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)
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 current regulatory framework for telecommunications has been successful
in creating the conditions for effective competition in the telecommunications
sector during the transition from monopoly to full competition.
(2) On 10 November 1999, the Commission presented a communication to the
European Parliament, the Council, the Economic and Social Committee and the
Committee of the Regions entitled "Towards a new framework for electronic
communications infrastructure and associated services - the 1999 communications
review". In that communication, the Commission reviewed the existing
regulatory framework for telecommunications, in accordance with its obligation
under Article 8 of Council Directive 90/387/EEC of 28 June 1990 on the
establishment of the internal market for telecommunications services through the
implementation of open network provision(4). It also presented a series of
policy proposals for a new regulatory framework for electronic communications
infrastructure and associated services for public consultation.
(3) On 26 April 2000 the Commission presented a communication to the European
Parliament, the Council, the Economic and Social Committee and the Committee of
the Regions on the results of the public consultation on the 1999 communications
review and orientations for the new regulatory framework. The communication
summarised the public consultation and set out certain key orientations for the
preparation of a new framework for electronic communications infrastructure and
associated services.
(4) The Lisbon European Council of 23 and 24 March 2000 highlighted the
potential for growth, competitiveness and job creation of the shift to a
digital, knowledge-based economy. In particular, it emphasised the importance
for Europe's businesses and citizens of access to an inexpensive, world-class
communications infrastructure and a wide range of services.
(5) The convergence of the telecommunications, media and information technology
sectors means all transmission networks and services should be covered by a
single regulatory framework. That regulatory framework consists of this
Directive and four specific Directives: 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), 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)(6), 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)(7), 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(8),
(hereinafter referred to as "the Specific Directives"). It is
necessary to separate the regulation of transmission from the regulation of
content. This framework does not therefore cover the content of services
delivered over electronic communications networks using electronic
communications services, such as broadcasting content, financial services and
certain information society services, and is therefore without prejudice to
measures taken at Community or national level in respect of such services, in
compliance with Community law, in order to promote cultural and linguistic
diversity and to ensure the defence of media pluralism. The content of
television programmes is covered by 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(9). The separation between the regulation of
transmission and the regulation of content does not prejudice the taking into
account of the links existing between them, in particular in order to guarantee
media pluralism, cultural diversity and consumer protection.
(6) Audiovisual policy and content regulation are undertaken in pursuit of
general interest objectives, such as freedom of expression, media pluralism,
impartiality, cultural and linguistic diversity, social inclusion, consumer
protection and the protection of minors. The Commission communication
"Principles and guidelines for the Community's audio-visual policy in the
digital age", and the Council conclusions of 6 June 2000 welcoming this
communication, set out the key actions to be taken by the Community to implement
its audio-visual policy.
(7) The provisions of this Directive and the Specific Directives are without
prejudice to the possibility for each Member State to take the necessary
measures to ensure the protection of its essential security interests, to
safeguard public policy and public security, and to permit the investigation,
detection and prosecution of criminal offences, including the establishment by
national regulatory authorities of specific and proportional obligations
applicable to providers of electronic communications services.
(8) This Directive does not cover equipment within the scope of 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(10), but does cover consumer equipment used for digital
television. It is important for regulators to encourage network operators and
terminal equipment manufacturers to cooperate in order to facilitate access by
disabled users to electronic communications services.
(9) Information society services are covered by 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 (Directive on electronic commerce)(11).
(10) The definition of "information society service" in Article 1 of
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(12) spans a wide range of economic activities which take place on-line.
Most of these activities are not covered by the scope of this Directive because
they do not consist wholly or mainly in the conveyance of signals on electronic
communications networks. Voice telephony and electronic mail conveyance services
are covered by this Directive. The same undertaking, for example an Internet
service provider, can offer both an electronic communications service, such as
access to the Internet, and services not covered under this Directive, such as
the provision of web-based content.
(11) In accordance with the principle of the separation of regulatory and
operational functions, Member States should guarantee the independence of the
national regulatory authority or authorities with a view to ensuring the
impartiality of their decisions. This requirement of independence is without
prejudice to the institutional autonomy and constitutional obligations of the
Member States or to the principle of neutrality with regard to the rules in
Member States governing the system of property ownership laid down in Article
295 of the Treaty. National regulatory authorities should be in possession of
all the necessary resources, in terms of staffing, expertise, and financial
means, for the performance of their tasks.
(12) Any party who is the subject of a decision by a national regulatory
authority should have the right to appeal to a body that is independent of the
parties involved. This body may be a court. Furthermore, any undertaking which
considers that its applications for the granting of rights to install facilities
have not been dealt with in accordance with the principles set out in this
Directive should be entitled to appeal against such decisions. This appeal
procedure is without prejudice to the division of competences within national
judicial systems and to the rights of legal entities or natural persons under
national law.
(13) National regulatory authorities need to gather information from market
players in order to carry out their tasks effectively. Such information may also
need to be gathered on behalf of the Commission, to allow it to fulfil its
obligations under Community law. Requests for information should be
proportionate and not impose an undue burden on undertakings. Information
gathered by national regulatory authorities should be publicly available, except
in so far as it is confidential in accordance with national rules on public
access to information and subject to Community and national law on business
confidentiality.
(14) Information that is considered confidential by a national regulatory
authority, in accordance with Community and national rules on business
confidentiality, may only be exchanged with the Commission and other national
regulatory authorities where such exchange is strictly necessary for the
application of the provisions of this Directive or the Specific Directives. The
information exchanged should be limited to that which is relevant and
proportionate to the purpose of such an exchange.
(15) It is important that national regulatory authorities consult all interested
parties on proposed decisions and take account of their comments before adopting
a final decision. In order to ensure that decisions at national level do not
have an adverse effect on the single market or other Treaty objectives, national
regulatory authorities should also notify certain draft decisions to the
Commission and other national regulatory authorities to give them the
opportunity to comment. It is appropriate for national regulatory authorities to
consult interested parties on all draft measures which have an effect on trade
between Member States. The cases where the procedures referred to in Articles 6
and 7 apply are defined in this Directive and in the Specific Directives. The
Commission should be able, after consulting the Communications Committee, to
require a national regulatory authority to withdraw a draft measure where it
concerns definition of relevant markets or the designation or not of
undertakings with significant market power, and where such decisions would
create a barrier to the single market or would be incompatible with Community
law and in particular the policy objectives that national regulatory authorities
should follow. This procedure is without prejudice to the notification procedure
provided for in Directive 98/34/EC and the Commission's prerogatives under the
Treaty in respect of infringements of Community law.
(16) National regulatory authorities should have a harmonised set of objectives
and principles to underpin, and should, where necessary, coordinate their
actions with the regulatory authorities of other Member States in carrying out
their tasks under this regulatory framework.
(17) The activities of national regulatory authorities established under this
Directive and the Specific Directives contribute to the fulfilment of broader
policies in the areas of culture, employment, the environment, social cohesion
and town and country planning.
