Directive 2002/20/EC of the European Parliament and of
the Council
of 7 March 2002 on the authorisation of electronic communications networks and
services (Authorisation Directive)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in
particular Article 95 thereof,
Having regard to the proposal from the Commission(1),
Having regard to the opinion of the Economic and Social Committee(2),
Acting in accordance with the procedure laid down in Article 251 of the
Treaty(3),
Whereas:
(1) The outcome of the public consultation on the 1999 review of the regulatory
framework for electronic communications, as reflected in the Commission
communication of 26 April 2000, and the findings reported by the Commission in
its communications on the fifth and sixth reports on the implementation of the
telecommunications regulatory package, has confirmed the need for a more
harmonised and less onerous market access regulation for electronic
communications networks and services throughout the Community.
(2) Convergence between different electronic communications networks and
services and their technologies requires the establishment of an authorisation
system covering all comparable services in a similar way regardless of the
technologies used.
(3) The objective of this Directive is to create a legal framework to ensure the
freedom to provide electronic communications networks and services, subject only
to the conditions laid down in this Directive and to any restrictions in
conformity with Article 46(1) of the Treaty, in particular measures regarding
public policy, public security and public health.
(4) This Directive covers authorisation of all electronic communications
networks and services whether they are provided to the public or not. This is
important to ensure that both categories of providers may benefit from
objective, transparent, non-discriminatory and proportionate rights, conditions
and procedures.
(5) This Directive only applies to the granting of rights to use radio
frequencies where such use involves the provision of an electronic
communications network or service, normally for remuneration. The self-use of
radio terminal equipment, based on the non-exclusive use of specific radio
frequencies by a user and not related to an economic activity, such as use of a
citizen's band by radio amateurs, does not consist of the provision of an
electronic communications network or service and is therefore not covered by
this Directive. Such use is covered by the Directive 1999/5/EC of the European
Parliament and of the Council of 9 March 1999 on radio equipment and
telecommunications terminal equipment and the mutual recognition of their
conformity(4).
(6) Provisions regarding the free movement of conditional access systems and the
free provision of protected services based on such systems are laid down in
Directive 98/84/EC of the European Parliament and of the Council of 20 November
1998 on the legal protection of services based on, or consisting of, conditional
access(5). The authorisation of such systems and services therefore does not
need to be covered by this Directive.
(7) The least onerous authorisation system possible should be used to allow the
provision of electronic communications networks and services in order to
stimulate the development of new electronic communications services and
pan-European communications networks and services and to allow service providers
and consumers to benefit from the economies of scale of the single market.
(8) Those aims can be best achieved by general authorisation of all electronic
communications networks and services without requiring any explicit decision or
administrative act by the national regulatory authority and by limiting any
procedural requirements to notification only. Where Member States require
notification by providers of electronic communication networks or services when
they start their activities, they may also require proof of such notification
having been made by means of any legally recognised postal or electronic
acknowledgement of receipt of the notification. Such acknowledgement should in
any case not consist of or require an administrative act by the national
regulatory authority to which the notification must be made.
(9) It is necessary to include the rights and obligations of undertakings under
general authorisations explicitly in such authorisations in order to ensure a
level playing field throughout the Community and to facilitate cross-border
negotiation of interconnection between public communications networks.
(10) The general authorisation entitles undertakings providing electronic
communications networks and services to the public to negotiate interconnection
under the conditions of Directive 2002/19/EC of the European Parliament and of
the Council of 7 March 2002 on access to, and interconnection of, electronic
communication networks and associated facilities (Access Directive)(6).
Undertakings providing electronic communications networks and services other
than to the public can negotiate interconnection on commercial terms.
(11) The granting of specific rights may continue to be necessary for the use of
radio frequencies and numbers, including short codes, from the national
numbering plan. Rights to numbers may also be allocated from a European
numbering plan, including for example the virtual country code "3883"
which has been attributed to member countries of the European Conference of Post
and Telecommunications (CEPT). Those rights of use should not be restricted
except where this is unavoidable in view of the scarcity of radio frequencies
and the need to ensure the efficient use thereof.
(12) This Directive does not prejudice whether radio frequencies are assigned
directly to providers of electronic communication networks or services or to
entities that use these networks or services. Such entities may be radio or
television broadcast content providers. Without prejudice to specific criteria
and procedures adopted by Member States to grant rights of use for radio
frequencies to providers of radio or television broadcast content services, to
pursue general interest objectives in conformity with Community law, the
procedure for assignment of radio frequencies should in any event be objective,
transparent, non-discriminatory and proportionate. In accordance with case law
of the Court of Justice, any national restrictions on the rights guaranteed by
Article 49 of the Treaty should be objectively justified, proportionate and not
exceed what is necessary to achieve general interest objectives as defined by
Member States in conformity with Community law. The responsibility for
compliance with the conditions attached to the right to use a radio frequency
and the relevant conditions attached to the general authorisation should in any
case lie with the undertaking to whom the right of use for the radio frequency
has been granted.
