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Udvalget for Videnskab og Teknologi 2008-09
KOM (2007) 0698
Offentligt

COUNCIL OF

THE EUROPEAN UNION

Brussels, 20 November 2008

15758/08

Interinstitutional File:

2007/0247 (COD)

TELECOM 197

MI 447

COMPET 482

CONSOM 176

CODEC 1552

REPORT

from :

COREPER

to :

CONSEIL

Nos. Cion prop. : 15379/07 TELECOM 150 MI 297 COMPET 391 CONSOM 132 CODEC 1294

15424/08 TELECOM 187 MI 429 COMPET 458 CONSOM 171 CODEC 1510

No prev. doc.

15072/08 TELECOM 175 MI 413 COMPET 437 CONSOM 163 CODEC 1466

Subject :

Review of the EU regulatory framework for electronic communications networks

and services:

Proposal for a Directive of the European Parliament and of the Council amending

Directives 2002/21/EC on a common regulatory framework for electronic

communications networks and services, 2002/19/EC on access to and

interconnection of electronic communications networks and services, and

2002/20/EC on the authorisation of electronic communications networks and

services

- Political agreement

I. INTRODUCTION

The European Commission adopted a proposal for a Better Regulation Directive on 13

November 2007. This proposal forms part of the so-called

review package

of the EU

regulatory framework for electronic communications, comprising two proposals for

amending Directives (the so-called Better Regulation Directive amending the current

Framework, Authorisation and Access Directives and the so-called Citizen's Rights

Directive amending the Universal Service and Privacy Directives) and a proposal for a

Regulation (establishing a European Electronic Communications Market Authority).

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With its proposal for a Better Regulation Directive, the Commission aims to adjust the

regulatory framework for electronic communications by improving its effectiveness,

reducing the administrative resources needed for implementing economic regulation

(the market analysis procedure) and making access to radio frequencies simpler and

more efficient.

A first examination of the proposal by the Working Party on Telecommunications and

the Information Society took place under the Slovenian Presidency. On 12 June 2008,

the Council held a public exchange of views on the review of the EU regulatory

framework for electronic communications networks and services and took note of the

presidency's progress reports on the work carried out so far in its preparatory bodies.

During the current French Presidency, the proposal was examined in further detail, both

on the basis of a Presidency compromise text put together under the Slovenian

Presidency and in relation to the European Parliament amendments adopted in its First

Reading opinion on 24 September 2008.

The Commission adopted its amended proposal, following the first reading of the

Euroepan Parliament, on 6 November 2008 (doc. 15424/08).

The European Economic and Social Committee (EESC) adopted its Opinion on 29 May

2008 and the Committee of the Regions (CoR) on 19 June 2008.

II. OUTCOME OF THE COREPER PROCEEDINGS

The text of the Presidency compromise proposal concerning the Framework Directive is

annexed. This text, which reflects the results from the last WP and Coreper discussions,

provides a consolidated version of the proposal for an amending Directive on the basis

of the current Directive 2002/21/EC and includes all its provisions (from Article 1 to

Annex I), even those for which no modifications were suggested.

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The Coreper has reached a broad consensus on the essential features of the Commission

proposal and has taken due account of the European Parliament's First Reading Opinion.

Specific issues for further consideration

National regulatory authorities (NRAs):

The independence of NRAs from undertakings is guaranteed in Article 3. As some

delegations wished to reinforce this provision, while other delegations underlined that the

NRAs should be subject to supervision if required by national constitutional law, the

Presidency proposed in Coreper a compromise text which was welcomed in principle, subject

to scrutiny by delegations.

Consolidating the internal market for electronic communications:

The Commission's proposal gives the possibility to the Commission to issue decision on draft

measures intended to be taken by NRAs. Although few delegations support the intervention of

the Commission on remedies by means of decisions, a majority of delegations opposes this

provision. The Presidency therefore proposes as a compromise that the Commission should

issue opinions and that NRAs should justify their decisions in case they do not follow the

Commission's opinion.

Policy objectives and regulatory principles:

In order for NRAs to promote the interests of the citizens, Article 8 of the Presidency text

calls upon NRAs to promote "efficient investment and innovation in new and enhanced

infrastructures" (paragraph 4a(d)). This reference is, however, not supported by all

delegations as some believe that it should be strengthened to provide for a clearer political

signal in favour of investment sharing.

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Management of radio frequencies for electronic communications services:

With regard to various references in Article 9 of the Presidency text to the "ITU Radio

Regulations" and to "National Frequency Allocation Plans", few delegations still have

concerns regarding the consistency between EU legislation and international and national

arrangements regarding the use of radio spectrum. Another issue requiring further

consideration concerns possible exceptions to the principle of technology neutrality.

Remaining reservations

Linguistic reservations on the text are maintained by all delegations and the Commission has

reserved its overall position on the Presidency compromise proposal.

Individual reservations have been made on the following specific provisions:

- National Regulatory Authorities (NRAs) (Article 3) (footnote 8)

- Consolidating the internal market for electronic communications (Article 7) (footnote 9)

- Policy objectives and regulatory principles (Article 8) (footnote 10)

- Strategic planning and coordination of radio spectrum policy in the Union (Article 8a)

(footnote 11)

- Management of radio frequencies for electronic communications services (Article 9)

(footnote 12)

- Transfer or lease of individual rights to use radio frequencies (Article 9b) (footnote 13)

- Procedure for identification and definition of markets (Article 15) (footnote 14)

III. THE TASK FOR COUNCIL

The Council is therefore invited to examine the questions still under discussion in order to

adopt a political agreement. The text should be sent to legal-linguists for finalisation in view

of the adoption of Council's common position.

___________________

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ANNEX

PRESIDENCY COMPROMISE PROPOSAL FOR THE

CONSOLIDATED VERSION OF THE PROPOSAL AMENDING DIRECTIVE 2002/21/EC

(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,

Having regard to the opinion of the Economic and Social Committee,

Acting in accordance with the procedure laid down in Article 251 of the Treaty,

Whereas: [common to Framework, Access and Authorisation Directive]

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(1)

The functioning of the five directives comprising the existing regulatory framework for

electronic communications networks and services (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'), 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'), Directive 2002/20/EC of the European Parliament and of the Council

of 7 March 2002 on the authorisation of the electronic communications networks and

services

('Authorisation Directive'), 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'), and Directive

2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the

processing of personal data and the protection of privacy in the electronic communications

sector

('Directive on privacy and electronic communications') is subject to periodic review

by the Commission, with a view in particular to determining the need for modification in the

light of technological and market developments.

In that regard, the Commission presented its initial findings in its Communication to the

Council, the European Parliament, the European Economic and Social Committee and the

Committee of the Regions of 29 June 2006 on the review of the EU regulatory framework for

electronic communications networks and services. On the basis of these initial findings, a

public consultation was held, which identified the continued lack of an internal market for

electronic communications as the most important aspect needing to be addressed. In

particular, regulatory fragmentation and inconsistencies between the activities of the

national regulatory authorities were found to jeopardise not only the competitiveness of the

sector, but also the substantial consumer benefits from cross-border competition.

