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Directive 2002/19/EC of the European Parliament and of
the Council
of 7 March 2002 on access to, and interconnection of, electronic communications
networks and associated facilities (Access 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) 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)(4) lays down the objectives of a
regulatory framework to cover electronic communications networks and services in
the Community, including fixed and mobile telecommunications networks, cable
television networks, networks used for terrestrial broadcasting, satellite
networks and Internet networks, whether used for voice, fax, data or images.
Such networks may have been authorised by Member States under 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)(5) or have been authorised under previous regulatory measures. The
provisions of this Directive apply to those networks that are used for the
provision of publicly available electronic communications services. This
Directive covers access and interconnection arrangements between service
suppliers. Non-public networks do not have obligations under this Directive
except where, in benefiting from access to public networks, they may be subject
to conditions laid down by Member States.
(2) Services providing content such as the offer for sale of a package of sound
or television broadcasting content are not covered by the common regulatory
framework for electronic communications networks and services.
(3) The term "access" has a wide range of meanings, and it is
therefore necessary to define precisely how that term is used in this Directive,
without prejudice to how it may be used in other Community measures. An operator
may own the underlying network or facilities or may rent some or all of them.
(4) Directive 95/47/EC of the European Parliament and of the Council of 24
October 1995 on the use of standards for the transmission of television
signals(6) did not mandate any specific digital television transmission system
or service requirement, and this opened up an opportunity for the market actors
to take the initiative and develop suitable systems. Through the Digital Video
Broadcasting Group, European market actors have developed a family of television
transmission systems that have been adopted by broadcasters throughout the
world. These transmissions systems have been standardised by the European
Telecommunications Standards Institute (ETSI) and have become International
Telecommunication Union recommendations. In relation to wide-screen digital
television, the 16:9 aspect ratio is the reference format for wide-format
television services and programmes, and is now established in Member States'
markets as a result of Council Decision 93/424/EEC of 22 July 1993 on an action
plan for the introduction of advanced television services in Europe(7).
(5) In an open and competitive market, there should be no restrictions that
prevent undertakings from negotiating access and interconnection arrangements
between themselves, in particular on cross-border agreements, subject to the
competition rules of the Treaty. In the context of achieving a more efficient,
truly pan-European market, with effective competition, more choice and
competitive services to consumers, undertakings which receive requests for
access or interconnection should in principle conclude such agreements on a
commercial basis, and negotiate in good faith.
(6) In markets where there continue to be large differences in negotiating power
between undertakings, and where some undertakings rely on infrastructure
provided by others for delivery of their services, it is appropriate to
establish a framework to ensure that the market functions effectively. National
regulatory authorities should have the power to secure, where commercial
negotiation fails, adequate access and interconnection and interoperability of
services in the interest of end-users. In particular, they may ensure end-to-end
connectivity by imposing proportionate obligations on undertakings that control
access to end-users. Control of means of access may entail ownership or control
of the physical link to the end-user (either fixed or mobile), and/or the
ability to change or withdraw the national number or numbers needed to access an
end-user's network termination point. This would be the case for example if
network operators were to restrict unreasonably end-user choice for access to
Internet portals and services.
(7) National legal or administrative measures that link the terms and conditions
for access or interconnection to the activities of the party seeking
interconnection, and specifically to the degree of its investment in network
infrastructure, and not to the interconnection or access services provided, may
cause market distortion and may therefore not be compatible with competition
rules.
(8) Network operators who control access to their own customers do so on the
basis of unique numbers or addresses from a published numbering or addressing
range. Other network operators need to be able to deliver traffic to those
customers, and so need to be able to interconnect directly or indirectly to each
other. The existing rights and obligations to negotiate interconnection should
therefore be maintained. It is also appropriate to maintain the obligations
formerly laid down in Directive 95/47/EC requiring fully digital electronic
communications networks used for the distribution of television services and
open to the public to be capable of distributing wide-screen television services
and programmes, so that users are able to receive such programmes in the format
in which they were transmitted.
(9) Interoperability is of benefit to end-users and is an important aim of this
regulatory framework. Encouraging interoperability is one of the objectives for
national regulatory authorities as set out in this framework, which also
provides for the Commission to publish a list of standards and/or specifications
covering the provision of services, technical interfaces and/or network
functions, as the basis for encouraging harmonisation in electronic
communications. Member States should encourage the use of published standards
and/or specifications to the extent strictly necessary to ensure
interoperability of services and to improve freedom of choice for users.
(10) Competition rules alone may not be sufficient to ensure cultural diversity
and media pluralism in the area of digital television. Directive 95/47/EC
provided an initial regulatory framework for the nascent digital television
industry which should be maintained, including in particular the obligation to
provide conditional access on fair, reasonable and non-discriminatory terms, in
order to make sure that a wide variety of programming and services is available.