(13) As part of the application procedure for granting rights to use a radio
frequency, Member States may verify whether the applicant will be able to comply
with the conditions attached to such rights. For this purpose the applicant may
be requested to submit the necessary information to prove his ability to comply
with these conditions. Where such information is not provided, the application
for the right to use a radio frequency may be rejected.
(14) Member States are neither obliged to grant nor prevented from granting
rights to use numbers from the national numbering plan or rights to install
facilities to undertakings other than providers of electronic communications
networks or services.
(15) The conditions, which may be attached to the general authorisation and to
the specific rights of use, should be limited to what is strictly necessary to
ensure compliance with requirements and obligations under Community law and
national law in accordance with Community law.
(16) In the case of electronic communications networks and services not provided
to the public it is appropriate to impose fewer and lighter conditions than are
justified for electronic communications networks and services provided to the
public.
(17) Specific obligations which may be imposed on providers of electronic
communications networks and services in accordance with Community law by virtue
of their significant market power as defined in Directive 2002/21/EC of the
European Parliament and of the Council of 7 March 2002 on a common regulatory
framework for electronic communications networks and services (Framework
Directive)(7) should be imposed separately from the general rights and
obligations under the general authorisation.
(18) The general authorisation should only contain conditions which are specific
to the electronic communications sector. It should not be made subject to
conditions which are already applicable by virtue of other existing national law
which is not specific to the electronic communications sector. Nevertheless, the
national regulatory authorities may inform network operators and service
providers about other legislation concerning their business, for instance
through references on their websites.
(19) The requirement to publish decisions on the granting of rights to use
frequencies or numbers may be fulfilled by making these decisions publicly
accessible via a website.
(20) The same undertaking, for example a cable operator, can offer both an
electronic communications service, such as the conveyance of television signals,
and services not covered under this Directive, such as the commercialisation of
an offer of sound or television broadcasting content services, and therefore
additional obligations can be imposed on this undertaking in relation to its
activity as a content provider or distributor, according to provisions other
than those of this Directive, without prejudice to the list of conditions laid
in the Annex to this Directive.
(21) When granting rights of use for radio frequencies, numbers or rights to
install facilities, the relevant authorities may inform the undertakings to whom
they grant such rights of the relevant conditions in the general authorisation.
(22) Where the demand for radio frequencies in a specific range exceeds their
availability, appropriate and transparent procedures should be followed for the
assignment of such frequencies in order to avoid any discrimination and optimise
use of those scarce resources.
(23) National regulatory authorities should ensure, in establishing criteria for
competitive or comparative selection procedures, that the objectives in Article
8 of Directive 2002/21/EC (Framework Directive) are met. It would therefore not
be contrary to this Directive if the application of objective,
non-discriminatory and proportionate selection criteria to promote the
development of competition would have the effect of excluding certain
undertakings from a competitive or comparative selection procedure for a
particular radio frequency.
(24) Where the harmonised assignment of radio frequencies to particular
undertakings has been agreed at European level, Member States should strictly
implement such agreements in the granting of rights of use of radio frequencies
from the national frequency usage plan.
(25) Providers of electronic communications networks and services may need a
confirmation of their rights under the general authorisation with respect to
interconnection and rights of way, in particular to facilitate negotiations with
other, regional or local, levels of government or with service providers in
other Member States. For this purpose the national regulatory authorities should
provide declarations to undertakings either upon request or alternatively as an
automatic response to a notification under the general authorisation. Such
declarations should not by themselves constitute entitlements to rights nor
should any rights under the general authorisation or rights of use or the
exercise of such rights depend upon a declaration.
(26) Where undertakings find that their applications for rights to install
facilities have not been dealt with in accordance with the principles set out in
Directive 2002/21/EC (Framework Directive) or where such decisions are unduly
delayed, they should have the right to appeal against decisions or delays in
such decisions in accordance with that Directive.
(27) The penalties for non-compliance with conditions under the general
authorisation should be commensurate with the infringement. Save in exceptional
circumstances, it would not be proportionate to suspend or withdraw the right to
provide electronic communications services or the right to use radio frequencies
or numbers where an undertaking did not comply with one or more of the
conditions under the general authorisation. This is without prejudice to urgent
measures which the relevant authorities of the Member States may need to take in
case of serious threats to public safety, security or health or to economic and
operational interests of other undertakings. This Directive should also be
without prejudice to any claims between undertakings for compensation for
damages under national law.
(28) Subjecting service providers to reporting and information obligations can
be cumbersome, both for the undertaking and for the national regulatory
authority concerned. Such obligations should therefore be proportionate,
objectively justified and limited to what is strictly necessary. It is not
necessary to require systematic and regular proof of compliance with all
conditions under the general authorisation or attached to rights of use.
Undertakings have a right to know the purposes for which the information they
should provide will be used. The provision of information should not be a
condition for market access. For statistical purposes a notification may be
required from providers of electronic communication networks or services when
they cease activities.