(18) The requirement for Member States to ensure that national regulatory
authorities take the utmost account of the desirability of making regulation
technologically neutral, that is to say that it neither imposes nor
discriminates in favour of the use of a particular type of technology, does not
preclude the taking of proportionate steps to promote certain specific services
where this is justified, for example digital television as a means for
increasing spectrum efficiency.
(19) Radio frequencies are an essential input for radio-based electronic
communications services and, in so far as they relate to such services, should
therefore be allocated and assigned by national regulatory authorities according
to a set of harmonised objectives and principles governing their action as well
as to objective, transparent and non-discriminatory criteria, taking into
account the democratic, social, linguistic and cultural interests related to the
use of frequency. It is important that the allocation and assignment of radio
frequencies is managed as efficiently as possible. Transfer of radio frequencies
can be an effective means of increasing efficient use of spectrum, as long as
there are sufficient safeguards in place to protect the public interest, in
particular the need to ensure transparency and regulatory supervision of such
transfers. Decision No 676/2002/EC of the European Parliament and of the Council
of 7 March 2002 on a regulatory framework for radio spectrum policy in the
European Community (Radio Spectrum Decision)(13) establishes a framework for
harmonisation of radio frequencies, and action taken under this Directive should
seek to facilitate the work under that Decision.
(20) Access to numbering resources on the basis of transparent, objective and
non-discriminatory criteria is essential for undertakings to compete in the
electronic communications sector. All elements of national numbering plans
should be managed by national regulatory authorities, including point codes used
in network addressing. Where there is a need for harmonisation of numbering
resources in the Community to support the development of pan-European services,
the Commission may take technical implementing measures using its executive
powers. Where this is appropriate to ensure full global interoperability of
services, Member States should coordinate their national positions in accordance
with the Treaty in international organisations and fora where numbering
decisions are taken. The provisions of this Directive do not establish any new
areas of responsibility for the national regulatory authorities in the field of
Internet naming and addressing.
(21) Member States may use, inter alia, competitive or comparative selection
procedures for the assignment of radio frequencies as well as numbers with
exceptional economic value. In administering such schemes, national regulatory
authorities should take into account the provisions of Article 8.
(22) It should be ensured that procedures exist for the granting of rights to
install facilities that are timely, non-discriminatory and transparent, in order
to guarantee the conditions for fair and effective competition. This Directive
is without prejudice to national provisions governing the expropriation or use
of property, the normal exercise of property rights, the normal use of the
public domain, or to the principle of neutrality with regard to the rules in
Member States governing the system of property ownership.
(23) Facility sharing can be of benefit for town planning, public health or
environmental reasons, and should be encouraged by national regulatory
authorities on the basis of voluntary agreements. In cases where undertakings
are deprived of access to viable alternatives, compulsory facility or property
sharing may be appropriate. It covers inter alia: physical co-location and duct,
building, mast, antenna or antenna system sharing. Compulsory facility or
property sharing should be imposed on undertakings only after full public
consultation.
(24) Where mobile operators are required to share towers or masts for
environmental reasons, such mandated sharing may lead to a reduction in the
maximum transmitted power levels allowed for each operator for reasons of public
health, and this in turn may require operators to install more transmission
sites to ensure national coverage.
(25) There is a need for ex ante obligations in certain circumstances in order
to ensure the development of a competitive market. The definition of significant
market power in the 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)(14) has proved effective in the
initial stages of market opening as the threshold for ex ante obligations, but
now needs to be adapted to suit more complex and dynamic markets. For this
reason, the definition used in this Directive is equivalent to the concept of
dominance as defined in the case law of the Court of Justice and the Court of
First Instance of the European Communities.
(26) Two or more undertakings can be found to enjoy a joint dominant position
not only where there exist structural or other links between them but also where
the structure of the relevant market is conducive to coordinated effects, that
is, it encourages parallel or aligned anti-competitive behaviour on the market.
(27) It is essential that ex ante regulatory obligations should only be imposed
where there is not effective competition, i.e. in markets where there are one or
more undertakings with significant market power, and where national and
Community competition law remedies are not sufficient to address the problem. It
is necessary therefore for the Commission to draw up guidelines at Community
level in accordance with the principles of competition law for national
regulatory authorities to follow in assessing whether competition is effective
in a given market and in assessing significant market power. National regulatory
authorities should analyse whether a given product or service market is
effectively competitive in a given geographical area, which could be the whole
or a part of the territory of the Member State concerned or neighbouring parts
of territories of Member States considered together. An analysis of effective
competition should include an analysis as to whether the market is prospectively
competitive, and thus whether any lack of effective competition is durable.
Those guidelines will also address the issue of newly emerging markets, where de
facto the market leader is likely to have a substantial market share but should
not be subjected to inappropriate obligations. The Commission should review the
guidelines regularly to ensure that they remain appropriate in a rapidly
developing market. National regulatory authorities will need to cooperate with
each other where the relevant market is found to be transnational.
(28) In determining whether an undertaking has significant market power in a
specific market, national regulatory authorities should act in accordance with
Community law and take into the utmost account the Commission guidelines.
(29) The Community and the Member States have entered into commitments in
relation to standards and the regulatory framework of telecommunications
networks and services in the World Trade Organisation.
(30) Standardisation should remain primarily a market-driven process. However
there may still be situations where it is appropriate to require compliance with
specified standards at Community level to ensure interoperability in the single
market. At national level, Member States are subject to the provisions of
Directive 98/34/EC. 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(15) did not mandate any specific digital television
transmission system or service requirement. Through the Digital Video
Broadcasting Group, European market players have developed a family of
television transmission systems that have been standardised by the European
Telecommunications Standards Institute (ETSI) and have become International
Telecommunication Union recommendations. Any decision to make the implementation
of such standards mandatory should follow a full public consultation.
Standardisation procedures under this Directive are without prejudice to the
provisions of Directive 1999/5/EC, Council Directive 73/23/EEC of 19 February
1973 on the harmonisation of the laws of Member States relating to electrical
equipment designed for use within certain voltage limits(16) and Council
Directive 89/336/EEC of 3 May 1989 on the approximation of the laws of the
Member States relating to electromagnetic compatibility(17).
(31) Interoperability of digital interactive television services and enhanced
digital television equipment, at the level of the consumer, should be encouraged
in order to ensure the free flow of information, media pluralism and cultural
diversity. It is desirable for consumers to have the capability of receiving,
regardless of the transmission mode, all digital interactive television
services, having regard to technological neutrality, future technological
progress, the need to promote the take-up of digital television, and the state
of competition in the markets for digital television services. Digital
interactive television platform operators should strive to implement an open
application program interface (API) which conforms to standards or
specifications adopted by a European standards organisation. Migration from
existing APIs to new open APIs should be encouraged and organised, for example
by Memoranda of Understanding between all relevant market players. Open APIs
facilitate interoperability, i.e. the portability of interactive content between
delivery mechanisms, and full functionality of this content on enhanced digital
television equipment. However, the need not to hinder the functioning of the
receiving equipment and to protect it from malicious attacks, for example from
viruses, should be taken into account.