Technological and market developments make it necessary to review these
obligations on a regular basis, either by a Member State for its national market
or the Commission for the Community, in particular to determine whether there is
justification for extending obligations to new gateways, such as electronic
programme guides (EPGs) and application program interfaces (APIs), to the extent
that is necessary to ensure accessibility for end-users to specified digital
broadcasting services. Member States may specify the digital broadcasting
services to which access by end-users must be ensured by any legislative,
regulatory or administrative means that they deem necessary.
(11) Member States may also permit their national regulatory authority to review
obligations in relation to conditional access to digital broadcasting services
in order to assess through a market analysis whether to withdraw or amend
conditions for operators that do not have significant market power on the
relevant market. Such withdrawal or amendment should not adversely affect access
for end-users to such services or the prospects for effective competition.
(12) In order to ensure continuity of existing agreements and to avoid a legal
vacuum, it is necessary to ensure that obligations for access and
interconnection imposed under Articles 4, 6, 7, 8, 11, 12, and 14 of Directive
97/33/EC of the European Parliament and of the Council of 30 June 1997 on
interconnection in telecommunications with regard to ensuring universal service
and interoperability through application of the principles of open network
provision (ONP)(8), obligations on special access imposed under Article 16 of
Directive 98/10/EC of the European Parliament and of the Council of 26 February
1998 on the application of open network provision (ONP) to voice telephony and
on universal service for telecommunications in a competitive environment(9), and
obligations concerning the provision of leased line transmission capacity under
Council Directive 92/44/EEC of 5 June 1992 on the application of open network
provision to leased lines(10), are initially carried over into the new
regulatory framework, but are subject to immediate review in the light of
prevailing market conditions. Such a review should also extend to those
organisations covered by Regulation (EC) No 2887/2000 of the European Parliament
and of the Council of 18 December 2000 on unbundled access to the local
loop(11).
(13) The review should be carried out using an economic market analysis based on
competition law methodology. The aim is to reduce ex ante sector specific rules
progressively as competition in the market develops. However the procedure also
takes account of transitional problems in the market such as those related to
international roaming and of the possibility of new bottlenecks arising as a
result of technological development, which may require ex ante regulation, for
example in the area of broadband access networks. It may well be the case that
competition develops at different speeds in different market segments and in
different Member States, and national regulatory authorities should be able to
relax regulatory obligations in those markets where competition is delivering
the desired results. In order to ensure that market players in similar
circumstances are treated in similar ways in different Member States, the
Commission should be able to ensure harmonised application of the provisions of
this Directive. National regulatory authorities and national authorities
entrusted with the implementation of competition law should, where appropriate,
coordinate their actions to ensure that the most appropriate remedy is applied.
The Community and its Member States have entered into commitments on
interconnection of telecommunications networks in the context of the World Trade
Organisation agreement on basic telecommunications and these commitments need to
be respected.
(14) Directive 97/33/EC laid down a range of obligations to be imposed on
undertakings with significant market power, namely transparency,
non-discrimination, accounting separation, access, and price control including
cost orientation. This range of possible obligations should be maintained but,
in addition, they should be established as a set of maximum obligations that can
be applied to undertakings, in order to avoid over-regulation. Exceptionally, in
order to comply with international commitments or Community law, it may be
appropriate to impose obligations for access or interconnection on all market
players, as is currently the case for conditional access systems for digital
television services.
(15) The imposition of a specific obligation on an undertaking with significant
market power does not require an additional market analysis but a justification
that the obligation in question is appropriate and proportionate in relation to
the nature of the problem identified.
(16) Transparency of terms and conditions for access and interconnection,
including prices, serve to speed-up negotiation, avoid disputes and give
confidence to market players that a service is not being provided on
discriminatory terms. Openness and transparency of technical interfaces can be
particularly important in ensuring interoperability. Where a national regulatory
authority imposes obligations to make information public, it may also specify
the manner in which the information is to be made available, covering for
example the type of publication (paper and/or electronic) and whether or not it
is free of charge, taking into account the nature and purpose of the information
concerned.
(17) The principle of non-discrimination ensures that undertakings with market
power do not distort competition, in particular where they are vertically
integrated undertakings that supply services to undertakings with whom they
compete on downstream markets.
(18) Accounting separation allows internal price transfers to be rendered
visible, and allows national regulatory authorities to check compliance with
obligations for non-discrimination where applicable. In this regard the
Commission published Recommendation 98/322/EC of 8 April 1998 on interconnection
in a liberalised telecommunications market (Part 2 - accounting separation and
cost accounting)(12).