(29) This Directive should be without prejudice to Member States' obligations to
provide any information necessary for the defence of Community interests within
the context of international agreements. This Directive should also be without
prejudice to any reporting obligations under legislation which is not specific
to the electronic communications sector such as competition law.
(30) Administrative charges may be imposed on providers of electronic
communications services in order to finance the activities of the national
regulatory authority in managing the authorisation system and for the granting
of rights of use. Such charges should be limited to cover the actual
administrative costs for those activities. For this purpose transparency should
be created in the income and expenditure of national regulatory authorities by
means of annual reporting about the total sum of charges collected and the
administrative costs incurred. This will allow undertakings to verify that
administrative costs and charges are in balance.
(31) Systems for administrative charges should not distort competition or create
barriers for entry into the market. With a general authorisation system it will
no longer be possible to attribute administrative costs and hence charges to
individual undertakings except for the granting of rights to use numbers, radio
frequencies and for rights to install facilities. Any applicable administrative
charges should be in line with the principles of a general authorisation system.
An example of a fair, simple and transparent alternative for these charge
attribution criteria could be a turnover related distribution key. Where
administrative charges are very low, flat rate charges, or charges combining a
flat rate basis with a turnover related element could also be appropriate.
(32) In addition to administrative charges, usage fees may be levied for the use
of radio frequencies and numbers as an instrument to ensure the optimal use of
such resources. Such fees should not hinder the development of innovative
services and competition in the market. This Directive is without prejudice to
the purpose for which fees for rights of use are employed. Such fees may for
instance be used to finance activities of national regulatory authorities that
cannot be covered by administrative charges. Where, in the case of competitive
or comparative selection procedures, fees for rights of use for radio
frequencies consist entirely or partly of a one-off amount, payment arrangements
should ensure that such fees do not in practice lead to selection on the basis
of criteria unrelated to the objective of ensuring optimal use of radio
frequencies. The Commission may publish on a regular basis benchmark studies
with regard to best practices for the assignment of radio frequencies, the
assignment of numbers or the granting of rights of way.
(33) Member States may need to amend rights, conditions, procedures, charges and
fees relating to general authorisations and rights of use where this is
objectively justified. Such changes should be duly notified to all interested
parties in good time, giving them adequate opportunity to express their views on
any such amendments.
(34) The objective of transparency requires that service providers, consumers
and other interested parties have easy access to any information regarding
rights, conditions, procedures, charges, fees and decisions concerning the
provision of electronic communications services, rights of use of radio
frequencies and numbers, rights to install facilities, national frequency usage
plans and national numbering plans. The national regulatory authorities have an
important task in providing such information and keeping it up to date. Where
such rights are administered by other levels of government the national
regulatory authorities should endeavour to create a user-friendly instrument for
access to information regarding such rights.
(35) The proper functioning of the single market on the basis of the national
authorisation regimes under this Directive should be monitored by the
Commission.
(36) In order to arrive at a single date of application of all elements of the
new regulatory framework for the electronic communications sector, it is
important that the process of national transposition of this Directive and of
alignment of the existing licences with the new rules take place in parallel.
However, in specific cases where the replacement of authorisations existing on
the date of entry into force of this Directive by the general authorisation and
the individual rights of use in accordance with this Directive would lead to an
increase in the obligations for service providers operating under an existing
authorisation or to a reduction of their rights, Member States may avail
themselves of an additional nine months after the date of application of this
Directive for alignment of such licences, unless this would have a negative
effect on the rights and obligations of other undertakings.
(37) There may be circumstances under which the abolition of an authorisation
condition regarding access to electronic communications networks would create
serious hardship for one or more undertakings that have benefited from the
condition. In such cases further transitional arrangements may be granted by the
Commission, upon request by a Member State.
(38) Since the objectives of the proposed action, namely the harmonisation and
simplification of electronic communications rules and conditions for the
authorisation of networks and services cannot be sufficiently achieved by the
Member States and can therefore, by reason of the scale and effects of the
action, be better achieved at Community level, the Community may adopt measures
in accordance with the principle of subsidiarity as set out in Article 5 of the
Treaty. In accordance with the principle of proportionality, as set out in that
Article, this Directive does not go beyond what is necessary for those
objectives,
HAVE ADOPTED THIS DIRECTIVE:
Article 1
Objective and scope
1. The aim of this Directive is to implement an internal market in electronic
communications networks and services through the harmonisation and
simplification of authorisation rules and conditions in order to facilitate
their provision throughout the Community.
2. This Directive shall apply to authorisations for the provision of electronic
communications networks and services.
Article 2
Definitions
1. For the purposes of this Directive, the definitions set out in Article 2 of
Directive 2002/21/EC (Framework Directive) shall apply.
2. The following definitions shall also apply:
(a) "general authorisation" means a legal framework established by the
Member State ensuring rights for the provision of electronic communications
networks or services and laying down sector specific obligations that may apply
to all or to specific types of electronic communications networks and services,
in accordance with this Directive;
(b) "harmful interference" means interference which endangers the
functioning of a radionavigation service or of other safety services or which
otherwise seriously degrades, obstructs or repeatedly interrupts a
radiocommunications service operating in accordance with the applicable
Community or national regulations.