(32) In the event of a dispute between undertakings in the same Member State in
an area covered by this Directive or the Specific Directives, for example
relating to obligations for access and interconnection or to the means of
transferring subscriber lists, an aggrieved party that has negotiated in good
faith but failed to reach agreement should be able to call on the national
regulatory authority to resolve the dispute. National regulatory authorities
should be able to impose a solution on the parties. The intervention of a
national regulatory authority in the resolution of a dispute between
undertakings providing electronic communications networks or services in a
Member State should seek to ensure compliance with the obligations arising under
this Directive or the Specific Directives.
(33) In addition to the rights of recourse granted under national or Community
law, there is a need for a simple procedure to be initiated at the request of
either party in a dispute, to resolve cross-border disputes which lie outside
the competence of a single national regulatory authority.
(34) A single Committee should replace the "ONP Committee" instituted
by Article 9 of Directive 90/387/EEC and the Licensing Committee instituted by
Article 14 of Directive 97/13/EC of the European Parliament and of the Council
of 10 April 1997 on a common framework for general authorisations and individual
licences in the field of telecommunications services(18).
(35) National regulatory authorities and national competition authorities should
provide each other with the information necessary to apply the provisions of
this Directive and the Specific Directives, in order to allow them to cooperate
fully together. In respect of the information exchanged, the receiving authority
should ensure the same level of confidentiality as the originating authority.
(36) The Commission has indicated its intention to set up a European regulators
group for electronic communications networks and services which would constitute
a suitable mechanism for encouraging cooperation and coordination of national
regulatory authorities, in order to promote the development of the internal
market for electronic communications networks and services, and to seek to
achieve consistent application, in all Member States, of the provisions set out
in this Directive and the Specific Directives, in particular in areas where
national law implementing Community law gives national regulatory authorities
considerable discretionary powers in application of the relevant rules.
(37) National regulatory authorities should be required to cooperate with each
other and with the Commission in a transparent manner to ensure consistent
application, in all Member States, of the provisions of this Directive and the
Specific Directives. This cooperation could take place, inter alia, in the
Communications Committee or in a group comprising European regulators. Member
States should decide which bodies are national regulatory authorities for the
purposes of this Directive and the Specific Directives.
(38) Measures that could affect trade between Member States are measures that
may have an influence, direct or indirect, actual or potential, on the pattern
of trade between Member States in a manner which might create a barrier to the
single market. They comprise measures that have a significant impact on
operators or users in other Member States, which include, inter alia: measures
which affect prices for users in other Member States; measures which affect the
ability of an undertaking established in another Member State to provide an
electronic communications service, and in particular measures which affect the
ability to offer services on a transnational basis; and measures which affect
market structure or access, leading to repercussions for undertakings in other
Member States.
(39) The provisions of this Directive should be reviewed periodically, in
particular with a view to determining the need for modification in the light of
changing technological or market conditions.
(40) 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(19).
(41) Since the objectives of the proposed action, namely achieving a harmonised
framework for the regulation of electronic communications services, electronic
communications networks, associated facilities and associated 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.
(42) Certain directives and decisions in this field should be repealed.
(43) The Commission should monitor the transition from the existing framework to
the new framework, and may in particular, at an appropriate time, bring forward
a proposal to repeal Regulation (EC) No 2887/2000 of the European Parliament and
of the Council of 18 December 2000 on unbundled access to the local loop(20),
HAVE ADOPTED THIS DIRECTIVE:
CHAPTER I
SCOPE, AIM AND DEFINITIONS
Article 1
Scope and aim
1. This Directive establishes a harmonised framework for the regulation of
electronic communications services, electronic communications networks,
associated facilities and associated services. It lays down tasks of national
regulatory authorities and establishes a set of procedures to ensure the
harmonised application of the regulatory framework throughout the Community.
2. This Directive as well as the Specific Directives are without prejudice to
obligations imposed by national law in accordance with Community law or by
Community law in respect of services provided using electronic communications
networks and services.
3. This Directive as well as the Specific Directives are without prejudice to
measures taken at Community or national level, in compliance with Community law,
to pursue general interest objectives, in particular relating to content
regulation and audio-visual policy.
4. This Directive and the Specific Directives are without prejudice to the
provisions of Directive 1999/5/EC.
Article 2
Definitions
For the purposes of this Directive:
(a) "electronic communications network" means transmission systems
and, where applicable, switching or routing equipment and other resources which
permit the conveyance of signals by wire, by radio, by optical or by other
electromagnetic means, including satellite networks, fixed (circuit- and
packet-switched, including Internet) and mobile terrestrial networks,
electricity cable systems, to the extent that they are used for the purpose of
transmitting signals, networks used for radio and television broadcasting, and
cable television networks, irrespective of the type of information conveyed;
(b) "transnational markets" means markets identified in accordance
with Article 15(4) covering the Community or a substantial part thereof;
(c) "electronic communications service" means a service normally
provided for remuneration which consists wholly or mainly in the conveyance of
signals on electronic communications networks, including telecommunications
services and transmission services in networks used for broadcasting, but
exclude services providing, or exercising editorial control over, content
transmitted using electronic communications networks and services; it does not
include information society services, as defined in Article 1 of Directive
98/34/EC, which do not consist wholly or mainly in the conveyance of signals on
electronic communications networks;
(d) "public communications network" means an electronic communications
network used wholly or mainly for the provision of publicly available electronic
communications services;
(e) "associated facilities" means those facilities associated with an
electronic communications network and/or an electronic communications service
which enable and/or support the provision of services via that network and/or
service. It includes conditional access systems and electronic programme guides;
(f) "conditional access system" means any technical measure and/or
arrangement whereby access to a protected radio or television broadcasting
service in intelligible form is made conditional upon subscription or other form
of prior individual authorisation;
(g) "national regulatory authority" means the body or bodies charged
by a Member State with any of the regulatory tasks assigned in this Directive
and the Specific Directives;
(h) "user" means a legal entity or natural person using or requesting
a publicly available electronic communications service;
(i) "consumer" means any natural person who uses or requests a
publicly available electronic communications service for purposes which are
outside his or her trade, business or profession;
(j) "universal service" means the minimum set of services, defined in
Directive 2002/22/EC (Universal Service Directive), of specified quality which
is available to all users regardless of their geographical location and, in the
light of specific national conditions, at an affordable price;
(k) "subscriber" means any natural person or legal entity who or which
is party to a contract with the provider of publicly available electronic
communications services for the supply of such services;
(l) "Specific Directives" means Directive 2002/20/EC (Authorisation
Directive), Directive 2002/19/EC (Access Directive), Directive 2002/22/EC
(Universal Service Directive) and Directive 97/66/EC;
(m) "provision of an electronic communications network" means the
establishment, operation, control or making available of such a network;
(n) "end-user" means a user not providing public communications
networks or publicly available electronic communications services.
