S.L. 399.48 Art. 66Commitments procedure. Cap. 418.

(1) Undertakings designated as having significant market power may offer to the Authority commitments regarding conditions for access, co-investment, or both, applicable to their networks in relation, inter alia, to:

(a) cooperative arrangements relevant to the assessment of appropriate and proportionate obligations pursuant to regulation 55;

(b) co-investment in very high capacity networks pursuant to regulation 63; or

(c) effective and non-discriminatory access by third parties pursuant to regulation 65, both during an implementation period of voluntary separation by a vertically integrated undertaking and after the proposed form of separation is implemented.

Provided that the offer for commitments shall be sufficiently detailed including as to the timing and scope of their implementation and their duration, to allow the Authority to undertake its assessment pursuant to sub-regulations (2) and (3). Such commitments may extend beyond the periods for carrying out market analysis provided in regulation 54(9).

(2) In order to assess any commitments offered by an undertaking pursuant to sub-regulation (1), the Authority shall, except where such commitments clearly do not fulfil one or more relevant conditions or criteria, perform a market test, in particular on the offered terms, by conducting a public consultation of interested parties, in particular of third parties which are directly affected. As part of such a consultation, potential co-investors or access seekers may provide views on the compliance of the commitments offered with the conditions provided, as applicable, in regulations 55, 63 or 65 and may propose changes.

(3) As regards the commitments offered under this regulation, the Authority shall, when assessing obligations pursuant to regulation 55(5), have particular regard to:

(a) evidence regarding the fair and reasonable character of the commitments offered;

(b) the openness of the commitments to all market participants;

(c) the timely availability of access under fair, reasonable and non-discriminatory conditions, including to very high capacity networks, before the launch of related retail services; and

(d) the overall adequacy of the commitments offered to enable sustainable competition on downstream markets and to facilitate cooperative deployment and take-up of very high capacity networks in the interest of end-users.

(4) Taking into account all the views expressed in the consultation, and the extent to which such views are representative of different stakeholders, the Authority shall communicate to the undertaking designated as having significant market power its preliminary conclusions whether the commitments offered comply with the objectives, criteria and procedures set out in this regulation and, as applicable, in regulations 55, 63 or 65, and under which conditions it may consider making the commitments binding:

Provided that the undertaking may revise its initial offer to take account of the preliminary conclusions of the Authority and with a view to satisfying the criteria set out in this regulation and, as applicable, in regulations 55, 63 or 65.

(5) Without prejudice to the first paragraph of regulation 63(3), the Authority may issue a decision to make the commitments binding, totally or in part.

(6) By way of derogation from regulation 54(9), the Authority may make some or all commitments binding for a specific period, which may be the entire period for which they are offered, and in the case of co-investment commitments made binding pursuant to first paragraph of regulation 63(3), the Authority shall make them binding for a period of a minimum of seven years.

(7) Subject to regulation 63, this regulation is without prejudice to the application of the market analysis procedure pursuant to regulation 54 and the imposition of obligations pursuant to regulation 55.

(8) Where the Authority makes commitments binding pursuant to this regulation, it shall assess under regulation 55 the consequences of that decision for market development and the appropriateness of any obligation that it has imposed or would have imposed, in default of those commitments, have considered imposing pursuant to that regulation or regulations 56 to 61:

Provided that when notifying the relevant draft measure under regulation 55 in accordance with regulation 21, the Authority shall attach the notified draft measure with the commitments decision. AND SERVICES (GENERAL)

(9) The Authority shall monitor, supervise and ensure compliance with the commitments that it has made binding in accordance with sub-regulations (5) to (8) in the same way in which it monitors, supervises and ensures compliance with obligations imposed under regulation 55, and shall consider the extension of the period for which they have been made binding when the initial period expires. If the Authority concludes that an undertaking has not complied with the commitments that have been made binding in accordance with sub-regulations (5) to (8), it may impose penalties on such undertaking in accordance with articles 31 to 33 of the Malta Communications Authority Act:

Provided that without prejudice to the procedure for ensuring compliance of specific obligations under regulation 20, the Authority may reassess the obligations imposed in accordance with regulation 55(7).