The EU regulatory framework for electronic communications networks and services should

therefore be reformed in order to complete the internal market for electronic

communications by strengthening the Community mechanism for regulating operators with

significant market power in the key markets. This is complemented through the

establishment by Regulation […/…/EC] of [date] of the European Parliament and of the

Council

an Group of European Regulators in Telecoms (hereinafter referred to as "the

GERT")].

The reform also includes the definition of an efficient

and coordinated

spectrum

management strategy in order to achieve a Single European Information Space and the

reinforcement of provisions for users with disabilities in order to obtain an inclusive

information society.

(2)

(3)

OJ L 108, 24.4.2002, p. 33.

OJ L 108, 24.4.2002, p. 7.

OJ L 108, 24.4.2002, p. 21.

OJ L 108, 24.4.2002, p. 51.

OJ L 201, 31.7.2002, p. 37.

OJ C […], […], p. […].

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(3b)

The aim is to progressively reduce ex ante sector specific rules as competition in the

markets develops and, ultimately, for electronic communications to be governed by

competition law only. […] Considering that the markets for electronic communications

have shown strong competitive dynamics in recent years, it is essential that ex ante

regulatory obligations should only be imposed where there is no effective and sustainable

competition. […]

In order to ensure a proportional and adapted approach to varying competitive conditions,

national regulatory authorities […] may define markets on a subnational basis and/or lift

regulatory obligations in markets and/or geographic areas where there is effective

infrastructure competition. […]

A key issue for the coming years in order to achieve the goals of the Lisbon Agenda is to

[…] provide the conditions for efficient investments in new high speed networks that will

support innovation in content-rich internet services and strengthen international

competitiveness of the European Union. Such networks have enormous potential to

deliver benefits to consumers and business across the European Union. It is therefore

vital to foster sustainable investment in the development of these new networks, while

safeguarding competition and boosting consumer choice through regulatory predictability

and consistency.

(3c)

(3d)

(39a) Both efficient investment and competition should be encouraged in tandem, […] in order

to increase economic growth, innovation and consumer choice […].

(44a) The continuing market integration within the internal market for electronic

communications networks and services requires better coordination in the application of

the ex ante regulation as provided for under the legal framework for electronic

communications.

[for the rest, see the relevant articles]

HAVE ADOPTED THIS DIRECTIVE:

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CHAPTER I

SCOPE, AIM AND DEFINITIONS

Article 1

Scope and aim

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.

The

framework also includes provisions on certain aspects of terminal equipment to facilitate

access for disabled users.

(4)

In order to allow national regulatory authorities to meet the objectives set out in the

Framework Directive and the Specific Directives, in particular concerning end-to-end

interoperability, the scope of the Framework Directive should be extended to cover

certain

aspects of

radio equipment and telecommunications terminal equipment as defined in

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

as well as consumer equipment used for digital television,

to facilitate

access for disabled users.

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.

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.

OJ L 91, 7.4.1999, p. 10.

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This Directive and the Specific Directives are without prejudice to the provisions of Directive

1999/5/EC.

This Directive and the Specific Directives shall be without prejudice to any specific measure

adopted for the regulation of international roaming on public mobile telephone networks within the

Community.

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,

including network elements which are not

active,

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

located in more than one Member State;

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;

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(d) "public communications network" means an electronic communications network used wholly or

mainly for the provision of

[…]

electronic communications services

available to the public which

support the transfer of information between network termination points;

(da) "network termination point" (NTP) means the physical point at which a subscriber is

provided with access to a public communications network; in the case of networks involving

switching or routing, the NTP is identified by means of a specific network address, which may

be linked to a subscriber number or name;

(e) "associated facilities" means those

[…] physical infrastructures and other facilities or

elements

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

or have the potential to do so, and […] include inter alia […] buildings or

entries to buildings, antennae, towers and other supporting constructions, ducts, conduits,

masts, manholes, and cabinets.

(ea) "associated services" means those services 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 or have the potential to do so and include

inter alia number translation or systems offering equivalent functionality, conditional access

systems and electronic programme guides, as well as other services such as identity, location

and presence service;

(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;

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(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

[…] 2002/58/EC of the European Parliament and of the Council (hereinafter referred to as

"Directive 2002/58/EC(Directive on privacy and electronic communications)");

(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;

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(q) "spectrum allocation" means the designation of a given frequency band for use by one or

more types of radiocommunications services, where appropriate, under specified conditions;

(r) "harmful interference" means interference which endangers the functioning of a

radionavigation service or of other safety services or which otherwise seriously degrades,

obstructs or repeatedly interrupts a radiocommunications service operating in accordance

with the applicable international, Community or national regulations;

(s) "call" means a connection established by means of a publicly available electronic

communications service allowing two-way voice communication.

(17)

Radio frequencies should be managed so as to ensure that harmful interference is avoided.

This basic concept of harmful interference should therefore be properly defined to ensure

that regulatory intervention is limited to the extent necessary to prevent such interference.

Certain definitions should be clarified or changed to take account of market and

technological developments and to eliminate ambiguities identified in implementing the

regulatory framework.

CHAPTER II

NATIONAL REGULATORY AUTHORITIES

Article 3

National regulatory authorities

(5)

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.

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.

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Member States shall ensure that national regulatory authorities exercise their powers

impartially,

[…]

transparently

and in a timely manner. Member States shall ensure that

national regulatory authorities have adequate financial and human resources to carry out the

task assigned to them.

Without prejudice to the provisions of paragraphs 4 and 5, national regulatory

authorities responsible for ex ante market regulation or for resolution of disputes between

undertakings in accordance with Article 20 or 21 of this Directive shall act independently and

shall not seek or take instructions from any other body in relation to exercising these tasks

assigned to them under national law implementing Community law. This shall not prevent

supervision in accordance with national constitutional law. Only appeal bodies set up in

accordance with Article 4 shall have the power to suspend or overturn decisions by the

national regulatory authorities.

Member States shall ensure that the head of, or where applicable members of the collegiate

body fulfilling that function within, a national regulatory authority referred to in the first

subparagraph or his/her/their replacement may be dismissed only if he/she/they no longer

fulfils the conditions required for the performance of his/her/their duties which are laid down

in advance in national law. The decision to dismiss the head of, or where applicable members

of the collegiate body fulfilling that function within, the national regulatory authority

concerned shall be made public at the time of dismissal. The dismissed head of, or where

applicable members of the collegiate body fulfilling that function within, the national

regulatory authority shall receive a statement of reasons and shall have the right to request its

publication, where this would not otherwise take place, in which case it shall be published.

Member States shall ensure that national regulatory authorities referred to in the first

subparagraph have separate annual budgets. The budgets shall be made public.

UK, HU, PT, IT and SE have a reservation on paragraphs 3 and 3a.

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3b.

Member States shall ensure that the goals of the GERT in promoting greater regulatory

coordination and coherence are actively supported by the respective national regulatory

authorities.

3c.

Member States shall ensure that national regulatory authorities take utmost account of

opinions and common positions issued by the GERT when adopting their own decisions for

their national markets.