(o) "enhanced digital television equipment" means set-top boxes
intended for connection to television sets or integrated digital television
sets, able to receive digital interactive television services;
(p) "application program interface (API)" means the software
interfaces between applications, made available by broadcasters or service
providers, and the resources in the enhanced digital television equipment for
digital television and radio services.
CHAPTER II
NATIONAL REGULATORY AUTHORITIES
Article 3
National regulatory authorities
1. Member States shall ensure that each of the tasks assigned to national
regulatory authorities in this Directive and the Specific Directives is
undertaken by a competent body.
2. Member States shall guarantee the independence of national regulatory
authorities by ensuring that they are legally distinct from and functionally
independent of all organisations providing electronic communications networks,
equipment or services. Member States that retain ownership or control of
undertakings providing electronic communications networks and/or services shall
ensure effective structural separation of the regulatory function from
activities associated with ownership or control.
3. Member States shall ensure that national regulatory authorities exercise
their powers impartially and transparently.
4. Member States shall publish the tasks to be undertaken by national regulatory
authorities in an easily accessible form, in particular where those tasks are
assigned to more than one body. Member States shall ensure, where appropriate,
consultation and cooperation between those authorities, and between those
authorities and national authorities entrusted with the implementation of
competition law and national authorities entrusted with the implementation of
consumer law, on matters of common interest. Where more than one authority has
competence to address such matters, Member States shall ensure that the
respective tasks of each authority are published in an easily accessible form.
5. National regulatory authorities and national competition authorities shall
provide each other with the information necessary for the application of the
provisions of this Directive and the Specific Directives. In respect of the
information exchanged, the receiving authority shall ensure the same level of
confidentiality as the originating authority.
6. Member States shall notify to the Commission all national regulatory
authorities assigned tasks under this Directive and the Specific Directives, and
their respective responsibilities.
Article 4
Right of appeal
1. Member States shall ensure that effective mechanisms exist at national level
under which any user or undertaking providing electronic communications networks
and/or services who is affected by a decision of a national regulatory authority
has the right of appeal against the decision to an appeal body that is
independent of the parties involved. This body, which may be a court, shall have
the appropriate expertise available to it to enable it to carry out its
functions. Member States shall ensure that the merits of the case are duly taken
into account and that there is an effective appeal mechanism. Pending the
outcome of any such appeal, the decision of the national regulatory authority
shall stand, unless the appeal body decides otherwise.
2. Where the appeal body referred to in paragraph 1 is not judicial in
character, written reasons for its decision shall always be given. Furthermore,
in such a case, its decision shall be subject to review by a court or tribunal
within the meaning of Article 234 of the Treaty.
Article 5
Provision of information
1. Member States shall ensure that undertakings providing electronic
communications networks and services provide all the information, including
financial information, necessary for national regulatory authorities to ensure
conformity with the provisions of, or decisions made in accordance with, this
Directive and the Specific Directives. These undertakings shall provide such
information promptly on request and to the timescales and level of detail
required by the national regulatory authority. The information requested by the
national regulatory authority shall be proportionate to the performance of that
task. The national regulatory authority shall give the reasons justifying its
request for information.
2. Member States shall ensure that national regulatory authorities provide the
Commission, after a reasoned request, with the information necessary for it to
carry out its tasks under the Treaty. The information requested by the
Commission shall be proportionate to the performance of those tasks. Where the
information provided refers to information previously provided by undertakings
at the request of the national regulatory authority, such undertakings shall be
informed thereof. To the extent necessary, and unless the authority that
provides the information has made an explicit and reasoned request to the
contrary, the Commission shall make the information provided available to
another such authority in another Member State.
Subject to the requirements of paragraph 3, Member States shall ensure that the
information submitted to one national regulatory authority can be made available
to another such authority in the same or different Member State, after a
substantiated request, where necessary to allow either authority to fulfil its
responsibilities under Community law.
3. Where information is considered confidential by a national regulatory
authority in accordance with Community and national rules on business
confidentiality, the Commission and the national regulatory authorities
concerned shall ensure such confidentiality.
4. Member States shall ensure that, acting in accordance with national rules on
public access to information and subject to Community and national rules on
business confidentiality, national regulatory authorities publish such
information as would contribute to an open and competitive market.
5. National regulatory authorities shall publish the terms of public access to
information as referred to in paragraph 4, including procedures for obtaining
such access.
Article 6
Consultation and transparency mechanism
Except in cases falling within Articles 7(6), 20 or 21 Member States shall
ensure that where national regulatory authorities intend to take measures in
accordance with this Directive or the Specific Directives which have a
significant impact on the relevant market, they give interested parties the
opportunity to comment on the draft measure within a reasonable period. National
regulatory authorities shall publish their national consultation procedures.
Member States shall ensure the establishment of a single information point
through which all current consultations can be accessed. The results of the
consultation procedure shall be made publicly available by the national
regulatory authority, except in the case of confidential information in
accordance with Community and national law on business confidentiality.
Article 7
Consolidating the internal market for electronic communications
1. In carrying out their tasks under this Directive and the Specific Directives,
national regulatory authorities shall take the utmost account of the objectives
set out in Article 8, including in so far as they relate to the functioning of
the internal market.
2. National regulatory authorities shall contribute to the development of the
internal market by cooperating with each other and with the Commission in a
transparent manner to ensure the consistent application, in all Member States,
of the provisions of this Directive and the Specific Directives. To this end,
they shall, in particular, seek to agree on the types of instruments and
remedies best suited to address particular types of situations in the market
place.
3. In addition to the consultation referred to in Article 6, where a national
regulatory authority intends to take a measure which:
(a) falls within the scope of Articles 15 or 16 of this Directive, Articles 5 or
8 of Directive 2002/19/EC (Access Directive) or Article 16 of Directive
2002/22/EC (Universal Service Directive), and
(b) would affect trade between Member States,
it shall at the same time make the draft measure accessible to the Commission
and the national regulatory authorities in other Member States, together with
the reasoning on which the measure is based, in accordance with Article 5(3),
and inform the Commission and other national regulatory authorities thereof.
National regulatory authorities and the Commission may make comments to the
national regulatory authority concerned only within one month or within the
period referred to in Article 6 if that period is longer. The one-month period
may not be extended.
4. Where an intended measure covered by paragraph 3 aims at:
(a) defining a relevant market which differs from those defined in the
recommendation in accordance with Article 15(1), or
(b) deciding whether or not to designate an undertaking as having, either
individually or jointly with others, significant market power, under Article
16(3), (4) or (5),
and would affect trade between Member States and the Commission has indicated to
the national regulatory authority that it considers that the draft measure would
create a barrier to the single market or if it has serious doubts as to its
compatibility with Community law and in particular the objectives referred to in
Article 8, then the draft measure shall not be adopted for a further two months.
This period may not be extended. Within this period the Commission may, in
accordance with the procedure referred to in Article 22(2), take a decision
requiring the national regulatory authority concerned to withdraw the draft
measure. This decision shall be accompanied by a detailed and objective analysis
of why the Commission considers that the draft measure should not be adopted
together with specific proposals for amending the draft measure.
