Legislative Framework
Regulatory Bodies
Authorization Regime
Transitional Provisions
Operators with Significant Market Power
Dispute Settlement Procedure
Network Access and Interconnection
Rights of Access to Property
Universal Service Principle
User Protection
Consultation Procedure

Legislative Framework

The key laws regulating telecommunications in Romania are as follows:

  • Emergency Government Ordinance 79/2002 on the general legal framework on communications (the Communications Ordinance);

  • Government Ordinance 34/2002 on access to the communications networks and interconnection (the Interconnection Ordinance), as approved by Law 527/2002;

  • Government Decision 20/2001 on the organization and functioning of the Ministry of Communications and Information Technology, as amended; and

  • Government Decision 180/2002 on the establishment of the General Inspectorate for Communications and Information Technology (GICIT).

These laws regulate the following:

  • the competent public authorities in this sector;

  • the general authorization and licensing regime;

  • rules applicable to operators with significant market power;

  • rules governing the settlement of disputes between competitors;

  • network access and interconnection;

  • rights of access to property;

  • the universal service principle and user protection; and

  • the consultation procedure.

The new legal framework issued in the form of the Communications Ordinance was established in order to harmonize national legislation with EU law, and in anticipation of the imminent liberalization of the Romanian communications market, which is set to begin on January 1 2003 with the termination of Romtelecom's monopoly. The new law completely repeals the previous regulation, the Telecommunications Law (74/1996). The main changes introduced by the Communications Ordinance are:

  • the establishment of a new regulatory authority in accordance with EU directives;

  • the introduction of a new authorization regime for communications services and networks; and

  • the imposition of new rules which govern competition on the market.

The Communications Ordinance will come into force within 90 days of the date of its publication, June 27 2002.

Regulatory Bodies

The National Regulatory Authority for Communications
The newly established National Regulatory Authority for Communications (NRAC) is a public institution which is subordinated to the government and is financed entirely by extra-budgetary income. It is responsible for implementing the national communications policy.

To this end, the NRAC has the following functions:

  • implementing national communications policies and strategies;

  • managing and administrating communications resources;

  • assigning numbering resources for communications services through the national numbering plan;

  • administrating numbering resources at national level to ensure their reasonable and efficient use;

  • drafting, adopting and implementing technical norms and national and international standards;

  • regulating activities within the sector and supervising compliance with the reg;

  • acting as the state communications authority before national, regional and international bodies and organizations, and liaising with these institutions;

  • communicating with other public administration bodies, and with Romanian society and citizens in general, as well as with telecommunications operators; and

  • acting as arbitrator and ruling authority in the resolution of disputes between operators, in order to ensure free competition and protect user interests.

The NRAC is entitled to levy an annual monitoring tariff, calculated as a percentage of turnover, on all authorized operators. This percentage is equal for all operators and is determined annually, but may never exceed 0.5%. In order to determine the amount due, all operators must send a copy of their annual financial reports to the NRAC within the term stipulated by law.

The monitoring tariff owed by each provider is established approved by decision of the NRAC's president and must be communicated to the provider in written form by May 15 each year.

Upon ceasing activities, an authorized network or service provider must pay a final monitoring tariff determined according to the Communications Ordinance's provisions.

Ministry of Communications and Information Technology
The ministry retains certain regulatory powers. In its capacity as specialist body of the central public administration in the field of communications, it has the following powers, among others:

  • power to draft policies and strategies in the sector;
  • power to ensure that the management of radioelectric frequencies is administrated and coordinated at national level. It is assisted in this role by the Interdepartmental Commission of Radiocommunications, an advisory body of the ministry;
  • power to grants licences for the use of radioelectric frequencies; and;
  • power to establish the tariffs for spectrum use which must be paid yearly by holders of these licences.
General Inspectorate for Communications and Information Technology
The general inspectorate is a public institution which is subordinated to the ministry. Its purpose is to supervise and control activities within the communications sector, and to implement electronic administration projects at national level. To this end, it is responsible for:

  • managing radioelectric frequency bands that have been assigned for non-governmental use;

  • assigning radioelectric frequencies in the bands set out in the national allocation table and keeping a permanent record of their use; and

  • ensuring that operators meet all obligations in relation to the use of radioelectric frequencies.

Authorization Regime

One of the major changes effected by the new legislation is the liberalization of network and service provision. These activities may now be undertaken under the conditions of the general authorization regime; individual licences are only required for the use of radioelectric frequencies and numbering resources. There are no restrictions on the types of entity which may benefit from the general authorization.

Any entity intending to provide communications networks or services must send the NRAC written notification of its intention at least seven days prior to commencing activities.

The NRAC specifies the information which an entity intending to provide communications networks or services must submit in order to benefit from the general authorization. This includes:

  • information necessary to identify and contact the operator;

  • a description of the types of networks or services which the operator intends to provide; and

  • the estimated date on which activities will commence.

Following notification, the NRAC must be informed of any changes to this information within 10 days of it occurring.

Once the NRAC has been duly notified, the operator is deemed authorized to provide the types of networks or services indicated in the notification, and assumes all the rights and obligations stipulated in the general authorization.

