative periodic penalty payment (provided for in Articles 5:32 to 5:36 of the General Administrative Law) to ensure compliance with the decision. In December 1999 OPTA fined 9 undertakings (ANWB Telecom, Ben, Debitel, Dutchtone, IMC, KPN, Libertel, Talkline, Telfort) for not sufficiently providing number portability. OPTA may also impose a periodic penalty payment (" last onder dwangsom "). In practice, however, penalties are typically not collected, since undertakings often subsequently comply with OPTA’s wishes. OPTA also hesitates in enforcing the collection of fines because of the risk that that a court would not uphold its decision. 26. Does your NRA have the power to enforce its own decision? Yes. As indicated in Question 25, OPTA can impose fines or periodic penalty payments which can be enforced in Court. C. KEY ACCESS PRODUCTS C.1 - Voice interconnection 27. What is the level of interconnection tariffs for carrier select, carrier pre-select and call termination with interconnection at the tandem switch level? 1.03 Eurocents (7 th Implementation Report) 28. Do detailed cost models for SMP operators exist? Yes, price regulation applies to SMP operators, and interconnection charges need to be cost-orientated. For originating access, the Embedded Direct Costs method ("EDC") in applied. For terminating access, the Bottom Up Long Run Incremental Costs method ("BU LRIC"), based on the long run incremental costs of an efficient operator, is applied. End-user tariffs for public fixed line services need to be cost-oriented. OPTA published new documents on future tariff regulation on end-user tariffs. OPTA indicates that a softer "price cap" model will be used in the future if KPN agrees to lift certain restrictions on the provision of wholesale services. -53-

  98. 29. Is there a standard procedure available for operators to negotiate alternative access products/services not explicitly provided for in the standard reference interconnection offers? There is no standard procedure for such negotiations. Nonetheless, KPN's Reference Offer for Interconnection, Special Access and Optional Services (RO) undergoes regular amendment as a result of consultations, discussions in the Dutch inter-industry forum FIST, and new product developments. 30. Are there SLAs in place for voice interconnection? Yes, as an SMP party, KPN offers SLAs for voice interconnection services under its Reference Offer for Interconnection, Special Access, and Optional Services (the current Reference Offer is 2001.2 at http://www.kpn-telecom.nl/). C.2 - Leased lines and partial private circuits offer 31. Are there any wholesale private line offers ("ppcs") in your country? Although there are some private line offers, these are restricted to a specific capacity or specific geographic area. In practice, only KPN offers these lines (see OPTA document on Interconnecting Leased Lines, 26 April 2002). 32. Comparison of tariffs for wholesale leased lines offers for 2Mbits/s on average distance of 2 km? EUR 13,363 per year (7 th Implementation Report). 33. Are there effective measures to prevent discrimination in the provision of ppcs and leased lines? Leased lines and ppcs must be provided for in the reference interconnection offer. There is no publication requirement for the particular agreements entered into by KPN for the provision of these services, nor is there an obligation for KPN to deposit all agreements with OPTA (this obligation only applies to interconnection and special access agreements). OPTA is currently in the process of reviewing all wholesale conditions of KPN's leased lines and ppcs offers. Specific obligations to prevent discrimination may be imposed as a result of this review. Also, using its powers to conduct market investigations, it can request the offers of market parties to determine whether discrimination exists. Currently, KPN has filed an appeal against its designation as SMP for leased lines including ppcs. Delivery of retail lines is 25 working days. 34. Are there SLAs for leased lines and ppcs? KPN offers SLAs for leased lines under its Reference Offer for interconnecting leased lines (see also OPTA decision of 17 May 2002, http://www.opta.nl/). Note that KPN has only been designated as SMP as long as leased lines do not exceed 2 MB (OPTA decision of 27 March 2002). Other parties also offer SLA for voice interconnection and leased lines (for example, Energis, Equant, etc.). -54-

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