5. The national regulatory authority concerned shall take the utmost account of
comments of other national regulatory authorities and the Commission and may,
except in cases covered by paragraph 4, adopt the resulting draft measure and,
where it does so, shall communicate it to the Commission.
6. In exceptional circumstances, where a national regulatory authority considers
that there is an urgent need to act, by way of derogation from the procedure set
out in paragraphs 3 and 4, in order to safeguard competition and protect the
interests of users, it may immediately adopt proportionate and provisional
measures. It shall, without delay, communicate those measures, with full
reasons, to the Commission and the other national regulatory authorities. A
decision by the national regulatory authority to render such measures permanent
or extend the time for which they are applicable shall be subject to the
provisions of paragraphs 3 and 4.
CHAPTER III
TASKS OF NATIONAL REGULATORY AUTHORITIES
Article 8
Policy objectives and regulatory principles
1. Member States shall ensure that in carrying out the regulatory tasks
specified in this Directive and the Specific Directives, the national regulatory
authorities take all reasonable measures which are aimed at achieving the
objectives set out in paragraphs 2, 3 and 4. Such measures shall be
proportionate to those objectives.
Member States shall ensure that in carrying out the regulatory tasks specified
in this Directive and the Specific Directives, in particular those designed to
ensure effective competition, national regulatory authorities take the utmost
account of the desirability of making regulations technologically neutral.
National regulatory authorities may contribute within their competencies to
ensuring the implementation of policies aimed at the promotion of cultural and
linguistic diversity, as well as media pluralism.
2. The national regulatory authorities shall promote competition in the
provision of electronic communications networks, electronic communications
services and associated facilities and services by inter alia:
(a) ensuring that users, including disabled users, derive maximum benefit in
terms of choice, price, and quality;
(b) ensuring that there is no distortion or restriction of competition in the
electronic communications sector;
(c) encouraging efficient investment in infrastructure, and promoting
innovation; and
(d) encouraging efficient use and ensuring the effective management of radio
frequencies and numbering resources.
3. The national regulatory authorities shall contribute to the development of
the internal market by inter alia:
(a) removing remaining obstacles to the provision of electronic communications
networks, associated facilities and services and electronic communications
services at European level;
(b) encouraging the establishment and development of trans-European networks and
the interoperability of pan-European services, and end-to-end connectivity;
(c) ensuring that, in similar circumstances, there is no discrimination in the
treatment of undertakings providing electronic communications networks and
services;
(d) cooperating with each other and with the Commission in a transparent manner
to ensure the development of consistent regulatory practice and the consistent
application of this Directive and the Specific Directives.
4. The national regulatory authorities shall promote the interests of the
citizens of the European Union by inter alia:
(a) ensuring all citizens have access to a universal service specified in
Directive 2002/22/EC (Universal Service Directive);
(b) ensuring a high level of protection for consumers in their dealings with
suppliers, in particular by ensuring the availability of simple and inexpensive
dispute resolution procedures carried out by a body that is independent of the
parties involved;
(c) contributing to ensuring a high level of protection of personal data and
privacy;
(d) promoting the provision of clear information, in particular requiring
transparency of tariffs and conditions for using publicly available electronic
communications services;
(e) addressing the needs of specific social groups, in particular disabled
users; and
(f) ensuring that the integrity and security of public communications networks
are maintained.
Article 9
Management of radio frequencies for electronic communications services
1. Member States shall ensure the effective management of radio frequencies for
electronic communication services in their territory in accordance with Article
8. They shall ensure that the allocation and assignment of such radio
frequencies by national regulatory authorities are based on objective,
transparent, non-discriminatory and proportionate criteria.
2. Member States shall promote the harmonisation of use of radio frequencies
across the Community, consistent with the need to ensure effective and efficient
use thereof and in accordance with the Decision No 676/2002/EC (Radio Spectrum
Decision).
3. Member States may make provision for undertakings to transfer rights to use
radio frequencies with other undertakings.
4. Member States shall ensure that an undertaking's intention to transfer rights
to use radio frequencies is notified to the national regulatory authority
responsible for spectrum assignment and that any transfer takes place in
accordance with procedures laid down by the national regulatory authority and is
made public. National regulatory authorities shall ensure that competition is
not distorted as a result of any such transaction. Where radio frequency use has
been harmonised through the application of Decision No 676/2002/EC (Radio
Spectrum Decision) or other Community measures, any such transfer shall not
result in change of use of that radio frequency.
Article 10
Numbering, naming and addressing
1. Member States shall ensure that national regulatory authorities control the
assignment of all national numbering resources and the management of the
national numbering plans. Member States shall ensure that adequate numbers and
numbering ranges are provided for all publicly available electronic
communications services. National regulatory authorities shall establish
objective, transparent and non-discriminatory assigning procedures for national
numbering resources.
2. National regulatory authorities shall ensure that numbering plans and
procedures are applied in a manner that gives equal treatment to all providers
of publicly available electronic communications services. In particular, Member
States shall ensure that an undertaking allocated a range of numbers does not
discriminate against other providers of electronic communications services as
regards the number sequences used to give access to their services.
3. Member States shall ensure that the national numbering plans, and all
subsequent additions or amendments thereto, are published, subject only to
limitations imposed on the grounds of national security.
4. Member States shall support the harmonisation of numbering resources within
the Community where that is necessary to support the development of pan European
services. The Commission may, in accordance with the procedure referred to in
Article 22(3), take the appropriate technical implementing measures on this
matter.
5. Where this is appropriate in order to ensure full global interoperability of
services, Member States shall coordinate their positions in international
organisations and forums in which decisions are taken on issues relating to the
numbering, naming and addressing of electronic communications networks and
services.
Article 11
Rights of way
1. Member States shall ensure that when a competent authority considers:
- an application for the granting of rights to install facilities on, over or
under public or private property to an undertaking authorised to provide public
communications networks, or
- an application for the granting of rights to install facilities on, over or
under public property to an undertaking authorised to provide electronic
communications networks other than to the public,
the competent authority:
- acts on the basis of transparent and publicly available procedures, applied
without discrimination and without delay, and
- follows the principles of transparency and non-discrimination in attaching
conditions to any such rights.
The abovementioned procedures can differ depending on whether the applicant is
providing public communications networks or not.
2. Member States shall ensure that where public or local authorities retain
ownership or control of undertakings operating electronic communications
networks and/or services, there is effective structural separation of the
function responsible for granting the rights referred to in paragraph 1 from
activities associated with ownership or control.
3. Member States shall ensure that effective mechanisms exist to allow
undertakings to appeal against decisions on the granting of rights to install
facilities to a body that is independent of the parties involved.
Article 12
Co-location and facility sharing
1. Where an undertaking providing electronic communications networks has the
right under national legislation to install facilities on, over or under public
or private property, or may take advantage of a procedure for the expropriation
or use of property, national regulatory authorities shall encourage the sharing
of such facilities or property.