Article 3
General authorisation of electronic communications networks and services
1. Member States shall ensure the freedom to provide electronic communications
networks and services, subject to the conditions set out in this Directive. To
this end, Member States shall not prevent an undertaking from providing
electronic communications networks or services, except where this is necessary
for the reasons set out in Article 46(1) of the Treaty.
2. The provision of electronic communications networks or the provision of
electronic communications services may, without prejudice to the specific
obligations referred to in Article 6(2) or rights of use referred to in Article
5, only be subject to a general authorisation. The undertaking concerned may be
required to submit a notification but may not be required to obtain an explicit
decision or any other administrative act by the national regulatory authority
before exercising the rights stemming from the authorisation. Upon notification,
when required, an undertaking may begin activity, where necessary subject to the
provisions on rights of use in Articles 5, 6 and 7.
3. The notification referred to in paragraph 2 shall not entail more than a
declaration by a legal or natural person to the national regulatory authority of
the intention to commence the provision of electronic communication networks or
services and the submission of the minimal information which is required to
allow the national regulatory authority to keep a register or list of providers
of electronic communications networks and services. This information must be
limited to what is necessary for the identification of the provider, such as
company registration numbers, and the provider's contact persons, the provider's
address, a short description of the network or service, and an estimated date
for starting the activity.
Article 4
Minimum list of rights derived from the general authorisation
1. Undertakings authorised pursuant to Article 3, shall have the right to:
(a) provide electronic communications networks and services;
(b) have their application for the necessary rights to install facilities
considered in accordance with Article 11 of Directive 2002/21/EC (Framework
Directive).
2. When such undertakings provide electronic communications networks or services
to the public the general authorisation shall also give them the right to:
(a) negotiate interconnection with and where applicable obtain access to or
interconnection from other providers of publicly available communications
networks and services covered by a general authorisation anywhere in the
Community under the conditions of and in accordance with Directive 2002/19/EC
(Access Directive);
(b) be given an opportunity to be designated to provide different elements of a
universal service and/or to cover different parts of the national territory in
accordance with Directive 2002/22/EC of the European Parliament and of the
Council of 7 March 2002 on universal service and users' rights relating to
electronic communications networks and services (Universal Service
Directive)(8).
Article 5
Rights of use for radio frequencies and numbers
1. Member States shall, where possible, in particular where the risk of harmful
interference is negligible, not make the use of radio frequencies subject to the
grant of individual rights of use but shall include the conditions for usage of
such radio frequencies in the general authorisation.
2. Where it is necessary to grant individual rights of use for radio frequencies
and numbers, Member States shall grant such rights, upon request, to any
undertaking providing or using networks or services under the general
authorisation, subject to the provisions of Articles 6, 7 and 11(1)(c) of this
Directive and any other rules ensuring the efficient use of those resources in
accordance with Directive 2002/21/EC (Framework Directive).
Without prejudice to specific criteria and procedures adopted by Member States
to grant rights of use of radio frequencies to providers of radio or television
broadcast content services with a view to pursuing general interest objectives
in conformity with Community law, such rights of use shall be granted through
open, transparent and non-discriminatory procedures. When granting rights of
use, Member States shall specify whether those rights can be transferred at the
initiative of the right holder, and under which conditions, in the case of radio
frequencies, in accordance with Article 9 of Directive 2002/21/EC (Framework
Directive). Where Member States grant rights of use for a limited period of
time, the duration shall be appropriate for the service concerned.
3. Decisions on rights of use shall be taken, communicated and made public as
soon as possible after receipt of the complete application by the national
regulatory authority, within three weeks in the case of numbers that have been
allocated for specific purposes within the national numbering plan and within
six weeks in the case of radio frequencies that have been allocated for specific
purposes within the national frequency plan. The latter time limit shall be
without prejudice to any applicable international agreements relating to the use
of radio frequencies or of orbital positions.
4. Where it has been decided, after consultation with interested parties in
accordance with Article 6 of Directive 2002/21/EC (Framework Directive), that
rights for use of numbers of exceptional economic value are to be granted
through competitive or comparative selection procedures, Member States may
extend the maximum period of three weeks by up to three weeks.
With regard to competitive or comparative selection procedures for radio
frequencies Article 7 shall apply.
5. Member States shall not limit the number of rights of use to be granted
except where this is necessary to ensure the efficient use of radio frequencies
in accordance with Article 7.
Article 6
Conditions attached to the general authorisation and to the rights of use for
radio frequencies and for numbers, and specific obligations
1. The general authorisation for the provision of electronic communications
networks or services and the rights of use for radio frequencies and rights of
use for numbers may be subject only to the conditions listed respectively in
parts A, B and C of the Annex. Such conditions shall be objectively justified in
relation to the network or service concerned, non-discriminatory, proportionate
and transparent.