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.

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.

Member States shall notify to the Commission all national regulatory authorities assigned

tasks under this Directive and the Specific Directives, and their respective responsibilities.

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(6)

The independence of the national regulatory authorities should be strengthened in order to

ensure a more effective application of the regulatory framework and increase their authority

and the predictability of their decisions. To this end, express provision should be made in

national law to ensure that, in the exercise of its tasks, a national regulatory authority

responsible for ex ante market regulation or for resolution of disputes between

undertakings

is protected against external intervention or political pressure liable to

jeopardise its independent assessment of matters coming before it.

[…]

For that purpose

rules should be laid down in advance regarding the grounds for the dismissal of the head of

the national regulatory authority

above mentioned

in order to remove any reasonable doubt

as to the neutrality of that body and its imperviousness to external factors. It is important

that national regulatory authorities

responsible for ex ante market regulation

should have

their own budget allowing them, in particular, to recruit a sufficient number of qualified

staff. In order to ensure transparency, this should be published annually.

Article 4

Right of appeal

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

effectively.

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

[…] the

appeal, the decision of the national regulatory authority shall

stand, unless

[…] interim measures are granted in accordance with national law.

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.

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Member States shall collect information on the number of requests for appeal, the

duration of the appeal proceedings and the number of decisions to grant interim measures

taken. Member States shall provide such information to the Commission and the GERT after

a reasoned request from either.

(6a)

(7)

In order to ensure legal certainty for markets players, appeal bodies should carry out their

functions effectively; in particular, appeals proceedings should not be unduly lengthy.

There has been a wide divergence in the manner in which appeal bodies have applied

interim measures to suspend the decisions of the national regulatory authorities. In order to

achieve greater consistency of approach common standard should be applied in line with

Community jurisprudence.

Appeal bodies should also be entitled to request available

information published by the GERT.

Given the importance of appeals for the overall

working of the regulatory framework, a mechanism should be set up for collecting

information on appeals and decisions to suspend decisions taken by the regulatory

authorities in all the Member States and for the reporting of that information to the

Commission.

Article 5

Provision of information

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.

In particular those undertakings may also be

required to submit information concerning future network or service developments that could

have an impact on the wholesale services that they make available to competitors.

Undertakings with significant market power on wholesale markets may also be required to

submit accounting data on the retail markets that are associated with those wholesale

markets.

[…] 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

and shall treat the

information in accordance with paragraph 3 of this Article.

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(8)

In order to carry out their regulatory tasks in an effective manner, the data that national

regulatory authorities are to gather should include accounting data on the retail markets

that are associated with wholesale markets where an operator has significant market power

and as such are regulated by the national regulatory authority, and should also include data

to enable the national regulatory authority to assess the possible impact of planned

upgrades or changes to network topology on the development of competition or on

wholesale products made available to other parties.

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.

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.

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.

National regulatory authorities shall publish the terms of public access to information as

referred to in paragraph 4, including procedures for obtaining such access.

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Article 6

Consultation and transparency mechanism

Except in cases falling within Articles 7(9), 20 or 21,

and unless otherwise provided in the

implementing measures adopted pursuant to Article 9c,

Member States shall ensure that, where

national regulatory authorities intend to take measures in accordance with this Directive or the

Specific Directives

[…], or where they intend to provide for retrictions in accordance with

Article 9(3) and 9(4), and 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.

(9)

The national consultation provided for under Article 6 of the Framework Directive should

be conducted prior to the Community consultation provided for under Article 7 of that

Directive, in order to allow the views of interested parties to be reflected in the Community

consultation. This would also avoid the need for a second Community consultation in the

event of changes to a planned measure as a result of the national consultation.

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Article 7

Consolidating the internal market for electronic communications

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 insofar as

they relate to the functioning of the Internal Market.

National regulatory authorities shall contribute to the development of the Internal Market by

cooperating with each other and with the Commission

and the GERT all

in a transparent manner

so as

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,

[…] cooperate with the

Commission and the GERT to identify

the types of instruments and remedies best suited to

address particular types of situations in the marketplace.

(10)

The discretion of national regulatory authorities needs to be reconciled with the

development of consistent regulatory practices and the consistent application of the

regulatory framework in order to contribute effectively to the development and completion

of the internal market. National regulatory authorities should therefore support the internal

market activities of the Commission and those of

the GERT […].

[…] Except where otherwise provided in recommendations and/or guidelines adopted

pursuant to Article 7a, upon completion of

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)

[…],

and

(b)

would affect trade between Member States,

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it shall

[…]

make the draft measure accessible to the Commission,

the GERT,

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,

the GERT

and other national

regulatory authorities thereof. National regulatory authorities,

the GERT

and the Commission may

make comments to the national regulatory authority concerned only within one month

[…].

The

one-month period may not be extended.

(a)

Where an intended measure covered by paragraph 3 aims at:

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); or

(c)

imposing, amending or withdrawing an obligation on an operator in application of Article 16

in conjunction with Articles 5 and 9 to 13 of Directive 2002/19/EC (Access Directive), and Article

17 of Directive 2002/22/EC (Universal Service Directive),

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.

The Commission shall inform other national

regulatory authorities of its reservations in such a case.

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(11)

The Community mechanism allowing the Commission to require national regulatory

authorities to withdraw planned measures concerning market definition and the designation

of operators having significant market power has contributed significantly to a consistent

approach in identifying the circumstances in which ex-ante regulation may be applied and

the operators are subject to such regulation.

[…]

Monitoring of the market by the

Commission and, in particular, the experience with the procedure under Article 7 of the

Framework Directive, has shown that inconsistencies in the national regulatory authorities'

application of remedies, even under similar market conditions,

could

undermine the internal

market in electronic communications

[…]. […] Therefore the Commission may participate

in ensuring a higher level of consistency in the application of remedies by issuing

opinions on draft measures proposed by national regulatory authorities.

In order to

[…]

benefit from the expertise of national regulatory authorities on the market analysis,

the

Commission should consult

the GERT

prior to its decision.

Within

[…] the two-month

period

referred to in paragraph 4,

the Commission may

take a decision

in relation to the draft measure referred to in paragraph 4(a) and 4(b)

(a)

requiring the national regulatory authority concerned to withdraw the draft measure,

and/or

(b)

(c)

issue an opinion

in relation to the draft measure referred to in paragraph 4(c), or

take a decision to lift its reservations in relation to the draft measure referred to in

paragraph 4.

The Commission shall take utmost account of the opinion of the GERT before issuing a

decision and/or issuing a opinion. […] The

decision

and/or opinion

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.

Within six months of the Commission issuing a decision in accordance with paragraph

5(a) requiring the national regulatory authority to withdraw a draft measure, the national

regulatory authority shall amend or withdraw the draft measure. If the draft measure is

amended, the national regulatory authority shall undertake a public consultation in

accordance with the procedures referred to in Article 6, and re-notify the amended draft

measure to the Commission in accordance with the provisions of paragraph 3.

MT, UK, SE and DK have a reservation on the term "opinion".