2. In particular where undertakings are deprived of access to viable
alternatives because of the need to protect the environment, public health,
public security or to meet town and country planning objectives, Member States
may impose the sharing of facilities or property (including physical
co-location) on an undertaking operating an electronic communications network or
take measures to facilitate the coordination of public works only after an
appropriate period of public consultation during which all interested parties
must be given an opportunity to express their views. Such sharing or
coordination arrangements may include rules for apportioning the costs of
facility or property sharing.
Article 13
Accounting separation and financial reports
1. Member States shall require undertakings providing public communications
networks or publicly available electronic communications services which have
special or exclusive rights for the provision of services in other sectors in
the same or another Member State to:
(a) keep separate accounts for the activities associated with the provision of
electronic communications networks or services, to the extent that would be
required if these activities were carried out by legally independent companies,
so as to identify all elements of cost and revenue, with the basis of their
calculation and the detailed attribution methods used, related to their
activities associated with the provision of electronic communications networks
or services including an itemised breakdown of fixed asset and structural costs,
or
(b) have structural separation for the activities associated with the provision
of electronic communications networks or services.
Member States may choose not to apply the requirements referred to in the first
subparagraph to undertakings the annual turnover of which in activities
associated with electronic communications networks or services in the Member
States is less than EUR 50 million.
2. Where undertakings providing public communications networks or publicly
available electronic communications services are not subject to the requirements
of company law and do not satisfy the small and medium-sized enterprise criteria
of Community law accounting rules, their financial reports shall be drawn up and
submitted to independent audit and published. The audit shall be carried out in
accordance with the relevant Community and national rules.
This requirement shall also apply to the separate accounts required under
paragraph 1(a).
CHAPTER IV
GENERAL PROVISIONS
Article 14
Undertakings with significant market power
1. Where the Specific Directives require national regulatory authorities to
determine whether operators have significant market power in accordance with the
procedure referred to in Article 16, paragraphs 2 and 3 of this Article shall
apply.
2. An undertaking shall be deemed to have significant market power if, either
individually or jointly with others, it enjoys a position equivalent to
dominance, that is to say a position of economic strength affording it the power
to behave to an appreciable extent independently of competitors, customers and
ultimately consumers.
In particular, national regulatory authorities shall, when assessing whether two
or more undertakings are in a joint dominant position in a market, act in
accordance with Community law and take into the utmost account the guidelines on
market analysis and the assessment of significant market power published by the
Commission pursuant to Article 15. Criteria to be used in making such an
assessment are set out in Annex II.
3. Where an undertaking has significant market power on a specific market, it
may also be deemed to have significant market power on a closely related market,
where the links between the two markets are such as to allow the market power
held in one market to be leveraged into the other market, thereby strengthening
the market power of the undertaking.
Article 15
Market definition procedure
1. After public consultation and consultation with national regulatory
authorities the Commission shall adopt a recommendation on relevant product and
service markets (hereinafter "the recommendation"). The recommendation
shall identify in accordance with Annex I hereto those product and service
markets within the electronic communications sector, the characteristics of
which may be such as to justify the imposition of regulatory obligations set out
in the Specific Directives, without prejudice to markets that may be defined in
specific cases under competition law. The Commission shall define markets in
accordance with the principles of competition law.
The Commission shall regularly review the recommendation.
2. The Commission shall publish, at the latest on the date of entry into force
of this Directive, guidelines for market analysis and the assessment of
significant market power (hereinafter "the guidelines") which shall be
in accordance with the principles of competition law.
3. National regulatory authorities shall, taking the utmost account of the
recommendation and the guidelines, define relevant markets appropriate to
national circumstances, in particular relevant geographic markets within their
territory, in accordance with the principles of competition law. National
regulatory authorities shall follow the procedures referred to in Articles 6 and
7 before defining the markets that differ from those defined in the
recommendation.
4. After consultation with national regulatory authorities the Commission may,
acting in accordance with the procedure referred to in Article 22(3), adopt a
Decision identifying transnational markets.
Article 16
Market analysis procedure
1. As soon as possible after the adoption of the recommendation or any updating
thereof, national regulatory authorities shall carry out an analysis of the
relevant markets, taking the utmost account of the guidelines. Member States
shall ensure that this analysis is carried out, where appropriate, in
collaboration with the national competition authorities.
2. Where a national regulatory authority is required under Articles 16, 17, 18
or 19 of Directive 2002/22/EC (Universal Service Directive), or Articles 7 or 8
of Directive 2002/19/EC (Access Directive) to determine whether to impose,
maintain, amend or withdraw obligations on undertakings, it shall determine on
the basis of its market analysis referred to in paragraph 1 of this Article
whether a relevant market is effectively competitive.
3. Where a national regulatory authority concludes that the market is
effectively competitive, it shall not impose or maintain any of the specific
regulatory obligations referred to in paragraph 2 of this Article. In cases
where sector specific regulatory obligations already exist, it shall withdraw
such obligations placed on undertakings in that relevant market. An appropriate
period of notice shall be given to parties affected by such a withdrawal of
obligations.
4. Where a national regulatory authority determines that a relevant market is
not effectively competitive, it shall identify undertakings with significant
market power on that market in accordance with Article 14 and the national
regulatory authority shall on such undertakings impose appropriate specific
regulatory obligations referred to in paragraph 2 of this Article or maintain or
amend such obligations where they already exist.
5. In the case of transnational markets identified in the Decision referred to
in Article 15(4), the national regulatory authorities concerned shall jointly
conduct the market analysis taking the utmost account of the guidelines and
decide on any imposition, maintenance, amendment or withdrawal of regulatory
obligations referred to in paragraph 2 of this Article in a concerted fashion.
6. Measures taken according to the provisions of paragraphs 3, 4 and 5 of this
Article shall be subject to the procedures referred to in Articles 6 and 7.
Article 17
Standardisation
1. The Commission, acting in accordance with the procedure referred to in
Article 22(2), shall draw up and publish in the Official Journal of the European
Communities a list of standards and/or specifications to serve as a basis for
encouraging the harmonised provision of electronic communications networks,
electronic communications services and associated facilities and services. Where
necessary, the Commission may, acting in accordance with the procedure referred
to in Article 22(2) and following consultation of the Committee established by
Directive 98/34/EC, request that standards be drawn up by the European standards
organisations (European Committee for Standardisation (CEN), European Committee
for Electrotechnical Standardisation (CENELEC), and European Telecommunications
Standards Institute (ETSI)).
2. Member States shall encourage the use of the standards and/or specifications
referred to in paragraph 1, for the provision of services, technical interfaces
and/or network functions, to the extent strictly necessary to ensure
interoperability of services and to improve freedom of choice for users.
As long as standards and/or specifications have not been published in accordance
with paragraph 1, Member States shall encourage the implementation of standards
and/or specifications adopted by the European standards organisations.