2. Specific obligations which may be imposed on providers of electronic
communications networks and services under Articles 5(1), 5(2), 6 and 8 of
Directive 2002/19/EC (Access Directive) and Articles 16, 17, 18 and 19 of
Directive 2002/22/EC (Universal Service Directive) or on those designated to
provide universal service under the said Directive shall be legally separate
from the rights and obligations under the general authorisation. In order to
achieve transparency for undertakings, the criteria and procedures for imposing
such specific obligations on individual undertakings shall be referred to in the
general authorisation.
3. The general authorisation shall only contain conditions which are specific
for that sector and are set out in Part A of the Annex and shall not duplicate
conditions which are applicable to undertakings by virtue of other national
legislation.
4. Member States shall not duplicate the conditions of the general authorisation
where they grant the right of use for radio frequencies or numbers.
Article 7
Procedure for limiting the number of rights of use to be granted for radio
frequencies
1. Where a Member State is considering whether to limit the number of rights of
use to be granted for radio frequencies, it shall inter alia:
(a) give due weight to the need to maximise benefits for users and to facilitate
the development of competition;
(b) give all interested parties, including users and consumers, the opportunity
to express their views on any limitation in accordance with Article 6 of
Directive 2002/21/EC (Framework Directive);
(c) publish any decision to limit the granting of rights of use, stating the
reasons therefor;
(d) after having determined the procedure, invite applications for rights of
use; and
(e) review the limitation at reasonable intervals or at the reasonable request
of affected undertakings.
2. Where a Member State concludes that further rights of use for radio
frequencies can be granted, it shall publish that conclusion and invite
applications for such rights.
3. Where the granting of rights of use for radio frequencies needs to be
limited, Member States shall grant such rights on the basis of selection
criteria which must be objective, transparent, non-discriminatory and
proportionate. Any such selection criteria must give due weight to the
achievement of the objectives of Article 8 of Directive 2002/21/EC (Framework
Directive).
4. Where competitive or comparative selection procedures are to be used, Member
States may extend the maximum period of six weeks referred to in Article 5(3)
for as long as necessary to ensure that such procedures are fair, reasonable,
open and transparent to all interested parties, but by no longer than eight
months.
These time limits shall be without prejudice to any applicable international
agreements relating to the use of radio frequencies and satellite coordination.
5. This Article is without prejudice to the transfer of rights of use for radio
frequencies in accordance with Article 9 of Directive 2002/21/EC (Framework
Directive).
Article 8
Harmonised assignment of radio frequencies
Where the usage of radio frequencies has been harmonised, access conditions and
procedures have been agreed, and undertakings to which the radio frequencies
shall be assigned have been selected in accordance with international agreements
and Community rules, Member States shall grant the right of use for such radio
frequencies in accordance therewith. Provided that all national conditions
attached to the right to use the radio frequencies concerned have been satisfied
in the case of a common selection procedure, Member States shall not impose any
further conditions, additional criteria or procedures which would restrict,
alter or delay the correct implementation of the common assignment of such radio
frequencies.
Article 9
Declarations to facilitate the exercise of rights to install facilities and
rights of interconnection
At the request of an undertaking, national regulatory authorities shall, within
one week, issue standardised declarations, confirming, where applicable, that
the undertaking has submitted a notification under Article 3(2) and detailing
under what circumstances any undertaking providing electronic communications
networks or services under the general authorisation has the right to apply for
rights to install facilities, negotiate interconnection, and/or obtain access or
interconnection in order to facilitate the exercise of those rights for instance
at other levels of government or in relation to other undertakings. Where
appropriate such declarations may also be issued as an automatic reply following
the notification referred to in Article 3(2).
Article 10
Compliance with the conditions of the general authorisation or of rights of use
and with specific obligations
1. National regulatory authorities may require undertakings providing electronic
communications networks or services covered by the general authorisation or
enjoying rights of use for radio frequencies or numbers to provide information
necessary to verify compliance with the conditions of the general authorisation
or of rights of use or with the specific obligations referred to in Article
6(2), in accordance with Article 11.
2. Where a national regulatory authority finds that an undertaking does not
comply with one or more of the conditions of the general authorisation, or of
rights of use or with the specific obligations referred to in Article 6(2), it
shall notify the undertaking of those findings and give the undertaking a
reasonable opportunity to state its views or remedy any breaches within:
- one month after notification, or
- a shorter period agreed by the undertaking or stipulated by the national
regulatory authority in case of repeated breaches, or
- a longer period decided by the national regulatory authority.
3. If the undertaking concerned does not remedy the breaches within the period
as referred to in paragraph 2, the relevant authority shall take appropriate and
proportionate measures aimed at ensuring compliance. In this regard, Member
States may empower the relevant authorities to impose financial penalties where
appropriate. The measures and the reasons on which they are based shall be
communicated to the undertaking concerned within one week of their adoption and
shall stipulate a reasonable period for the undertaking to comply with the
measure.
