# Official Journal C 103E/2009

| | ISSN 1725-2423
  doi:10.3000/17252423.CE2009.103.eng |
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| Official Journal
  of the European Union | C 103E |
| | |
| English edition | Information and Notices | Volume 525 May 2009 |

ISSN 1725-2423

doi:10.3000/17252423.CE2009.103.eng

Official Journal

of the European Union

C 103E

English edition

Information and Notices

Volume 525 May 2009

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| Notice No | Contents | page |
| --- | --- | --- |
| | III   Preparatory acts |
| | Council |
| 2009/C 103E/01 | Common Position (EC) No 15/2009 of 16 February 2009 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to the adoption of 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 associated facilities, and 2002/20/EC on the authorisation of electronic communications networks and services | 1 |
| 2009/C 103E/02 | Common Position (EC) No 16/2009 of 16 February 2009 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to the adoption of a Directive of the European Parliament and of the Council amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws (
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Notice No

Contents

page

III   Preparatory acts

Council

2009/C 103E/01

Common Position (EC) No 15/2009 of 16 February 2009 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to the adoption of 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 associated facilities, and 2002/20/EC on the authorisation of electronic communications networks and services

1

2009/C 103E/02

Common Position (EC) No 16/2009 of 16 February 2009 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to the adoption of a Directive of the European Parliament and of the Council amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws (
  1
  )

1

40

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| | (1)   Text with EEA relevance |

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(1)   Text with EEA relevance

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EN

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III Preparatory acts

Council

| 5.5.2009 | EN | Official Journal of the European Union | CE 103/1 |
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5.5.2009

EN

Official Journal of the European Union

CE 103/1

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COMMON POSITION (EC) No 15/2009

adopted by the Council on 16 February 2009

with a view to the adoption of a Directive 2009/.../EC of the European Parliament and of the Council of ... 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 associated facilities, and 2002/20/EC on the authorisation of electronic communications networks and services

(2009/C 103 E/01)

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 European Economic and Social Committee (1),

Having regard to the Opinion of the Committee of the Regions (2),

Acting in accordance with the procedure laid down in Article 251 of the Treaty (3),

Whereas:

| (1) | The functioning of the five directives comprising the existing EU regulatory framework for electronic communications networks and services (Directive 2002/21/EC (Framework Directive) (4), Directive 2002/19/EC (Access Directive) (5), Directive 2002/20/EC (Authorisation Directive) (6), Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (7), 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) (8) (together referred to as ‘the Framework Directive and the Specific Directives’) 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. |
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(1)

The functioning of the five directives comprising the existing EU regulatory framework for electronic communications networks and services (Directive 2002/21/EC (Framework Directive) (4), Directive 2002/19/EC (Access Directive) (5), Directive 2002/20/EC (Authorisation Directive) (6), Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (7), 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) (8) (together referred to as ‘the Framework Directive and the Specific Directives’) 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.

| (2) | In that regard, the Commission presented its initial findings in its Communication 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. |
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(2)

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

| (3) | 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 by Regulation (EC) No .../2009 of the European Parliament and of the Council of ... [establishing the Group of European Regulators in Telecoms (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. |
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(3)

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 by Regulation (EC) No .../2009 of the European Parliament and of the Council of ... [establishing the Group of European Regulators in Telecoms (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.

| (4) | The aim is progressively to 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. |
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(4)

The aim is progressively to 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.

| (5) | In order to ensure a proportionate and adaptable approach to varying competitive conditions, national regulatory authorities may define markets on a sub-national basis and lift regulatory obligations in markets and/or geographic areas where there is effective infrastructure competition. |
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(5)

In order to ensure a proportionate and adaptable approach to varying competitive conditions, national regulatory authorities may define markets on a sub-national basis and lift regulatory obligations in markets and/or geographic areas where there is effective infrastructure competition.

| (6) | A key issue in the coming years in the achievement of the goals of the Lisbon Agenda will be provision of the conditions for efficient investments in new high-speed networks that will support innovation in content-rich internet services and strengthen the international competitiveness of the European Union. Such networks have enormous potential to deliver benefits to consumers and businesses 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. |
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(6)

A key issue in the coming years in the achievement of the goals of the Lisbon Agenda will be provision of the conditions for efficient investments in new high-speed networks that will support innovation in content-rich internet services and strengthen the international competitiveness of the European Union. Such networks have enormous potential to deliver benefits to consumers and businesses 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.

| (7) | 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 (9) and consumer equipment used for digital television, in order to facilitate access for disabled users. |
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(7)

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 (9) and consumer equipment used for digital television, in order to facilitate access for disabled users.

| (8) | 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. |
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(8)

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.

| (9) | The independence of the national regulatory authorities should be strengthened in order to ensure a more effective application of the regulatory framework and to 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. Such outside influence makes a national legislative body unsuited to act as a national regulatory authority under the regulatory framework. For that purpose, rules should be laid down at the outset regarding the grounds for the dismissal of the head of the national regulatory authority 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 budget should be published annually. |
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(9)

The independence of the national regulatory authorities should be strengthened in order to ensure a more effective application of the regulatory framework and to 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. Such outside influence makes a national legislative body unsuited to act as a national regulatory authority under the regulatory framework. For that purpose, rules should be laid down at the outset regarding the grounds for the dismissal of the head of the national regulatory authority 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 budget should be published annually.

| (10) | In order to ensure legal certainty for market players, appeal bodies should carry out their functions effectively; in particular, appeals proceedings should not be unduly lengthy. |
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(10)

In order to ensure legal certainty for market players, appeal bodies should carry out their functions effectively; in particular, appeals proceedings should not be unduly lengthy.

| (11) | 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 standards should be applied in line with Community jurisprudence. Appeal bodies should also be entitled to request available information published by GERT. Given the importance of appeals for the overall operation 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. |
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(11)

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 standards should be applied in line with Community jurisprudence. Appeal bodies should also be entitled to request available information published by GERT. Given the importance of appeals for the overall operation 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.

| (12) | In order to ensure that national regulatory authorities carry out their regulatory tasks in an effective manner, the data which they 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. The data should also include data which enables 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. |
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(12)

In order to ensure that national regulatory authorities carry out their regulatory tasks in an effective manner, the data which they 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. The data should also include data which enables 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.

| (13) | 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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(13)

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.

| (14) | 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 GERT. |
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(14)

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 GERT.

| (15) | 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 those in which the operators are subject to such regulation. Monitoring of the market by the Commission and, in particular, the experience of 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 adopting 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 GERT prior to adoption of its decisions and/or opinion. |
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(15)

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 those in which the operators are subject to such regulation. Monitoring of the market by the Commission and, in particular, the experience of 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 adopting 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 GERT prior to adoption of its decisions and/or opinion.

| (16) | 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 to allow market players to know the duration of the market review and in order to increase legal certainty. |
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(16)

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

| (17) | 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 to 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. Powers should also be conferred on the Commission in order to allow for the introduction of a notification exemption so as to streamline procedures in certain cases. |
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(17)

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 to 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. Powers should also be conferred on the Commission in order to allow for the introduction of a notification exemption so as to streamline procedures in certain cases.

| (18) | In line with the objectives of the Charter of Fundamental Rights of the European Union and the United Nations Convention on the Rights of 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. |
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(18)

In line with the objectives of the Charter of Fundamental Rights of the European Union and the United Nations Convention on the Rights of 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.

| (19) | Radio frequencies should be considered a scarce public resource that has an important public and market value. It is in the public interest that such a radio spectrum is managed as efficiently and effectively as possible from an economic, social and environmental perspective, taking into account the objectives of cultural diversity and of media pluralism, and that obstacles to its efficient use are gradually withdrawn. |
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(19)

Radio frequencies should be considered a scarce public resource that has an important public and market value. It is in the public interest that such a radio spectrum is managed as efficiently and effectively as possible from an economic, social and environmental perspective, taking into account the objectives of cultural diversity and of media pluralism, and that obstacles to its efficient use are gradually withdrawn.

| (20) | Before a specific harmonisation measure under Decision No 676/2002/EC of the European Parliament and of the Council of 7 March 2002 on a regulatory framework for radio spectrum policy in the European Community (Radio Spectrum Decision) (10) is proposed, the Commission should carry out an impact assessments on the costs and benefits of the proposed measure, such as the realisation of economies of scale and the interoperability of services for the benefit of consumers, the impact on efficiency of spectrum use, or the demand for harmonised use in the different parts of the European Union. |
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(20)

Before a specific harmonisation measure under Decision No 676/2002/EC of the European Parliament and of the Council of 7 March 2002 on a regulatory framework for radio spectrum policy in the European Community (Radio Spectrum Decision) (10) is proposed, the Commission should carry out an impact assessments on the costs and benefits of the proposed measure, such as the realisation of economies of scale and the interoperability of services for the benefit of consumers, the impact on efficiency of spectrum use, or the demand for harmonised use in the different parts of the European Union.

| (21) | 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 globally. |
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(21)

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 globally.

| (22) | 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. |
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(22)

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.

| (23) | 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. |
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(23)

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.

| (24) | 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. |
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(24)

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.

| (25) | 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. |
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(25)

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.

| (26) | Flexibility in spectrum management and access to spectrum should be increased through technology and service-neutral authorisations to allow spectrum users to 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 (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. |
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(26)

Flexibility in spectrum management and access to spectrum should be increased through technology and service-neutral authorisations to allow spectrum users to 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 (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.

| (27) | Restrictions on 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, while not necessarily precluding the possibility of using more than one service in the same frequency band, to ensure proper sharing of spectrum, in particular where its use is only subject to general authorisations, to safeguard efficient use of spectrum, or to fulfil a general interest objective in conformity with Community law. |
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(27)

Restrictions on 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, while not necessarily precluding the possibility of using more than one service in the same frequency band, to ensure proper sharing of spectrum, in particular where its use is only subject to general authorisations, to safeguard efficient use of spectrum, or to fulfil a general interest objective in conformity with Community law.

| (28) | 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. Exceptions should be allowed 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 the 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 certain services having exclusive use, but should rather grant them priority so that, insofar as possible, other services or technologies may coexist in the same band. |
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(28)

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. Exceptions should be allowed 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 the 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 certain services having exclusive use, but should rather grant them priority so that, insofar as possible, other services or technologies may coexist in the same band.

| (29) | 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. |
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(29)

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.

| (30) | 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. |
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(30)

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.

| (31) | In the interests of flexibility and efficiency, national regulatory authorities may allow spectrum users freely to transfer or lease their usage rights to third parties. This 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. |
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(31)

In the interests of flexibility and efficiency, national regulatory authorities may allow spectrum users freely to transfer or lease their usage rights to third parties. This 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.

| (32) | 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. |
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(32)

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.

| (33) | 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. |
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(33)

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.

| (34) | 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. |
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(34)

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.

| (35) | It is necessary to strengthen the powers of the Member States as regards holders of rights of way to ensure the entry or roll-out of a 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, particularly 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 should be given the opportunity to state their views. Such sharing or coordination arrangements may include rules for apportioning the costs of the facility or property sharing and should ensure that there is an appropriate reward of risk for 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, particularly local authorities, should also establish appropriate coordination procedures, in cooperation with national regulatory authorities, with respect to public works and 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. |
| --- | --- |

(35)

It is necessary to strengthen the powers of the Member States as regards holders of rights of way to ensure the entry or roll-out of a 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, particularly 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 should be given the opportunity to state their views. Such sharing or coordination arrangements may include rules for apportioning the costs of the facility or property sharing and should ensure that there is an appropriate reward of risk for 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, particularly local authorities, should also establish appropriate coordination procedures, in cooperation with national regulatory authorities, with respect to public works and 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.

| (36) | 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 that the integrity and security of public communications networks are maintained. The European Network and Information Security Agency (ENISA) (11) 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 ENISA and the national regulatory authorities should have the necessary means to perform their duties, including powers to obtain sufficient information in order 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. |
| --- | --- |

(36)

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 that the integrity and security of public communications networks are maintained. The European Network and Information Security Agency (ENISA) (11) 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 ENISA and the national regulatory authorities should have the necessary means to perform their duties, including powers to obtain sufficient information in order 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.

| (37) | 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. 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 technical implementing measures adopted pursuant to the Framework Directive. In order to perform their duties, they should have the power to investigate cases of non-compliance and to impose penalties. |
| --- | --- |

(37)

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. 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 technical implementing measures adopted pursuant to the Framework Directive. In order to perform their duties, they should have the power to investigate cases of non-compliance and to impose penalties.

| (38) | 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 by 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 on time. Alternatively, the national regulatory authority concerned should be able to request the assistance of GERT to complete the market analysis. For instance, this assistance could take the form of a specific task force composed of representatives of other national regulatory authorities. |
| --- | --- |

(38)

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 by 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 on time. Alternatively, the national regulatory authority concerned should be able to request the assistance of GERT to complete the market analysis. For instance, this assistance could take the form of a specific task force composed of representatives of other national regulatory authorities.

| (39) | Due to the high level of technological innovation and highly dynamic markets in the electronic communications sector, there is a need to adapt regulation rapidly in a coordinated and harmonised way at Community level, as experience has shown that divergence among the national regulatory authorities in the implementation of the EU regulatory framework may create a barrier to the development of the internal market. |
| --- | --- |

(39)

Due to the high level of technological innovation and highly dynamic markets in the electronic communications sector, there is a need to adapt regulation rapidly in a coordinated and harmonised way at Community level, as experience has shown that divergence among the national regulatory authorities in the implementation of the EU regulatory framework may create a barrier to the development of the internal market.

| (40) | One important task assigned to GERT is to adopt opinions in relation to cross-border disputes where appropriate. National regulatory authorities should therefore take account of any opinions of GERT in such cases. |
| --- | --- |

(40)

One important task assigned to GERT is to adopt opinions in relation to cross-border disputes where appropriate. National regulatory authorities should therefore take account of any opinions of GERT in such cases.

| (41) | Experience in the implementation of the EU 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 EU 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 Directive and Specific Directives should therefore ensure the application of consistent and coherent principles to enforcement and penalties for the whole EU regulatory framework. |
| --- | --- |

(41)

Experience in the implementation of the EU 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 EU 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 Directive and Specific Directives should therefore ensure the application of consistent and coherent principles to enforcement and penalties for the whole EU regulatory framework.

| (42) | The existing EU regulatory framework includes 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. |
| --- | --- |

(42)

The existing EU regulatory framework includes 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.

| (43) | Both efficient investment and competition should be encouraged in tandem, in order to increase economic growth, innovation and consumer choice. |
| --- | --- |

(43)

Both efficient investment and competition should be encouraged in tandem, in order to increase economic growth, innovation and consumer choice.

| (44) | 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 on Relevant Product and Service Markets (12) has been fulfilled. |
| --- | --- |

(44)

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 on Relevant Product and Service Markets (12) has been fulfilled.

| (45) | It may not be economically viable for new entrants to duplicate the incumbent's local access network in part or in its entirety within a reasonable period of time. In this context, mandating unbundled access to the local loop or sub-loop of operators enjoying significant market power may facilitate market entry and increase competition in retail broadband access markets. In circumstances where unbundled access to local loop or sub-loop is not technically or economically feasible, relevant obligations for the provision of non-physical or virtual network access offering equivalent functionality may apply. |
| --- | --- |

(45)

It may not be economically viable for new entrants to duplicate the incumbent's local access network in part or in its entirety within a reasonable period of time. In this context, mandating unbundled access to the local loop or sub-loop of operators enjoying significant market power may facilitate market entry and increase competition in retail broadband access markets. In circumstances where unbundled access to local loop or sub-loop is not technically or economically feasible, relevant obligations for the provision of non-physical or virtual network access offering equivalent functionality may apply.

| (46) | The purpose of functional separation, whereby the vertically integrated operator is required to establish operationally separate business entities, is to ensure the provision of fully equivalent access products to all downstream operators, including the operator's own vertically integrated downstream divisions. Functional separation has the capacity to improve competition in several relevant markets by significantly reducing the incentive for discrimination and by making it easier to verify and enforce compliance with non-discrimination obligations. In exceptional cases, functional separation may be justified as a remedy where there has been persistent failure to achieve effective non-discrimination in several of the markets concerned, and where there is little or no prospect of infrastructure competition within a reasonable timeframe after recourse to one or more remedies previously considered to be appropriate. However, it is very important to ensure that its imposition preserves the incentives of the concerned undertaking to invest in its network and that it does not entail any potential negative effects on consumer welfare. Its imposition requires a coordinated analysis of different relevant markets related to the access network, in accordance with the market analysis procedure set out in Article 16 of the Framework Directive. When undertaking the market analysis and designing the details of this remedy, national regulatory authorities should pay particular attention to the products to be managed by the separate business entities, taking into account the extent of network roll-out and the degree of technological progress, which may affect the substitutability of fixed and wireless services. In order to avoid distortions of competition in the internal market, proposals for functional separation should be approved in advance by the Commission. |
| --- | --- |

(46)

The purpose of functional separation, whereby the vertically integrated operator is required to establish operationally separate business entities, is to ensure the provision of fully equivalent access products to all downstream operators, including the operator's own vertically integrated downstream divisions. Functional separation has the capacity to improve competition in several relevant markets by significantly reducing the incentive for discrimination and by making it easier to verify and enforce compliance with non-discrimination obligations. In exceptional cases, functional separation may be justified as a remedy where there has been persistent failure to achieve effective non-discrimination in several of the markets concerned, and where there is little or no prospect of infrastructure competition within a reasonable timeframe after recourse to one or more remedies previously considered to be appropriate. However, it is very important to ensure that its imposition preserves the incentives of the concerned undertaking to invest in its network and that it does not entail any potential negative effects on consumer welfare. Its imposition requires a coordinated analysis of different relevant markets related to the access network, in accordance with the market analysis procedure set out in Article 16 of the Framework Directive. When undertaking the market analysis and designing the details of this remedy, national regulatory authorities should pay particular attention to the products to be managed by the separate business entities, taking into account the extent of network roll-out and the degree of technological progress, which may affect the substitutability of fixed and wireless services. In order to avoid distortions of competition in the internal market, proposals for functional separation should be approved in advance by the Commission.

| (47) | The implementation of functional separation should not prevent appropriate coordination mechanisms between the different separate business entities in order to ensure that the economic and management supervision rights of the parent company are protected. |
| --- | --- |

(47)

The implementation of functional separation should not prevent appropriate coordination mechanisms between the different separate business entities in order to ensure that the economic and management supervision rights of the parent company are protected.

| (48) | Continued integration of the internal market for electronic communications networks and services requires better coordination in the application of the ex ante regulation provided for under the EU regulatory framework for electronic communications. |
| --- | --- |

(48)

Continued integration of the internal market for electronic communications networks and services requires better coordination in the application of the ex ante regulation provided for under the EU regulatory framework for electronic communications.

| (49) | Where a vertically integrated undertaking chooses to transfer a substantial part or all of its local access network assets to a separate legal entity under different ownership or by establishing a separate business entity for dealing with access products, the national regulatory authority should assess the effect of the intended transaction on all existing regulatory obligations imposed on the vertically integrated operator in order to ensure the compatibility of any new arrangements with Directive 2002/19/EC (Access Directive) and Directive 2002/22/EC (Universal Service Directive). The national regulatory authority concerned should undertake a new analysis of the markets in which the segregated entity operates, and impose, maintain, amend or withdraw obligations accordingly. To this end, the national regulatory authority should be able to request information from the undertaking. |
| --- | --- |

(49)

Where a vertically integrated undertaking chooses to transfer a substantial part or all of its local access network assets to a separate legal entity under different ownership or by establishing a separate business entity for dealing with access products, the national regulatory authority should assess the effect of the intended transaction on all existing regulatory obligations imposed on the vertically integrated operator in order to ensure the compatibility of any new arrangements with Directive 2002/19/EC (Access Directive) and Directive 2002/22/EC (Universal Service Directive). The national regulatory authority concerned should undertake a new analysis of the markets in which the segregated entity operates, and impose, maintain, amend or withdraw obligations accordingly. To this end, the national regulatory authority should be able to request information from the undertaking.