(19) Mandating access to network infrastructure can be justified as a means of
increasing competition, but national regulatory authorities need to balance the
rights of an infrastructure owner to exploit its infrastructure forits own
benefit, and the rights of other service providers to access facilities that are
essential for the provision of competing services. Where obligations are imposed
on operators that require them to meet reasonable requests for access to and use
of networks elements and associated facilities, such requests should only be
refused on the basis of objective criteria such as technical feasibility or the
need to maintain network integrity. Where access is refused, the aggrieved party
may submit the case to the dispute resolutions procedure referred to in Articles
20 and 21 of Directive 2002/21/EC (Framework Directive). An operator with
mandated access obligations cannot be required to provide types of access which
are not within its powers to provide. The imposition by national regulatory
authorities of mandated access that increases competition in the short-term
should not reduce incentives for competitors to invest in alternative facilities
that will secure more competition in the long-term. The Commission has published
a Notice on the application of the competition rules to access agreements in the
telecommunications sector(13) which addresses these issues. National regulatory
authorities may impose technical and operational conditions on the provider
and/or beneficiaries of mandated access in accordance with Community law. In
particular the imposition of technical standards should comply with Directive
98/34/EC of the European Parliament and of the Council of 22 June 1998 laying
down a procedure for the provision of information in the field of technical
standards and regulations and of rules of Information Society Services(14).
(20) Price control may be necessary when market analysis in a particular market
reveals inefficient competition. The regulatory intervention may be relatively
light, such as an obligation that prices for carrier selection are reasonable as
laid down in Directive 97/33/EC, or much heavier such as an obligation that
prices are cost oriented to provide full justification for those prices where
competition is not sufficiently strong to prevent excessive pricing. In
particular, operators with significant market power should avoid a price squeeze
whereby the difference between their retail prices and the interconnection
prices charged to competitors who provide similar retail services is not
adequate to ensure sustainable competition. When a national regulatory authority
calculates costs incurred in establishing a service mandated under this
Directive, it is appropriate to allow a reasonable return on the capital
employed including appropriate labour and building costs, with the value of
capital adjusted where necessary to reflect the current valuation of assets and
efficiency of operations. The method of cost recovery should be appropriate to
the circumstances taking account of the need to promote efficiency and
sustainable competition and maximise consumer benefits.
(21) Where a national regulatory authority imposes obligations to implement a
cost accounting system in order to support price controls, it may itself
undertake an annual audit to ensure compliance with that cost accounting system,
provided that it has the necessary qualified staff, or it may require the audit
to be carried out by another qualified body, independent of the operator
concerned.
(22) Publication of information by Member States will ensure that market players
and potential market entrants understand their rights and obligations, and know
where to find the relevant detailed information. Publication in the national
gazette helps interested parties in other Member States to find the relevant
information.
(23) In order to ensure that the pan-European electronic communications market
is effective and efficient, the Commission should monitor and publish
information on charges which contribute to determining prices to end-users.
(24) The development of the electronic communications market, with its
associated infrastructure, could have adverse effects on the environment and the
landscape. Member States should therefore monitor this process and, if
necessary, take action to minimise any such effects by means of appropriate
agreements and other arrangements with the relevant authorities.
(25) In order to determine the correct application of Community law, the
Commission needs to know which undertakings have been designated as having
significant market power and what obligations have been placed upon market
players by national regulatory authorities. In addition to national publication
of this information, it is therefore necessary for Member States to send this
information to the Commission. Where Member States are required to send
information to the Commission, this may be in electronic form, subject to
appropriate authentication procedures being agreed.
(26) Given the pace of technological and market developments, the implementation
of this Directive should be reviewed within three years of its date of
application to determine if it is meeting its objectives.
(27) The measures necessary for the implementation of this Directive should be
adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying
down the procedures for the exercise of implementing powers conferred on the
Commission(15).
(28) Since the objectives of the proposed action, namely establishing a
harmonised framework for the regulation of access to and interconnection of
electronic communications networks and associated facilities, 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 in order to achieve those objectives,
HAVE ADOPTED THIS DIRECTIVE:
CHAPTER I
SCOPE, AIM AND DEFINITIONS
Article 1
Scope and aim
1. Within the framework set out in Directive 2002/21/EC (Framework Directive),
this Directive harmonises the way in which Member States regulate access to, and
interconnection of, electronic communications networks and associated
facilities. The aim is to establish a regulatory framework, in accordance with
internal market principles, for the relationships between suppliers of networks
and services that will result in sustainable competition, interoperability of
electronic communications services and consumer benefits.
2. This Directive establishes rights and obligations for operators and for
undertakings seeking interconnection and/or access to their networks or
associated facilities. It sets out objectives for national regulatory
authorities with regard to access and interconnection, and lays down procedures
to ensure that obligations imposed by national regulatory authorities are
reviewed and, where appropriate, withdrawn once the desired objectives have been
achieved. Access in this Directive does not refer to access by end-users.
Article 2
Definitions
For the purposes of this Directive the definitions set out in Article 2 of
Directive 2002/21/EC (Framework Directive) shall apply.