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(12)

It is important that the regulatory framework is implemented in a timely manner. When the

Commission has taken a decision requiring a national regulatory authority to withdraw a

planned measure, national regulatory authorities should submit a revised measure to the

Commission. A deadline should be laid down for the notification of the revised measure to

the Commission under Article 7 of the Framework Directive in order that market players

may know the duration of the market review and in order to increase legal certainty.

The national regulatory authority concerned shall take the utmost account of comments of

other national regulatory authorities,

the GERT

and the Commission and may, except in cases

covered by paragraph 4(a)

and (b),

adopt the resulting draft measure and, where it does so, shall

communicate it to the Commission.

Where the national regulatory authority decides to amend the draft measure according to the

opinion issued under paragraph 5(b), it shall, within six months of the Commission issuing the

opinion, undertake a public consultation in accordance with the procedures referred to in

Article 6 and communicate the amended measure to the Commission.

Where the national regulatory authority decides not to amend the draft measure on the basis

of the opinion issued under paragraph 5(b), it shall also publish the reasons justifying its

decision and shall communicate them to the Commission within six months.

Recital (13) is deleted.

The national regulatory authority shall communicate to the Commission and the GERT

all final measures which fall under conditions a) and b) in Article 7(3).

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,

[…]

the other national regulatory authorities,

and the GERT.

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.

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Article 7a

Notifications

After public consultation and consultation with national regulatory authorities and

taking utmost account of the opinion of the GERT, the Commission may adopt

recommendations and/or guidelines in relation to Article 7 that define the form, content and

level of details to be given in the notifications required in accordance with Article 7(3), the

circumstances in which notifications would not be required, and the calculation of the time

limits.

The measures referred to in paragraph 1 shall be adopted in accordance with the

advisory procedure referred to in Article 22(2).

(14)

Having regard to the short time limits in the Community consultation mechanism, powers

should be conferred on the Commission to adopt

recommendations and/or guidelines

simplify the procedures for exchanging information between the Commission and national

regulatory authorities - for example in cases concerning stable markets, or involving only

minor changes to previously notified measures - or to allow for the introduction of a

notification exemption in order to streamline procedures in certain cases.

CHAPTER III

TASKS OF NATIONAL REGULATORY AUTHORITIES

Article 8

Policy objectives and regulatory principles

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.

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Unless otherwise provided in Article 9 regarding radio frequencies,

Member States

shall take

the utmost account of the desirability of making regulations technologically neutral and

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

[…] do likewise.

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.

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,

elderly users, and users with special social

needs

derive maximum benefit in terms of choice, price, and quality;

(15)

In line with the objectives of the European Charter on fundamental rights and the United

Nations Convention on the Rights of the Persons with Disabilities, the regulatory framework

should ensure that all users, including disabled end-users, the elderly, and users with

special social needs, have easy access to affordable high quality services. Declaration 22

annexed to the final Act of Amsterdam provides that the institutions of the Community shall

take account of the needs of persons with a disability in drawing up measures under Article

95 of the Treaty.

ensuring that there is no distortion or restriction of competition in the electronic

(b)

communications sector

[…];

(c)

(d)

deleted

encouraging efficient use and ensuring the effective management of radio frequencies and

numbering resources.

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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)

(d)

deleted

cooperating with each other […],

with the Commission

and the GERT

so as to ensure the

development of consistent regulatory practice and the consistent application of this Directive and

the Specific Directives.

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)

(d)

contributing to ensuring a high level of protection of personal data and privacy;

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,

elderly users and

users with special social needs; […]

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(f)

(g)

4a.

ensuring that the integrity and security of public communications networks are maintained;

deleted

The national regulatory authorities shall, in pursuit of the policy objectives referred to

in paragraphs 2, 3 and 4, apply objective, transparent, non-discriminatory and proportionate

regulatory principles by inter alia:

(a)

(b)

promoting regulatory predictability;

ensuring that, in similar circumstances, there is no discrimination in the treatment of

undertakings providing electronic communications networks and services;

(c)

safeguarding competition to the benefit of consumers and promoting where appropriate

infrastructure-based competition;

(d)

(e)

promoting efficient investment and innovation in new and enhanced infrastructures;

taking due account of the variety of conditions relating to competition and consumers

that exist in the various geographic areas within a Member State;

(e)

taking due account of the variety of conditions relating to competition and consumers

that exist in the various geographic areas within a Member State.

CZ, ES and DE have a reservation on (d).

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Article 8a

Strategic planning and coordination of radio spectrum policy in the Union

Member States shall cooperate with each other and with the Commission in the strategic

planning, coordination and harmonisation of the use of radio spectrum in the European

Union. To this end, they shall take into consideration inter alia economic, safety, health,

public interest, freedom of expression, cultural, scientific, social and technical aspects of the

EU policies as well as the various interests of radio spectrum user communities with the aim

of optimising the use of radio spectrum and of avoiding harmful interference.

Deleted.

Member States shall promote the coordination of radio spectrum policy approaches in

the European Union and, where appropriate, harmonised conditions with regard to the

availability and efficient use of radio spectrum necessary for the establishment and

functioning of the internal market in […] electronic communications.

Member States shall promote the effective coordination of the EU interests in

international organisations competent in radio spectrum matters. Whenever necessary for

promoting this effective coordination, the Commission, taking utmost account of the opinion

of the Radio Spectrum Policy Group (RSPG), may propose to the European Parliament and

the Council common policy objectives.

The Commission, taking utmost account of the opinion of the RSPG, may submit

legislative proposals for establishing multiannual radio spectrum policy programs.

FI has a reservation on Article 8a.

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Article 9

Management of radio frequencies for electronic communications services

Taking due account of the fact that radio frequencies are a public good that has an

important social, cultural and economic value,

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

[…] spectrum

allocation

used for electronic

communications services

and

[…] issuing general authorisations or individual rights of use

such radio frequencies by

competent

national

[…]

authorities are based on objective, transparent,

non-discriminatory and proportionate criteria.

In doing so, they respect relevant` international

agreements and may take public policy considerations into account.

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 pursuit of

benefits for the consumer such as economies of scale and interoperability of services. In so

doing, they shall act

in accordance with the Decision No 676/2002/EC (Radio Spectrum Decision).

(16)

Radio frequencies should be considered a scarce public resource that has an important

public and market value. It is in the public interest that spectrum is managed as efficiently

and effectively as possible from an economic, social and environmental perspective

and

taking account of the objectives of cultural diversity and of media pluralism,

and that

obstacles to its efficient use are gradually withdrawn.

(16a) Before a specific harmonisation measure under Decision No 676/2002/EC is proposed,

impact assessments should be made by the Commission assessing the costs and benefits of

the proposed measures, such as the realization of economy of scales and interoperability

of services for the consumer benefit, the impact on efficiency of spectrum use, or the

demand for the harmonised use in the different parts of the EU.

(16aa) Although spectrum management remains within the competence of the Member States,

[…] coordination and, where appropriate, harmonisation at Community level can help

ensure that spectrum users derive the full benefits of the internal market and that EU

interests can be effectively defended world-wide.