| (50) | While it is appropriate in some circumstances for a national regulatory authority to impose obligations on operators that do not have significant market power in order to achieve goals such as end-to-end connectivity or interoperability of services, it is however necessary to ensure that such obligations are imposed in conformity with the EU regulatory framework and, in particular, its notification procedures. |
| --- | --- |

(50)

While it is appropriate in some circumstances for a national regulatory authority to impose obligations on operators that do not have significant market power in order to achieve goals such as end-to-end connectivity or interoperability of services, it is however necessary to ensure that such obligations are imposed in conformity with the EU regulatory framework and, in particular, its notification procedures.

| (51) | The Commission should be empowered to adopt implementing measures with a view to adapting the conditions for access to digital television and radio services set out in Annex I to market and technological developments. This is also the case for the minimum list of items in Annex II that must be made public to meet the obligation of transparency. |
| --- | --- |

(51)

The Commission should be empowered to adopt implementing measures with a view to adapting the conditions for access to digital television and radio services set out in Annex I to market and technological developments. This is also the case for the minimum list of items in Annex II that must be made public to meet the obligation of transparency.

| (52) | Facilitating access to radio frequency resources for market players will contribute to removing the barriers to market entry. Moreover, technological progress is reducing the risk of harmful interference in certain frequency bands and therefore reducing the need for individual rights of use. Conditions for the use of spectrum to provide electronic communication services should therefore normally be laid down in general authorisations unless individual rights are necessary, considering the use of the spectrum, to protect against harmful interference, to ensure technical quality of service, to safeguard efficient use of the spectrum or to meet a specific general interest objective. Decisions on the need for individual rights should be made in a transparent and proportionate manner. |
| --- | --- |

(52)

Facilitating access to radio frequency resources for market players will contribute to removing the barriers to market entry. Moreover, technological progress is reducing the risk of harmful interference in certain frequency bands and therefore reducing the need for individual rights of use. Conditions for the use of spectrum to provide electronic communication services should therefore normally be laid down in general authorisations unless individual rights are necessary, considering the use of the spectrum, to protect against harmful interference, to ensure technical quality of service, to safeguard efficient use of the spectrum or to meet a specific general interest objective. Decisions on the need for individual rights should be made in a transparent and proportionate manner.

| (53) | The introduction of the requirements of service and technology neutrality in granting rights of use, together with the increased possibility to transfer rights between undertakings, should increase the freedom and means to deliver electronic communications services to the public, thereby also facilitating the achievement of general interest objectives. However, certain general interest obligations imposed on broadcasters for the delivery of audiovisual media services may require the use of specific criteria for the granting of rights of use when it appears to be essential to meet a specific general interest objective set out by Member States in conformity with Community law. Procedures associated with the pursuit of general interest objectives should in all circumstances be transparent, objective, proportionate and non-discriminatory. |
| --- | --- |

(53)

The introduction of the requirements of service and technology neutrality in granting rights of use, together with the increased possibility to transfer rights between undertakings, should increase the freedom and means to deliver electronic communications services to the public, thereby also facilitating the achievement of general interest objectives. However, certain general interest obligations imposed on broadcasters for the delivery of audiovisual media services may require the use of specific criteria for the granting of rights of use when it appears to be essential to meet a specific general interest objective set out by Member States in conformity with Community law. Procedures associated with the pursuit of general interest objectives should in all circumstances be transparent, objective, proportionate and non-discriminatory.

| (54) | Considering its restrictive impact on free access to radio frequencies, the validity of an individual right of use that is not tradable should be limited in time. Where rights of use contain provision for renewing their validity, competent national authorities should first carry out a review, including a public consultation, taking into account market, coverage and technological developments. In view of spectrum scarcity, individual rights granted to undertakings should be regularly reviewed. In carrying out this review, competent national authorities should balance the interests of the rights holders with the need to foster the introduction of spectrum trading as well as the more flexible use of spectrum through general authorisations where possible. |
| --- | --- |

(54)

Considering its restrictive impact on free access to radio frequencies, the validity of an individual right of use that is not tradable should be limited in time. Where rights of use contain provision for renewing their validity, competent national authorities should first carry out a review, including a public consultation, taking into account market, coverage and technological developments. In view of spectrum scarcity, individual rights granted to undertakings should be regularly reviewed. In carrying out this review, competent national authorities should balance the interests of the rights holders with the need to foster the introduction of spectrum trading as well as the more flexible use of spectrum through general authorisations where possible.

| (55) | Competent national authorities should have the power to ensure effective use of spectrum and, where spectrum resources are left unused, to take action to prevent anti-competitive hoarding, which can hinder new market entry. |
| --- | --- |

(55)

Competent national authorities should have the power to ensure effective use of spectrum and, where spectrum resources are left unused, to take action to prevent anti-competitive hoarding, which can hinder new market entry.

| (56) | National regulatory authorities should be able to take effective action to monitor and secure compliance with the terms and conditions of the general authorisation or of rights of use, including the power to impose effective financial or administrative penalties in the event of breaches of those terms and conditions. |
| --- | --- |

(56)

National regulatory authorities should be able to take effective action to monitor and secure compliance with the terms and conditions of the general authorisation or of rights of use, including the power to impose effective financial or administrative penalties in the event of breaches of those terms and conditions.

| (57) | The conditions that may be attached to authorisations should cover specific conditions governing accessibility for users with disabilities and the need of public authorities to communicate with the general public before, during and after major disasters. In addition, considering the importance of technical innovation, Member States should be able to issue authorisations to use spectrum for experimental purposes, subject to specific restrictions and conditions strictly justified by the experimental nature of such rights. |
| --- | --- |

(57)

The conditions that may be attached to authorisations should cover specific conditions governing accessibility for users with disabilities and the need of public authorities to communicate with the general public before, during and after major disasters. In addition, considering the importance of technical innovation, Member States should be able to issue authorisations to use spectrum for experimental purposes, subject to specific restrictions and conditions strictly justified by the experimental nature of such rights.

| (58) | Regulation (EC) No 2887/2000 of the European Parliament and of the Council of 18 December 2000 on unbundled access to the local loop (13) has proved to be effective in the initial stage of market opening. The Framework Directive calls upon the Commission to monitor the transition from the regulatory framework of 1998 to the 2002 framework and to bring forward proposals to repeal that Regulation at an appropriate time. Under the 2002 framework, national regulatory authorities have a duty to analyse the market for wholesale unbundled access to metallic loops and sub-loops for the purpose of providing broadband and voice services as defined in the Recommendation on Relevant Product and Service Markets. Since all Member States have analysed this market at least once and the appropriate obligations based on the 2002 framework are in place, Regulation (EC) No 2887/2000 has become unnecessary and should therefore be repealed. |
| --- | --- |

(58)

Regulation (EC) No 2887/2000 of the European Parliament and of the Council of 18 December 2000 on unbundled access to the local loop (13) has proved to be effective in the initial stage of market opening. The Framework Directive calls upon the Commission to monitor the transition from the regulatory framework of 1998 to the 2002 framework and to bring forward proposals to repeal that Regulation at an appropriate time. Under the 2002 framework, national regulatory authorities have a duty to analyse the market for wholesale unbundled access to metallic loops and sub-loops for the purpose of providing broadband and voice services as defined in the Recommendation on Relevant Product and Service Markets. Since all Member States have analysed this market at least once and the appropriate obligations based on the 2002 framework are in place, Regulation (EC) No 2887/2000 has become unnecessary and should therefore be repealed.

| (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 (14). |
| --- | --- |

(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 (14).

| (60) | In particular, the Commission should be empowered to adopt Recommendations and/or implementing measures in relation to the notifications under Article 7 of the Framework Directive; 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 standards and the harmonised application of the provisions of the regulatory framework. Power should also be conferred on the Commission 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 amend non-essential elements of these Directives, inter alia by supplementing them with 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)

In particular, the Commission should be empowered to adopt Recommendations and/or implementing measures in relation to the notifications under Article 7 of the Framework Directive; 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 standards and the harmonised application of the provisions of the regulatory framework. Power should also be conferred on the Commission 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 amend non-essential elements of these Directives, inter alia by supplementing them with 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,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Amendments to Directive 2002/21/EC (Framework Directive)

Directive 2002/21/EC is hereby amended as follows:

| 1. | Article 1(1) shall be replaced by the following:
  ‘1.   This Directive establishes a harmonised framework for the regulation of electronic communications services, electronic communications networks, associated facilities and associated services. It lays down tasks of national regulatory authorities and establishes a set of procedures to ensure the harmonised application of the regulatory framework throughout the Community. The framework also includes provisions on certain aspects of terminal equipment to facilitate access for disabled users.’; |
| --- | --- |

1.

Article 1(1) shall be replaced by the following:

‘1.   This Directive establishes a harmonised framework for the regulation of electronic communications services, electronic communications networks, associated facilities and associated services. It lays down tasks of national regulatory authorities and establishes a set of procedures to ensure the harmonised application of the regulatory framework throughout the Community. The framework also includes provisions on certain aspects of terminal equipment to facilitate access for disabled users.’;

| 2. | Article 2 shall be amended as follows:






  (a) | Point (a) shall be replaced by the following:






  ‘(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, radio, optical or 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;’; |
| --- | --- | --- | --- |

2.

Article 2 shall be amended as follows:

(a)

Point (a) shall be replaced by the following:

‘(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, radio, optical or 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) | point (b) shall be replaced by the following:






  ‘(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.’; |
| --- | --- | --- |

(b)

point (b) shall be replaced by the following:

‘(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.’;

| (c) | point (d) shall be replaced by the following:






  ‘(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;’; |
| --- | --- | --- |

(c)

point (d) shall be replaced by the following:

‘(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;’;

| (d) | the following point shall be inserted:






  ‘(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;’; |
| --- | --- | --- |

(d)

the following point shall be inserted:

‘(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) | point (e) shall be replaced by the following:






  ‘(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;’; |
| --- | --- | --- |

(e)

point (e) shall be replaced by the following:

‘(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;’;

| (f) | the following point shall be inserted:






  ‘(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)

the following point shall be inserted:

‘(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;’;

| (g) | Point (l) shall be replaced by the following:






  ‘(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 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) (15); |
| --- | --- | --- |

(g)

Point (l) shall be replaced by the following:

‘(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 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) (15);

| (h) | the following points shall be added:






  ‘(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; |
| --- | --- | --- |

(h)

the following points shall be added:

‘(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; |
| --- | --- |

(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.’; |
| --- | --- |

(s)

“call” means a connection established by means of a publicly available electronic communications service allowing two-way voice communication.’;

| 3. | Article 3 shall be amended as follows:






  (a) | paragraph (3) shall be replaced by the following:
  ‘3.   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.’; |
| --- | --- | --- |

3.

Article 3 shall be amended as follows:

(a)

paragraph (3) shall be replaced by the following:

‘3.   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.’;

| (b) | the following paragraphs shall be inserted:
  ‘3a.   Without prejudice to the provisions of paragraphs 4 and 5, national regulatory authorities responsible for ex ante market regulation or for the 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 the exercise of 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 a national regulatory authority, or where applicable, members of the collegiate body fulfilling that function within a national regulatory authority referred to in the first subparagraph or their replacements may be dismissed only if they no longer fulfil the conditions required for the performance of their duties which are laid down in advance in national law. The decision to dismiss the head of the national regulatory authority concerned, or where applicable members of the collegiate body fulfilling that function shall be made public at the time of dismissal. The dismissed head of the national regulatory authority, or where applicable, members of the collegiate body fulfilling that function 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.
  3b.   Member States shall ensure that the goals of the Group of European Regulators in Telecoms (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 adopted by the GERT when adopting their own decisions for their national markets. (16) |
| --- | --- |

(b)

the following paragraphs shall be inserted:

‘3a.   Without prejudice to the provisions of paragraphs 4 and 5, national regulatory authorities responsible for ex ante market regulation or for the 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 the exercise of 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 a national regulatory authority, or where applicable, members of the collegiate body fulfilling that function within a national regulatory authority referred to in the first subparagraph or their replacements may be dismissed only if they no longer fulfil the conditions required for the performance of their duties which are laid down in advance in national law. The decision to dismiss the head of the national regulatory authority concerned, or where applicable members of the collegiate body fulfilling that function shall be made public at the time of dismissal. The dismissed head of the national regulatory authority, or where applicable, members of the collegiate body fulfilling that function 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.

3b.   Member States shall ensure that the goals of the Group of European Regulators in Telecoms (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 adopted by the GERT when adopting their own decisions for their national markets. (16)

| 4. | Article 4 shall be amended as follows:






  (a) | paragraph 1 shall be replaced by the following:
  ‘1.   Member States shall ensure that effective mechanisms exist at national level under which any user or undertaking providing electronic communications networks and/or services who is affected by a decision of a national regulatory authority has the right of appeal against the decision to an appeal body that is independent of the parties involved. This body, which may be a court, shall have the appropriate expertise available to it to enable it to carry out its functions 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.’; |
| --- | --- | --- |

4.

Article 4 shall be amended as follows:

(a)

paragraph 1 shall be replaced by the following:

‘1.   Member States shall ensure that effective mechanisms exist at national level under which any user or undertaking providing electronic communications networks and/or services who is affected by a decision of a national regulatory authority has the right of appeal against the decision to an appeal body that is independent of the parties involved. This body, which may be a court, shall have the appropriate expertise available to it to enable it to carry out its functions 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.’;

| (b) | the following paragraph shall be added:
  ‘3.   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. Member States shall provide such information to the Commission and GERT after a reasoned request from either.’; |
| --- | --- |

(b)

the following paragraph shall be added:

‘3.   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. Member States shall provide such information to the Commission and GERT after a reasoned request from either.’;

| 5. | Article 5(1) shall be replaced by the following:
  ‘1.   Member States shall ensure that undertakings providing electronic communications networks and services provide all the information, including financial information, necessary for national regulatory authorities to ensure conformity with the provisions of, or decisions made in accordance with, this Directive and the Specific Directives. 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 upon request and in conformity with 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.’; |
| --- | --- |

5.

Article 5(1) shall be replaced by the following:

‘1.   Member States shall ensure that undertakings providing electronic communications networks and services provide all the information, including financial information, necessary for national regulatory authorities to ensure conformity with the provisions of, or decisions made in accordance with, this Directive and the Specific Directives. 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 upon request and in conformity with 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.’;

| 6. | Articles 6 and 7 shall be replaced by the following:
  ‘Article 6
  Consultation and transparency mechanism
  Except in cases falling within Articles 7(9), 20, or 21, Member States shall ensure that, where national regulatory authorities intend to take measures in accordance with this Directive or the Specific Directives, or where they intend to provide for restrictions in accordance with Article 9(3) and 9(4), which have a significant impact on the relevant market, they give interested parties the opportunity to comment on the draft measure within a reasonable period.
  National regulatory authorities shall publish their national consultation procedures.
  Member States shall ensure the establishment of a single information point through which all current consultations can be accessed.
  The results of the consultation procedure shall be made publicly available by the national regulatory authority, except in the case of confidential information in accordance with Community and national law on business confidentiality.
  Article 7
  Consolidating the internal market for electronic communications
  1.   In carrying out their tasks under this Directive and the Specific Directives, national regulatory authorities shall take the utmost account of the objectives set out in Article 8, including insofar as they relate to the functioning of the internal market.
  2.   National regulatory authorities shall contribute to the development of the internal market by cooperating with each other and with the Commission and GERT 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 GERT to identify the types of instruments and remedies best suited to address particular types of situations in the marketplace.
  3.   Except where otherwise provided in recommendations 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 |
| --- | --- | --- |

6.

Articles 6 and 7 shall be replaced by the following:

‘Article 6

Consultation and transparency mechanism

Except in cases falling within Articles 7(9), 20, or 21, Member States shall ensure that, where national regulatory authorities intend to take measures in accordance with this Directive or the Specific Directives, or where they intend to provide for restrictions in accordance with Article 9(3) and 9(4), which have a significant impact on the relevant market, they give interested parties the opportunity to comment on the draft measure within a reasonable period.

National regulatory authorities shall publish their national consultation procedures.

Member States shall ensure the establishment of a single information point through which all current consultations can be accessed.

The results of the consultation procedure shall be made publicly available by the national regulatory authority, except in the case of confidential information in accordance with Community and national law on business confidentiality.

Article 7

Consolidating the internal market for electronic communications

1.   In carrying out their tasks under this Directive and the Specific Directives, national regulatory authorities shall take the utmost account of the objectives set out in Article 8, including insofar as they relate to the functioning of the internal market.

2.   National regulatory authorities shall contribute to the development of the internal market by cooperating with each other and with the Commission and GERT 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 GERT to identify the types of instruments and remedies best suited to address particular types of situations in the marketplace.

3.   Except where otherwise provided in recommendations 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, |
| --- | --- |

(b)

would affect trade between Member States,

it shall make the draft measure accessible to the Commission, 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.

4.   Where an intended measure covered by paragraph 3 aims at:

| (a) | defining a relevant market which differs from those defined in the Recommendation in accordance with Article 15(1); or |
| --- | --- |

(a)

defining a relevant market which differs from those defined in the Recommendation in accordance with Article 15(1); or

| (b) | deciding whether or not to designate an undertaking as having, either individually or jointly with others, significant market power, under Article 16(3), (4) or (5); 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), |
| --- | --- |

(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, 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.

5.   Within the two-month period referred to in paragraph 4, the Commission may:

| (a) | take a decision in relation to the draft measure referred to in paragraph 4(a) and 4(b) requiring the national regulatory authority concerned to withdraw the draft measure, and/or |
| --- | --- |

(a)

take a decision in relation to the draft measure referred to in paragraph 4(a) and 4(b) requiring the national regulatory authority concerned to withdraw the draft measure, and/or

| (b) | issue an opinion in relation to the draft measure referred to in paragraph 4(c), or |
| --- | --- |

(b)

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

| (c) | take a decision to lift its reservations in relation to a draft measure referred to in paragraph 4. |
| --- | --- |

(c)

take a decision to lift its reservations in relation to a draft measure referred to in paragraph 4.

The Commission shall take utmost account of the opinion of the GERT before issuing a decision or an opinion under points (a) to (c). A decision or opinion under points (a) and (b) 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.

6.   Where the Commission has adopted 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 within six months of the date of the Commission's decision. When 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 shall re-notify the amended draft measure to the Commission in accordance with the provisions of paragraph 3.

7.   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 date of the Commission's 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 those reasons to the Commission within six months of the date of the Commission's opinion.

8.   The national regulatory authority shall communicate to the Commission and the GERT all final measures which fall under Article 7(3)(a) and (b).

9.   In exceptional circumstances, where a national regulatory authority considers that there is an urgent need to act, in order to safeguard competition and protect the interests of users, by way of derogation from the procedure set out in paragraphs 3 and 4, 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 authority, and 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.’;

| 7. | the following Article shall be inserted:
  ‘Article 7a
  Notifications
  1.   After public consultation and consultation with national regulatory authorities and taking utmost account of the opinion of GERT, the Commission may adopt recommendations and/or guidelines in relation to Article 7 that define the form, content and level of detail 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.
  2.   The measures referred to in paragraph 1 shall be adopted in accordance with the advisory procedure referred to in Article 22(2).’; |
| --- | --- |

7.

the following Article shall be inserted:

‘Article 7a

Notifications

1.   After public consultation and consultation with national regulatory authorities and taking utmost account of the opinion of GERT, the Commission may adopt recommendations and/or guidelines in relation to Article 7 that define the form, content and level of detail 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.