4. Notwithstanding the provisions of paragraphs 2 and 3, Member States may
empower the relevant authority to impose financial penalties where appropriate
on undertakings for failure to provide information in accordance with
obligations imposed under Article 11(1)(a) or (b) of this Directive or Article 9
of Directive 2002/19/EC (Access Directive) within a reasonable period stipulated
by the national regulatory authority.
5. In cases of serious and repeated breaches of the conditions of the general
authorisation, the rights of use or specific obligations referred to in Article
6(2), where measures aimed at ensuring compliance as referred to in paragraph 3
of this Article have failed, national regulatory authorities may prevent an
undertaking from continuing to provide electronic communications networks or
services or suspend or withdraw rights of use.
6. Irrespective of the provisions of paragraphs 2, 3 and 5, where the relevant
authority has evidence of a breach of the conditions of the general
authorisation, rights of use or specific obligations referred to in Article 6(2)
that represents an immediate and serious threat to public safety, public
security or public health or will create serious economic or operational
problems for other providers or users of electronic communications networks or
services, it may take urgent interim measures to remedy the situation in advance
of reaching a final decision. The undertaking concerned shall thereafter be
given a reasonable opportunity to state its view and propose any remedies. Where
appropriate, the relevant authority may confirm the interim measures.
7. Undertakings shall have the right to appeal against measures taken under this
Article in accordance with the procedure referred to in Article 4 of Directive
2002/21/EC (Framework Directive).
Article 11
Information required under the general authorisation, for rights of use and for
the specific obligations
1. Without prejudice to information and reporting obligations under national
legislation other than the general authorisation, national regulatory
authorities may only require undertakings to provide information under the
general authorisation, for rights of use or the specific obligations referred to
in Article 6(2) that is proportionate and objectively justified for:
(a) systematic or case-by-case verification of compliance with conditions 1 and
2 of Part A, condition 6 of Part B and condition 7 of Part C of the Annex and of
compliance with obligations as referred to in Article 6(2);
(b) case-by-case verification of compliance with conditions as set out in the
Annex where a complaint has been received or where the national regulatory
authority has other reasons to believe that a condition is not complied with or
in case of an investigation by the national regulatory authority on its own
initiative;
(c) procedures for and assessment of requests for granting rights of use;
(d) publication of comparative overviews of quality and price of services for
the benefit of consumers;
(e) clearly defined statistical purposes;
(f) market analysis for the purposes of Directive 2002/19/EC (Access Directive)
or Directive 2002/22/EC (Universal Service Directive).
The information referred to in points (a), (b), (d), (e) and (f) of the first
subparagraph may not be required prior to or as a condition for market access.
2. Where national regulatory authorities require undertakings to provide
information as referred to in paragraph 1, they shall inform them of the
specific purpose for which this information is to be used.
Article 12
Administrative charges
1. Any administrative charges imposed on undertakings providing a service or a
network under the general authorisation or to whom a right of use has been
granted shall:
(a) in total, cover only the administrative costs which will be incurred in the
management, control and enforcement of the general authorisation scheme and of
rights of use and of specific obligations as referred to in Article 6(2), which
may include costs for international cooperation, harmonisation and
standardisation, market analysis, monitoring compliance and other market
control, as well as regulatory work involving preparation and enforcement of
secondary legislation and administrative decisions, such as decisions on access
and interconnection; and
(b) be imposed upon the individual undertakings in an objective, transparent and
proportionate manner which minimises additional administrative costs and
attendant charges.
2. Where national regulatory authorities impose administrative charges, they
shall publish a yearly overview of their administrative costs and of the total
sum of the charges collected. In the light of the difference between the total
sum of the charges and the administrative costs, appropriate adjustments shall
be made.
Article 13
Fees for rights of use and rights to install facilities
Member States may allow the relevant authority to impose fees for the rights of
use for radio frequencies or numbers or rights to install facilities on, over or
under public or private property which reflect the need to ensure the optimal
use of these resources. Member States shall ensure that such fees shall be
objectively justified, transparent, non-discriminatory and proportionate in
relation to their intended purpose and shall take into account the objectives in
Article 8 of Directive 2002/21/EC (Framework Directive).
Article 14
Amendment of rights and obligations
1. Member States shall ensure that the rights, conditions and procedures
concerning general authorisations and rights of use or rights to install
facilities may only be amended in objectively justified cases and in a
proportionate manner. Notice shall be given in an appropriate manner of the
intention to make such amendments and interested parties, including users and
consumers, shall be allowed a sufficient period of time to express their views
on the proposed amendments, which shall be no less than four weeks except in
exceptional circumstances.
2. Member States shall not restrict or withdraw rights to install facilities
before expiry of the period for which they were granted except where justified
and where applicable in conformity with relevant national provisions regarding
compensation for withdrawal of rights.
Article 15
Publication of information
1. Member States shall ensure that all relevant information on rights,
conditions, procedures, charges, fees and decisions concerning general
authorisations and rights of use is published and kept up to date in an
appropriate manner so as to provide easy access to that information for all
interested parties.