UK and SE have a reservation on this article and its recitals.

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(16b) The spectrum management provisions of this Directive should be consistent with the work

of international and regional organisations dealing with radio spectrum management,

such as the International Telecommunications Union (ITU) and the European

Conference of Postal and Telecommunications Administrations (CEPT), so as to ensure

the efficient management of and harmonisation of the use of spectrum across the

Community and globally.

(18)

The current spectrum management and distribution system is generally based on

administrative decisions that are insufficiently flexible to cope with technological and

economic evolution, in particular with the rapid development of wireless technology and the

increasing demand for bandwidth. The undue fragmentation amongst national policies

results in increased costs and lost market opportunities for spectrum users, and slows down

innovation, to the detriment of the internal market, consumers and the economy as a whole.

Moreover, the conditions for access to, and use of, radio frequencies may vary according to

the type of operator, while electronic services provided by these operators increasingly

overlap, thereby creating tensions between rights holders, discrepancies in the cost of

access to spectrum, and potential distortions in the functioning of the internal market.

National borders are increasingly irrelevant in determining optimal radio spectrum use.

Fragmentation of the management of access to spectrum rights limits investment and

innovation and does not allow operators and equipment manufacturers to realise economies

of scale, thereby hindering the development of an internal market for electronic

communications networks and services using radio spectrum.

[…] Unless otherwise provided in the second subparagraph, Member States shall ensure

(19)

that all types of technology used for electronic communications services may be used in the

radio frequency bands, available for electronic communications services in accordance with

their National Frequency Allocation Plan and the ITU Radio Regulations.

Member States may, however, provide for proportionate and non-discriminatory restrictions

to the types of technology used for electronic communications services where this is necessary

to:

(a)

(b)

avoid harmful interference,

protect public health against electromagnetic fields,

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(ba) ensure technical quality of service,

(c)

ensure maximisation of radio frequencies sharing […],

(ca) safeguard efficient use of spectrum, or

(d)

fulfil a general interest objective in accordance with paragraph 4 below.

(20)

Flexibility in spectrum management and access to spectrum should be increased through

technology- and service-neutral authorisations to let spectrum users, choose the best

technologies and services to apply in

[…]

frequency bands

available to electronic

communications services as identified in national frequency allocation tables and in the

ITU Radio Regulations

(hereinafter referred to as the 'principles of technology and service

neutrality'). The administrative determination of technologies and services should

[…] apply

when general interest objectives are at stake

and should be clearly justified and subject to

regular periodic review.

[…] Restrictions

to the principle of technology neutrality should be

[…] appropriate

and

justified by the need to avoid harmful interference, for example by imposing emission masks

and power levels,

[…]

to ensure the protection of public health by limiting public exposure

to electromagnetic fields,

to ensure the proper functioning of services through an adequate

level of technical quality of service, […]

to ensure proper sharing of spectrum, in particular

where its use is only subject to general authorisations,

to safeguard efficient use of

spectrum,

[…] to fulfil a general interest objective in conformity with Community law.

[…] Unless otherwise provided in the second subparagraph, Member States shall ensure

(21)

that all types of electronic communications services may be provided in the radio frequency

bands, available for electronic communications services in accordance with their National

Frequency Allocation Plan and the ITU Radio Regulations.

The Member States may, however, provide for proportionate and non-discriminatory

restrictions to the types of electronic communications services to be provided.

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Measures that require an electronic communications service to be provided in a specific band

available for electronic communications services shall be justified in order to ensure the

fulfilment of a general interest objective as defined by Member States in conformity with

Community law, such as and not limited to:

(a)

(b)

(c)

(d)

safety of life,

the promotion of social, regional or territorial cohesion,

the avoidance of inefficient use of radio frequencies, or

the promotion of cultural and linguistic diversity and media pluralism, for example by

the provision of radio and television broadcasting services.

A measure which prohibits the provision of any other electronic communications service in a

specific band may only be provided for where justified by the need to protect safety of life

services. Member states may also extend such measure in order to fulfil other general interest

objectives.

(22)

Spectrum users should also be able to freely choose the services they wish to offer over the

spectrum subject to transitional measures to cope with previously acquired rights. It should

be possible for exceptions to the principle of service neutrality which require the provision

of a specific service to meet clearly defined general interest objectives such as safety of life,

the need to promote social, regional and territorial cohesion, or the avoidance of inefficient

use of spectrum to be permitted where necessary and proportionate. Those objectives should

include the promotion of cultural and linguistic diversity and media pluralism as defined

[…] by Member States

in conformity with Community law. Except where necessary to

protect safety of life

or to fulfil other general interest objectives,

exceptions should not

result in exclusive use for certain services, but rather grant priority so that other services or

technologies may coexist in the same band insofar as possible.

[…]

It lies within the competence of the Member States to define the scope and nature of any

exception regarding the promotion of cultural and linguistic diversity and media pluralism

[…].

(23)

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Member States shall regularly review the necessity of the restrictions and measures

referred to in paragraphs 3 and 4, and shall make the results of these reviews public.

(24)

As the allocation of spectrum to specific technologies or services is an exception to the

principles of technology and service neutrality and reduces the freedom to choose the

service provided or technology used, any proposal for such allocation should be transparent

and subject to public consultation.

Paragraphs 3 and 4 shall apply to spectrum allocated to be used for electronic

communications services, general authorisations issued and individual rights of use of radio

frequencies granted after [subject to the date of transposition].

Spectrum allocations, general authorisations and individual rights of use which existed at the

date of [subject to the date of transposition] shall be subject to Article 9a.

Without prejudice to the provisions of the Specific Directives and taking into account

the relevant national circumstances, Member States may lay down rules in order to prevent

spectrum hoarding, in particular by setting out strict deadlines for the effective exploitation of

the rights of use by the holder of the rights and by applying sanctions, including financial

penalties or withdrawal of the rights of use in case of non-compliance with the deadlines.

These rules shall be established and applied in a proportionate, non-discriminatory and

transparent manner.

Article 9a

Review of restrictions to existing rights

For a period of five years starting on [subject to the date of transposition], Member

States may ensure that holders of rights to use radio frequencies which were granted before

that date and which will remain valid for a period of not less that five years after that date,

may submit an application to the competent national authority for a reassessment of the

restrictions to their rights in accordance with Article 9(3) and (4).

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Before adopting its decision the competent national regulatory authority shall notify the right

holder of its reassessment of the restrictions, indicating the extent of the right after

reassessment, and allow him a reasonable time limit to withdraw his application.

If the right holder withdraws his application, the right shall remain unchanged until its expiry

or till the end of the 5 year period, whichever is the earlier date.

Deleted.

After the five-year period referred to in paragraph 1, Member States shall take all

appropriate measures to ensure that Article 9(3) and (4) apply to all remaining general

authorisations/individual rights of use and spectrum allocations used for electronic

communications services which existed at the date of [subject to the date of transposition].

In applying this Article, Member States shall take appropriate measures to promote fair

competition.

Measure adopted in applying this Article do not constitute the granting of new rights of

use and therefore are not subject to the relevant provisions of Article 5(2) of Directive

2002/20/EC (Authorisation Directive).