2.   The measures referred to in paragraph 1 shall be adopted in accordance with the advisory procedure referred to in Article 22(2).’;

| 8. | Article 8 shall be amended as follows:






  (a) | in paragraph 1, the second subparagraph shall be replaced by the following:
  ‘Unless otherwise provided for 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.’; |
| --- | --- | --- |

8.

Article 8 shall be amended as follows:

(a)

in paragraph 1, the second subparagraph shall be replaced by the following:

‘Unless otherwise provided for 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.’;

| (b) | in paragraph 2, point (a) shall be replaced by the following:






  ‘(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’; |
| --- | --- | --- |

(b)

in paragraph 2, point (a) shall be replaced by the following:

‘(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’;

| (c) | in paragraph 2, point (c) shall be deleted; |
| --- | --- |

(c)

in paragraph 2, point (c) shall be deleted;

| (d) | in paragraph 3, point (c) shall be deleted; |
| --- | --- |

(d)

in paragraph 3, point (c) shall be deleted;

| (e) | in paragraph 3, point (d) shall be replaced by the following:






  ‘(d) | cooperating with each other, with the Commission and GERT so as to ensure the development of consistent regulatory practice and the consistent application of this Directive and the Specific Directives.’; |
| --- | --- | --- |

(e)

in paragraph 3, point (d) shall be replaced by the following:

‘(d)

cooperating with each other, with the Commission and GERT so as to ensure the development of consistent regulatory practice and the consistent application of this Directive and the Specific Directives.’;

| (f) | in paragraph 4, point (e) shall be replaced by the following:






  ‘(e) | addressing the needs of specific social groups, in particular disabled users, elderly users and users with special social needs;’; |
| --- | --- | --- |

(f)

in paragraph 4, point (e) shall be replaced by the following:

‘(e)

addressing the needs of specific social groups, in particular disabled users, elderly users and users with special social needs;’;

| (g) | the following paragraph shall be added:
  ‘5.   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) | promoting regulatory predictability; |
| --- | --- | --- |

(g)

the following paragraph shall be added:

‘5.   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)

promoting regulatory predictability;

| (b) | ensuring that, in similar circumstances, there is no discrimination in the treatment of undertakings providing electronic communications networks and services; |
| --- | --- |

(b)

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; |
| --- | --- |

(c)

safeguarding competition to the benefit of consumers and promoting, where appropriate, infrastructure-based competition;

| (d) | promoting efficient investment and innovation in new and enhanced infrastructures, including by taking into account investment risks; |
| --- | --- |

(d)

promoting efficient investment and innovation in new and enhanced infrastructures, including by taking into account investment risks;

| (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; |
| --- | --- |

(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;

| (f) | imposing ex-ante regulatory obligations only where there is no effective and sustainable competition and relaxing or lifting such obligations as soon as such competition exists’; |
| --- | --- |

(f)

imposing ex-ante regulatory obligations only where there is no effective and sustainable competition and relaxing or lifting such obligations as soon as such competition exists’;

| 9. | the following Article shall be inserted:
  ‘Article 8a
  Strategic planning and coordination of radio spectrum policy in the European Union
  1.   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, the economic, safety, health, public interest, freedom of expression, cultural, scientific, social and technical aspects of EU policies as well as the various interests of radio spectrum user communities with the aim of optimising the use of radio spectrum and avoiding harmful interference.
  2.   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.
  3.   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) established by Commission Decision 622/2002/EC of 26 July 2002 establishing a Radio Spectrum Policy Group (17), may propose common policy objectives to the European Parliament and the Council.
  4.   The Commission, taking utmost account of the opinion of the RSPG, may submit legislative proposals for establishing multiannual radio spectrum policy programmes. |
| --- | --- |

9.

the following Article shall be inserted:

‘Article 8a

Strategic planning and coordination of radio spectrum policy in the European Union

1.   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, the economic, safety, health, public interest, freedom of expression, cultural, scientific, social and technical aspects of EU policies as well as the various interests of radio spectrum user communities with the aim of optimising the use of radio spectrum and avoiding harmful interference.

2.   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.

3.   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) established by Commission Decision 622/2002/EC of 26 July 2002 establishing a Radio Spectrum Policy Group (17), may propose common policy objectives to the European Parliament and the Council.

4.   The Commission, taking utmost account of the opinion of the RSPG, may submit legislative proposals for establishing multiannual radio spectrum policy programmes.

| 10. | Article 9 shall be replaced by the following:
  ‘Article 9
  Management of radio frequencies for electronic communications services
  1.   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 of such radio frequencies by competent national authorities are based on objective, transparent, non-discriminatory and proportionate criteria. In doing so, they shall respect relevant international agreements and may take public policy considerations into account.
  2.   Member States shall promote the harmonisation of the 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 Decision No 676/2002/EC (Radio Spectrum Decision).
  3.   Unless otherwise provided in the second subparagraph, Member States shall ensure 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 radio network or wireless access technology used for electronic communications services where this is necessary to:






  (a) | avoid harmful interference; |
| --- | --- | --- |

10.

Article 9 shall be replaced by the following:

‘Article 9

Management of radio frequencies for electronic communications services

1.   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 of such radio frequencies by competent national authorities are based on objective, transparent, non-discriminatory and proportionate criteria. In doing so, they shall respect relevant international agreements and may take public policy considerations into account.

2.   Member States shall promote the harmonisation of the 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 Decision No 676/2002/EC (Radio Spectrum Decision).

3.   Unless otherwise provided in the second subparagraph, Member States shall ensure 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 radio network or wireless access technology used for electronic communications services where this is necessary to:

(a)

avoid harmful interference;

| (b) | protect public health against electromagnetic fields; |
| --- | --- |

(b)

protect public health against electromagnetic fields;

| (c) | ensure technical quality of service; |
| --- | --- |

(c)

ensure technical quality of service;

| (d) | ensure maximisation of radio frequency sharing; |
| --- | --- |

(d)

ensure maximisation of radio frequency sharing;

| (e) | safeguard efficient use of spectrum, or |
| --- | --- |

(e)

safeguard efficient use of spectrum, or

| (f) | ensure the fulfilment of a general interest objective in accordance with paragraph 4. |
| --- | --- |

(f)

ensure the fulfilment of a general interest objective in accordance with paragraph 4.

4.   Unless otherwise provided for in the second subparagraph, Member States shall ensure 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. Member States may, however, provide for proportionate and non-discriminatory restrictions to the types of electronic communications services to be provided.

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) | safety of life, |
| --- | --- |

(a)

safety of life,

| (b) | the promotion of social, regional or territorial cohesion, |
| --- | --- |

(b)

the promotion of social, regional or territorial cohesion,

| (c) | the avoidance of inefficient use of radio frequencies, or |
| --- | --- |

(c)

the avoidance of inefficient use of radio frequencies, or

| (d) | the promotion of cultural and linguistic diversity and media pluralism, for example by the provision of radio and television broadcasting services. |
| --- | --- |

(d)

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 a measure in order to fulfil other general interest objectives.

5.   Member States shall regularly review the necessity of the restrictions referred to in paragraphs 3 and 4, and shall make the results of these reviews public.

6.   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 ... (18).

Spectrum allocations, general authorisations and individual rights of use which existed by ... (18) shall be subject to Article 9a.

7.   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 penalties, including financial penalties or the 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.’;

| 11. | The following Articles shall be inserted:
  ‘Article 9a
  Review of restrictions on existing rights
  1.   For a period of five years starting from ... (18), Member States shall 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 on their rights in accordance with Article 9(3) and (4).
  Before adopting its decision, the competent national authority shall notify the right holder of its reassessment of the restrictions, indicating the extent of the right after reassessment, and shall 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 until the end of the five-year period, whichever is the earlier date.
  2.   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 or individual rights of use and spectrum allocations used for electronic communications services which existed on ... (18).
  3.   In applying this Article, Member States shall take appropriate measures to promote fair competition.
  4.   Measures 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).
  Article 9b
  Transfer or lease of individual rights to use radio frequencies
  1.   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.
  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.
  2.   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 Decision No 676/2002/EC (Radio Spectrum Decision) or other Community measures, any such transfer shall comply with such harmonised use.’; |
| --- | --- |

11.

The following Articles shall be inserted:

‘Article 9a

Review of restrictions on existing rights

1.   For a period of five years starting from ... (18), Member States shall 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 on their rights in accordance with Article 9(3) and (4).

Before adopting its decision, the competent national authority shall notify the right holder of its reassessment of the restrictions, indicating the extent of the right after reassessment, and shall 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 until the end of the five-year period, whichever is the earlier date.

2.   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 or individual rights of use and spectrum allocations used for electronic communications services which existed on ... (18).

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

4.   Measures 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).

Article 9b

Transfer or lease of individual rights to use radio frequencies

1.   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.

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.

2.   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 Decision No 676/2002/EC (Radio Spectrum Decision) or other Community measures, any such transfer shall comply with such harmonised use.’;

| 12. | Article 10 shall be amended as follows:






  (a) | Paragraphs 1 and 2 shall be replaced by the following:
  ‘1.   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.
  2.   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.’; |
| --- | --- | --- |

12.

Article 10 shall be amended as follows:

(a)

Paragraphs 1 and 2 shall be replaced by the following:

‘1.   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.

2.   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.’;

| (b) | paragraph 4 shall be replaced by the following:
  ‘4.   Member States shall support the harmonisation of specific numbers or numbering ranges within the Community where it 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).’; |
| --- | --- |

(b)

paragraph 4 shall be replaced by the following:

‘4.   Member States shall support the harmonisation of specific numbers or numbering ranges within the Community where it 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).’;

| 13. | Article 11 shall be amended as follows:






  (a) | paragraph 1, second subparagraph, first indent shall be replaced by the following:






  ‘— | acts on the basis of efficient, transparent and publicly available procedures, applied without discrimination and without delay, and in any event makes its decision within six months of the application, except in cases of expropriation, and’; |
| --- | --- | --- | --- |

13.

Article 11 shall be amended as follows:

(a)

paragraph 1, second subparagraph, first indent shall be replaced by the following:

‘—

acts on the basis of efficient, transparent and publicly available procedures, applied without discrimination and without delay, and in any event makes its decision within six months of the application, except in cases of expropriation, and’;

| (b) | paragraph 2 shall be replaced by the following:
  ‘2.   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 an effective structural separation of the function responsible for granting the rights referred to in paragraph 1 from the activities associated with ownership or control.’; |
| --- | --- |

(b)

paragraph 2 shall be replaced by the following:

‘2.   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 an effective structural separation of the function responsible for granting the rights referred to in paragraph 1 from the activities associated with ownership or control.’;

| 14. | Article 12 shall be replaced by the following:
  ‘Article 12
  Co-location and sharing of network elements and associated facilities for providers of electronic communications networks
  1.   Where an undertaking providing electronic communications networks has the right under national legislation to install facilities on, over or under public or private property, or may take advantage of a procedure for the expropriation or use of property, national regulatory authorities shall 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, and network elements which are not active.
  2.   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.
  3.   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.
  4.   Measures taken by a national regulatory authority in accordance with paragraph 1 shall be objective, transparent, non-discriminatory, and proportionate.’; |
| --- | --- |

14.

Article 12 shall be replaced by the following:

‘Article 12

Co-location and sharing of network elements and associated facilities for providers of electronic communications networks

1.   Where an undertaking providing electronic communications networks has the right under national legislation to install facilities on, over or under public or private property, or may take advantage of a procedure for the expropriation or use of property, national regulatory authorities shall 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, and network elements which are not active.

2.   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.

3.   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.

4.   Measures taken by a national regulatory authority in accordance with paragraph 1 shall be objective, transparent, non-discriminatory, and proportionate.’;

| 15. | the following chapter shall be inserted:
  ‘CHAPTER IIIa

  SECURITY AND INTEGRITY OF NETWORKS AND SERVICES

  Article 13a
  Security and integrity
  1.   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 the risks posed 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 interconnected networks.
  2.   Member States shall ensure that undertakings providing public communications networks take all appropriate steps to guarantee the integrity of their networks, and thus ensure the continuity of supply of services provided over those networks.
  3.   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 has 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.
  4.   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 shall be based on European and international standards to the greatest extent possible, and 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 regulatory procedure with scrutiny referred to in Article 22(3).
  Article 13b
  Implementation and enforcement
  1.   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.
  2.   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 |
| --- | --- | --- |

15.

the following chapter shall be inserted:

‘CHAPTER IIIa

SECURITY AND INTEGRITY OF NETWORKS AND SERVICES

Article 13a

Security and integrity

1.   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 the risks posed 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 interconnected networks.

2.   Member States shall ensure that undertakings providing public communications networks take all appropriate steps to guarantee the integrity of their networks, and thus ensure the continuity of supply of services provided over those networks.

3.   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 has 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.

4.   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 shall be based on European and international standards to the greatest extent possible, and 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 regulatory procedure with scrutiny referred to in Article 22(3).

Article 13b

Implementation and enforcement

1.   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.

2.   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 the results thereof available to the national regulatory authority. The cost of the audit shall be paid by the undertaking. |
| --- | --- |

(b)

submit to a security audit carried out by a qualified independent body or a competent national authority and make the results thereof available to the national regulatory authority. The cost of the audit shall be paid by the undertaking.

3.   Member States shall ensure that national regulatory authorities have all the powers necessary to investigate cases of non-compliance.

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

| 16. | in Article 14, paragraph 3 shall be replaced by the following:
  ‘3.   Where an undertaking has significant market power on a specific market, it may also be deemed to have significant market power on a closely related market, where the links between the two markets are such as to allow the market power held in one market to be leveraged into the other market, thereby strengthening the market power of the undertaking. 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/EC (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.’; |
| --- | --- |

16.

in Article 14, paragraph 3 shall be replaced by the following:

‘3.   Where an undertaking has significant market power on a specific market, it may also be deemed to have significant market power on a closely related market, where the links between the two markets are such as to allow the market power held in one market to be leveraged into the other market, thereby strengthening the market power of the undertaking. 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/EC (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.’;

| 17. | Article 15 shall be amended as follows:






  (a) | the heading shall be replaced by the following:
  ‘Procedure for the identification and definition of markets’; |
| --- | --- | --- |

17.

Article 15 shall be amended as follows:

(a)

the heading shall be replaced by the following:

‘Procedure for the identification and definition of markets’;

| (b) | in paragraph 1, the first subparagraph shall be replaced by the following:
  ‘1.   After public consultation and consultation with national regulatory authorities and taking the utmost account of the opinion of GERT, the Commission shall, in accordance with the procedure referred to in Article 22(2), adopt a Recommendation on Relevant Product and Service Markets (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.’; |
| --- | --- |

(b)

in paragraph 1, the first subparagraph shall be replaced by the following:

‘1.   After public consultation and consultation with national regulatory authorities and taking the utmost account of the opinion of GERT, the Commission shall, in accordance with the procedure referred to in Article 22(2), adopt a Recommendation on Relevant Product and Service Markets (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.’;

| (c) | paragraph 3 shall be replaced by the following:
  ‘3.   National regulatory authorities shall, taking the utmost account of the Recommendation and the Guidelines, define relevant markets appropriate to national circumstances, in particular relevant geographic markets within their territory, in accordance with the principles of competition law. National regulatory authorities shall follow the procedures referred to in Articles 6 and 7 before defining the markets that differ from those identified in the Recommendation.’; |
| --- | --- |

(c)

paragraph 3 shall be replaced by the following:

‘3.   National regulatory authorities shall, taking the utmost account of the Recommendation and the Guidelines, define relevant markets appropriate to national circumstances, in particular relevant geographic markets within their territory, in accordance with the principles of competition law. National regulatory authorities shall follow the procedures referred to in Articles 6 and 7 before defining the markets that differ from those identified in the Recommendation.’;

| (d) | paragraph 4 shall be replaced by the following:
  ‘4.   After consultation with national regulatory authorities the Commission may, taking the utmost account of the opinion of GERT, adopt a Decision identifying transnational markets, acting in accordance with the procedure referred to in Article 22(2a).’; |
| --- | --- |

(d)

paragraph 4 shall be replaced by the following:

‘4.   After consultation with national regulatory authorities the Commission may, taking the utmost account of the opinion of GERT, adopt a Decision identifying transnational markets, acting in accordance with the procedure referred to in Article 22(2a).’;

| 18. | Article 16 shall be amended as follows:






  (a) | Paragraphs 1 and 2 shall be replaced by the following:
  ‘1.   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.
  2.   Where a national regulatory authority is required under paragraphs 3 or 4 of this Article, Article 17 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.’; |
| --- | --- | --- |

18.

Article 16 shall be amended as follows:

(a)

Paragraphs 1 and 2 shall be replaced by the following:

‘1.   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.

2.   Where a national regulatory authority is required under paragraphs 3 or 4 of this Article, Article 17 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.’;

| (b) | paragraphs 4, 5 and 6 shall be replaced by the following:
  ‘4.   Where a national regulatory authority determines that a relevant market is not effectively competitive, it shall identify undertakings which individually or jointly 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.
  5.   In the case of transnational markets identified in the Decision referred to in Article 15(4), the national regulatory authorities concerned shall jointly conduct the market analysis taking the utmost account of the Guidelines and, in a concerted fashion, shall decide on any imposition, maintenance, amendment or withdrawal of regulatory obligations referred to in paragraph 2 of this Article.
  6.   Measures taken in accordance with the provisions of paragraphs 3 and 4 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:






  (a) | 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 national regulatory authority has notified a reasoned proposed extension to the Commission and the Commission has not objected within one month of the notified extension; |
| --- | --- | --- |

(b)

paragraphs 4, 5 and 6 shall be replaced by the following:

‘4.   Where a national regulatory authority determines that a relevant market is not effectively competitive, it shall identify undertakings which individually or jointly 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.

5.   In the case of transnational markets identified in the Decision referred to in Article 15(4), the national regulatory authorities concerned shall jointly conduct the market analysis taking the utmost account of the Guidelines and, in a concerted fashion, shall decide on any imposition, maintenance, amendment or withdrawal of regulatory obligations referred to in paragraph 2 of this Article.

6.   Measures taken in accordance with the provisions of paragraphs 3 and 4 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:

(a)

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 national regulatory authority has notified a reasoned proposed extension to the Commission and the Commission has not objected within one month of the notified extension;

| (b) | within two years from the adoption of a revised Recommendation on relevant markets, for markets not previously notified to the Commission, or; |
| --- | --- |

(b)

within two years from the adoption of a revised Recommendation on relevant markets, for markets not previously notified to the Commission, or;

| (c) | within two years from their accession, for Member States which have newly joined the Union.’; |
| --- | --- |

(c)

within two years from their accession, for Member States which have newly joined the Union.’;

| (c) | the following paragraph shall be added:
  ‘7.   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, upon request, provide assistance to the national regulatory authority concerned 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.’; |
| --- | --- |

(c)

the following paragraph shall be added:

‘7.   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, upon request, provide assistance to the national regulatory authority concerned 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.’;

| 19. | Article 17 shall be amended as follows:






  (a) | in the second sentence of paragraph 1, the words ‘acting in accordance with the procedure referred to in Article 22(2)’ are replaced by ‘acting in accordance with the procedure referred to in Article 22(2a)’; |
| --- | --- | --- |

19.