In the absence of such standards and/or specifications, Member States shall
encourage the implementation of international standards or recommendations
adopted by the International Telecommunication Union (ITU), the International
Organisation for Standardisation (ISO) or the International Electrotechnical
Commission (IEC).
Where international standards exist, Member States shall encourage the European
standards organisations to use them, or the relevant parts of them, as a basis
for the standards they develop, except where such international standards or
relevant parts would be ineffective.
3. If the standards and/or specifications referred to in paragraph 1 have not
been adequately implemented so that interoperability of services in one or more
Member States cannot be ensured, the implementation of such standards and/or
specifications may be made compulsory under the procedure laid down in paragraph
4, to the extent strictly necessary to ensure such interoperability and to
improve freedom of choice for users.
4. Where the Commission intends to make the implementation of certain standards
and/or specifications compulsory, it shall publish a notice in the Official
Journal of the European Communities and invite public comment by all parties
concerned. The Commission, acting in accordance with the procedure referred to
in Article 22(3), shall make implementation of the relevant standards compulsory
by making reference to them as compulsory standards in the list of standards
and/or specifications published in the Official Journal of the European
Communities.
5. Where the Commission considers that standards and/or specifications referred
to in paragraph 1 no longer contribute to the provision of harmonised electronic
communications services, or that they no longer meet consumers' needs or are
hampering technological development, it shall, acting in accordance with the
procedure referred to in Article 22(2), remove them from the list of standards
and/or specifications referred to in paragraph 1.
6. Where the Commission considers that standards and/or specifications referred
to in paragraph 4 no longer contribute to the provision of harmonised electronic
communications services, or that they no longer meet consumers' needs or are
hampering technological development, it shall, acting in accordance with the
procedure referred to in Article 22(3), remove them from this list of standards
and/or specifications referred to in paragraph 1.
7. This Article does not apply in respect of any of the essential requirements,
interface specifications or harmonised standards to which the provisions of
Directive 1999/5/EC apply.
Article 18
Interoperability of digital interactive television services
1. In order to promote the free flow of information, media pluralism and
cultural diversity, Member States shall encourage, in accordance with the
provisions of Article 17(2):
(a) providers of digital interactive television services for distribution to the
public in the Community on digital interactive television platforms, regardless
of the transmission mode, to use an open API;
(b) providers of all enhanced digital television equipment deployed for the
reception of digital interactive television services on interactive digital
television platforms to comply with an open API in accordance with the minimum
requirements of the relevant standards or specifications.
2. Without prejudice to Article 5(1)(b) of Directive 2002/19/ EC (Access
Directive), Member States shall encourage proprietors of APIs to make available
on fair, reasonable and non-discriminatory terms, and against appropriate
remuneration, all such information as is necessary to enable providers of
digital interactive television services to provide all services supported by the
API in a fully functional form.
3. Within one year after the date of application referred to in Article 28(1),
second subparagraph, the Commission shall examine the effects of this Article.
If interoperability and freedom of choice for users have not been adequately
achieved in one or more Member States, the Commission may take action in
accordance with the procedure laid down in Article 17(3) and (4).
Article 19
Harmonisation procedures
1. Where the Commission, acting in accordance with the procedure referred to in
Article 22(2), issues recommendations to Member States on the harmonised
application of the provisions in this Directive and the Specific Directives in
order to further the achievement of the objectives set out in Article 8, Member
States shall ensure that national regulatory authorities take the utmost account
of those recommendations in carrying out their tasks. Where a national
regulatory authority chooses not to follow a recommendation, it shall inform the
Commission giving the reasoning for its position.
2. Where the Commission finds that divergence at national level in regulations
aimed at implementing Article 10(4) creates a barrier to the single market, the
Commission may, acting in accordance with the procedure referred to in Article
22(3), take the appropriate technical implementing measures.
Article 20
Dispute resolution between undertakings
1. In the event of a dispute arising in connection with obligations arising
under this Directive or the Specific Directives between undertakings providing
electronic communications networks or services in a Member State, the national
regulatory authority concerned shall, at the request of either party, and
without prejudice to the provisions of paragraph 2, issue a binding decision to
resolve the dispute in the shortest possible time frame and in any case within
four months except in exceptional circumstances. The Member State concerned
shall require that all parties cooperate fully with the national regulatory
authority.
2. Member States may make provision for national regulatory authorities to
decline to resolve a dispute through a binding decision where other mechanisms,
including mediation, exist and would better contribute to resolution of the
dispute in a timely manner in accordance with the provisions of Article 8. The
national regulatory authority shall inform the parties without delay. If after
four months the dispute is not resolved, and if the dispute has not been brought
before the courts by the party seeking redress, the national regulatory
authority shall issue, at the request of either party, a binding decision to
resolve the dispute in the shortest possible time frame and in any case within
four months.
3. In resolving a dispute, the national regulatory authority shall take
decisions aimed at achieving the objectives set out in Article 8. Any
obligations imposed on an undertaking by the national regulatory authority in
resolving a dispute shall respect the provisions of this Directive or the
Specific Directives.
4. The decision of the national regulatory authority shall be made available to
the public, having regard to the requirements of business confidentiality. The
parties concerned shall be given a full statement of the reasons on which it is
based.
5. The procedure referred to in paragraphs 1, 3 and 4 shall not preclude either
party from bringing an action before the courts.
Article 21
Resolution of cross-border disputes
1. In the event of a cross-border dispute arising under this Directive or the
Specific Directives between parties in different Member States, where the
dispute lies within the competence of national regulatory authorities from more
than one Member State, the procedure set out in paragraphs 2, 3 and 4 shall be
applicable.
2. Any party may refer the dispute to the national regulatory authorities
concerned. The national regulatory authorities shall coordinate their efforts in
order to bring about a resolution of the dispute, in accordance with the
objectives set out in Article 8. Any obligations imposed on an undertaking by
the national regulatory authority in resolving a dispute shall respect the
provisions of this Directive or the Specific Directives.
3. Member States may make provision for national regulatory authorities jointly
to decline to resolve a dispute where other mechanisms, including mediation,
exist and would better contribute to resolution of the dispute in a timely
manner in accordance with the provisions of Article 8. They shall inform the
parties without delay. If after four months the dispute is not resolved, if the
dispute has not been brought before the courts by the party seeking redress, and
if either party requests it, the national regulatory authorities shall
coordinate their efforts in order to bring about a resolution of the dispute, in
accordance with the provisions set out in Article 8.
4. The procedure referred to in paragraph 2 shall not preclude either party from
bringing an action before the courts.
Article 22
Committee
1. The Commission shall be assisted by a Committee ("the Communications
Committee").
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 three
months.
4. The Committee shall adopt its rules of procedure.
Article 23
Exchange of information
1. The Commission shall provide all relevant information to the Communications
Committee on the outcome of regular consultations with the representatives of
network operators, service providers, users, consumers, manufacturers and trade
unions, as well as third countries and international organisations.
2. The Communications Committee shall, taking account of the Community's
electronic communications policy, foster the exchange of information between the
Member States and between the Member States and the Commission on the situation
and the development of regulatory activities regarding electronic communications
networks and services.