(28)

The introduction of technology and service neutrality and trading for existing spectrum

usage rights may require transitional rules, including measures to ensure fair competition,

as the new system may entitle certain spectrum users to start competing with spectrum users

having acquired their spectrum rights under more burdensome terms and conditions.

[…]

Article 9b

Transfer or lease of Individual Rights to Use radio frequencies

[…] Member States may […] make provision for undertakings to transfer or lease

individual rights to use radio frequencies to other undertakings in accordance with national

procedures.

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Conditions attached to individual rights to use radio frequencies shall continue to apply after

the transfer or lease, unless otherwise specified by the competent national authority.

Member States shall ensure that an undertaking’s intention to transfer rights to use

radio frequencies, as well as the effective transfer thereof is notified in accordance with

national procedures to the competent national authority responsible for granting individual

rights of use and is made public. Where radio frequency use has been harmonised through the

application of the Radio Spectrum Decision or other Community measures, any such transfer

shall comply with such harmonised use.

(25)

In the interests of flexibility and efficiency, national regulatory authorities

[…] may

allow

spectrum users to freely transfer or lease their usage rights to third parties, which would

allow spectrum valuation by the market. In view of their power to ensure effective use of

spectrum, national regulatory authorities should take action so as to ensure that trading

does not lead to a distortion of competition where spectrum is left unused.

Article 9c

Radio Frequency Management Harmonisation Measures

Deleted.

Recital (26) is deleted.

Recital (27) is deleted.

Article 10

Numbering, naming and addressing

Member States shall ensure that national regulatory authorities control the

[…] granting of

rights of use

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

[…]

procedures

for granting rights of use

for national numbering resources.

UK has a reservation on paragraph 2.

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National regulatory authorities shall ensure that

national

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

[…] to

which the right of use for

a range of numbers

has been granted

does not discriminate against

other providers of electronic communications services as regards the number sequences used to give

access to their services.

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.

Member States shall support the harmonisation of

[…] specific numbers or numbering

ranges

within the Community where that

[…]

promotes

both

the functioning of the internal market

[…] and

the development of pan-European services. The Commission may

[…]

take

[…]

appropriate technical implementing measures on this matter

[…].

The Measures designed to amend non-essential elements of this Directive by supplementing it,

shall be adopted in accordance with the regulatory procedure with scrutiny referred to in

Article 22(3).

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.

(29)

In order to promote the functioning of the internal market, and to support the development

of cross-border services, the Commission should be given the power

to adopt technical

implementing measures in the field of numbering. […]

Article 11

Rights of way

Member States shall ensure that when a competent authority considers:

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- 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

efficient,

transparent and publicly available procedures, applied without

discrimination and wihtout delay,

and in any event makes its decision within six months of the

application, except in cases of expropriation,

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.

(30)

Permits issued to undertakings providing electronic communications networks and services

allowing them to gain access to public or private property are essential factors for the

establishment of electronic communications networks or new network elements.

Unnecessary complexity and delay in the procedures for granting rights of way may

therefore represent important obstacles to the development of competition. Consequently,

the acquisition of rights of way by authorised undertakings should be simplified. National

regulatory authorities should be able to coordinate the acquisition of rights of way, making

relevant information accessible on their websites.

Member States shall ensure that where public or local authorities retain ownership or control

of undertakings operating

public

electronic communications networks and/or

publicly available

electronic communications

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.

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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 […] sharing of network elements and associated facilities for providers of

electronic communications networks

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

[…] be able to impose

the sharing of such facilities or property,

including inter alia

buildings or entries to buildings, masts, antennae, towers and other supporting constructions,

ducts, conduits, manholes, cabinets, as well as network elements which are not active.

[…] Member States may require holders of the rights referred to in paragraph 1 to

share facilities or property (including physical co-location) or take measures to facilitate the

coordination of public works in order

to protect the environment, public health, public security or

to meet town and country planning objectives

[…]

only after an appropriate period of public

consultation, during which all interested parties

[…] shall

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.

2a.

Member States may, where appropriate, ensure that undertakings provide the necessary

information, if requested by the competent authorities, in order for these authorities, in

conjunction with national regulatory authorities, to be able to establish a detailed inventory of

the nature, availability and geographical location of the facilities referred to in paragraph 1

and make it available to interested parties.

Measures taken by a national regulatory authority in accordance with paragraph 1 shall

be objective, transparent, non-discriminatory, and proportionate.

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(31)

It is necessary to strengthen the powers of the Member States vis-à-vis holders of rights of

way to ensure the entry or roll out of new network in

[…] a fair, efficient and

environmentally responsible way and independently of any obligation on an operator with

significant market power to grant access to its electronic communications network.

Improving facility sharing can significantly improve competition and lower the overall

financial and environmental cost of deploying electronic communications infrastructure

for undertakings, notably of new […] access networks. National regulatory authorities

should be empowered to require that the holders of the rights to install facilities on, over

or under public or private property share such facilities or property (including physical

co-location) in order to encourage efficient investment in infrastructure and the

promotion of innovation, after an appropriate period of public consultation, during which

all interested parties shall be given the opportunity to state their views. Such sharing or

coordination arrangements may include rules for apportioning the costs of facility or

property sharing and shall ensure that there is an appropriate rewarding of risk between

the undertakings concerned.

National regulatory authorities should

in particular

be able to

impose

[…]

the sharing of

network elements and associated facilities […], such as

ducts,

conduits,

masts,

manholes, cabinets, […]

antennae,

towers and other supporting

constructions, buildings or […]

entries into buildings, and a better coordination of civil

works.

[…] The competent authorities, notably local authorities, should also establish

appropriate coordination procedures, in cooperation with national regulatory authorities,

with respect to public works and also to other appropriate public facilities or property

which may include procedures that ensure that interested parties have information

concerning appropriate public facilities or property and on-going and planned public

works, that they are notified in a timely manner of such works, and that sharing is

facilitated to the maximum extent possible.

Article 13

Accounting separation and financial reports

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

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(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.

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).

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CHAPTER III A

SECURITY AND INTEGRITY OF NETWORKS AND SERVICES

Article 13a

Security and integrity

Member States shall ensure that undertakings providing public communications

networks or publicly available electronic communications services take appropriate technical

and organisational measures to appropriately manage risk to security of networks and

services. Having regard to the state of the art, these measures shall ensure a level of security

appropriate to the risk presented. In particular, measures shall be taken to prevent and

minimise the impact of security incidents on users and on interconnected networks.

Member States shall ensure that undertakings providing public communications

networks take all appropriate steps to ensure the integrity of their networks, and thus ensure

the continuity of supply of services provided over those networks.

Member States shall ensure that undertakings providing public communications

networks or publicly available electronic communications services notify the competent

national regulatory authority of a breach of security or loss of integrity that had a significant

impact on the operation of networks or services.

The national regulatory authority concerned shall inform the national regulatory authorities

in other Member States and the European Network and Information Security Agency

(ENISA) if other Member States could be or have been affected. The national regulatory

authority concerned may inform the public or require the undertakings to do so, where it

determines that disclosure of the breach is in the public interest.