The following definitions shall also apply:
(a) "access" means the making available of facilities and/or services,
to another undertaking, under defined conditions, on either an exclusive or
non-exclusive basis, for the purpose of providing electronic communications
services. It covers inter alia: access to network elements and associated
facilities, which may involve the connection of equipment, by fixed or non-fixed
means (in particular this includes access to the local loop and to facilities
and services necessary to provide services over the local loop), access to
physical infrastructure including buildings, ducts and masts; access to relevant
software systems including operational support systems, access to number
translation or systems offering equivalent functionality, access to fixed and
mobile networks, in particular for roaming, access to conditional access systems
for digital television services; access to virtual network services;
(b) "interconnection" means the physical and logical linking of public
communications networks used by the same or a different undertaking in order to
allow the users of one undertaking to communicate with users of the same or
another undertaking, or to access services provided by another undertaking.
Services may be provided by the parties involved or other parties who have
access to the network. Interconnection is a specific type of access implemented
between public network operators;
(c) "operator" means an undertaking providing or authorised to provide
a public communications network or an associated facility;
(d) "wide-screen television service" means a television service that
consists wholly or partially of programmes produced and edited to be displayed
in a full height wide-screen format. The 16:9 format is the reference format for
wide-screen television services;
(e) "local loop" means the physical circuit connecting the network
termination point at the subscriber's premises to the main distribution frame or
equivalent facility in the fixed public telephone network.
CHAPTER II
GENERAL PROVISIONS
Article 3
General framework for access and interconnection
1. Member States shall ensure that there are no restrictions which prevent
undertakings in the same Member State or in different Member States from
negotiating between themselves agreements on technical and commercial
arrangements for access and/or interconnection, in accordance with Community
law. The undertaking requesting access or interconnection does not need to be
authorised to operate in the Member State where access or interconnection is
requested, if it is not providing services and does not operate a network in
that Member State.
2. Without prejudice to Article 31 of 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)(16), Member States shall not maintain legal or administrative
measures which oblige operators, when granting access or interconnection, to
offer different terms and conditions to different undertakings for equivalent
services and/or imposing obligations that are not related to the actual access
and interconnection services provided without prejudice to the conditions fixed
in the Annex of Directive 2002/20/EC (Authorisation Directive).
Article 4
Rights and obligations for undertakings
1. Operators of public communications networks shall have a right and, when
requested by other undertakings so authorised, an obligation to negotiate
interconnection with each other for the purpose of providing publicly available
electronic communications services, in order to ensure provision and
interoperability of services throughout the Community. Operators shall offer
access and interconnection to other undertakings on terms and conditions
consistent with obligations imposed by the national regulatory authority
pursuant to Articles 5, 6, 7 and 8.
2. Public electronic communications networks established for the distribution of
digital television services shall be capable of distributing wide-screen
television services and programmes. Network operators that receive and
redistribute wide-screen television services or programmes shall maintain that
wide-screen format.
3. Without prejudice to Article 11 of Directive 2002/20/EC (Authorisation
Directive), Member States shall require that undertakings which acquire
information from another undertaking before, during or after the process of
negotiating access or interconnection arrangements use that information solely
for the purpose for which it was supplied and respect at all times the
confidentiality of information transmitted or stored. The received information
shall not be passed on to any other party, in particular other departments,
subsidiaries or partners, for whom such information could provide a competitive
advantage.
Article 5
Powers and responsibilities of the national regulatory authorities with regard
to access and interconnection
1. National regulatory authorities shall, acting in pursuit of the objectives
set out in Article 8 of Directive 2002/21/EC (Framework Directive), encourage
and where appropriate ensure, in accordance with the provisions of this
Directive, adequate access and interconnection, and interoperability of
services, exercising their responsibility in a way that promotes efficiency,
sustainable competition, and gives the maximum benefit to end-users.
In particular, without prejudice to measures that may be taken regarding
undertakings with significant market power in accordance with Article 8,
national regulatory authorities shall be able to impose:
(a) to the extent that is necessary to ensure end-to-end connectivity,
obligations on undertakings that control access to end-users, including in
justified cases the obligation to interconnect their networks where this is not
already the case;
(b) to the extent that is necessary to ensure accessibility for end-users to
digital radio and television broadcasting services specified by the Member
State, obligations on operators to provide access to the other facilities
referred to in Annex I, Part II on fair, reasonable and non-discriminatory
terms.
2. When imposing obligations on an operator to provide access in accordance with
Article 12, national regulatory authorities may lay down technical or
operational conditions to be met by the provider and/or beneficiaries of such
access, in accordance with Community law, where necessary to ensure normal
operation of the network. Conditions that refer to implementation of specific
technical standards or specifications shall respect Article 17 of Directive
2002/21/EC (Framework Directive).
3. Obligations and conditions imposed in accordance with paragraphs 1 and 2
shall be objective, transparent, proportionate and non-discriminatory, and shall
be implemented in accordance with the procedures referred to in Articles 6 and 7
of Directive 2002/21/EC (Framework Directive).