Article 17 shall be amended as follows:

(a)

in the second sentence of paragraph 1, the words ‘acting in accordance with the procedure referred to in Article 22(2)’ are replaced by ‘acting in accordance with the procedure referred to in Article 22(2a)’;

| (b) | the third subparagraph of paragraph 2 shall be replaced by the following:
  ‘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) and the International Electrotechnical Commission (IEC).’; |
| --- | --- |

(b)

the third subparagraph of paragraph 2 shall be replaced by the following:

‘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) and the International Electrotechnical Commission (IEC).’;

| (c) | paragraphs 4 and 5 shall be replaced by the following:
  ‘4.   Where the Commission intends to make the implementation of certain standards and/or specifications compulsory, it shall publish a notice in the Official Journal of the European Union 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 Union.
  5.   Where the Commission considers that standards and/or specifications referred to in paragraph 1 no longer contribute to the provision of harmonised electronic communications services, or that they no longer meet consumers’ needs or are hampering technological development, it shall, acting in accordance with the procedure referred to in Article 22(2a), remove them from the list of standards and/or specifications referred to in paragraph 1.’; |
| --- | --- |

(c)

paragraphs 4 and 5 shall be replaced by the following:

‘4.   Where the Commission intends to make the implementation of certain standards and/or specifications compulsory, it shall publish a notice in the Official Journal of the European Union 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 Union.

5.   Where the Commission considers that standards and/or specifications referred to in paragraph 1 no longer contribute to the provision of harmonised electronic communications services, or that they no longer meet consumers’ needs or are hampering technological development, it shall, acting in accordance with the procedure referred to in Article 22(2a), remove them from the list of standards and/or specifications referred to in paragraph 1.’;

| (d) | in paragraph 6, the words ‘acting in accordance with the procedure referred to in Article 22(3), remove them from this list of standards and/or specifications referred to in paragraph 1’ shall be replaced by the words ‘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’; |
| --- | --- |

(d)

in paragraph 6, the words ‘acting in accordance with the procedure referred to in Article 22(3), remove them from this list of standards and/or specifications referred to in paragraph 1’ shall be replaced by the words ‘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’;

| (e) | the following paragraph shall be inserted:
  ‘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).’; |
| --- | --- |

(e)

the following paragraph shall be inserted:

‘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).’;

| 20. | Article 18 shall be amended as follows:






  (a) | in paragraph 1, the following point (c) shall be added:






  ‘(c) | providers of digital TV services and equipment to cooperate in the provision of interoperable TV services for disabled end-users.’; |
| --- | --- | --- | --- |

20.

Article 18 shall be amended as follows:

(a)

in paragraph 1, the following point (c) shall be added:

‘(c)

providers of digital TV services and equipment to cooperate in the provision of interoperable TV services for disabled end-users.’;

| (b) | paragraph 3 shall be deleted; |
| --- | --- |

(b)

paragraph 3 shall be deleted;

| 21. | Article 19 shall be replaced by the following:
  ‘Article 19
  Harmonisation procedures
  1.   Without prejudice to Article 9 of this Directive and 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 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.
  2.   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 reasons for its position.
  3.   GERT may on its own initiative advise the Commission on whether a measure should be adopted pursuant to paragraph 1.’; |
| --- | --- |

21.

Article 19 shall be replaced by the following:

‘Article 19

Harmonisation procedures

1.   Without prejudice to Article 9 of this Directive and 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 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.

2.   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 reasons for its position.

3.   GERT may on its own initiative advise the Commission on whether a measure should be adopted pursuant to paragraph 1.’;

| 22. | Article 20(1) shall be replaced by the following:
  ‘1.   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 interconnection arising under this Directive or the Specific Directives, 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.’; |
| --- | --- |

22.

Article 20(1) shall be replaced by the following:

‘1.   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 interconnection arising under this Directive or the Specific Directives, 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.’;

| 23. | Article 21 shall be replaced by the following:
  ‘Article 21
  Resolution of cross-border disputes
  1.   In the event of a cross-border dispute arising under this Directive or the Specific Directives between parties in different Member States, and 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.
  2.   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 GERT to adopt 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 GERT, any national regulatory authority with competence in any aspect of the dispute shall await GERT's opinion before taking action to resolve the dispute. This shall not preclude national regulatory authorities from taking 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 adopted by GERT.
  3.   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 resolving 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, where 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 resolve the dispute, in accordance with the provisions set out in Article 8 and taking the utmost account of any opinion adopted by GERT.
  4.   The procedure referred to in paragraph 2 shall not preclude either party from bringing an action before the courts.’; |
| --- | --- |

23.

Article 21 shall be replaced by the following:

‘Article 21

Resolution of cross-border disputes

1.   In the event of a cross-border dispute arising under this Directive or the Specific Directives between parties in different Member States, and 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.

2.   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 GERT to adopt 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 GERT, any national regulatory authority with competence in any aspect of the dispute shall await GERT's opinion before taking action to resolve the dispute. This shall not preclude national regulatory authorities from taking 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 adopted by GERT.

3.   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 resolving 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, where 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 resolve the dispute, in accordance with the provisions set out in Article 8 and taking the utmost account of any opinion adopted by GERT.

4.   The procedure referred to in paragraph 2 shall not preclude either party from bringing an action before the courts.’;

| 24. | the following Article shall be inserted:
  ‘Article 21a
  Penalties
  Member States shall lay down rules on penalties applicable to infringements of 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. The Member States shall notify those provisions to the Commission by ... (19) and shall notify it without delay of any subsequent amendment affecting them.’; |
| --- | --- |

24.

the following Article shall be inserted:

‘Article 21a

Penalties

Member States shall lay down rules on penalties applicable to infringements of 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. The Member States shall notify those provisions to the Commission by ... (19) and shall notify it without delay of any subsequent amendment affecting them.’;

| 25. | Article 22 shall be amended as follows:






  (a) | paragraph 2a shall be added:
  ‘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.’; |
| --- | --- | --- |

25.

Article 22 shall be amended as follows:

(a)

paragraph 2a shall be added:

‘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.’;

| (b) | paragraph 3 shall be replaced by the following:
  ‘3.   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.’; |
| --- | --- |

(b)

paragraph 3 shall be replaced by the following:

‘3.   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.’;

| (c) | paragraph 4 shall be deleted.; |
| --- | --- |

(c)

paragraph 4 shall be deleted.;

| 26. | Article 27 shall be deleted; |
| --- | --- |

26.

Article 27 shall be deleted;

| 27. | Annex I shall be deleted; |
| --- | --- |

27.

Annex I shall be deleted;

| 28. | Annex II shall be replaced by the following:

  ‘ANNEX II

  Criteria to be used by national regulatory authorities in making an assessment of joint dominance in accordance with the second subparagraph of Article 14(2)

  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 out in Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (20), 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:






  — | low elasticity of demand |
| --- | --- | --- |

28.

Annex II shall be replaced by the following:

‘ANNEX II

Criteria to be used by national regulatory authorities in making an assessment of joint dominance in accordance with the second subparagraph of Article 14(2)

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 out in Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (20), 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:

—

low elasticity of demand

| — | similar market shares |
| --- | --- |

—

similar market shares

| — | high legal or economic barriers to entry |
| --- | --- |

—

high legal or economic barriers to entry

| — | vertical integration with collective refusal to supply |
| --- | --- |

—

vertical integration with collective refusal to supply

| — | lack of countervailing buyer power |
| --- | --- |

—

lack of countervailing buyer power

| — | lack of potential competition. |
| --- | --- |

—

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 type of evidence that could be used to support assertions concerning the existence of joint dominance.

Article 2

Amendments to Directive 2002/19/EC (Access Directive)

Directive 2002/19/EC is hereby amended as follows:

| 1. | Article 2 shall be amended as follows:






  (a) | point (a) shall be replaced by the following:






  ‘(a) | “access” means the making available of facilities and/or services to another undertaking, under defined conditions, on either an exclusive or non-exclusive basis, for the purpose of providing electronic communications services, including when they are used for the delivery of information society services or broadcast content services. It covers inter alia: access to network elements and associated facilities, which may involve the connection of equipment, by fixed or non-fixed means (in particular this includes access to the local loop and to facilities and services necessary to provide services over the local loop); access to physical infrastructure including buildings, ducts and masts; access to relevant software systems including operational support systems; access to information systems or databases for pre-ordering, provisioning, ordering, maintaining and repair requests, and billing; access to number translation or systems offering equivalent functionality; access to fixed and mobile networks, in particular for roaming; access to conditional access systems for digital television services and access to virtual network services.’; |
| --- | --- | --- | --- |

1.

Article 2 shall be amended as follows:

(a)

point (a) shall be replaced by the following:

‘(a)

“access” means the making available of facilities and/or services to another undertaking, under defined conditions, on either an exclusive or non-exclusive basis, for the purpose of providing electronic communications services, including when they are used for the delivery of information society services or broadcast content services. It covers inter alia: access to network elements and associated facilities, which may involve the connection of equipment, by fixed or non-fixed means (in particular this includes access to the local loop and to facilities and services necessary to provide services over the local loop); access to physical infrastructure including buildings, ducts and masts; access to relevant software systems including operational support systems; access to information systems or databases for pre-ordering, provisioning, ordering, maintaining and repair requests, and billing; access to number translation or systems offering equivalent functionality; access to fixed and mobile networks, in particular for roaming; access to conditional access systems for digital television services and access to virtual network services.’;

| (b) | point (e) shall be replaced by the following:






  ‘(e) | “local loop” means the physical circuit connecting the network termination point at the subscriber's premises to the main distribution frame or equivalent facility in the fixed public electronic communications network.’; |
| --- | --- | --- |

(b)

point (e) shall be replaced by the following:

‘(e)

“local loop” means the physical circuit connecting the network termination point at the subscriber's premises to the main distribution frame or equivalent facility in the fixed public electronic communications network.’;

| 2. | Article 4(1) shall be replaced by the following:
  ‘1.   Operators of public communications networks shall have a right and, when requested by other undertakings so authorised in accordance with Article 4 of Directive 2002/20/EC (Authorisation Directive), an obligation to negotiate interconnection with each other for the purpose of providing publicly available electronic communications services, in order to ensure provision and interoperability of services throughout the Community. Operators shall offer access and interconnection to other undertakings on terms and conditions consistent with obligations imposed by the national regulatory authority pursuant to Articles 5 to 8.’; |
| --- | --- |

2.

Article 4(1) shall be replaced by the following:

‘1.   Operators of public communications networks shall have a right and, when requested by other undertakings so authorised in accordance with Article 4 of Directive 2002/20/EC (Authorisation Directive), an obligation to negotiate interconnection with each other for the purpose of providing publicly available electronic communications services, in order to ensure provision and interoperability of services throughout the Community. Operators shall offer access and interconnection to other undertakings on terms and conditions consistent with obligations imposed by the national regulatory authority pursuant to Articles 5 to 8.’;

| 3. | Article 5 shall be amended as follows:






  (a) | in paragraph 1, the first subparagraph shall be replaced by the following:
  ‘1.   National regulatory authorities shall, acting in pursuit of the objectives set out in Article 8 of Directive 2002/21/EC (Framework Directive), encourage and where appropriate ensure, in accordance with the provisions of this Directive, adequate access and interconnection, and the interoperability of services, exercising their responsibility in a way that promotes efficiency, sustainable competition, efficient investment and innovation, and gives the maximum benefit to end-users.’; |
| --- | --- | --- |

3.

Article 5 shall be amended as follows:

(a)

in paragraph 1, the first subparagraph shall be replaced by the following:

‘1.   National regulatory authorities shall, acting in pursuit of the objectives set out in Article 8 of Directive 2002/21/EC (Framework Directive), encourage and where appropriate ensure, in accordance with the provisions of this Directive, adequate access and interconnection, and the interoperability of services, exercising their responsibility in a way that promotes efficiency, sustainable competition, efficient investment and innovation, and gives the maximum benefit to end-users.’;

| (b) | paragraph 2 shall be replaced by the following:
  ‘2.   Obligations and conditions imposed in accordance with paragraph 1 shall be objective, transparent, proportionate and non-discriminatory, and shall be implemented in accordance with the procedures referred to in Articles 6 and 7 of Directive 2002/21/EC (Framework Directive).’; |
| --- | --- |

(b)

paragraph 2 shall be replaced by the following:

‘2.   Obligations and conditions imposed in accordance with paragraph 1 shall be objective, transparent, proportionate and non-discriminatory, and shall be implemented in accordance with the procedures referred to in Articles 6 and 7 of Directive 2002/21/EC (Framework Directive).’;

| (c) | paragraph 3 shall be deleted; |
| --- | --- |

(c)

paragraph 3 shall be deleted;

| (d) | paragraph 4 shall be replaced by the following:
  ‘3.   With regard to access and interconnection referred to in paragraph 1, Member States shall ensure that the national regulatory authority is empowered to intervene at its own initiative where justified in order to secure the policy objectives of Article 8 of Directive 2002/21/EC (Framework Directive), in accordance with the provisions of this Directive and the procedures referred to in Articles 6 and 7, 20 and 21 of Directive 2002/21/EC (Framework Directive).’; |
| --- | --- |

(d)

paragraph 4 shall be replaced by the following:

‘3.   With regard to access and interconnection referred to in paragraph 1, Member States shall ensure that the national regulatory authority is empowered to intervene at its own initiative where justified in order to secure the policy objectives of Article 8 of Directive 2002/21/EC (Framework Directive), in accordance with the provisions of this Directive and the procedures referred to in Articles 6 and 7, 20 and 21 of Directive 2002/21/EC (Framework Directive).’;

| 4. | Article 6(2) shall be replaced by the following:
  ‘2.   In the light of market and technological developments, the Commission may adopt implementing measures to amend Annex I. The measures, designed to amend non-essential elements of this Directive, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 14(3).’; |
| --- | --- |

4.

Article 6(2) shall be replaced by the following:

‘2.   In the light of market and technological developments, the Commission may adopt implementing measures to amend Annex I. The measures, designed to amend non-essential elements of this Directive, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 14(3).’;

| 5. | Article 7 shall be deleted; |
| --- | --- |

5.

Article 7 shall be deleted;

| 6. | Article 8 shall be amended as follows:






  (a) | in paragraph 1, the words ‘Articles 9 to 13’ shall be replaced by the words ‘Articles 9 to 13a’; |
| --- | --- | --- |

6.

Article 8 shall be amended as follows:

(a)

in paragraph 1, the words ‘Articles 9 to 13’ shall be replaced by the words ‘Articles 9 to 13a’;

| (b) | paragraph 3 shall be amended as follows:






  (i) | the first subparagraph shall be amended as follows:






  — | in the first indent, the words ‘Articles 5(1), 5(2) and 6’ shall be replaced by the words ‘Articles 5(1) and 6’; |
| --- | --- | --- | --- |

(b)

paragraph 3 shall be amended as follows:

(i)

the first subparagraph shall be amended as follows:

—

in the first indent, the words ‘Articles 5(1), 5(2) and 6’ shall be replaced by the words ‘Articles 5(1) and 6’;

| — | in the second indent, ‘Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector (21)’ shall be replaced by ‘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) (22) |
| --- | --- |

—

in the second indent, ‘Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector (21)’ shall be replaced by ‘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) (22)

21

22

| (ii) | the second subparagraph shall be replaced by the following:
  ‘In exceptional circumstances, when a national regulatory authority intends to impose on operators with significant market power obligations for access or interconnection other than those set out in Articles 9 to 13 in this Directive, it shall submit this request to the Commission. The Commission shall take utmost account of the opinion of the Group of Europeans Regulators in Telecoms (GERT) (23). The Commission, acting in accordance with Article 14(2), shall take a decision authorising or preventing the national regulatory authority from taking such measures. |
| --- | --- |

(ii)

the second subparagraph shall be replaced by the following:

‘In exceptional circumstances, when a national regulatory authority intends to impose on operators with significant market power obligations for access or interconnection other than those set out in Articles 9 to 13 in this Directive, it shall submit this request to the Commission. The Commission shall take utmost account of the opinion of the Group of Europeans Regulators in Telecoms (GERT) (23). The Commission, acting in accordance with Article 14(2), shall take a decision authorising or preventing the national regulatory authority from taking such measures.

23

| 7. | Article 9 shall be amended as follows:






  (a) | paragraph 1 shall be replaced by the following:
  ‘1.   National regulatory authorities may, in accordance with the provisions of Article 8, impose obligations for transparency in relation to interconnection and/or access, requiring operators to make public specified information, such as accounting information, technical specifications, network characteristics, terms and conditions for supply and use, including traffic management policies, and prices.’; |
| --- | --- | --- |

7.

Article 9 shall be amended as follows:

(a)

paragraph 1 shall be replaced by the following:

‘1.   National regulatory authorities may, in accordance with the provisions of Article 8, impose obligations for transparency in relation to interconnection and/or access, requiring operators to make public specified information, such as accounting information, technical specifications, network characteristics, terms and conditions for supply and use, including traffic management policies, and prices.’;

| (b) | paragraph 4 shall be replaced by the following:
  ‘4.   Notwithstanding paragraph 3, where an operator has obligations under Article 12 concerning wholesale network infrastructure access, including unbundled access to the local loop at a fixed location, national regulatory authorities shall ensure the publication of a reference offer containing at least the elements set out in Annex II.’; |
| --- | --- |

(b)

paragraph 4 shall be replaced by the following:

‘4.   Notwithstanding paragraph 3, where an operator has obligations under Article 12 concerning wholesale network infrastructure access, including unbundled access to the local loop at a fixed location, national regulatory authorities shall ensure the publication of a reference offer containing at least the elements set out in Annex II.’;

| (c) | paragraph 5 shall be replaced by the following:
  ‘5.   The Commission may adopt the necessary amendments to Annex II in order to adapt it to technological and market developments. The measures, designed to amend non-essential elements of this Directive, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 14(3). In implementing the provisions of this paragraph, the Commission may be assisted by GERT.’; |
| --- | --- |

(c)

paragraph 5 shall be replaced by the following:

‘5.   The Commission may adopt the necessary amendments to Annex II in order to adapt it to technological and market developments. The measures, designed to amend non-essential elements of this Directive, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 14(3). In implementing the provisions of this paragraph, the Commission may be assisted by GERT.’;

| 8. | Article 12 shall be amended as follows:






  (a) | in paragraph 1, point (a) shall be replaced by the following:






  ‘(a) | to give third parties access to specified network elements and/or facilities, including access to network elements which are not active and/or unbundled access to the local loop, to inter alia allow carrier selection and/or pre-selection and/or subscriber line resale offer;’; |
| --- | --- | --- | --- |

8.