Article 24
Publication of information
1. Member States shall ensure that up-to-date information pertaining to the
application of this Directive and the Specific Directives is made publicly
available in a manner that guarantees all interested parties easy access to that
information. They shall publish a notice in their national official gazette
describing how and where the information is published. The first such notice
shall be published before the date of application referred to in Article 28(1),
second subparagraph, and thereafter a notice shall be published whenever there
is any change in the information contained therein.
2. Member States shall send to the Commission a copy of all such notices at the
time of publication. The Commission shall distribute the information to the
Communications Committee as appropriate.
Article 25
Review procedures
1. 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
28(1), second subparagraph. For this purpose, the Commission may request
information from the Member States, which shall be supplied without undue delay.
CHAPTER V
FINAL PROVISIONS
Article 26
Repeal
The following Directives and Decisions are hereby repealed with effect from the
date of application referred to in Article 28(1), second subparagraph:
- Directive 90/387/EEC,
- Council Decision 91/396/EEC of 29 July 1991 on the introduction of a single
European emergency call number(21),
- Council Directive 92/44/EEC of 5 June 1992 on the application of open network
provision to leased lines(22),
- Council Decision 92/264/EEC of 11 May 1992 on the introduction of a standard
international telephone access code in the Community(23),
- Directive 95/47/EC,
- Directive 97/13/EC,
- Directive 97/33/EC,
- 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(24).
Article 27
Transitional measures
Member States shall maintain all obligations under national law referred to in
Article 7 of Directive 2002/19/EC (Access Directive) and Article 16 of Directive
2002/22/EC (Universal Service Directive) until such time as a determination is
made in respect of those obligations by a national regulatory authority in
accordance with Article 16 of this Directive.
Operators of fixed public telephone networks that were designated by their
national regulatory authority as having significant market power in the
provision of fixed public telephone networks and services under Annex I, Part 1
of Directive 97/33/EC or Directive 98/10/EC shall continue to be considered
"notified operators" for the purposes of Regulation (EC) No 2887/2000
until such a time as the market analysis procedure referred to in Article 16 has
been completed. Thereafter they shall cease to be considered "notified
operators" for the purposes of the Regulation.
Article 28
Transposition
1. Member States shall adopt and publish the laws, regulations and
administrative provisions necessary to comply with this Directive not later than
24 July 2003. They shall forthwith inform the Commission thereof.
They shall apply those measures from 25 July 2003.
2. 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 a reference shall be laid down
by the Member States.
3. 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 29
Entry into force
This Directive shall enter into force on the day of its publication in the
Official Journal of the European Communities.
Article 30
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. 198 and OJ C 270 E, 25.9.2001, p. 199.
(2) OJ C 123, 25.4.2001, p. 56.
(3) Opinion of the European Parliament of 1 March 2001 (OJ C 277, 1.10.2001, p.
91), Council Common Position of 17 September 2001 (OJ C 337, 30.11.2001, p. 34)
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 192, 24.7.1990, p. 1. Directive as amended by Directive 97/51/EC of the
European Parliament and of the Council (OJ L 295, 29.10.1997, p. 23).
(5) See page 21 of this Official Journal.
(6) See page 7 of this Official Journal.
(7) See page 51 of this Official Journal.
(8) OJ L 24, 30.1.1998, p. 1.
(9) 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).
(10) OJ L 91, 7.4.1999, p. 10.
(11) OJ L 178, 17.7.2000, p. 1.
(12) OJ L 204, 21.7.1998, p. 37. Directive as amended by Directive 98/48/EC (OJ
L 217, 5.8.1998, p. 18).
(13) See page 1 of this Official Journal.
(14) OJ L 199, 26.7.1997, p. 32. Directive as amended by Directive 98/61/EC (OJ
L 268, 3.10.1998, p. 37).
(15) OJ L 281, 23.11.1995, p. 51.
(16) OJ L 77, 26.3.1973, p. 29.
(17) OJ L 139, 23.5.1989, p. 19.
(18) OJ L 117, 7.5.1997, p. 15.
(19) OJ L 184, 17.7.1999, p. 23.
(20) OJ L 336, 30.12.2000, p. 4.
(21) OJ L 217, 6.8.1991, p. 31.
(22) OJ L 165, 19.6.1992, p. 27. Directive as last amended by Commission
Decision 98/80/EC (OJ L 14, 20.1.1998, p. 27).
(23) OJ L 137, 20.5.1992, p. 21.
(24) OJ L 101, 1.4.1998, p. 24.
ANNEX I
List of markets to be included in the initial Commission recommendation on
relevant product and service markets referred to in Article 15
1. Markets referred to in Directive 2002/22/EC (Universal Service Directive)
Article 16 - Markets defined under the former regulatory framework, where
obligations should be reviewed.
The provision of connection to and use of the public telephone network at fixed
locations.
The provision of leased lines to end users.
2. Markets referred to in Directive 2002/19/EC (Access Directive)
Article 7 - Markets defined under the former regulatory framework, where
obligations should be reviewed.
Interconnection (Directive 97/33/EC)
call origination in the fixed public telephone network
call termination in the fixed public telephone network
transit services in the fixed public telephone network
call origination on public mobile telephone networks
call termination on public mobile telephone networks
leased line interconnection (interconnection of part circuits)
Network access and special network access (Directive 97/33/EC, Directive
98/10/EC)
access to the fixed public telephone network, including unbundled access to the
local loop
access to public mobile telephone networks, including carrier selection
Wholesale leased line capacity (Directive 92/44/EEC)
wholesale provision of leased line capacity to other suppliers of electronic
communications networks or services
3. Markets referred to in Regulation (EC) No 2887/2000
Services provided over unbundled (twisted metallic pair) loops.
4. Additional markets
The national market for international roaming services on public mobile
telephone networks.
ANNEX II
Criteria to be used by national regulatory authorities in making an assessment
of joint dominance in accordance with Article 14(2), second subparagraph
Two or more undertakings can be found to be in a joint dominant position within
the meaning of Article 14 if, even in the absence of structural or other links
between them, they operate in a market the structure of which is considered to
be conducive to coordinated effects. Without prejudice to the case law of the
Court of Justice on joint dominance, this is likely to be the case where the
market satisfies a number of appropriate characteristics, in particular in terms
of market concentration, transparency and other characteristics mentioned below:
- mature market,
- stagnant or moderate growth on the demand side,
- low elasticity of demand,
- homogeneous product,
- similar cost structures,
- similar market shares,
- lack of technical innovation, mature technology,
- absence of excess capacity,
- high barriers to entry,
- lack of countervailing buying power,
- lack of potential competition,
- various kinds of informal or other links between the undertakings concerned,
- retaliatory mechanisms,
- lack or reduced scope for price competition.
The above is not an exhaustive list, nor are the criteria cumulative. Rather,
the list is intended to illustrate only the sorts of evidence that could be used
to support assertions concerning the existence of joint dominance.
|