4. With regard to access and interconnection, Member States shall ensure that
the national regulatory authority is empowered to intervene at its own
initiative where justified or, in the absence of agreement between undertakings,
at the request of either of the parties involved, in order to secure the policy
objectives of Article 8 of Directive 2002/21/EC (Framework Directive), in
accordance with the provisions of this Directive and the procedures referred to
in Articles 6 and 7, 20 and 21 of Directive 2002/21/EC (Framework Directive).
CHAPTER III
OBLIGATIONS ON OPERATORS AND MARKET REVIEW PROCEDURES
Article 6
Conditional access systems and other facilities
1. Member States shall ensure that, in relation to conditional access to digital
television and radio services broadcast to viewers and listeners in the
Community, irrespective of the means of transmission, the conditions laid down
in Annex I, Part I apply.
2. In the light of market and technological developments, Annex I may be amended
in accordance with the procedure referred to in Article 14(3).
3. Notwithstanding the provisions of paragraph 1, Member States may permit their
national regulatory authority, as soon as possible after the entry into force of
this Directive and periodically thereafter, to review the conditions applied in
accordance with this Article, by undertaking a market analysis in accordance
with the first paragraph of Article 16 of Directive 2002/21/EC (Framework
Directive) to determine whether to maintain, amend or withdraw the conditions
applied.
Where, as a result of this market analysis, a national regulatory authority
finds that one or more operators do not have significant market power on the
relevant market, it may amend or withdraw the conditions with respect to those
operators, in accordance with the procedures referred to in Articles 6 and 7 of
Directive 2002/21/EC (Framework Directive), only to the extent that:
(a) accessibility for end-users to radio and television broadcasts and
broadcasting channels and services specified in accordance with Article 31 of
Directive 2002/22/EC (Universal Service Directive) would not be adversely
affected by such amendment or withdrawal, and
(b) the prospects for effective competition in the markets for:
(i) retail digital television and radio broadcasting services, and
(ii) conditional access systems and other associated facilities,
would not be adversely affected by such amendment or withdrawal.
An appropriate period of notice shall be given to parties affected by such
amendment or withdrawal of conditions.
4. Conditions applied in accordance with this Article are without prejudice to
the ability of Member States to impose obligations in relation to the
presentational aspect of electronic programme guides and similar listing and
navigation facilities.
Article 7
Review of former obligations for access and interconnection
1. Member States shall maintain all obligations on undertakings providing public
communications networks and/or services concerning access and interconnection
that were in force prior to the date of entry into force of this Directive under
Articles 4, 6, 7, 8, 11, 12, and 14 of Directive 97/33/EC, Article 16 of
Directive 98/10/EC, and Articles 7 and 8 of Directive 92/44/EC, until such time
as these obligations have been reviewed and a determination made in accordance
with paragraph 3.
2. The Commission will indicate relevant markets for the obligations referred to
in paragraph 1 in the initial recommendation on relevant product and service
markets and the Decision identifying transnational markets to be adopted in
accordance with Article 15 of Directive 2002/21/EC (Framework Directive).
3. Member States shall ensure that, as soon as possible after the entry into
force of this Directive, and periodically thereafter, national regulatory
authorities undertake a market analysis, in accordance with Article 16 of
Directive 2002/21/EC (Framework Directive) to determine whether to maintain,
amend or withdraw these obligations. An appropriate period of notice shall be
given to parties affected by such amendment or withdrawal of obligations.
Article 8
Imposition, amendment or withdrawal of obligations
1. Member States shall ensure that national regulatory authorities are empowered
to impose the obligations identified in Articles 9 to 13.
2. Where an operator is designated as having significant market power on a
specific market as a result of a market analysis carried out in accordance with
Article 16 of Directive 2002/21/EC (Framework Directive), national regulatory
authorities shall impose the obligations set out in Articles 9 to 13 of this
Directive as appropriate.
3. Without prejudice to:
- the provisions of Articles 5(1), 5(2) and 6,
- the provisions of Articles 12 and 13 of Directive 2002/21/EC (Framework
Directive), Condition 7 in Part B of the Annex to Directive 2002/20/EC
(Authorisation Directive) as applied by virtue of Article 6(1) of that
Directive, Articles 27, 28 and 30 of Directive 2002/22/EC (Universal Service
Directive) and the relevant provisions of 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(17)
containing obligations on undertakings other than those designated as having
significant market power, or
- the need to comply with international commitments,
national regulatory authorities shall not impose the obligations set out in
Articles 9 to 13 on operators that have not been designated in accordance with
paragraph 2.
In exceptional circumstances, when a national regulatory authority intends to
impose on operators with significant market power other obligations for access
or interconnection than those set out in Articles 9 to 13 in this Directive it
shall submit this request to the Commission. The Commission, acting in
accordance with Article 14(2), shall take a decision authorising or preventing
the national regulatory authority from taking such measures.