Article 12 shall be amended as follows:

(a)

in paragraph 1, point (a) shall be replaced by the following:

‘(a)

to give third parties access to specified network elements and/or facilities, including access to network elements which are not active and/or unbundled access to the local loop, to inter alia allow carrier selection and/or pre-selection and/or subscriber line resale offer;’;

| (b) | in paragraph 1, point (f) shall be replaced by the following:






  ‘(f) | to provide co-location or other forms of associated facility sharing, including the sharing of ducts, buildings or entry to buildings, antennae, towers and other supporting constructions, conduits, masts, manholes and cabinets;’; |
| --- | --- | --- |

(b)

in paragraph 1, point (f) shall be replaced by the following:

‘(f)

to provide co-location or other forms of associated facility sharing, including the sharing of ducts, buildings or entry to buildings, antennae, towers and other supporting constructions, conduits, masts, manholes and cabinets;’;

| (c) | in paragraph 1, the following point shall be added:






  ‘(j) | to provide access to associated services such as identity, location and presence service.’; |
| --- | --- | --- |

(c)

in paragraph 1, the following point shall be added:

‘(j)

to provide access to associated services such as identity, location and presence service.’;

| (d) | in paragraph 2, the introductory phrase and point (a) shall be replaced by the following:
  ‘2.   When national regulatory authorities are considering the obligations referred in paragraph 1, and in particular when assessing how such obligations would be imposed proportionate to the objectives set out in Article 8 of Directive 2002/21/EC (Framework Directive), they shall take account in particular of the following factors:






  (a) | the technical and economic viability of using or installing competing facilities, in the light of the rate of market development, taking into account the nature and type of interconnection and/or access involved, including the viability of other upstream access products such as access to ducts;’; |
| --- | --- | --- |

(d)

in paragraph 2, the introductory phrase and point (a) shall be replaced by the following:

‘2.   When national regulatory authorities are considering the obligations referred in paragraph 1, and in particular when assessing how such obligations would be imposed proportionate to the objectives set out in Article 8 of Directive 2002/21/EC (Framework Directive), they shall take account in particular of the following factors:

(a)

the technical and economic viability of using or installing competing facilities, in the light of the rate of market development, taking into account the nature and type of interconnection and/or access involved, including the viability of other upstream access products such as access to ducts;’;

| (e) | in paragraph 2, point (d) shall be replaced by the following:






  ‘(d) | the need to safeguard competition in the long term, including through economically efficient infrastructure-based competition;’; |
| --- | --- | --- |

(e)

in paragraph 2, point (d) shall be replaced by the following:

‘(d)

the need to safeguard competition in the long term, including through economically efficient infrastructure-based competition;’;

| (f) | the following paragraph 3 shall be added:
  ‘3.   When imposing obligations on an operator to provide access in accordance with the provisions of this Article, national regulatory authorities may lay down technical or operational conditions to be met by the provider and/or beneficiaries of such access where necessary to ensure normal operation of the network. Obligations to follow specific technical standards or specifications shall be in compliance with the standards and specifications laid down in accordance with Article 17 of Directive 2002/21/EC (Framework Directive).’; |
| --- | --- |

(f)

the following paragraph 3 shall be added:

‘3.   When imposing obligations on an operator to provide access in accordance with the provisions of this Article, national regulatory authorities may lay down technical or operational conditions to be met by the provider and/or beneficiaries of such access where necessary to ensure normal operation of the network. Obligations to follow specific technical standards or specifications shall be in compliance with the standards and specifications laid down in accordance with Article 17 of Directive 2002/21/EC (Framework Directive).’;

| 9. | Article 13 shall be amended as follows:






  (a) | paragraph 1 shall be replaced by the following:
  ‘1.   A national regulatory authority may, in accordance with the provisions of Article 8, impose obligations relating to cost recovery and price controls, including obligations for cost orientation of prices and obligations concerning cost accounting systems, for the provision of specific types of interconnection and/or access, in situations where a market analysis indicates that a lack of effective competition means that the operator concerned may sustain prices at an excessively high level, or may apply a price squeeze, to the detriment of end-users. To encourage investments by the operator, including in next generation networks, national regulatory authorities shall take into account the investment made by the operator, and allow him a reasonable rate of return on adequate capital employed, taking into account the risks involved.’; |
| --- | --- | --- |

9.

Article 13 shall be amended as follows:

(a)

paragraph 1 shall be replaced by the following:

‘1.   A national regulatory authority may, in accordance with the provisions of Article 8, impose obligations relating to cost recovery and price controls, including obligations for cost orientation of prices and obligations concerning cost accounting systems, for the provision of specific types of interconnection and/or access, in situations where a market analysis indicates that a lack of effective competition means that the operator concerned may sustain prices at an excessively high level, or may apply a price squeeze, to the detriment of end-users. To encourage investments by the operator, including in next generation networks, national regulatory authorities shall take into account the investment made by the operator, and allow him a reasonable rate of return on adequate capital employed, taking into account the risks involved.’;

| (b) | the following paragraph shall be added:
  ‘5.   Instead of imposing obligations on cost accounting systems, national regulatory authorities may accept the use of alternative interconnection pricing methods, such as the “bill and keep” method, provided that such methods do not hinder or distort competition.’; |
| --- | --- |

(b)

the following paragraph shall be added:

‘5.   Instead of imposing obligations on cost accounting systems, national regulatory authorities may accept the use of alternative interconnection pricing methods, such as the “bill and keep” method, provided that such methods do not hinder or distort competition.’;

| 10. | the following Articles shall be inserted:
  ‘Article 13a
  Functional separation
  1.   Where the national regulatory authority concludes that the appropriate obligations imposed under Articles 9 to 13 have failed to achieve effective competition and that there are important and persisting competition problems and/or market failures identified in relation to the wholesale provision of certain access products, it may, as an exceptional measure, in accordance with the provisions of the second subparagraph of Article 8(3), impose an obligation on vertically integrated undertakings to place activities related to the wholesale provision of relevant access products in an independently operating business entity.
  That business entity shall supply access products and services to all undertakings, including to other business entities within the parent company, on the same timescales, terms and conditions, including those relating to price and service levels, and by means of the same systems and processes.
  2.   When a national regulatory authority intends to impose an obligation for functional separation, it shall submit a proposal to the Commission that includes:






  (a) | evidence justifying the conclusions of the national regulatory authority as referred to in paragraph 1; |
| --- | --- | --- |

10.

the following Articles shall be inserted:

‘Article 13a

Functional separation

1.   Where the national regulatory authority concludes that the appropriate obligations imposed under Articles 9 to 13 have failed to achieve effective competition and that there are important and persisting competition problems and/or market failures identified in relation to the wholesale provision of certain access products, it may, as an exceptional measure, in accordance with the provisions of the second subparagraph of Article 8(3), impose an obligation on vertically integrated undertakings to place activities related to the wholesale provision of relevant access products in an independently operating business entity.

That business entity shall supply access products and services to all undertakings, including to other business entities within the parent company, on the same timescales, terms and conditions, including those relating to price and service levels, and by means of the same systems and processes.

2.   When a national regulatory authority intends to impose an obligation for functional separation, it shall submit a proposal to the Commission that includes:

(a)

evidence justifying the conclusions of the national regulatory authority as referred to in paragraph 1;

| (b) | a reasoned assessment that there is no or little prospect of effective and sustainable infrastructure-based competition within a reasonable timeframe; |
| --- | --- |

(b)

a reasoned assessment that there is no or little prospect of effective and sustainable infrastructure-based competition within a reasonable timeframe;

| (c) | an analysis of the expected impact on the regulatory authority, on the undertaking, on incentives to invest in a sector as a whole, particularly with regard to the need to ensure social and territorial cohesion, and on other stakeholders including, in particular, the expected impact on competition and any potential entailing effects on consumers; |
| --- | --- |

(c)

an analysis of the expected impact on the regulatory authority, on the undertaking, on incentives to invest in a sector as a whole, particularly with regard to the need to ensure social and territorial cohesion, and on other stakeholders including, in particular, the expected impact on competition and any potential entailing effects on consumers;

3.   The draft measure shall include the following elements:

| (a) | the precise nature and level of separation, specifying in particular the legal status of the separate business entity; |
| --- | --- |

(a)

the precise nature and level of separation, specifying in particular the legal status of the separate business entity;

| (b) | an identification of the assets of the separate business entity, and the products or services to be supplied by that entity; |
| --- | --- |

(b)

an identification of the assets of the separate business entity, and the products or services to be supplied by that entity;

| (c) | the governance arrangements to ensure the independence of the staff employed by the separate business entity, and the corresponding incentive structure; |
| --- | --- |

(c)

the governance arrangements to ensure the independence of the staff employed by the separate business entity, and the corresponding incentive structure;

| (d) | rules for ensuring compliance with the obligations; |
| --- | --- |

(d)

rules for ensuring compliance with the obligations;

| (e) | rules for ensuring transparency of operational procedures, in particular towards other stakeholders; |
| --- | --- |

(e)

rules for ensuring transparency of operational procedures, in particular towards other stakeholders;

| (f) | a monitoring programme to ensure compliance, including the publication of an annual report. |
| --- | --- |

(f)

a monitoring programme to ensure compliance, including the publication of an annual report.

4.   Following the Commission's decision on the draft measure taken in accordance with Article 8(3), the national regulatory authority shall conduct a coordinated analysis of the different markets related to the access network in accordance with the procedure set out in Article 16 of Directive 2002/21/EC (Framework Directive). On the basis of its assessment, the national regulatory authority shall impose, maintain, amend or withdraw obligations, in accordance with Articles 6 and 7 of Directive 2002/21/EC (Framework Directive).

5.   An undertaking on which functional separation has been imposed may be subject to any of the obligations identified in Articles 9 to13 in any specific market where it has been designated as having significant market power in accordance with Article 16 of Directive 2002/21/EC (Framework Directive), or any other obligations authorised by the Commission pursuant to Article 8(3).

Article 13b

Voluntary separation by a vertically integrated undertaking

1.   Undertakings which have been designated as having significant market power in one or several relevant markets in accordance with Article 16 of Directive 2002/21/EC (Framework Directive) shall inform the national regulatory authority in advance and in a timely manner, in order to allow the national regulatory authority to assess the effect of the intended transaction, when they intend to transfer their local access network assets or a substantial part thereof to a separate legal entity under different ownership, or to establish a separate business entity in order to provide to all retail providers, including its own retail divisions, fully equivalent access products.

Undertakings shall also inform the national regulatory authority of any change of that intent as well as the final outcome of the process of separation.

2.   The national regulatory authority shall assess the effect of the intended transaction on existing regulatory obligations under Directive 2002/21/EC (Framework Directive).

For that purpose, the national regulatory authority shall conduct a coordinated analysis of the different markets related to the access network in accordance with the procedure set out in Article 16 of Directive 2002/21/EC (Framework Directive).

On the basis of its assessment, the national regulatory authority shall impose, maintain, amend or withdraw obligations, in accordance with Articles 6 and 7 of Directive 2002/21/EC (Framework Directive).

3.   The legally and/or operationally separate business entity may be subject to any of the obligations identified in Articles 9 to 13 in any specific market where it has been designated as having significant market power in accordance with Article 16 of Directive 2002/21/EC (Framework Directive), or any other obligations authorised by the Commission pursuant to Article 8(3).’;

| 11. | Article 14 shall be amended as follows:






  (a) | paragraph 3 shall be replaced by the following:
  ‘3.   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.’; |
| --- | --- | --- |

11.

Article 14 shall be amended as follows:

(a)

paragraph 3 shall be replaced by the following:

‘3.   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.’;

| (b) | paragraph 4 shall be deleted. |
| --- | --- |

(b)

paragraph 4 shall be deleted.

| 12. | Annex II shall be amended as follows:






  (a) | the title shall be replaced by the following: |
| --- | --- | --- |

12.

Annex II shall be amended as follows:

(a)

the title shall be replaced by the following:

| (b) | definition (a) shall be replaced by the following:






  ‘(a) | “local sub-loop” means a partial local loop connecting the network termination point to a concentration point or a specified intermediate access point in the fixed public electronic communications network;’ |
| --- | --- | --- |

(b)

definition (a) shall be replaced by the following:

‘(a)

“local sub-loop” means a partial local loop connecting the network termination point to a concentration point or a specified intermediate access point in the fixed public electronic communications network;’

| (c) | definition (c) shall be replaced by the following:






  ‘(c) | “full unbundled access to the local loop” means the provision to a beneficiary of access to the local loop or local sub-loop of the notified operator allowing the use of the full capacity of the network infrastructure;’ |
| --- | --- | --- |

(c)

definition (c) shall be replaced by the following:

‘(c)

“full unbundled access to the local loop” means the provision to a beneficiary of access to the local loop or local sub-loop of the notified operator allowing the use of the full capacity of the network infrastructure;’

| (d) | definition (d) shall be replaced by the following:






  ‘(d) | “shared access to the local loop” means the provision to a beneficiary of access to the local loop or local sub-loop of the notified operator, allowing the use of a specified part of the capacity of the network infrastructure such as a part of the frequency or an equivalent;’ |
| --- | --- | --- |

(d)

definition (d) shall be replaced by the following:

‘(d)

“shared access to the local loop” means the provision to a beneficiary of access to the local loop or local sub-loop of the notified operator, allowing the use of a specified part of the capacity of the network infrastructure such as a part of the frequency or an equivalent;’

| (e) | in part A, points 1, 2 and 3 shall be replaced by the following:






  ‘1. | Network elements to which access is offered covering in particular the following elements together with appropriate associated facilities:






  (a) | unbundled access to local loops (full and shared); |
| --- | --- | --- | --- |

(e)

in part A, points 1, 2 and 3 shall be replaced by the following:

‘1.

Network elements to which access is offered covering in particular the following elements together with appropriate associated facilities:

(a)

unbundled access to local loops (full and shared);

| (b) | unbundled access to local sub-loops (full and shared), including, when relevant, access to associated facilities such as ducts and/or optical fibre for backhaul; |
| --- | --- |

(b)

unbundled access to local sub-loops (full and shared), including, when relevant, access to associated facilities such as ducts and/or optical fibre for backhaul;

| (c) | when relevant, duct access enabling the roll out of access networks. |
| --- | --- |

(c)

when relevant, duct access enabling the roll out of access networks.

| 2. | Information concerning the locations of physical access sites including cabinets and distribution frames, availability of local loops, sub-loops and backhaul in specific parts of the access network and when relevant, information concerning the locations of ducts and the availability within ducts; |
| --- | --- |

2.

Information concerning the locations of physical access sites including cabinets and distribution frames, availability of local loops, sub-loops and backhaul in specific parts of the access network and when relevant, information concerning the locations of ducts and the availability within ducts;

| 3. | Technical conditions related to access and use of local loops and sub-loops, including the technical characteristics of the twisted pair and/or optical fibre and/or equivalent, cable distributors, and associated facilities and, when relevant, technical conditions related to access to ducts;’ |
| --- | --- |

3.

Technical conditions related to access and use of local loops and sub-loops, including the technical characteristics of the twisted pair and/or optical fibre and/or equivalent, cable distributors, and associated facilities and, when relevant, technical conditions related to access to ducts;’

| (f) | in part B, point 1 shall be replaced by the following:






  ‘1. | Information on the notified operator's existing relevant sites or equipment locations and planned update thereof.’. |
| --- | --- | --- |

(f)

in part B, point 1 shall be replaced by the following:

‘1.

Information on the notified operator's existing relevant sites or equipment locations and planned update thereof.’.

Article 3

Amendments to Directive 2002/20/EC (Authorisation Directive)

Directive 2002/20/EC is hereby amended as follows:

| 1. | Article 2(2) shall be replaced by the following:
  ‘2.   The following definition shall also apply:
  “general authorisation” means a legal framework established by the Member State ensuring rights for the provision of electronic communications networks or services and laying down sector specific obligations that may apply to all or to specific types of electronic communications networks and services, in accordance with this Directive.’; |
| --- | --- |

1.

Article 2(2) shall be replaced by the following:

‘2.   The following definition shall also apply:

“general authorisation” means a legal framework established by the Member State ensuring rights for the provision of electronic communications networks or services and laying down sector specific obligations that may apply to all or to specific types of electronic communications networks and services, in accordance with this Directive.’;

| 2. | Article 5 shall be replaced by the following:
  ‘Article 5
  Rights of use for radio frequencies and numbers
  1.   Member States shall facilitate the use of radio frequencies under general authorisations. Member States may grant individual rights of use in order to:






  — | avoid harmful interference, |
| --- | --- | --- |

2.

Article 5 shall be replaced by the following:

‘Article 5

Rights of use for radio frequencies and numbers

1.   Member States shall facilitate the use of radio frequencies under general authorisations. Member States may grant individual rights of use in order to:

—

avoid harmful interference,

| — | ensure technical quality of service, |
| --- | --- |

—

ensure technical quality of service,

| — | safeguard efficient use of spectrum, or |
| --- | --- |

—

safeguard efficient use of spectrum, or

| — | fulfil other objectives of general interest as defined by Member States in conformity with Community law. |
| --- | --- |

—

fulfil other objectives of general interest as defined by Member States in conformity with Community law.

2.   Where it is necessary to grant individual rights of use for radio frequencies and numbers, Member States shall grant such rights, upon request, to any undertaking for the provision of networks or services under the general authorisation referred to in Article 3, subject to the provisions of Articles 6, 7 and 11(1)(c) of this Directive and any other rules ensuring the efficient use of those resources in accordance with Directive 2002/21/EC (Framework Directive).

Without prejudice to specific criteria and procedures adopted by Member States to grant rights of use of radio frequencies to providers of radio or television broadcast content services with a view to pursuing general interest objectives in conformity with Community law, the rights of use for radio frequencies and numbers shall be granted through open, objective, transparent, non-discriminatory and proportionate procedures, and, in the case of radio frequencies, in accordance with the provisions of Article 9 of Directive 2002/21/EC (Framework Directive). An exception to the requirement of open procedures may apply in cases where the granting of individual rights of use of radio frequencies to the providers of radio or television broadcast content services is necessary to achieve a general interest objective as defined by Member States in conformity with Community law.

When granting rights of use, Member States shall specify whether those rights can be transferred by the holder of the rights, and under which conditions. In the case of radio frequencies, such provision shall be in accordance with Article 9b of Directive 2002/21/EC (Framework Directive).

Where Member States grant rights of use for a limited period of time, the duration shall be appropriate for the service concerned in view of the objective pursued and the necessary investments.

Any individual right to use radio frequencies that is granted for more than 10 years and that may not be transferred or leased between undertakings as allowed pursuant to Article 9b of Directive 2002/21/EC (Framework Directive) shall be subject to a review by the competent national authority in the light of the criteria in paragraph 1, in particular upon a justified request of the holder of the right. If the criteria to grant individual rights of use are no longer applicable, the individual right of use shall be changed into a general authorisation for the use of radio frequencies, or made transferable or leaseable between undertakings in accordance with Article 9b of Directive 2002/21/EC (Framework Directive).

3.   Decisions on the granting of rights of use shall be taken, communicated and made public as soon as possible after receipt of the complete application by the national regulatory authority, within three weeks in the case of numbers that have been allocated for specific purposes within the national numbering plan and within six weeks in the case of radio frequencies that have been allocated to be used by electronic communications services within the national frequency plan. The latter time limit shall be without prejudice to any applicable international agreements relating to the use of radio frequencies or of orbital positions.

4.   Where it has been decided, after consultation with interested parties in accordance with Article 6 of Directive 2002/21/EC (Framework Directive), that rights for use of numbers of exceptional economic value are to be granted through competitive or comparative selection procedures, Member States may extend the maximum period of three weeks by up to a further three weeks.

With regard to competitive or comparative selection procedures for radio frequencies, Article 7 shall apply.

5.   Member States shall not limit the number of rights of use to be granted except where this is necessary to ensure the efficient use of radio frequencies in accordance with Article 7.

6.   Competent national authorities shall ensure that radio frequencies are efficiently and effectively used in accordance with Articles 8(2) and 9(2) of Directive 2002/21/EC (Framework Directive). They shall ensure competition is not distorted by any transfer or accumulation of radio frequencies usage rights. For such purposes, Member States may take appropriate measures such as mandating the sale or the lease of rights to use radio frequencies.’;

| 3. | Article 6 shall be amended as follows:






  (a) | paragraph 1 shall be replaced by the following:
  ‘1.   The general authorisation for the provision of electronic communications networks or services and the rights of use for radio frequencies and rights of use for numbers may be subject only to the conditions listed in Annex I. Such conditions shall be non-discriminatory, proportionate and transparent and, in the case of rights of use for radio frequencies, shall be in accordance with Article 9 of Directive 2002/21/EC (Framework Directive).’; |
| --- | --- | --- |

3.