Upon request or ex officio, the NRAC may issue a standard certificate verifying that the respective operator sent due notification under the Communications Ordinance, and setting out the conditions under which the operator may access property and negotiate access or interconnection agreements.

The general authorization is drawn up and updated by the NRAC, which thereby establishes the conditions for its provision and determines the rights and obligations for each type of network or service.

Operators that are thus authorized to provide communications networks or services to the public also enjoy (i) the right to negotiate and conclude access or interconnection agreements with any other authorized operators, under the conditions of the Interconnection Ordinance, and (ii) the right to be appointed to provide any element of the universal service, either nationwide or in certain areas, as provided by the law. If an operator's right to provide communications networks or services is withdrawn, it cannot benefit from the general authorization for the same type of network or service for a period of five years as of the withdrawal of this right.

The NRAC can amend or cancel the general authorization, in accordance with the principles of objectivity and proportionality, only (i) after conducting a public consultation, and (ii) if this is necessary to comply with obligations arising from an international agreement to which Romania is a signatory, or if the circumstances of the general authorization's issuance have changed.


As radioelectric frequencies and numbering resources are limited resources belonging to the state public property, their use is allowed only after obtaining a licence granted under conditions which should ensure their efficient exploitation. Where technically possible, and if there is minimal risk of interference, the Ministry of Communications and Information Technology can designate certain categories of frequency for which use is free, subject to the conditions of the general authorization regime.

Licences for the use of radioelectric frequencies are granted by the ministry, while those for the use of numbering resources are granted by the NRAC.

Both licences are granted through an open, transparent and non-discriminatory procedure. A licence for the use of radioelectric frequencies will be granted within six weeks of the ministry receiving the request, while the NRAC has three weeks in which to grant a licence for the use of numbering resources. However, in the case of licences which, pursuant to the Communications Ordinance, must be granted through a procedure of competitive or comparative selection, these terms stand at eight months and six weeks respectively.

The term for which the licence is granted will be specified in the individual licence.

These licences may only be assigned to a third party authorized under the Communications Ordinance with the prior approval of the ministry or the NRAC, as the case may be. The licence may be assigned only if all obligations which arise from it are assumed and if the conditions stipulated in the licences with respect to its assignment are complied with. Any agreement which assigns a licence while failing to comply with these conditions is void.

Transitional Provisions

All licences and authorizations issued on the basis of the Telecommunications Law will remain valid until December 31 2002, with the exception of those which provide for a shorter term. Within this period the licence or authorization holder must submit the notification required under the Communications Ordinance to the NRAC, with a view to continuing its activities under the general authorization. As of the notification date the validity of the licence or authorization will cease, with the exception of those provisions referring to the use of radioelectric frequencies or numbering resources.

Within the same term, the Ministry of Communications and Information Technology must revise all licences which it has granted for the use of radioelectric frequencies in order to ensure that they comply with the new ordinance's provisions.

Meanwhile, the NRAC will issue new licences for the use of numbering resources to those operators which have been granted the right to use these resources under the Telecommunications Law.

Operators with Significant Market Power

An operator is considered to have significant market power in a certain market if, individually or together with other operators, it enjoys a position equivalent to a dominant position - that is, if it can behave independently towards competitors and customers. Additionally, an operator which acts as the sole provider in a certain market is presumed to have significant market power on that market.

The Communications Ordinance states that where the regulations in force demand that certain obligations be imposed, retained, modified or withdrawn as a result of market analyses, the NRAC must determine whether effective competition exists on the relevant market, based on certain regulatory criteria drawn up by the NRAC in collaboration with the Competition Council.

If, based on this market analysis, the NRAC establishes that effective competition exists, it will either (i) impose no obligations on market participants or (ii) withdraw any existing obligations in place.

Where it finds that effective competition does not exist, the NRAC will utilize the same regulatory criteria to identify those operators with significant market power, and will either (i) impose certain obligations on them, or (ii) retain or modify obligations that are already in force.

Such obligations may only be imposed, retained, modified or withdrawn after public consultation.

The ordinance's provisions on significant market power cannot be applied yet, as the regulations which must be drawn up by the NRAC in collaboration with the Competition Council have not yet been issued.

Dispute Settlement Procedure

Where a dispute arises between operators in connection with their obligations under the Communications Ordinance or other relevant legislation, either party may request the president of the NRAC to issue a binding decision in order to settle the dispute. This decision must be issued within four months of receiving notification of the dispute, except in particularly complex cases for which a longer term is needed.

The decision will be sent to the parties together with the grounds on which it is based, and will also be published on the NRAC's website in accordance with the legal provisions on confidentiality. If one of the operators is foreign, the NRAC will cooperate with the relevant authorities in its home country in order to resolve the dispute.

Pursuant to the constitutional principle of free access to justice, the Communications Ordinance expressly stipulates that notification of the NRAC of a dispute does not preclude the parties from filing suit in court in relation to the same subject matter.

Network Access and Interconnection

Under the Interconnection Ordinance all operators may negotiate access or interconnection agreements in order to establish the necessary technical and commercial conditions for their effective operation.