4. Obligations imposed in accordance with this Article shall be based on the
nature of the problem identified, proportionate and justified in the light of
the objectives laid down in Article 8 of Directive 2002/21/EC (Framework
Directive). Such obligations shall only be imposed following consultation in
accordance with Articles 6 and 7 of that Directive.
5. In relation to the third indent of the first subparagraph of paragraph 3,
national regulatory authorities shall notify decisions to impose, amend or
withdraw obligations on market players to the Commission, in accordance with the
procedure referred to in Article 7 of Directive 2002/21/EC (Framework
Directive).
Article 9
Obligation of transparency
1. National regulatory authorities may, in accordance with the provisions of
Article 8, impose obligations for transparency in relation to interconnection
and/or access, requiring operators to make public specified information, such as
accounting information, technical specifications, network characteristics, terms
and conditions for supply and use, and prices.
2. In particular where an operator has obligations of non-discrimination,
national regulatory authorities may require that operator to publish a reference
offer, which shall be sufficiently unbundled to ensure that undertakings are not
required to pay for facilities which are not necessary for the service
requested, giving a description of the relevant offerings broken down into
components according to market needs, and the associated terms and conditions
including prices. The national regulatory authority shall, inter alia, be able
to impose changes to reference offers to give effect to obligations imposed
under this Directive.
3. National regulatory authorities may specify the precise information to be
made available, the level of detail required and the manner of publication.
4. Notwithstanding paragraph 3, where an operator has obligations under Article
12 concerning unbundled access to the twisted metallic pair local loop, national
regulatory authorities shall ensure the publication of a reference offer
containing at least the elements set out in Annex II.
5. In the light of market and technological developments, Annex II may be
amended in accordance with the procedure referred to in Article 14(3).
Article 10
Obligation of non-discrimination
1. A national regulatory authority may, in accordance with the provisions of
Article 8, impose obligations of non-discrimination, in relation to
interconnection and/or access.
2. Obligations of non-discrimination shall ensure, in particular, that the
operator applies equivalent conditions in equivalent circumstances to other
undertakings providing equivalent services, and provides services and
information to others under the same conditions and of the same quality as it
provides for its own services, or those of it subsidiaries or partners.
Article 11
Obligation of accounting separation
1. A national regulatory authority may, in accordance with the provisions of
Article 8, impose obligations for accounting separation in relation to specified
activities related to interconnection and/or access.
In particular, a national regulatory authority may require a vertically
integrated company to make transparent its wholesale prices and its internal
transfer prices inter alia to ensure compliance where there is a requirement for
non-discrimination under Article 10 or, where necessary, to prevent unfair
cross-subsidy. National regulatory authorities may specify the format and
accounting methodology to be used.
2. Without prejudice to Article 5 of Directive 2002/21/EC (Framework Directive),
to facilitate the verification of compliance with obligations of transparency
and non-discrimination, national regulatory authorities shall have the power to
require that accounting records, including data on revenues received from third
parties, are provided on request. National regulatory authorities may publish
such information as would contribute to an open and competitive market, while
respecting national and Community rules on commercial confidentiality.
Article 12
Obligations of access to, and use of, specific network facilities
1. A national regulatory authority may, in accordance with the provisions of
Article 8, impose obligations on operators to meet reasonable requests for
access to, and use of, specific network elements and associated facilities,
inter alia in situations where the national regulatory authority considers that
denial of access or unreasonable terms and conditions having a similar effect
would hinder the emergence of a sustainable competitive market at the retail
level, or would not be in the end-user's interest.
Operators may be required inter alia:
(a) to give third parties access to specified network elements and/or
facilities, including unbundled access to the local loop;
(b) to negotiate in good faith with undertakings requesting access;
(c) not to withdraw access to facilities already granted;
(d) to provide specified services on a wholesale basis for resale by third
parties;
(e) to grant open access to technical interfaces, protocols or other key
technologies that are indispensable for the interoperability of services or
virtual network services;
(f) to provide co-location or other forms of facility sharing, including duct,
building or mast sharing;
(g) to provide specified services needed to ensure interoperability of
end-to-end services to users, including facilities for intelligent network
services or roaming on mobile networks;
(h) to provide access to operational support systems or similar software systems
necessary to ensure fair competition in the provision of services;
(i) to interconnect networks or network facilities.
National regulatory authorities may attach to those obligations conditions
covering fairness, reasonableness and timeliness.
2. When national regulatory authorities are considering whether to impose the
obligations referred in paragraph 1, and in particular when assessing whether
such obligations would be proportionate to the objectives set out in Article 8
of Directive 2002/21/EC (Framework Directive), they shall take account in
particular of the following factors:
(a) the technical and economic viability of using or installing competing
facilities, in the light of the rate of market development, taking into account
the nature and type of interconnection and access involved;
(b) the feasibility of providing the access proposed, in relation to the
capacity available;
(c) the initial investment by the facility owner, bearing in mind the risks
involved in making the investment;
(d) the need to safeguard competition in the long term;
(e) where appropriate, any relevant intellectual property rights;
(f) the provision of pan-European services.