Article 6 shall be amended as follows:

(a)

paragraph 1 shall be replaced by the following:

‘1.   The general authorisation for the provision of electronic communications networks or services and the rights of use for radio frequencies and rights of use for numbers may be subject only to the conditions listed in Annex I. Such conditions shall be non-discriminatory, proportionate and transparent and, in the case of rights of use for radio frequencies, shall be in accordance with Article 9 of Directive 2002/21/EC (Framework Directive).’;

| (b) | in paragraph 2, the words ‘Articles 16, 17, 18 and 19 of Directive 2002/22/EC (Universal Service Directive)’ shall be replaced by the words ‘Article 17 of Directive 2002/22/EC (Universal Service Directive)’; |
| --- | --- |

(b)

in paragraph 2, the words ‘Articles 16, 17, 18 and 19 of Directive 2002/22/EC (Universal Service Directive)’ shall be replaced by the words ‘Article 17 of Directive 2002/22/EC (Universal Service Directive)’;

| (c) | in paragraph 3, the word ‘Annex’ shall be replaced by the words ‘Annex I’; |
| --- | --- |

(c)

in paragraph 3, the word ‘Annex’ shall be replaced by the words ‘Annex I’;

| 4. | Article 7 shall be amended as follows:






  (a) | paragraph 1 shall be amended as follows:






  (i) | The introductory phrase shall be replaced by the following:
  ‘1.   Where a Member State is considering whether to limit the number of rights of use to be granted for radio frequencies or whether to extend the duration of existing rights other than in accordance with the terms specified in such rights, it shall inter alia:’; |
| --- | --- | --- | --- |

4.

Article 7 shall be amended as follows:

(a)

paragraph 1 shall be amended as follows:

(i)

The introductory phrase shall be replaced by the following:

‘1.   Where a Member State is considering whether to limit the number of rights of use to be granted for radio frequencies or whether to extend the duration of existing rights other than in accordance with the terms specified in such rights, it shall inter alia:’;

| (ii) | point (c) shall be replaced by the following:






  ‘(c) | publish any decision to limit the granting of rights of use or the renewal of rights of use, stating the reasons therefore;’; |
| --- | --- | --- |

(ii)

point (c) shall be replaced by the following:

‘(c)

publish any decision to limit the granting of rights of use or the renewal of rights of use, stating the reasons therefore;’;

| (b) | paragraph 3 shall be replaced by the following:
  ‘3.   Where the granting of rights of use for radio frequencies needs to be limited, Member States shall grant such rights on the basis of selection criteria which must be objective, transparent, non-discriminatory and proportionate. Any such selection criteria must give due weight to the achievement of the objectives of Article 8 of Directive 2002/21/EC (Framework Directive) and of the requirements of Article 9 of that Directive.’; |
| --- | --- |

(b)

paragraph 3 shall be replaced by the following:

‘3.   Where the granting of rights of use for radio frequencies needs to be limited, Member States shall grant such rights on the basis of selection criteria which must be objective, transparent, non-discriminatory and proportionate. Any such selection criteria must give due weight to the achievement of the objectives of Article 8 of Directive 2002/21/EC (Framework Directive) and of the requirements of Article 9 of that Directive.’;

| (c) | in paragraph 5, the words ‘Article 9’ shall be replaced by the words ‘Article 9b’; |
| --- | --- |

(c)

in paragraph 5, the words ‘Article 9’ shall be replaced by the words ‘Article 9b’;

| 5. | Article 10 shall be amended as follows:






  (a) | paragraph 1, 2 and 3 shall be replaced by the following:
  ‘1.   National regulatory authorities shall monitor and supervise compliance with the conditions of the general authorisation or of rights of use and with the specific obligations referred to in Article 6(2), in accordance with Article 11.
  National regulatory authorities shall have the power to require undertakings providing electronic communications networks or services covered by the general authorisation or enjoying rights of use for radio frequencies or numbers to provide all information necessary to verify compliance with the conditions of the general authorisation or of rights of use or with the specific obligations referred to in Article 6(2), in accordance with Article 11.
  2.   Where a national regulatory authority finds that an undertaking does not comply with one or more of the conditions of the general authorisation or of rights of use, or with the specific obligations referred to in Article 6(2), it shall notify the undertaking of those findings and give the undertaking the opportunity to state its views, within a reasonable time limit.
  3.   The relevant authority shall have the power to require the cessation of the breach referred to in paragraph 2 either immediately or within a reasonable time limit and shall take appropriate and proportionate measures aimed at ensuring compliance.
  In this regard, Member States shall empower the relevant authorities to impose financial penalties where appropriate. The measures and the reasons on which they are based shall be communicated to the undertaking concerned without delay and shall stipulate a reasonable period for the undertaking to comply with the measure.’; |
| --- | --- | --- |

5.

Article 10 shall be amended as follows:

(a)

paragraph 1, 2 and 3 shall be replaced by the following:

‘1.   National regulatory authorities shall monitor and supervise compliance with the conditions of the general authorisation or of rights of use and with the specific obligations referred to in Article 6(2), in accordance with Article 11.

National regulatory authorities shall have the power to require undertakings providing electronic communications networks or services covered by the general authorisation or enjoying rights of use for radio frequencies or numbers to provide all information necessary to verify compliance with the conditions of the general authorisation or of rights of use or with the specific obligations referred to in Article 6(2), in accordance with Article 11.

2.   Where a national regulatory authority finds that an undertaking does not comply with one or more of the conditions of the general authorisation or of rights of use, or with the specific obligations referred to in Article 6(2), it shall notify the undertaking of those findings and give the undertaking the opportunity to state its views, within a reasonable time limit.

3.   The relevant authority shall have the power to require the cessation of the breach referred to in paragraph 2 either immediately or within a reasonable time limit and shall take appropriate and proportionate measures aimed at ensuring compliance.

In this regard, Member States shall empower the relevant authorities to impose financial penalties where appropriate. The measures and the reasons on which they are based shall be communicated to the undertaking concerned without delay and shall stipulate a reasonable period for the undertaking to comply with the measure.’;

| (b) | paragraph 4 shall be replaced by the following:
  ‘4.   Notwithstanding the provisions of paragraphs 2 and 3, Member States shall empower the relevant authority to impose financial penalties where appropriate on undertakings for failure to provide information in accordance with the obligations imposed under Article 11(1)(a) or (b) of this Directive and Article 9 of Directive 2002/19/EC (Access Directive) within a reasonable period stipulated by the national regulatory authority.’; |
| --- | --- |

(b)

paragraph 4 shall be replaced by the following:

‘4.   Notwithstanding the provisions of paragraphs 2 and 3, Member States shall empower the relevant authority to impose financial penalties where appropriate on undertakings for failure to provide information in accordance with the obligations imposed under Article 11(1)(a) or (b) of this Directive and Article 9 of Directive 2002/19/EC (Access Directive) within a reasonable period stipulated by the national regulatory authority.’;

| (c) | paragraph 5 shall be replaced by the following:
  ‘5.   In cases of serious or repeated breaches of the conditions of the general authorisation or of the rights of use, or specific obligations referred to in Article 6(2), where measures aimed at ensuring compliance as referred to in paragraph 3 of this Article have failed, national regulatory authorities may prevent an undertaking from continuing to provide electronic communications networks or services or suspend or withdraw rights of use. Sanctions and penalties which are effective, proportionate and dissuasive may be applied to cover the period of any breach, even if the breach has subsequently been rectified.’; |
| --- | --- |

(c)

paragraph 5 shall be replaced by the following:

‘5.   In cases of serious or repeated breaches of the conditions of the general authorisation or of the rights of use, or specific obligations referred to in Article 6(2), where measures aimed at ensuring compliance as referred to in paragraph 3 of this Article have failed, national regulatory authorities may prevent an undertaking from continuing to provide electronic communications networks or services or suspend or withdraw rights of use. Sanctions and penalties which are effective, proportionate and dissuasive may be applied to cover the period of any breach, even if the breach has subsequently been rectified.’;

| (d) | paragraph 6 shall be replaced by the following:
  ‘6.   Irrespective of the provisions of paragraphs 2, 3 and 5, where the relevant authority has evidence of a breach of the conditions of the general authorisation rights of use or of the specific obligations referred to in Article 6(2) that represents an immediate and serious threat to public safety, public security or public health or will create serious economic or operational problems for other providers or users of electronic communications networks or services or other users of the radio spectrum, it may take urgent interim measures to remedy the situation in advance of reaching a final decision. The undertaking concerned shall thereafter be given a reasonable opportunity to state its views and propose any remedies. Where appropriate, the relevant authority may confirm the interim measures, which shall be valid for a maximum of 3 months, but which may, in circumstances where enforcement procedures have not been completed, be extended for a further period of up to three months.’; |
| --- | --- |

(d)

paragraph 6 shall be replaced by the following:

‘6.   Irrespective of the provisions of paragraphs 2, 3 and 5, where the relevant authority has evidence of a breach of the conditions of the general authorisation rights of use or of the specific obligations referred to in Article 6(2) that represents an immediate and serious threat to public safety, public security or public health or will create serious economic or operational problems for other providers or users of electronic communications networks or services or other users of the radio spectrum, it may take urgent interim measures to remedy the situation in advance of reaching a final decision. The undertaking concerned shall thereafter be given a reasonable opportunity to state its views and propose any remedies. Where appropriate, the relevant authority may confirm the interim measures, which shall be valid for a maximum of 3 months, but which may, in circumstances where enforcement procedures have not been completed, be extended for a further period of up to three months.’;

| 6. | Article 11, paragraph 1 shall be amended as follows:






  (a) | point (a) shall be replaced by the following:






  ‘(a) | systematic or case-by-case verification of compliance with conditions 1 and 2 of Part A, conditions 2 and 6 of Part B and conditions 2 and 7 of Part C of the Annex I and of compliance with obligations as referred to in Article 6(2);’; |
| --- | --- | --- | --- |

6.

Article 11, paragraph 1 shall be amended as follows:

(a)

point (a) shall be replaced by the following:

‘(a)

systematic or case-by-case verification of compliance with conditions 1 and 2 of Part A, conditions 2 and 6 of Part B and conditions 2 and 7 of Part C of the Annex I and of compliance with obligations as referred to in Article 6(2);’;

| (b) | in point (b), the word ‘Annex’ shall be replaced by ‘Annex I’; |
| --- | --- |

(b)

in point (b), the word ‘Annex’ shall be replaced by ‘Annex I’;

| (c) | the following points shall be added:






  ‘(g) | safeguarding the efficient use and ensuring the effective management of radio frequencies; |
| --- | --- | --- |

(c)

the following points shall be added:

‘(g)

safeguarding the efficient use and ensuring the effective management of radio frequencies;

| (h) | evaluating future network or service developments that could have an impact on wholesale services made available to competitors.’; |
| --- | --- |

(h)

evaluating future network or service developments that could have an impact on wholesale services made available to competitors.’;

| (d) | the second subparagraph shall be replaced by the following:
  ‘The information referred to in points (a), (b), (d), (e), (f), (g) and (h) of the first subparagraph may not be required prior to, or as a condition for, market access.’; |
| --- | --- |

(d)

the second subparagraph shall be replaced by the following:

‘The information referred to in points (a), (b), (d), (e), (f), (g) and (h) of the first subparagraph may not be required prior to, or as a condition for, market access.’;

| 7. | Article 14 shall be replaced by the following:
  ‘Article 14
  Amendment of rights and obligations
  1.   Member States shall ensure that the rights, conditions and procedures concerning general authorisations and rights of use or rights to install facilities may only be amended in objectively justified cases and in a proportionate manner, taking into consideration, where appropriate, the specific conditions applicable to transferable rights of use for radio frequencies. Except where proposed amendments are minor and have been agreed with the holder of the rights or general authorisation, notice shall be given in an appropriate manner of the intention to make such amendments and interested parties, including users and consumers, shall be allowed a sufficient period of time to express their views on the proposed amendments, which shall be no less than four weeks except in exceptional circumstances.
  2.   Member States shall not restrict or withdraw rights to install facilities or rights of use for radio frequencies before expiry of the period for which they were granted except where justified and where applicable in conformity with Annex I and relevant national provisions regarding compensation for withdrawal of rights.’; |
| --- | --- |

7.

Article 14 shall be replaced by the following:

‘Article 14

Amendment of rights and obligations

1.   Member States shall ensure that the rights, conditions and procedures concerning general authorisations and rights of use or rights to install facilities may only be amended in objectively justified cases and in a proportionate manner, taking into consideration, where appropriate, the specific conditions applicable to transferable rights of use for radio frequencies. Except where proposed amendments are minor and have been agreed with the holder of the rights or general authorisation, notice shall be given in an appropriate manner of the intention to make such amendments and interested parties, including users and consumers, shall be allowed a sufficient period of time to express their views on the proposed amendments, which shall be no less than four weeks except in exceptional circumstances.

2.   Member States shall not restrict or withdraw rights to install facilities or rights of use for radio frequencies before expiry of the period for which they were granted except where justified and where applicable in conformity with Annex I and relevant national provisions regarding compensation for withdrawal of rights.’;

| 8. | Article 15(1) shall be replaced by the following:
  ‘1.   Member States shall ensure that all relevant information on rights, conditions, procedures, charges, fees and decisions concerning general authorisations, rights of use and rights to install facilities is published and kept up to date in an appropriate manner so as to provide easy access to that information for all interested parties.’; |
| --- | --- |

8.

Article 15(1) shall be replaced by the following:

‘1.   Member States shall ensure that all relevant information on rights, conditions, procedures, charges, fees and decisions concerning general authorisations, rights of use and rights to install facilities is published and kept up to date in an appropriate manner so as to provide easy access to that information for all interested parties.’;

| 9. | in Article 17 paragraphs 1 and 2 shall be replaced by the following:
  ‘1.   Without prejudice to Article 9a of Directive 2002/21/EC (Framework Directive), Member States shall bring general authorisations and individual rights of use already in existence on 31 December 2009 into conformity with Articles 5, 6, 7, and Annex I of this Directive within two years from the date of entry into force of this Directive at the latest.
  2.   Where application of paragraph 1 results in a reduction of the rights or an extension of the general authorisations and individual rights of use already in existence, Member States may extend the validity of those authorisations and rights until 30 September 2012 at the latest, provided that the rights of other undertakings under Community law are not affected thereby. Member States shall notify such extensions to the Commission and state the reasons therefore.’; |
| --- | --- |

9.

in Article 17 paragraphs 1 and 2 shall be replaced by the following:

‘1.   Without prejudice to Article 9a of Directive 2002/21/EC (Framework Directive), Member States shall bring general authorisations and individual rights of use already in existence on 31 December 2009 into conformity with Articles 5, 6, 7, and Annex I of this Directive within two years from the date of entry into force of this Directive at the latest.

2.   Where application of paragraph 1 results in a reduction of the rights or an extension of the general authorisations and individual rights of use already in existence, Member States may extend the validity of those authorisations and rights until 30 September 2012 at the latest, provided that the rights of other undertakings under Community law are not affected thereby. Member States shall notify such extensions to the Commission and state the reasons therefore.’;

| 10. | the Annex shall be amended as set out in the Annex to this Directive. |
| --- | --- |

10.

the Annex shall be amended as set out in the Annex to this Directive.

Article 4

Repeal

Regulation (EC) No 2887/2000 is hereby repealed.

Article 5

Transposition

1.   Member States shall adopt and publish by ... the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of such provisions.

They shall apply those measures from ....

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

2.   Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 6

Entry into force

This Directive shall enter into force on the day following that of its publication in the Official Journal of the European Union.

Official Journal of the European Union

Article 7

Addressees

This Directive is addressed to the Member States.

Done at Brussels, ....

For the European Parliament

The President

...

For the Council

The President

...

---

(1)  OJ C 224, 30.8.2008, p. 50.

1

(2)  OJ C 257, 9.10.2008, p. 51.

2

(3)  Opinion of the European Parliament of 24 September 2008 (not yet published in the Official Journal), Council Common Position of 16 February 2009 and Position of the European Parliament of ...

3

(4)  OJ L 108, 24.4.2002, p. 33.

4

(5)  OJ L 108, 24.4.2002, p. 7.

5

(6)  OJ L 108, 24.4.2002, p. 21.

6

(7)  OJ L 108, 24.4.2002, p. 51.

7

(8)  OJ L 201, 31.7.2002, p. 37.

8

(9)  OJ L 91, 7.4.1999, p. 10.

9

(10)  OJ L 108, 24.4.2002, p. 1.

10

(11)  Regulation (EC) No 460/2004 of the European Parliament and of the Council (OJ L 77, 13.3.2004, p. 1).

11

(12)  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 (OJ L 114, 8.5.2003, p. 45).

12

(13)  OJ L 336, 30.12.2000, p. 4.

13

(14)  OJ L 184, 17.7.1999, p. 23.

14

(15)  OJ L 201, 31.7.2002, p. 37.’;

15

(16)  Regulation (EC) No .../2009 of the European Parliament and of the Council of ... [establishing the Group of European Regulators in Telecoms] (OJ L ...).’;

16

(17)  OJ L 198, 27.7.2002, p. 49.’;

17

(18)  Date of transposition of current Directive.

18

(19)  The time-limit for the transposition of current Directive.

19

(20)  OJ L 24, 29.1.2004, p. 1’.

20

(21)  OJ L 24, 30.1.1998, p. 1.

21

(22)  OJ L 201, 31.7.2002, p. 37.’;

22

(23)  Regulation (EC) No .../2009 of the European Parliament and of the Council of ... [establishing the Group of European Regulators in Telecoms] (OJ L ...).’;

23

---

ANNEX

The Annex to Directive 2002/20/EC (Authorisation Directive) is amended as follows:

| 1. | The first paragraph is replaced by the following heading:
  ‘The conditions listed in this Annex provide the maximum list of conditions which may be attached to general authorisations (Part A), rights to use radio frequencies (Part B) and rights to use numbers (Part C) as referred to in Article 6(1) and Article 11(1)(a), within the limits allowed under Articles 5, 6, 7, 8 and 9 of Directive 2002/21/EC (the Framework Directive).’; |
| --- | --- |

1.

The first paragraph is replaced by the following heading:

‘The conditions listed in this Annex provide the maximum list of conditions which may be attached to general authorisations (Part A), rights to use radio frequencies (Part B) and rights to use numbers (Part C) as referred to in Article 6(1) and Article 11(1)(a), within the limits allowed under Articles 5, 6, 7, 8 and 9 of Directive 2002/21/EC (the Framework Directive).’;

| 2. | Part A is amended as follows:






  (a) | Point 4 is replaced by the following:






  ‘4. | Accessibility by end users of numbers from the national numbering plan, numbers from the European Telephone Numbering Space, the Universal International Freephone Numbers, and, where technically and economically feasible, from numbering plans of other Member States, and conditions in conformity with Directive 2002/22/EC (Universal Service Directive).’; |
| --- | --- | --- | --- |

2.

Part A is amended as follows:

(a)

Point 4 is replaced by the following:

‘4.

Accessibility by end users of numbers from the national numbering plan, numbers from the European Telephone Numbering Space, the Universal International Freephone Numbers, and, where technically and economically feasible, from numbering plans of other Member States, and conditions in conformity with Directive 2002/22/EC (Universal Service Directive).’;

| (b) | Point 7 is replaced by the following:






  ‘7. | Personal data and privacy protection specific to the electronic communications sector in conformity with Directive 2002/58/EC of the European Parliament and of the Council (Directive on privacy and electronic communications) (1) |
| --- | --- | --- |

(b)

Point 7 is replaced by the following:

‘7.

Personal data and privacy protection specific to the electronic communications sector in conformity with Directive 2002/58/EC of the European Parliament and of the Council (Directive on privacy and electronic communications) (1)

| (c) | Point 8 is replaced by the following:






  ‘8. | Consumer protection rules specific to the electronic communications sector, including conditions in conformity with Directive 2002/22/EC (Universal Service Directive), and conditions on accessibility for users with disabilities in accordance with Article 7 of that Directive.’; |
| --- | --- | --- |

(c)

Point 8 is replaced by the following:

‘8.

