T-REGS - Telecoms Regulatory Expertise Europe - Italy: Draft legislative amendment enabling ‘functional separation’ as a regulatory obligation

The proposal amounts to enabling the National Regulatory Authority AGCOM to:

1) Impose, on operators declared as having Significant Market Power, where justified and proportionate, an 'atypical obligation', i.e. a regulatory obligation that is not part of the standard menu of regulatory obligations contained in articles 9-13 of the Access and Interconnection Directive 2002/19/EC, and reflected in articles 46-50 of the Italian Code on electronic communications (the 'Codice').

T-REGS Note: Directive 2002/19/EC enables such 'atypical obligations' to be imposed by regulatory authorities in 'exceptional circumstances' and subject to the procedure in Article 8.3 of the directive, i.e. the European Commission must take a decision authorising or preventing the adoption by the national regulatory authority of such measures, which amounts to an explicit veto power of the European Commission.

The precise wording of the proposed obligation, which is proposed to be inserted as the new Article 45 3-bis in the Codice, can be paraphrased as follows:

AGCOM may define direct rules in order to ensure that the administration and management of all elements that constitute the access network and associated facilities, including the components necessary to supply broadband services, are subject to...

A regime based on criteria of autonomy, of neutrality and functional separation of the other activities of the undertaking, with full guarantee of equality of treatment (external and internal) for all the operators demanding access.

The regime would encompass the most appropriate organisational measures, determined by AGCOM.

2) As regards the exact scope ('perimeter') of the activity subject to functional separation (the notion of 'access network' is not defined), the implementation details, etc., the procedure is not necessarily foreseen as an obligation of functional separation imposed unilaterally and comprehensively by the regulatory authority. AGCOM would be entitled to accept voluntary commitments, or come to an agreement with the SMP operator. Any outcome of such a procedure would, however, be materialised in an approval decision of AGCOM, and such an AGCOM decision would, in fine, contain obligations determined by AGCOM.

This could be achieved through the procedure that is already contained in Article 14bis of legislative decree 223 of 2006, converted into law 248 of 2006.

In order to ensure speedy availability of the new powers to AGCOM, it is proposed that the insertion of the new Article 45 3-bis in the Codice would be achieved by adding a section to draft legislation that is currently pending before Parliament (legislative proposal 2272).

The full text (available in Italian only) of the proposed legislative amendment and the accompanying recital can be accessed by clicking here.

The web page of the Italian Chamber of Deputies, on which the parliamentary process relating to legislative proposal 2272 can be monitored, can be accessed by clicking here.

For a discussion of this important development, please contact This e-mail address is being protected from spam bots, you need JavaScript enabled to view it .