2. Where information as referred to in paragraph 1 is held at different levels
of government, in particular information regarding procedures and conditions on
rights to install facilities, the national regulatory authority shall make all
reasonable efforts, bearing in mind the costs involved, to create a
user-friendly overview of all such information, including information on the
relevant levels of government and the responsible authorities, in order to
facilitate applications for rights to install facilities.
Article 16
Review procedures
The Commission shall periodically review the functioning of the national
authorisation systems and the development of cross-border service provision
within the Community and report to the European Parliament and to the Council on
the first occasion not later than three years after the date of application of
this Directive referred to in Article 18(1), second subparagraph. For this
purpose, the Commission may request from the Member States information, which
shall be supplied without undue delay.
Article 17
Existing authorisations
1. Member States shall bring authorisations already in existence on the date of
entry into force of this Directive into line with the provisions of this
Directive by at the latest the date of application referred to in Article 18(1),
second subparagraph.
2. Where application of paragraph 1 results in a reduction of the rights or an
extension of the obligations under authorisations already in existence, Member
States may extend the validity of those rights and obligations until at the
latest nine months after the date of application referred to in Article 18(1),
second subparagraph, provided that the rights of other undertakings under
Community law are not affected thereby. Member States shall notify such
extensions to the Commission and state the reasons therefor.
3. Where the Member State concerned can prove that the abolition of an
authorisation condition regarding access to electronic communications networks,
which was in force before the date of entry into force of this Directive,
creates excessive difficulties for undertakings that have benefited from
mandated access to another network, and where it is not possible for these
undertakings to negotiate new agreements on reasonable commercial terms before
the date of application referred to in Article 18(1), second subparagraph,
Member States may request a temporary prolongation of the relevant condition(s).
Such requests shall be submitted by the date of application referred to in
Article 18(1), second subparagraph, at the latest, and shall specify the
condition(s) and period for which the temporary prolongation is requested.
The Member State shall inform the Commission of the reasons for requesting a
prolongation. The Commission shall consider such a request, taking into account
the particular situation in that Member State and of the undertaking(s)
concerned, and the need to ensure a coherent regulatory environment at a
Community level. It shall take a decision on whether to grant or reject the
request, and where it decides to grant the request, on the scope and duration of
the prolongation to be granted. The Commission shall communicate its decision to
the Member State concerned within six months after receipt of the application
for a prolongation. Such decisions shall be published in the Official Journal of
the European Communities.
Article 18
Transposition
1. Member States shall adopt and publish the laws, regulations and
administrative provisions necessary to comply with this Directive by 24 July
2003 at the latest. They shall forthwith inform the Commission thereof.
They shall apply those measures from 25 July 2003.
When Member States adopt these measures, they shall contain a reference to this
Directive or be accompanied by such reference on the occasion of their official
publication. The methods of making such reference shall be laid down by Member
States.
2. Member States shall communicate to the Commission the text of the provisions
of national law which they adopt in the field governed by this Directive and of
any subsequent amendments to those provisions.
Article 19
Entry into force
This Directive shall enter into force on the day of its publication in the
Official Journal of the European Communities.
Article 20
Addressees
This Directive is addressed to the Member States.
Done at Brussels, 7 March 2002.
For the European Parliament
The President
P. Cox
For the Council
The President
J. C. Aparicio
(1) OJ C 365 E, 19.12.2000, p. 230 and OJ C 270 E, 25.9.2001, p. 182.
(2) OJ C 123, 25.4.2001, p. 55.
(3) Opinion of the European Parliament of 1 March 2001 (OJ C 277, 1.10.2001, p.
116), Council Common Position of 17 September 2001 (OJ C 337, 30.11.2001, p. 18)
and Decision of the European Parliament of 12 December 2001(not yet published in
the Official Journal). Council Decision of 14 February 2002.
(4) OJ L 91, 7.4.1999, p. 10.
(5) OJ L 320, 28.11.1998, p. 54.
(6) See page 7 of this Official Journal.
(7) See page 33 of this Official Journal.
(8) See page 51 of this Official Journal.
ANNEX
The conditions listed in this Annex provide the maximum list of conditions which
may be attached to general authorisations (Part A), rights to use radio
frequencies (Part B) and rights to use numbers (Part C) as referred to in
Article 6(1) and Article 11(1)(a).
A. Conditions which may be attached to a general authorisation
1. Financial contributions to the funding of universal service in conformity
with Directive 2002/22/EC (Universal Service Directive).
2. Administrative charges in accordance with Article 12 of this Directive.
3. Interoperability of services and interconnection of networks in conformity
with Directive 2002/19/EC (Access Directive).
4. Accessibility of numbers from the national numbering plan to end-users
including conditions in conformity with Directive 2002/22/EC (Universal Service
Directive).
5. Environmental and town and country planning requirements, as well as
requirements and conditions linked to the granting of access to or use of public
or private land and conditions linked to co-location and facility sharing in
conformity with Directive 2002/22/EC (Framework Directive) and including, where
applicable, any financial or technical guarantees necessary to ensure the proper
execution of infrastructure works.