Consumer protection rules specific to the electronic communications sector, including conditions in conformity with Directive 2002/22/EC (Universal Service Directive), and conditions on accessibility for users with disabilities in accordance with Article 7 of that Directive.’;

| (d) | In point 11, the words ‘Directive 97/66/EC’ are replaced by the words ‘Directive 2002/58/EC’; |
| --- | --- |

(d)

In point 11, the words ‘Directive 97/66/EC’ are replaced by the words ‘Directive 2002/58/EC’;

| (e) | The following point is inserted:






  ‘11a. | Terms of use for communications from public authorities to the general public for warning the public of imminent threats and for mitigating the consequences of major catastrophes.’; |
| --- | --- | --- |

(e)

The following point is inserted:

‘11a.

Terms of use for communications from public authorities to the general public for warning the public of imminent threats and for mitigating the consequences of major catastrophes.’;

| (f) | Point 12 is replaced by the following:






  ‘12. | Terms of use during major disasters or national emergencies to ensure communications between emergency services and authorities.’; |
| --- | --- | --- |

(f)

Point 12 is replaced by the following:

‘12.

Terms of use during major disasters or national emergencies to ensure communications between emergency services and authorities.’;

| (g) | Point 16 is replaced by the following:






  ‘16. | Security of public networks against unauthorised access according to Directive 2002/58/EC (Directive on Privacy and electronic communications).’; |
| --- | --- | --- |

(g)

Point 16 is replaced by the following:

‘16.

Security of public networks against unauthorised access according to Directive 2002/58/EC (Directive on Privacy and electronic communications).’;

| (h) | The following point is added:






  ‘19. | Transparency obligations on undertakings providing electronic communications services available to the public to ensure end-to-end connectivity, in conformity with the objectives and principles set out in Article 8 of Directive 2002/21/EC (Framework Directive), disclosure regarding traffic management policies and, where necessary and proportionate, access by national regulatory authorities to such information needed to verify the accuracy of such disclosure.’; |
| --- | --- | --- |

(h)

The following point is added:

‘19.

Transparency obligations on undertakings providing electronic communications services available to the public to ensure end-to-end connectivity, in conformity with the objectives and principles set out in Article 8 of Directive 2002/21/EC (Framework Directive), disclosure regarding traffic management policies and, where necessary and proportionate, access by national regulatory authorities to such information needed to verify the accuracy of such disclosure.’;

| 3. | Part B is amended as follows:






  (a) | Point 1 is replaced by the following:






  ‘1. | Obligation to provide a service or to use a type of technology for which the rights of use for the frequency has been granted, including, where appropriate, coverage and quality requirements.’; |
| --- | --- | --- | --- |

3.

Part B is amended as follows:

(a)

Point 1 is replaced by the following:

‘1.

Obligation to provide a service or to use a type of technology for which the rights of use for the frequency has been granted, including, where appropriate, coverage and quality requirements.’;

| (b) | Point 2 is replaced with the following:






  ‘2. | Effective and efficient use of frequencies in conformity with Directive 2002/21/EC (Framework Directive).’; |
| --- | --- | --- |

(b)

Point 2 is replaced with the following:

‘2.

Effective and efficient use of frequencies in conformity with Directive 2002/21/EC (Framework Directive).’;

| (c) | The following point is added:






  ‘9. | Obligations specific to an experimental use of radio frequencies.’; |
| --- | --- | --- |

(c)

The following point is added:

‘9.

Obligations specific to an experimental use of radio frequencies.’;

| 4. | In part C, point 1 is replaced by the following:






  ‘1. | Designation of service for which the number shall be used, including any requirements linked to the provision of that service and, for the avoidance of doubt, tariff principles and maximum prices that can apply in the specific number range for the purposes of ensuring consumer protection in accordance with Article 8(4)(b) of Directive 2002/21/EC (Framework Directive).’. |
| --- | --- | --- |

4.

In part C, point 1 is replaced by the following:

‘1.

Designation of service for which the number shall be used, including any requirements linked to the provision of that service and, for the avoidance of doubt, tariff principles and maximum prices that can apply in the specific number range for the purposes of ensuring consumer protection in accordance with Article 8(4)(b) of Directive 2002/21/EC (Framework Directive).’.

---

(1)  OJ L 201, 31.7.2002, p. 37.’;

---

STATEMENT OF THE COUNCIL'S REASONS

I.   INTRODUCTION

| 1. | The European Commission adopted a proposal for a Better Regulation Directive on 13 November 2007 (1). 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). This document refers to the proposal for a Better Regulation Directive. |
| --- | --- |

1.

The European Commission adopted a proposal for a Better Regulation Directive on 13 November 2007 (1). 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). This document refers to the proposal for a Better Regulation Directive.

| 2. | The European Parliament delivered its Opinion at first reading on 24 September 2008 (2), the Economic and Social Committee (EESC) delivered its Opinion on 29 May 2008 (3) and the Committee of the Regions (CoR) delivered its Opinion on 19 June 2008 (4). |
| --- | --- |

2.

The European Parliament delivered its Opinion at first reading on 24 September 2008 (2), the Economic and Social Committee (EESC) delivered its Opinion on 29 May 2008 (3) and the Committee of the Regions (CoR) delivered its Opinion on 19 June 2008 (4).

| 3. | The Commission adopted its modified proposal on 6 November 2008 (5). |
| --- | --- |

3.

The Commission adopted its modified proposal on 6 November 2008 (5).

| 4. | The Council adopted its common position on 16 February 2009. |
| --- | --- |

4.

The Council adopted its common position on 16 February 2009.

II.   OBJECTIVE

| 1. | 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. |
| --- | --- |

1.

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.

| 2. | The proposal aims to:






  — | Move towards a more efficient management of spectrum so as to facilitate access to spectrum for operators and to foster innovation. |
| --- | --- | --- |

2.

The proposal aims to:

—

Move towards a more efficient management of spectrum so as to facilitate access to spectrum for operators and to foster innovation.

| — | Ensure that, where regulation remains necessary, this is more efficient and simpler for operators and for national regulatory authorities (NRAs). |
| --- | --- |

—

Ensure that, where regulation remains necessary, this is more efficient and simpler for operators and for national regulatory authorities (NRAs).

| — | Make a decisive step towards more consistency in the application of EU rules in order to complete the internal market for electronic communications. |
| --- | --- |

—

Make a decisive step towards more consistency in the application of EU rules in order to complete the internal market for electronic communications.

| 3. | The most controversial issues in the Better Regulation proposal concern radio spectrum, the new telecoms authority, functional separation and the regulatory framework for Next Generation Networks (NGNs). |
| --- | --- |

3.

The most controversial issues in the Better Regulation proposal concern radio spectrum, the new telecoms authority, functional separation and the regulatory framework for Next Generation Networks (NGNs).

III.   ANALYSIS OF THE COMMON POSITION

General comments

In adopting its common position, the Council has to a significant extent endorsed the approach and aims proposed by the Commission and has taken on board nearly half of Parliament's 126 adopted amendments. A number of changes to both the substance and the wording of the proposed Better Regulation Directive have nevertheless been made with a view to:

| — | take account of the opinion of the European Parliament; |
| --- | --- |

—

take account of the opinion of the European Parliament;

| — | addressing a small number of specific issues which created difficulties; |
| --- | --- |

—

addressing a small number of specific issues which created difficulties;

| — | rendering some of the wording of the three Directives more precise and thus improving the legal clarity of the texts. |
| --- | --- |

—

rendering some of the wording of the three Directives more precise and thus improving the legal clarity of the texts.

At a general level, the Council's common position differs from the Commission's original proposal with regard to the question of the use of comitology and with regard to the structure, function and tasks of the new telecoms authority. On both issues, the Council has taken a more cautious approach than proposed by the Commission, because in its view, the current regulatory framework for electronic communications has functioned reasonably well over the past few years and that there is no sufficient justification to overhaul the current institutional arrangements and responsibilities.

Specific comments

1.   Principal changes made to the Commission proposal regarding the Framework Directive:

(a)   National regulatory authorities (NRAs) (Article 3)

On NRAs, the Council agreed on a wording, which clarifies that, notwithstanding ‘supervision in accordance with national constitutional law’, NRAs shall carry out their regulatory tasks ‘independently’ and with ‘adequate financial and human resources’.

(b)   Consolidating the internal market for electronic communications (Article 7)

The Council does not share the approach proposed, that the Commission be granted the possibility to issue ‘decisions’ on draft measures intended to be taken by NRAs, i.e. the Commission veto on remedies. The Council rather believes it appropriate for the Commission to issue non-binding ‘opinions’ on draft measures proposed by NRAs and to require NRAs to publicly justify its final decision. This issue is at the core of the debate on the division of responsibilities in the implementation of the regulatory framework for electronic communications and should also be seen in relation to the proposal to set up a European telecoms authority in this area.

(c)   Radio spectrum policy (Article 9 on Management of radio frequencies for electronic communications services, Article 9a on Review of restrictions to existing rights and Article 9c on radio frequency management harmonisation measures)

The Council supports the Commission's proposals, which aim to move towards a more efficient management of spectrum so as to facilitate access to spectrum for operators and to foster innovation. However, the Council clarified in further detail the restrictions that may apply to the types of technology and services to be provided. As current arrangements already allow for the adoption of technical implementing measures in the area of radio spectrum, the Council deleted the proposed Article 9c.

2.   Principal changes made to the Commission proposal regarding the regarding the Authorisation Directive:

(a)   Harmonisation measures, common selection procedure for issuing rights and the harmonised granting of rights of use for radio frequencies and harmonised conditions for pan-European networks or pan-European electronic communic ations services (Articles 6a, 6b and 8)

The Council examined in great detail the proposed provisions in the Authorisation Directive dealing with radio spectrum (in particular Articles 6a, 6b and 8), including the granting of individual rights of use, harmonisation measures and common selection procedures for issuing rights. Although the Council to a large extent shares the Commission's objectives in this regard, it feels that some of the proposals are too far-reaching in that they would too much alter without sufficient justification the current arrangements for radio spectrum policy-making. As a consequence, the Council deleted the proposed Articles 6a and 6b but reinstated Article 8 so as to allow for the harmonised introduction of pan-European electronic communications services, which rely on radio spectrum availability.

3.   Principal changes made to the Commission proposal regarding the Access Directive:

(a)   Functional separation (Article 13a)

The Council amended the proposed provision on functional separation so as to clarify that functional separation could be imposed by NRAs ‘as an exceptional measure’ and subject to a decision by the Commission in order to achieve the appropriate wholesale provision of certain access products.

4.   The Council's position on the European Parliament amendments on the Better Regulation proposal:

The common position incorporates approximately half of the 126 amendments proposed by the European Parliament at first reading.

4.1   Regarding the Recitals:

The Council accepted in full, in part or in principle amendments 2, 4, 5, 6, 15, 16, 17, 21, 22, 25, 27, 29, 30, 32, 33 and 35.

For certain of these amendments the near-complete wording has been taken on board, whilst others have been incorporated in a different form which nevertheless maintains the aim underlying the amendments or parts of the amendment.

The Council did not incorporate the following amendments in its common position: 1, 3, 7, 8, 9, 10, 11, 12, 13, 14/rev, 18, 19, 20, 23, 24, 26, 28, 31, 34, 36, 37, 38 and 39.

4.2   Regarding the articles in the Framework Directive:

The Council accepted in full, in part or in principle amendments 40, 41, 42, 43, 44, 45, 46, 47, 50, 60, 62, 63/rev, 64/rev, 65, 66, 69, 70,71, 73/rev, 74, 76, 77, 80, 81, 86 and 90. For certain of these amendments the near-complete wording has been taken on board, whilst others have been incorporated in a different form which nevertheless maintains the aim underlying the amendments or parts of the amendment.

The Council did not incorporate the following amendments in its common position: 48, 49, 51, 52, 53, 54, 55, 56, 57, 58, 59, 61, 67/rev, 68, 72, 75, 78, 79, 82, 83, 84, 85, 87, 88, 89 and 138.

4.3   Regarding the articles in the Authorisation Directive:

The Council accepted in full, in part or in principle amendments 107, 109, 110, 112, 113, 115, 116, 120, 121 and 124. For certain of these amendments the near-complete wording has been taken on board, whilst others have been incorporated in a different form which nevertheless maintains the aim underlying the amendments or parts of the amendment.

The Council did not incorporate the following amendments in its common position: 106, 108/rev, 111, 114, 117/rev, 118, 119, 122, 123 and 125.

4.4   Regarding the articles in the Access Directive:

The Council accepted in full, in part or in principle amendments 91, 92, 95, 96, 98, 100, 101, 102, 103 and 105. For certain of these amendments the near-complete wording has been taken on board, whilst others have been incorporated in a different form which nevertheless maintains the aim underlying the amendments or parts of the amendment.

The Council did not incorporate the following amendments in its common position: 93, 94, 97, 99 and 102.

IV.   CONCLUSION

Despite the fact that the Council is not able to accept all of the amendments adopted by the European Parliament, it agrees with the Parliament and with the Commission that the main outstanding issues in the Better Regulation proposal concern radio spectrum, the new telecoms authority and functional separation.

For each of these issues, the Commission, to a large extent supported by the Parliament, has proposed to change the (inter) institutional set-up and, consequently, the balance of power between the various actors, regulatory authorities, the EU institutions and other stakeholders. Although the Council believes that an update of the regulatory framework for electronic communications would be beneficial for the sector and allow for important investment decisions to be made, for instance in NGNs, it is of the view that this could be achieved by improving the current arrangements rather than by setting up alternative mechanisms. The Council's common position therefore seeks to clarify and improve the provisions dealing, inter alia, with NRAs, the Commission and the use of comitology and the role of EU instititions with regard to radio spectrum policy-making.

Against this background, the Council's common position is intended to be a basis for finding, with the notable assistance of the Commission, compromises with the European Parliament, which will result in a stable and predictable regulatrory environment for the lectronic communications sector.

The Council is looking forward to enter into constructive discussions with the Parliament in view of the adoption of the new texts towards the end of the current legislator.

---

(1)  COM(2007)697.

(2)  Not yet Published in the Official Journal.

(3)  OJ C 257, 9.10.2008, p. 51.

(4)  OJ C 224, 30.8.2008, p. 50.

(5)  COM(2008)724.

---

| 5.5.2009 | EN | Official Journal of the European Union | CE 103/40 |
| --- | --- | --- | --- |

5.5.2009

EN

Official Journal of the European Union

CE 103/40

---

COMMON POSITION (EC) No 16/2009

adopted by the Council on 16 February 2009

with a view to the adoption of a Directive 2009/.../EC of the European Parliament and of the Council of ... amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on consumer protection cooperation protection laws

(Text with EEA relevance)

(2009/C 103 E/02)

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 European Economic and Social Committee (1),

Having regard to the opinion of the Committee of the Regions (2),

Having regard to the opinion of the European Data Protection Supervisor (3),

Acting in accordance with the procedure laid down in Article 251 of the Treaty (4),

Whereas:

| (1) | The functioning of the five directives comprising the existing regulatory framework for electronic communications networks and services (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) (5), Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (6), Directive 2002/21/EC of the European Parliament and the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (7), Directive 2002/22/EC (Universal Service Directive) (8) and Directive 2002/58/EC (Directive on privacy and electronic communications) (9) (together referred to as ‘the Framework Directive and the Specific Directives’)) 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. |
| --- | --- |

(1)

The functioning of the five directives comprising the existing regulatory framework for electronic communications networks and services (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) (5), Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (6), Directive 2002/21/EC of the European Parliament and the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive) (7), Directive 2002/22/EC (Universal Service Directive) (8) and Directive 2002/58/EC (Directive on privacy and electronic communications) (9) (together referred to as ‘the Framework Directive and the Specific Directives’)) 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.

| (2) | In that regard, the Commission presented its 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. |
| --- | --- |

(2)

In that regard, the Commission presented its 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.

| (3) | The reform of the EU regulatory framework for electronic communications networks and services, including the reinforcement of provisions for end-users with disabilities, represents a key step towards simultaneously achieving a Single European Information Space and an inclusive information society. These objectives are included in the strategic framework for the development of the information society as described in the Commission Communication to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions of 1 June 2005 entitled ‘i2010 — A European Information Society for growth and employment’. |
| --- | --- |

(3)

The reform of the EU regulatory framework for electronic communications networks and services, including the reinforcement of provisions for end-users with disabilities, represents a key step towards simultaneously achieving a Single European Information Space and an inclusive information society. These objectives are included in the strategic framework for the development of the information society as described in the Commission Communication to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions of 1 June 2005 entitled ‘i2010 — A European Information Society for growth and employment’.

| (4) | For the sake of clarity and simplicity, this Directive only deals with amendments to Directives 2002/22/EC (Universal Service Directive) and 2002/58/EC (Directive on privacy and electronic communications). |
| --- | --- |

(4)

For the sake of clarity and simplicity, this Directive only deals with amendments to Directives 2002/22/EC (Universal Service Directive) and 2002/58/EC (Directive on privacy and electronic communications).

| (5) | Without prejudice to Directive 1999/5/EC of the European Parliament and of the Council of 9 March 1999 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity (10), and in particular the disability requirements laid down in Article 3(3)(f) thereof, certain aspects of terminal equipment, including equipment intended for disabled users, should be brought within the scope of Directive 2002/22/EC (Universal Service Directive) in order to facilitate access to networks and the use of services. Such equipment currently includes receive-only radio and television terminal equipment as well as special terminal devices for hearing-impaired end-users. |
| --- | --- |

(5)

Without prejudice to Directive 1999/5/EC of the European Parliament and of the Council of 9 March 1999 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity (10), and in particular the disability requirements laid down in Article 3(3)(f) thereof, certain aspects of terminal equipment, including equipment intended for disabled users, should be brought within the scope of Directive 2002/22/EC (Universal Service Directive) in order to facilitate access to networks and the use of services. Such equipment currently includes receive-only radio and television terminal equipment as well as special terminal devices for hearing-impaired end-users.

| (6) | Member States should introduce measures to promote the creation of a market for widely available products and services incorporating facilities for disabled end-users. One way among others of achieving this is, with reference to European standards, introducing electronic accessibility (eAccessibility) requirements for public procurement procedures and tendering services in accordance with legislation upholding the rights of the disabled end-users. |
| --- | --- |

(6)

Member States should introduce measures to promote the creation of a market for widely available products and services incorporating facilities for disabled end-users. One way among others of achieving this is, with reference to European standards, introducing electronic accessibility (eAccessibility) requirements for public procurement procedures and tendering services in accordance with legislation upholding the rights of the disabled end-users.

| (7) | Definitions need to be adjusted so as to conform to the principle of technology neutrality and to keep pace with technological development. In particular, conditions for the provision of a service should be separated from the actual definitional elements of a publicly available telephone service, i.e. an electronic communications service made available to the public for originating and receiving, directly or indirectly, national and/or international calls through a number or numbers in a national or international telephone numbering plan, whether such a service is based on circuit switching or packet switching technology. It is the nature of such a service that it is bidirectional, enabling both the parties to communicate. A service which does not fulfil all these conditions, such as for example a ‘click-through’ application on a customer service website, is not a publicly available telephone service. Publicly available telephone services also include means of communication specifically intended for disabled end-users using text relay or total conversation services. |
| --- | --- |

(7)

Definitions need to be adjusted so as to conform to the principle of technology neutrality and to keep pace with technological development. In particular, conditions for the provision of a service should be separated from the actual definitional elements of a publicly available telephone service, i.e. an electronic communications service made available to the public for originating and receiving, directly or indirectly, national and/or international calls through a number or numbers in a national or international telephone numbering plan, whether such a service is based on circuit switching or packet switching technology. It is the nature of such a service that it is bidirectional, enabling both the parties to communicate. A service which does not fulfil all these conditions, such as for example a ‘click-through’ application on a customer service website, is not a publicly available telephone service. Publicly available telephone services also include means of communication specifically intended for disabled end-users using text relay or total conversation services.