Once a year, the national regulatory authority concerned shall submit a summary report to

the Commission and ENISA on the notifications received and the action taken in accordance

with this paragraph.

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The Commission, taking the utmost account of the opinion of ENISA, may adopt

appropriate technical implementing measures with a view to harmonising the measures

referred to in paragraphs 1, 2, and 3, including measures defining the circumstances, format

and procedures applicable to notification requirements. These technical implementing

measures will be based on European and international standards to the greatest extent

possible, and they shall not prevent Member States from adopting additional requirements in

order to pursue the objectives set out in paragraphs 1 and 2.

These implementing measures, designed to amend non-essential elements of this Directive by

supplementing it, shall be adopted in accordance with the procedure referred to in Article

22(3). […]

(32)

Reliable and secure communication of information over electronic communications

networks is increasingly central to the whole economy and society in general. System

complexity, technical failure or human mistake, accidents or attacks may all have

consequences for the functioning and availability of the physical infrastructures that deliver

important services to EU citizens, including e-Government services. National regulatory

authorities should therefore ensure the integrity and security of public communications

networks are maintained. The

ENISA […]

should contribute to the enhanced level of

security of electronic communications by, among other things, providing expertise and

advice, and promoting the exchange of best practices. Both the

ENISA […]

and the national

regulatory authorities should have the necessary means to perform their duties, including

powers to obtain sufficient information to be able to assess the level of security of networks

or services as well as comprehensive and reliable data about actual security incidents that

have had a significant impact on the operation of networks or services. Bearing in mind that

the successful application of adequate security is not a one-off exercise but a continuous

process of implementation, review and updating, the providers of electronic communications

networks and services should be required to take measures to safeguard their integrity and

security in accordance with the assessed risks, taking into account the state of the art of

such measures.

Where there is a need to agree on a common set of security requirements, power should be

conferred on the Commission to adopt technical implementing measures to achieve an

adequate level of security of electronic communications networks and services in the

internal market. The

ENISA […]

should contribute to the harmonisation of appropriate

technical and organisational security measures by providing expert advice. National

regulatory authorities should have the power to issue binding instructions relating to the

technical implementing measures adopted pursuant to the Framework Directive. In order to

perform their duties, they should have the power to investigate and to impose penalties in

cases of non-compliance.

(33)

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Article 13b

Implementation and enforcement

Member States shall ensure that competent national regulatory authorities have the

power to issue binding instructions to undertakings providing public communications

networks or publicly available electronic communications services in order to implement

Article 13a.

Member States shall ensure that competent national regulatory authorities have the

power to require undertakings providing public communications networks or publicly

available electronic communications services to:

(a)

provide information needed to assess the security and integrity of their services and

networks, including documented security policies; and

(b)

submit to a security audit carried out by a qualified independent body or a competent

national authority and make results thereof available to the national regulatory authority.

The cost of the audit shall be paid by the undertaking.

Member States shall ensure that national regulatory authorities have all the powers

necessary to investigate cases of non-compliance.

These provisions shall be without prejudice to Article 3 of this Directive.

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CHAPTER IV

GENERAL PROVISIONS

Article 14

Undertakings with significant market power

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.

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.

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.

Consequently, remedies

aimed at preventing such leverage may be applied in the linked market pursuant to Articles 9,

10, 11 and 13 of Directive 2002/19/21 (Access directive), and where such remedies prove to be

insufficient, remedies pursuant to Article 17 of Directive 2002/22/EC (Universal Service

Directive) may be imposed.

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Recital (34) is deleted.

Article 15

Procedure for […] identification and definition […] of markets

After public consultation and consultation

with national regulatory authorities and taking

the utmost account of the opinion of the GERT, […]

the Commission shall

in accordance with

the procedure referred to in Article 22(2)

adopt a Recommendation on Relevant Product and

Service Markets (hereinafter "the Recommendation"). The Recommendation shall identify

[…]

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.

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.

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

[…] identified

in the Recommendation.

After consultation with national regulatory authorities the Commission may,

taking the

utmost account of the opinion of the GERT, […]

adopt a Decision identifying transnational

markets,

acting in accordance with the procedure referred to in Article 22(2a).

NL has a reservation on this Article.

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Article 16

Market analysis procedure

[…]

National regulatory authorities shall carry out an analysis of the relevant markets

taking

into account the markets identified in the Recommendation, and

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.

Where a national regulatory authority is required under

[…] paragraphs 3 or 4, Article

[…]

of Directive 2002/22/EC (Universal Service Directive), or Article

[…]

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.

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.

Where a national regulatory authority determines that a relevant market is not effectively

competitive, it shall identify undertakings

which individually or jointly with others have a […]

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.

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.

Recital (35) is deleted.

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Measures taken according to the provisions of paragraphs 3,

and

[…]

of this Article shall be

subject to the procedures referred to in Articles 6 and 7.

National regulatory authorities shall

carry out an analysis of the relevant market and notify the corresponding draft measure in

accordance with Article 7:

within three years from the adoption of a previous measure relating to that market.

However, exceptionally, that period may be extended beyond three years, where the NRA has

notified a reasoned proposed extension to the Commission and the Commission has not

objected within one month of the notified extension;

for markets not previously notified to the Commission, within two years from the

adoption of a revised Recommendation on relevant markets, or;

for Member States which have newly joined the Union, within two years from their

accession.

Where a national regulatory authority has not completed its analysis of a relevant

market identified in the Recommendation within the time limit laid down in Article 16(6), the

GERT shall provide assistance to the national regulatory authority concerned on its request

in completing the analysis of the specific market and the specific obligations to be imposed.

With this assistance, the national regulatory authority concerned shall within six months

notify the draft measure to the Commission in accordance with Article 7.

(36)

In order to provide market players with certainty as to regulatory conditions, a time limit for

market reviews is necessary. It is important to conduct a market analysis on a regular basis

and within a reasonable and appropriate timeframe. The timeframe should take account of

whether the particular market has previously been subject to market analysis and duly

notified. Failure of a national regulatory authority to analyse a market within the time limit

may jeopardise the internal market, and normal infringement proceedings may not produce

their desired effect in time.

[…] Alternatively, the NRA concerned should be able to

request the assistance of the GERT to complete the market analysis. For instance, this

assistance could take the form of a specific task force composed of other NRAs

representatives.

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Article 17

Standardisation

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(2a) 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)).

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 Electronic Communications Committee (ECC),

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.

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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.

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

[…]

shall

take

appropriate implementing measures and

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.

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(2a), remove them from the list of

standards and/or specifications referred to in paragraph 1.

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,

[…]

take the appropriate implementing measures and

remove

[…] those standards and/or

specifications

from

[…] the

list of standards and/or specifications referred to in paragraph 1.

6a.

The implementing measures designed to amend non-essential elements of this Directive

by supplementing it referred to in paragraphs 4 and 6 shall be adopted in accordance with the

regulatory procedure with scrutiny referred to in Article 22(3).

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.