6. "Must carry" obligations in conformity with Directive 2002/22/EC
(Universal Service Directive).
7. Personal data and privacy protection specific to the electronic
communications sector in conformity with Directive 97/66/EC of the European
Parliament and of the Council of 15 December 1997 concerning the processing of
personal data and the protection of privacy in the telecommunications sector(1).
8. Consumer protection rules specific to the electronic communications sector
including conditions in conformity with Directive 2002/22/EC (Universal Service
Directive).
9. Restrictions in relation to the transmission of illegal content, in
accordance with Directive 2000/31/EC of the European Parliament and of the
Council of 8 June 2000 on certain legal aspects of information society services,
in particular electronic commerce, in the internal market(2) and restrictions in
relation to the transmission of harmful content in accordance with Article 2a(2)
of Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain
provisions laid down by law, regulation or administrative action in Member
States concerning the pursuit of television broadcasting activities(3).
10. Information to be provided under a notification procedure in accordance with
Article 3(3) of this Directive and for other purposes as included in Article 11
of this Directive.
11. Enabling of legal interception by competent national authorities in
conformity with Directive 97/66/EC and Directive 95/46/EC of the European
Parliament and of the Council of 24 October 1995 on the protection of
individuals with regard to the processing of personal data and on the free
movement of such data(4).
12. Terms of use during major disasters to ensure communications between
emergency services and authorities and broadcasts to the general public.
13. Measures regarding the limitation of exposure of the general public to
electromagnetic fields caused by electronic communications networks in
accordance with Community law.
14. Access obligations other than those provided for in Article 6(2) of this
Directive applying to undertakings providing electronic communications networks
or services, in conformity with Directive 2002/19/EC (Access Directive).
15. Maintenance of the integrity of public communications networks in accordance
with Directive 2002/19/EC (Access Directive) and Directive 2002/22/EC (Universal
Service Directive) including by conditions to prevent electromagnetic
interference between electronic communications networks and/or services in
accordance with Council Directive 89/336/EEC of 3 May 1989 on the approximation
of the laws of the Member States relating to electromagnetic compatibility(5).
16. Security of public networks against unauthorised access according to
Directive 97/66/EC.
17. Conditions for the use of radio frequencies, in conformity with Article 7(2)
of Directive 1999/5/EC, where such use is not made subject to the granting of
individual rights of use in accordance with Article 5(1) of this Directive.
18. Measures designed to ensure compliance with the standards and/or
specifications referred to in Article 17 of Directive 2002/21/EC (Framework
Directive).
B. Conditions which may be attached to rights of use for radio frequencies
1. Designation of service or type of network or technology for which the rights
of use for the frequency has been granted, including, where applicable, the
exclusive use of a frequency for the transmission of specific content or
specific audiovisual services.
2. Effective and efficient use of frequencies in conformity with Directive
2002/21/EC (Framework Directive), including, where appropriate, coverage
requirements.
3. Technical and operational conditions necessary for the avoidance of harmful
interference and for the limitation of exposure of the general public to
electromagnetic fields, where such conditions are different from those included
in the general authorisation.
4. Maximum duration in conformity with Article 5 of this Directive, subject to
any changes in the national frequency plan.
5. Transfer of rights at the initiative of the right holder and conditions for
such transfer in conformity with Directive 2002/21/EC (Framework Directive).
6. Usage fees in accordance with Article 13 of this Directive.
7. Any commitments which the undertaking obtaining the usage right has made in
the course of a competitive or comparative selection procedure.
8. Obligations under relevant international agreements relating to the use of
frequencies.
C. Conditions which may be attached to rights of use for numbers
1. Designation of service for which the number shall be used, including any
requirements linked to the provision of that service.
2. Effective and efficient use of numbers in conformity with Directive
2002/21/EC (Framework Directive).
3. Number portability requirements in conformity with Directive 2002/22/EC
(Universal Service Directive).
4. Obligation to provide public directory subscriber information for the
purposes of Articles 5 and 25 of Directive 2002/22/EC (Universal Service
Directive).
5. Maximum duration in conformity with Article 5 of this Directive, subject to
any changes in the national numbering plan.
6. Transfer of rights at the initiative of the right holder and conditions for
such transfer in conformity with Directive 2002/21/EC (Framework Directive).
7. Usage fees in accordance with Article 13 of this Directive.
8. Any commitments which the undertaking obtaining the usage right has made in
the course of a competitive or comparative selection procedure.
9. Obligations under relevant international agreements relating to the use of
numbers.
(1) OJ L 24, 30.1.1998, p. 1.
(2) OJ L 178, 17.7.2000, p. 1.
(3) OJ L 298, 17.10.1989, p. 23. Directive as amended by Directive 97/36/EC of
the European Parliament and of the Council (OJ L 202, 30.7.1997, p. 60).
(4) OJ L 281, 23.11.1995, p. 31.
(5) OJ L 139, 23.5.1989, p. 19. Directive as last amended by Directive 93/68/EEC
(OJ L 220, 30.8.1993, p. 1).
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