Article 13
Price control and cost accounting obligations
1. A national regulatory authority may, in accordance with the provisions of
Article 8, impose obligations relating to cost recovery and price controls,
including obligations for cost orientation of prices and obligations concerning
cost accounting systems, for the provision of specific types of interconnection
and/or access, in situations where a market analysis indicates that a lack of
effective competition means that the operator concerned might sustain prices at
an excessively high level, or apply a price squeeze, to the detriment of
end-users. National regulatory authorities shall take into account the
investment made by the operator and allow him a reasonable rate of return on
adequate capital employed, taking into account the risks involved.
2. National regulatory authorities shall ensure that any cost recovery mechanism
or pricing methodology that is mandated serves to promote efficiency and
sustainable competition and maximise consumer benefits. In this regard national
regulatory authorities may also take account of prices available in comparable
competitive markets.
3. Where an operator has an obligation regarding the cost orientation of its
prices, the burden of proof that charges are derived from costs including a
reasonable rate of return on investment shall lie with the operator concerned.
For the purpose of calculating the cost of efficient provision of services,
national regulatory authorities may use cost accounting methods independent of
those used by the undertaking. National regulatory authorities may require an
operator to provide full justification for its prices, and may, where
appropriate, require prices to be adjusted.
4. National regulatory authorities shall ensure that, where implementation of a
cost accounting system is mandated in order to support price controls, a
description of the cost accounting system is made publicly available, showing at
least the main categories under which costs are grouped and the rules used for
the allocation of costs. Compliance with the cost accounting system shall be
verified by a qualified independent body. A statement concerning compliance
shall be published annually.
CHAPTER IV
PROCEDURAL PROVISIONS
Article 14
Committee
1. The Commission shall be assisted by the Communications Committee set up by
Article 22 of Directive 2002/21/EC (Framework Directive).
2. Where reference is made to this paragraph, Articles 3 and 7 of Decision
1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.
3. Where reference is made to this paragraph, Articles 5 and 7 of Decision
1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.
The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at
three months.
4. The Committee shall adopt its rules of procedure.
Article 15
Publication of, and access to, information
1. Member States shall ensure that the specific obligations imposed on
undertakings under this Directive are published and that the specific
product/service and geographical markets are identified. They shall ensure that
up-to-date information, provided that the information is not confidential and,
in particular, does not comprise business secrets, is made publicly available in
a manner that guarantees all interested parties easy access to that information.
2. Member States shall send to the Commission a copy of all such information
published. The Commission shall make this information available in a readily
accessible form, and shall distribute the information to the Communications
Committee as appropriate.
Article 16
Notification
1. Member States shall notify to the Commission by at the latest the date of
application referred to in Article 18(1) second subparagraph the national
regulatory authorities responsible for the tasks set out in this Directive.
2. National regulatory authorities shall notify to the Commission the names of
operators deemed to have significant market power for the purposes of this
Directive, and the obligations imposed upon them under this Directive. Any
changes affecting the obligations imposed upon undertakings or of the
undertakings affected under the provisions of this Directive shall be notified
to the Commission without delay.
Article 17
Review procedures
The Commission shall periodically review the functioning of this Directive and
report to the European Parliament and to the Council, on the first occasion not
later than three years after the date of application 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 18
Transposition
1. Member States shall adopt and publish the laws, regulations and
administrative provisions necessary to comply with this Directive by not later
than 24 July 2003. 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 a 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. 215 and OJ C 270 E, 25.9.2001, p. 161.
(2) OJ C 123, 25.4.2001, p. 50.
(3) Opinion of the European Parliament of 1 March 2001 (OJ C 277, 1.10.2001, p.
72), Council Common Position of 17 September 2001 (OJ C 337, 30.11.2001, p. 1)
and Decision of the European Parliament of 12 December 2001 (not yet published
in the Official Journal). Council Decision of 14 February 2002.
(4) See page 33 of this Official Journal.
(5) See page 21 of this Official Journal.
(6) OJ L 281, 23.11.1995, p. 51.
(7) OJ L 196, 5.8.1993, p. 48.
(8) OJ L 199, 26.7.1997, p. 32. Directive as last amended by Directive 98/61/EC
(OJ L 268, 3.10.1998, p. 37).
(9) OJ L 101, 1.4.1998, p. 24.
(10) OJ L 165, 19.6.1992, p. 27. Directive as last amended by Commission
Decision No 98/80/EC (OJ L 14, 20.1.1998, p. 27).
(11) OJ L 366, 30.12.2000, p. 4.
(12) OJ L 141, 13.5.1998, p. 6.
(13) OJ C 265, 22.8.1998, p. 2.
(14) OJ L 204, 21.7.1998, p. 37. Directive as amended by Directive 98/48/EC (OJ
L 217, 5.8.1998, p. 18).
(15) OJ L 184, 17.7.1999, p. 23.
