S.L. 399.48 Art. 21Consolidating the internal market for electronic communicat-ions. Cap. 418.

(1) Except where otherwise provided in any recommendations or guidelines adopted pursuant to article 34 of the

Electronic Communications Code, upon completion of the public consultation, if required under regulation 18, where the Authority intends to take a measure which:

(a) falls within the scope of regulations 48, 52, 54, 55 or 70; and

(b) would affect trade between Malta and other Member States, the Authority shall publish the draft measure and communicate it to the European Commission, to BEREC, and to the national regulatory authorities in other Member States at the same time, and in doing so shall state the reasons for the measure in accordance with regulation 15(9):

Provided that the aforesaid national regulatory authorities, BEREC and the European Commission may comment on that draft measure within one month from receipt of the draft measure, which period shall not be extended.

(2) The draft measure referred to in sub-regulation (1) shall not be adopted for a further two months, where that measure aims to:

(a) define a relevant market which is different from those defined in the recommendation referred to in Article 64(1) of the Electronic Communications Code; or

(b) decide whether or not to designate an undertaking as having, either individually or jointly with others, significant market power, under regulation 54(6) and (7) or (8);

and the draft measure would affect trade between Malta and other Member States, and the European Commission has indicated to the Authority that it considers that the draft measure would create a barrier to the internal market or that it has serious doubts as to its compatibility with European Union law and in particular with the objectives referred to in article 4 of the Act:

Provided that the two-month period shall not be extended:

Provided further that, the European Commission shall inform BEREC and the Authority of its reservations in such a case and simultaneously make them public.

(3) BEREC shall publish an opinion on the reservations of the European Commission referred to in sub-regulation (2), indicating whether it considers that the draft measure should be maintained, amended or withdrawn and shall, where appropriate, provide specific proposals to that end.

(4) Within the two month period referred to in sub-regulation (2), the European Commission may either:

(a) take a decision requiring the Authority to withdraw the draft measure; or

(b) take a decision to lift its reservations referred to in sub-regulation (2):

Provided that the European Commission shall take utmost account of the opinion of BEREC before taking a decision: AND SERVICES (GENERAL)

Provided further that decisions referred to in paragraph (a) shall be accompanied by a detailed and objective analysis of why the European Commission considers that the draft measure is not to be adopted, together with specific proposals for amending it.

(5) Where the European Commission has adopted a decision in accordance with paragraph (a) of sub-regulation (4) requiring the Authority to withdraw a draft measure, the Authority shall amend or withdraw the draft measure within six months of the date of the decision of the European Commission:

Provided that where the draft measure is amended, the Authority shall undertake a public consultation in accordance with article 4A of the Malta Communications Authority Act, and shall notify the amended draft measure to the European Commission in accordance with sub-regulation (1).

(6) The Authority shall take the utmost account of comments of the other national regulatory authorities, of BEREC and of the European Commission and may, except in the cases covered by sub-regulation (2) and by paragraph (a) of sub-regulation (4), adopt the resulting draft measure and shall, where it does so, communicate it to the European Commission.

(7) The Authority shall communicate to the European Commission and to BEREC all adopted final measures which fall under sub-regulation (1).

(8) In exceptional circumstances, where the Authority considers that there is an urgent need to act, in order to safeguard competition and protect the interests of users, by way of derogation from the procedure set out in sub-regulations (1) and (2), it may immediately adopt proportionate and provisional measures:

Provided that in doing so the Authority shall, without delay, communicate those measures, with its full reasons therefor, to the European Commission, to the other national regulatory authorities, and to BEREC:

Provided further that, a decision of the Authority to render such measures permanent or extend the period for which they are applicable shall be subject to sub-regulations (1) and (2).

(9) The Authority may withdraw a draft measure made in accordance with this regulation at any time.