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Article 18

Interoperability of digital interactive television services

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;

providers of digital TV services and equipment to cooperate in the provision of

interoperable TV services for disabled end-users.

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.

Deleted.

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Article 19

Harmonisation procedures

[…] Without prejudice to Article 9 of this Directive and to Articles 6 and 8 of Directive

2002/20/EC (Authorisation Directive), where the Commission finds that divergences in the

implementation by the national regulatory authorities of the regulatory tasks specified in this

Directive and the Specific Directives may create a barrier to the internal market, the

Commission may, taking the utmost account of the opinion of the GERT, if any, issue a

recommendation 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.

[…] Where the Commission, issues a recommendation pursuant to paragraph 1, it shall

act in accordance with the procedure referred to in Article 22(2).

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.

The GERT may on its own initiative advise the Commission on whether a measure

should be adopted pursuant to paragraph 1.

(37) Due to the a high level of technological innovation and highly dynamic markets in the

electronic communications sector there is a need to be able to adapt regulation rapidly in a

coordinated and harmonised way at European level, as experience shows that divergence among

the national regulatory authorities in the implementation of the regulatory framework may create a

barrier to the development of the internal market.

[…]

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Article 20

Dispute resolution between undertakings

In the event of a dispute

[…]

arising in connection with

existing

obligations

[…]

under this

Directive or the Specific Directives

[…] between undertakings

providing electronic

communications networks or services, in a Member State,

[…] or between such undertakings and

other undertakings in the Member State benefiting from obligations of access and/or

inerconnection arising under this Directive or the Specific Directive,

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.

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.

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.

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.

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The procedure referred to in paragraph 1, 3 and 4 shall not preclude either party from bringing

an action before the courts.

Article 21

Resolution of cross-border disputes

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

[…] provisions

set out in

paragraphs 2, 3 and 4 shall be applicable.

Any party may refer the dispute to the national regulatory authorities concerned. The

competent

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 national regulatory authority which has competence in such a dispute may request the

GERT to issue an opinion as to the action to be taken in accordance with the provisions of the

Framework Directive and/or the specific Directives to resolve the dispute.

Where such a request has been made to the GERT, any national regulatory authority with

competence in any aspect of the dispute shall await the GERT’s opinion before taking action

to resolve the dispute, without prejudice to the possibility for national regulatory authorities

to take urgent measures where necessary.

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

and take the utmost

account of the opinion issued by the GERT.

(38)

One important task assigned to

the GERT

is to issue opinions in relation to cross-border

disputes where appropriate. National regulatory authorities should therefore take account

of any opinions of

the GERT

in such cases.

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Member States may make provision for

the competent

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

and taking the

utmost account of any opinion issued by the GERT.

The procedure referred to in paragraph 2 shall not preclude either party from bringing an

action before the courts.

Article 21a

Penalties

Member States shall lay down the rules on penalties applicable to infringements of the

national provisions adopted pursuant to this Directive and the Specific Directives and shall

take all measures necessary to ensure that they are implemented. The penalties provided for

must be effective, proportionate and dissuasive and may be applied to cover the period of any

breach, even if the breach has subsequently been rectified. The Member States shall notify

those provisions to the Commission by the [time-limit

for implementation of the amending act]

at the latest and shall notify it without delay of any subsequent amendment affecting them.

(39)

Experience in the implementation of the regulatory framework indicates that existing

provisions empowering national regulatory authorities to impose fines have failed to

provide an adequate incentive to comply with regulatory requirements. Adequate

enforcement powers can contribute to the timely implementation of the regulatory

framework and therefore foster regulatory certainty, which is an important driver for

investment. The lack of effective powers in the event of non-compliance applies across the

regulatory framework. The introduction of a new provision in the Framework Directive to

deal with breaches of obligations under the Framework and Specific Directives should

therefore ensure the application of consistent and coherent principles to enforcement and

penalties for the whole regulatory framework.

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Article 22

Committee

The Commission shall be assisted by a Committee ("the Communications Committee").

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.

2a.

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.

Where reference is made to this paragraph, Article 5a(1)

to (4),

and

Article

7 of Decision

1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

[…]

Deleted.

(59)

Measures necessary for the implementation of the Framework, Access and Authorisation

Directives 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

In particular, power should be conferred on the Commission to adopt

Recommendations

and/or

implementing measures in relation to the notifications under Article 7 of the

Framework Directive; the harmonisation in the fields of spectrum and numbering as well as

in matters related to security of networks and services;

the identification of the Relevant

Product and Service Markets;

the identification of trans-national markets; the

implementation of the standards; the harmonised application of the provisions of the

regulatory framework. Power should also be conferred to adopt implementing measures to

update Annexes I and II to the Access Directive to market and technological developments

[…].

Since those measures are of general scope and are designed to supplement these

Directives by the addition of new non-essential elements, they must be adopted in

accordance with the regulatory procedure with scrutiny provided for in Article 5a of

Decision 1999/468/EC.

[…]

(60)

OJ L 184, 17.7.1999, p. 23. Decision as amended by Decision 2006/512/EC (OJ L 200,

22.7.2006, p. 11).

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Article 23

Exchange of information

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.

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

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.

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.

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Article 25

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 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,

Council Directive 92/44/EEC of 5 June 1992 on the application of open network provision to

leased lines,

Council Decision 92/264/EEC of 11 May 1992 on the introduction of a standard international

telephone access code in the Community,

Directive 95/47/EC,

Directive 97/13/EC,

Directive 97/33/EC,

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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.

Article 27

Transitional measures

Deleted.

(40)

The existing regulatory framework included certain provisions to facilitate the transition

from the old regulatory framework of 1998 to the new 2002 framework. This transition has

been completed in all Member States and these measures should be repealed as they are

now redundant.

[Article

Transposition

Article 29

Entry into force

Article 30

Addressees]

15758/08

ANNEX

HVW/ek

DG C II B

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ANNEX I

Deleted.

(41)

Annex I to the Framework Directive identified the list of markets to be included in the

Recommendation on relevant product and service markets which may warrant ex-ante

regulation. This Annex should be repealed since its purpose of serving as a basis for drawing

up the initial version of the Recommendation

has been fulfilled.

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 which is characterised by a lack of effective competition and in which no single

undertaking has significant market power. In accordance with the provisions on joint

dominance set in the Regulation (EC) N° 139/2004 of 20 January 2004, this is likely to be the

case where the market is concentrated and exhibits a number of appropriate characteristics of

which the following may be the most relevant in the context of communications:

Commission Recommendation of 11 February 2003 on Relevant Product and Service Markets

within the electronic communications sector susceptible to ex ante regulation in accordance

with Directive 2002/21/EC of the European Parliament and of the Council on a common

regulatory framework for electronic communication networks and services - C(2003) 497.

HVW/ek

DG C II B

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ANNEX

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low elasticity of demand

similar market shares

high legal or economic barriers to entry

vertical integration with collective refusal to supply

lack of countervailing buyer power

lack of potential competition

The above is an indicative list and is not exhaustive, 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.

Recital (42) is deleted.

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ANNEX

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DG C II B