In order to ensure interoperability, all operators of a public communications network have the right to negotiate interconnection agreements with other network operators in order to provide communications services to the public, including services which are accessible to users through another network interconnected with those of the contracting operators. At the request of an authorized third party, they are also obliged to negotiate an interconnection agreement for the provision of communications services to the public, including services accessible to users through another network interconnected with that of either party.

The NRAC must take all necessary measures to encourage, and if necessary to ensure, that network access and interconnection are available to all operators under adequate conditions, as well to ensure the interoperability of services. It is empowered to establish the conditions for interconnection or network access on its own initiative or, in the case of a disagreement between the parties, at the request of any operator.

The measures which the NRAC can impose on an operator with significant market power in order to achieve these objectives include the following:

  • transparency obligations, which could require the publication of certain information such as technical requirements, network characteristics, the methods and conditions of provision and use, accounting information and tariffs;

  • non-discriminatory obligations regarding the conditions applicable to third parties and the information and services made available to them;

  • obligations requiring them to keep separate accounts for certain activities relating to interconnection or network access;

  • obligations requiring them to grant access to and use of specific elements of the network or related infrastructure. For example, these could oblige the operators to grant unconditional access to the local loop, to negotiate in good faith with a third party requesting access, to provide collocation or to grant interconnection;

  • obligations regarding recovery of the costs and control of the tariffs charged, including a requirement that tariffs be established on a cost-oriented basis; and

  • obligations to publish a reference offer for unconditional access to the local loop. These may be imposed on the operator with significant power on the local loop provision market.

However, as the joint NRAC-Competition Council regulations remain to be issued, these provisions are arguably p inapplicable at present.

Rights of Access to Property

The Communications Ordinance establishes the conditions under which authorized operators may install, maintain, replace and remove any element of the network - including support and other facilities, and terminal points - on, in or under real estate. Separate conditions are established for public and private property.

Authorized providers have the right to perform these activities on public property under the following conditions:

  • The exercise of this right must be compatible with the purpose for which the property is used;

  • The work must not infringe any legal requirements relating to urban infrastructure or the protection of the environment, public health or public order; and

  • The conditions of exercising this right must have been agreed by both parties, either through a notarized agreement or, where agreement cannot be reached, by court decision.

Work may be carried out on private property under the following conditions:

  • The work must have little or no impact on the property;

  • The work must not infringe any legal requirements relating to urban infrastructure or the protection of the environment, public health or public order; and

  • The conditions of exercising this right must have been agreed by both parties, either through a notarized agreement or, where agreement cannot be reached, by court decision.

Universal Service Principle

Under EU law, the universal service principle requires the provision of a minimum set of quality services, at accessible rates, across the whole country.

Following the repeal of the Telecommunications Law, there is no longer an express regulation on the universal service principle. The intention is to draw up a separate regulation which deals exclusively with this issue.

Nevertheless, certain references to the universal service principle are made in the existing legislation. Thus, the Communications Ordinance provides that the conditions which the NRAC can specify in relation to the general authorization may include:

  • financial contributions towards supporting the universal service;

  • the availability of numbering resources for end users, including conditions imposed by the special legislation on the universal service; and

  • criteria and procedures for meeting the obligations to be provided by the special legislation on the universal service.

In order to safeguard the right of all Romanian citizens to have access to the universal service, the NRAC is authorized to manage the financial mechanisms for funding the universal service and to ensure that universal service providers fulfil their obligations under the special legislation.

User Protection

User protection is identified as one of the NRAC's key objectives. To achieve this aim, it can take measures necessary to ensure that users receive the maximum benefit from a competitive market, as regards variety of offers, available tariffs and quality of services.

Consultation Procedure

In order to implement the new legislation, and to bring the legal framework further into line with EU law, further regulations remain to be drafted, including rules on:

  • identification of the relevant markets within the communications sector;

  • the criteria for conducting market analyses and determining significant market power;

  • the application and granting of licences for the use of radioelectric frequencies and numbering resources; and

  • the application of the universal service principle.

Where the NRAC intends to adopt supplementary regulations which could have a significant impact on the relevant market, it must first launch a consultation procedure in accordance with the provisions of the Communications Ordinance. However, the question of what exactly constitutes a 'significant impact' appears to have been left to the NRAC's discretion, as the ordinance fails to define this term.

Under the consultation procedure, the NRAC must publish the text of the proposed measures on its website. Interested parties then have a certain period specified by the NRAC (generally at least 30 days, or at least 10 where urgent measures are required) in which to submit their written comments.

Once the period for submitting comments has expired, the measures subject to consultation cannot be adopted for at least 10 days thereafter. The NRAC must collate and publish the comments received, together with its position on these observations, by no later than the date on which its decision adopting the measures is published on its website.

For further information on this topic please contact Catalin Baiculescu at Musat & Asociatii by telephone (+40 1 223 3717) or by fax (+40 1 223 3957) or by email ([email protected]). The Musat & Asociatii website can be accessed at www.musat.ro.