(16) See page 51 of this Official Journal.
(17) OJ L 24, 30.1.1998, p. 1.
ANNEX I
CONDITIONS FOR ACCESS TO DIGITAL TELEVISION AND RADIO SERVICES BROADCAST TO
VIEWERS AND LISTENERS IN THE COMMUNITY
Part I: Conditions for conditional access systems to be applied in accordance
with Article 6(1)
In relation to conditional access to digital television and radio services
broadcast to viewers and listeners in the Community, irrespective of the means
of transmission, Member States must ensure in accordance with Article 6 that the
following conditions apply:
(a) conditional access systems operated on the market in the Community are to
have the necessary technical capability for cost-effective transcontrol allowing
the possibility for full control by network operators at local or regional level
of the services using such conditional access systems;
(b) all operators of conditional access services, irrespective of the means of
transmission, who provide access services to digital television and radio
services and whose access services broadcasters depend on to reach any group of
potential viewers or listeners are to:
- offer to all broadcasters, on a fair, reasonable and non-discriminatory basis
compatible with Community competition law, technical services enabling the
broadcasters' digitally-transmitted services to be received by viewers or
listeners authorised by means of decoders administered by the service operators,
and comply with Community competition law,
- keep separate financial accounts regarding their activity as conditional
access providers.
(c) when granting licences to manufacturers of consumer equipment, holders of
industrial property rights to conditional access products and systems are to
ensure that this is done on fair, reasonable and non-discriminatory terms.
Taking into account technical and commercial factors, holders of rights are not
to subject the granting of licences to conditions prohibiting, deterring or
discouraging the inclusion in the same product of:
- a common interface allowing connection with several other access systems, or
- means specific to another access system, provided that the licensee complies
with the relevant and reasonable conditions ensuring, as far as he is concerned,
the security of transactions of conditional access system operators.
Part II: Other facilities to which conditions may be applied under Article
5(1)(b)
(a) Access to application program interfaces (APIs);
(b) Access to electronic programme guides (EPGs).
ANNEX II
MINIMUM LIST OF ITEMS TO BE INCLUDED IN A REFERENCE OFFER FOR UNBUNDLED ACCESS
TO THE TWISTED METALLIC PAIR LOCAL LOOP TO BE PUBLISHED BY NOTIFIED OPERATORS
For the purposes of this Annex the following definitions apply:
(a) "local sub-loop" means a partial local loop connecting the network
termination point at the subscriber's premises to a concentration point or a
specified intermediate access point in the fixed public telephone network;
(b) "unbundled access to the local loop" means full unbundled access
to the local loop and shared access to the local loop; it does not entail a
change in ownership of the local loop;
(c) "full unbundled access to the local loop" means the provision to a
beneficiary of access to the local loop or local sub-loop of the notified
operator authorising the use of the full frequency spectrum of the twisted
metallic pair;
(d) "shared access to the local loop" means the provision to a
beneficiary of access to the local loop or local sub-loop of the notified
operator, authorising the use of the non-voice band frequency spectrum of the
twisted metallic pair; the local loop continues to be used by the notified
operator to provide the telephone service to the public;
A. Conditions for unbundled access to the local loop
1. Network elements to which access is offered covering in particular the
following elements:
(a) access to local loops;
(b) access to non-voice band frequency spectrum of a local loop, in the case of
shared access to the local loop;
2. Information concerning the locations of physical access sites(1),
availability of local loops in specific parts of the access network;
3. Technical conditions related to access and use of local loops, including the
technical characteristics of the twisted metallic pair in the local loop;
4. Ordering and provisioning procedures, usage restrictions.
B. Co-location services
1. Information on the notified operator's relevant sites(2).
2. Co-location options at the sites indicated under point 1 (including physical
co-location and, as appropriate, distant co-location and virtual co-location).
3. Equipment characteristics: restrictions, if any, on equipment that can be
co-located.
4. Security issues: measures put in place by notified operators to ensure the
security of their locations.
5. Access conditions for staff of competitive operators.
6. Safety standards.
7. Rules for the allocation of space where co-location space is limited.
8. Conditions for beneficiaries to inspect the locations at which physical
co-location is available, or sites where co-location has been refused on grounds
of lack of capacity.
C. Information systems
Conditions for access to notified operator's operational support systems,
information systems or databases for pre-ordering, provisioning, ordering,
maintenance and repair requests and billing.
D. Supply conditions
1. Lead time for responding to requests for supply of services and facilities;
service level agreements, fault resolution, procedures to return to a normal
level of service and quality of service parameters.
2. Standard contract terms, including, where appropriate, compensation provided
for failure to meet lead times.
3. Prices or pricing formulae for each feature, function and facility listed
above.
(1) Availability of this information may be restricted to interested parties
only, in order to avoid public security concerns.
(2) Availability of this information may be restricted to interested parties
only, in order to avoid public security concerns.
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