| (8) | It is necessary to clarify that the indirect provision of services could include situations where originating is made via carrier selection or pre-selection or where a service provider resells or re-brands publicly available telephone services provided by another undertaking. |
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(8)

It is necessary to clarify that the indirect provision of services could include situations where originating is made via carrier selection or pre-selection or where a service provider resells or re-brands publicly available telephone services provided by another undertaking.

| (9) | As a result of technological and market evolution, networks are increasingly moving to ‘Internet Protocol’ (IP) technology, and consumers are increasingly able to choose between a range of competing voice service providers. Therefore, Member States should be able to separate universal service obligations concerning the provision of a connection to the public communications network at a fixed location from the provision of a publicly available telephone service (including calls to emergency services via the number ‘112’). Such separation should not affect the scope of universal service obligations defined and reviewed at Community level. Member States that use national emergency numbers besides ‘112’ may impose on undertakings similar obligations for access to those national emergency numbers. |
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(9)

As a result of technological and market evolution, networks are increasingly moving to ‘Internet Protocol’ (IP) technology, and consumers are increasingly able to choose between a range of competing voice service providers. Therefore, Member States should be able to separate universal service obligations concerning the provision of a connection to the public communications network at a fixed location from the provision of a publicly available telephone service (including calls to emergency services via the number ‘112’). Such separation should not affect the scope of universal service obligations defined and reviewed at Community level. Member States that use national emergency numbers besides ‘112’ may impose on undertakings similar obligations for access to those national emergency numbers.

| (10) | In accordance with the principle of subsidiarity, it is for the Member States to decide on the basis of objective criteria which undertakings are designated as universal service providers, where appropriate taking into account the ability and the willingness of undertakings to accept all or part of the universal service obligations. This does not preclude that Member States may include, in the designation process, specific conditions justified on grounds of efficiency, including, inter alia, grouping geographical areas or components or setting minimum periods for the designation. |
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(10)

In accordance with the principle of subsidiarity, it is for the Member States to decide on the basis of objective criteria which undertakings are designated as universal service providers, where appropriate taking into account the ability and the willingness of undertakings to accept all or part of the universal service obligations. This does not preclude that Member States may include, in the designation process, specific conditions justified on grounds of efficiency, including, inter alia, grouping geographical areas or components or setting minimum periods for the designation.

| (11) | National regulatory authorities should be able to monitor the evolution and level of retail tariffs for services that fall under the scope of universal service obligations, even where a Member State has not yet designated an undertaking to provide universal services. In such a case, the monitoring should be carried out in such a way that it would not represent an excessive administrative burden for either national regulatory authorities or undertakings providing such services. |
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(11)

National regulatory authorities should be able to monitor the evolution and level of retail tariffs for services that fall under the scope of universal service obligations, even where a Member State has not yet designated an undertaking to provide universal services. In such a case, the monitoring should be carried out in such a way that it would not represent an excessive administrative burden for either national regulatory authorities or undertakings providing such services.

| (12) | Redundant obligations designed to facilitate the transition from the regulatory framework of 1998 to that of 2002 should be deleted, together with other provisions that overlap with and duplicate those laid down in Directive 2002/21/EC (Framework Directive). |
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(12)

Redundant obligations designed to facilitate the transition from the regulatory framework of 1998 to that of 2002 should be deleted, together with other provisions that overlap with and duplicate those laid down in Directive 2002/21/EC (Framework Directive).

| (13) | The requirement to provide a minimum set of leased lines at retail level, which was necessary to ensure the continued application of provisions of the regulatory framework of 1998 in the field of leased lines, which was not sufficiently competitive at the time the 2002 framework entered into force, is no longer necessary and should be repealed. |
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(13)

The requirement to provide a minimum set of leased lines at retail level, which was necessary to ensure the continued application of provisions of the regulatory framework of 1998 in the field of leased lines, which was not sufficiently competitive at the time the 2002 framework entered into force, is no longer necessary and should be repealed.

| (14) | To continue to impose carrier selection and carrier pre-selection directly in Community legislation could hamper technological progress. These remedies should rather be imposed by national regulatory authorities as a result of market analysis carried out in accordance with the procedures set out in Directive 2002/21/EC (Framework Directive) and through the obligations referred to in Article 12 of Directive 2002/19/EC (Access Directive). |
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(14)

To continue to impose carrier selection and carrier pre-selection directly in Community legislation could hamper technological progress. These remedies should rather be imposed by national regulatory authorities as a result of market analysis carried out in accordance with the procedures set out in Directive 2002/21/EC (Framework Directive) and through the obligations referred to in Article 12 of Directive 2002/19/EC (Access Directive).

| (15) | Provisions on contracts should apply not only to consumers but also to other end-users, primarily micro enterprises and small and medium-sized enterprises (SMEs), which may prefer a contract adapted to consumer needs. To avoid unnecessary administrative burdens for providers and the complexity related to the definition of SMEs, the provisions on contracts should not apply automatically to those other end-users, but only where they so request. Member States should take appropriate measures to promote awareness amongst SMEs of this possibility. |
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(15)

Provisions on contracts should apply not only to consumers but also to other end-users, primarily micro enterprises and small and medium-sized enterprises (SMEs), which may prefer a contract adapted to consumer needs. To avoid unnecessary administrative burdens for providers and the complexity related to the definition of SMEs, the provisions on contracts should not apply automatically to those other end-users, but only where they so request. Member States should take appropriate measures to promote awareness amongst SMEs of this possibility.

| (16) | As a consequence of technological developments, other types of identifiers may be used in the future, in addition to ordinary forms of numbering identification. |
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(16)

As a consequence of technological developments, other types of identifiers may be used in the future, in addition to ordinary forms of numbering identification.

| (17) | Providers of electronic communications services that allow calls should ensure that their customers are adequately informed as to whether or not access to emergency services is provided and of any limitation on service (such as a limitation on the provision of caller location information or the routing of emergency calls). Such providers should also provide their customers with clear and transparent information in the initial contract and in the event of any change in the access provision, for example in billing information. This information should include any limitations on territorial coverage, on the basis of the planned technical operating parameters of the service and the available infrastructure. Where the service is not provided over a switched telephony network, the information should also include the level of reliability of the access and of caller location information compared to a service that is provided over a switched telephony network, taking into account current technology and quality standards, as well as any quality of service parameters specified under Directive 2002/22/EC (Universal Service Directive). |
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(17)

Providers of electronic communications services that allow calls should ensure that their customers are adequately informed as to whether or not access to emergency services is provided and of any limitation on service (such as a limitation on the provision of caller location information or the routing of emergency calls). Such providers should also provide their customers with clear and transparent information in the initial contract and in the event of any change in the access provision, for example in billing information. This information should include any limitations on territorial coverage, on the basis of the planned technical operating parameters of the service and the available infrastructure. Where the service is not provided over a switched telephony network, the information should also include the level of reliability of the access and of caller location information compared to a service that is provided over a switched telephony network, taking into account current technology and quality standards, as well as any quality of service parameters specified under Directive 2002/22/EC (Universal Service Directive).

| (18) | With respect to terminal equipment, the customer contract should specify any restrictions imposed by the provider on the use of the equipment, such as by way of ‘SIM-locking’ mobile devices, if such restrictions are not prohibited under national legislation, and any charges due on termination of the contract, whether before or on the agreed expiry date, including any cost imposed in order to retain the equipment. |
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(18)

With respect to terminal equipment, the customer contract should specify any restrictions imposed by the provider on the use of the equipment, such as by way of ‘SIM-locking’ mobile devices, if such restrictions are not prohibited under national legislation, and any charges due on termination of the contract, whether before or on the agreed expiry date, including any cost imposed in order to retain the equipment.

| (19) | Without imposing any obligation on the provider to take action over and above what is required under Community law, the customer contract should also specify the type of action, if any, the provider might take in case of security or integrity incidents, threats or vulnerabilities. |
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(19)

Without imposing any obligation on the provider to take action over and above what is required under Community law, the customer contract should also specify the type of action, if any, the provider might take in case of security or integrity incidents, threats or vulnerabilities.

| (20) | In order to address public interest issues with respect to the use of communications services and to encourage protection of the rights and freedoms of others, the relevant national authorities should be able to produce and have disseminated, with the aid of providers, public interest information related to the use of communications services. This information could include public interest information regarding copyright infringement, other unlawful uses and the dissemination of harmful content, and advice and means of protection against risks to personal security, which may for example arise from disclosure of personal information in certain circumstances, as well as risks to privacy and personal data. The information could be coordinated by way of the cooperation procedure established in Article 33(3) of Directive 2002/22/EC (Universal Service Directive). Such public interest information should be updated whenever necessary and should be presented in easily comprehensible printed and electronic formats, as determined by each Member State, and on national public authority websites. National regulatory authorities should be able to oblige providers to disseminate this standardised information to all their customers in a manner deemed appropriate by the national regulatory authorities. When required by Member States, the information should also be included in contracts. |
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(20)

In order to address public interest issues with respect to the use of communications services and to encourage protection of the rights and freedoms of others, the relevant national authorities should be able to produce and have disseminated, with the aid of providers, public interest information related to the use of communications services. This information could include public interest information regarding copyright infringement, other unlawful uses and the dissemination of harmful content, and advice and means of protection against risks to personal security, which may for example arise from disclosure of personal information in certain circumstances, as well as risks to privacy and personal data. The information could be coordinated by way of the cooperation procedure established in Article 33(3) of Directive 2002/22/EC (Universal Service Directive). Such public interest information should be updated whenever necessary and should be presented in easily comprehensible printed and electronic formats, as determined by each Member State, and on national public authority websites. National regulatory authorities should be able to oblige providers to disseminate this standardised information to all their customers in a manner deemed appropriate by the national regulatory authorities. When required by Member States, the information should also be included in contracts.

| (21) | The right of subscribers to withdraw from their contracts without penalty refers to modifications in contractual conditions which are imposed by the providers of electronic communications networks and/or services. |
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(21)

The right of subscribers to withdraw from their contracts without penalty refers to modifications in contractual conditions which are imposed by the providers of electronic communications networks and/or services.

| (22) | Given the increasing importance of electronic communications for consumers and businesses, users should be fully informed of the traffic management policies of the service and/or network provider with which they conclude the contract. Where there is a lack of effective competition, national regulatory authorities should use the remedies available to them under Directive 2002/19/EC (Access Directive) to ensure that users’ access to particular types of content or application is not unreasonably restricted. |
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(22)

Given the increasing importance of electronic communications for consumers and businesses, users should be fully informed of the traffic management policies of the service and/or network provider with which they conclude the contract. Where there is a lack of effective competition, national regulatory authorities should use the remedies available to them under Directive 2002/19/EC (Access Directive) to ensure that users’ access to particular types of content or application is not unreasonably restricted.

| (23) | In the absence of relevant rules of Community law, content, applications and services are deemed lawful or harmful in accordance with national substantive and procedural law. It is a task for the Member States, not for providers of electronic communications networks or services, to decide, in accordance with due process, whether content, applications or services are lawful or harmful. The Framework Directive and the Specific Directives are without prejudice to Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) (11), which, inter alia, contains a ‘mere conduit’ rule for intermediary service providers, as defined therein. |
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(23)

In the absence of relevant rules of Community law, content, applications and services are deemed lawful or harmful in accordance with national substantive and procedural law. It is a task for the Member States, not for providers of electronic communications networks or services, to decide, in accordance with due process, whether content, applications or services are lawful or harmful. The Framework Directive and the Specific Directives are without prejudice to Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) (11), which, inter alia, contains a ‘mere conduit’ rule for intermediary service providers, as defined therein.

| (24) | The availability of transparent, up-to-date and comparable information on offers and services is a key element for consumers in competitive markets where several providers offer services. End-users and consumers of electronic communications services should be able to easily compare the prices of various services offered on the market based on information published in an easily accessible form. In order to allow them to make price comparisons easily, national regulatory authorities should be able to require from undertakings providing electronic communications networks and/or services greater transparency as regards information (including tariffs, consumption patterns and other relevant statistics) and to ensure that third parties have the right to use, without charge, publicly available information published by such undertakings. National regulatory authorities should also be able to make price guides available, in particular where the market has not provided them free of charge or at a reasonable price. Undertakings should not be entitled to any remuneration for the use of information where it has already been published and thus belongs in the public domain. In addition, end-users and consumers should be adequately informed of the price and the type of service offered before they purchase a service, in particular if a freephone number is subject to additional charges. National regulatory authorities should be able to require that such information is provided generally, and, for certain categories of services determined by them, immediately prior to connecting the call, unless otherwise provided for by national law. When determining the categories of call requiring pricing information prior to connection, national regulatory authorities should take due account of the nature of the service, the pricing conditions which apply to it and whether it is offered by a provider who is not a provider of electronic communications services. Without prejudice to Directive 2000/31/EC (Directive on electronic commerce), undertakings should also, if required by Member States, provide subscribers with public interest information produced by the relevant public authorities regarding, inter alia, the most common infringements and their legal consequences. |
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(24)

The availability of transparent, up-to-date and comparable information on offers and services is a key element for consumers in competitive markets where several providers offer services. End-users and consumers of electronic communications services should be able to easily compare the prices of various services offered on the market based on information published in an easily accessible form. In order to allow them to make price comparisons easily, national regulatory authorities should be able to require from undertakings providing electronic communications networks and/or services greater transparency as regards information (including tariffs, consumption patterns and other relevant statistics) and to ensure that third parties have the right to use, without charge, publicly available information published by such undertakings. National regulatory authorities should also be able to make price guides available, in particular where the market has not provided them free of charge or at a reasonable price. Undertakings should not be entitled to any remuneration for the use of information where it has already been published and thus belongs in the public domain. In addition, end-users and consumers should be adequately informed of the price and the type of service offered before they purchase a service, in particular if a freephone number is subject to additional charges. National regulatory authorities should be able to require that such information is provided generally, and, for certain categories of services determined by them, immediately prior to connecting the call, unless otherwise provided for by national law. When determining the categories of call requiring pricing information prior to connection, national regulatory authorities should take due account of the nature of the service, the pricing conditions which apply to it and whether it is offered by a provider who is not a provider of electronic communications services. Without prejudice to Directive 2000/31/EC (Directive on electronic commerce), undertakings should also, if required by Member States, provide subscribers with public interest information produced by the relevant public authorities regarding, inter alia, the most common infringements and their legal consequences.

| (25) | Customers should be informed of their rights with respect to the use of their personal information in subscriber directories and in particular of the purpose or purposes of such directories, as well as their right, free of charge, not to be included in a public subscriber directory, as provided for in Directive 2002/58/EC (Directive on privacy and electronic communications). Customers should also be informed of systems which allow information to be included in the directory database but which do not disclose such information to users of directory services. |
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(25)

Customers should be informed of their rights with respect to the use of their personal information in subscriber directories and in particular of the purpose or purposes of such directories, as well as their right, free of charge, not to be included in a public subscriber directory, as provided for in Directive 2002/58/EC (Directive on privacy and electronic communications). Customers should also be informed of systems which allow information to be included in the directory database but which do not disclose such information to users of directory services.

| (26) | A competitive market should ensure that users enjoy the quality of service they require, but in particular cases it may be necessary to ensure that public communications networks attain minimum quality levels so as to prevent degradation of service, the blocking of access and the slowing of traffic over networks. |
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(26)

A competitive market should ensure that users enjoy the quality of service they require, but in particular cases it may be necessary to ensure that public communications networks attain minimum quality levels so as to prevent degradation of service, the blocking of access and the slowing of traffic over networks.

| (27) | In future IP networks, where provision of a service may be separated from provision of the network, Member States should determine the most appropriate steps to be taken to ensure the availability of publicly available telephone services provided using public communications networks and uninterrupted access to emergency services in the event of catastrophic network breakdown or in cases of force majeure, taking into account the priorities of different types of subscriber and technical limitations. |
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(27)

In future IP networks, where provision of a service may be separated from provision of the network, Member States should determine the most appropriate steps to be taken to ensure the availability of publicly available telephone services provided using public communications networks and uninterrupted access to emergency services in the event of catastrophic network breakdown or in cases of force majeure, taking into account the priorities of different types of subscriber and technical limitations.

| (28) | In order to ensure that disabled end-users benefit from competition and the choice of service providers enjoyed by the majority of end-users, relevant national authorities should specify, where appropriate and in light of national conditions, consumer protection requirements to be met by undertakings providing publicly available electronic communications services. Such requirements may include, in particular, that undertakings ensure that disabled end-users take advantage of their services on the same terms and conditions, including prices and tariffs, as those offered to their other end-users, and charge equivalent prices for their services, irrespective of any additional costs incurred by them. Other requirements may relate to wholesale arrangements between undertakings. |
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(28)

In order to ensure that disabled end-users benefit from competition and the choice of service providers enjoyed by the majority of end-users, relevant national authorities should specify, where appropriate and in light of national conditions, consumer protection requirements to be met by undertakings providing publicly available electronic communications services. Such requirements may include, in particular, that undertakings ensure that disabled end-users take advantage of their services on the same terms and conditions, including prices and tariffs, as those offered to their other end-users, and charge equivalent prices for their services, irrespective of any additional costs incurred by them. Other requirements may relate to wholesale arrangements between undertakings.

| (29) | Operator assistance services cover a range of different services for end-users. The provision of such services should be left to commercial negotiations between providers of public communications networks and operator assistance services, as is the case for any other customer support service, and it is not necessary to continue to mandate their provision. The corresponding obligation should therefore be repealed. |
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(29)

Operator assistance services cover a range of different services for end-users. The provision of such services should be left to commercial negotiations between providers of public communications networks and operator assistance services, as is the case for any other customer support service, and it is not necessary to continue to mandate their provision. The corresponding obligation should therefore be repealed.

| (30) | Directory enquiry services should be, and frequently are, provided under competitive market conditions, pursuant to Article 5 of Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services (12). Measures concerning the inclusion of end-user data (held by undertakings that assign telephone numbers to subscribers) in databases should comply with the safeguards for the protection of personal data, including Article 12 of Directive 2002/58/EC (Directive on privacy and electronic communications). The cost-oriented supply of that data for the purposes of publicly available directory and directory enquiry services should be in place in order to ensure that end-users benefit fully from reasonable and transparent competitive conditions. |
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(30)

Directory enquiry services should be, and frequently are, provided under competitive market conditions, pursuant to Article 5 of Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services (12). Measures concerning the inclusion of end-user data (held by undertakings that assign telephone numbers to subscribers) in databases should comply with the safeguards for the protection of personal data, including Article 12 of Directive 2002/58/EC (Directive on privacy and electronic communications). The cost-oriented supply of that data for the purposes of publicly available directory and directory enquiry services should be in place in order to ensure that end-users benefit fully from reasonable and transparent competitive conditions.

| (31) | End-users should be able to call and access the emergency services using any telephone service capable of originating voice calls through a number or numbers in national telephone numbering plans. Emergency authorities should be able to handle and answer calls to the number ‘112’ at least as expeditiously and effectively as calls to national emergency numbers. It is important to increase awareness of ‘112’ in order to improve the level of protection and security of citizens travelling in the European Union. To this end, citizens should be made fully aware, when travelling in any Member State, in particular through information provided in international bus terminals, train stations, ports or airports and in telephone directories, payphone kiosks, subscriber and billing material, that ‘112’ can be used as a single emergency number throughout the Community. This is primarily the responsibility of the Member States, but the Commission should continue both to support and to supplement initiatives of the Member States to heighten awareness of ‘112’ and periodically to evaluate the public's awareness of it. The obligation to provide caller location information should be strengthened so as to increase the protection of citizens of the European Union. In particular, undertakings should make caller location information available to emergency services as soon as the call reaches that service, independently of the technology used. |
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(31)

End-users should be able to call and access the emergency services using any telephone service capable of originating voice calls through a number or numbers in national telephone numbering plans. Emergency authorities should be able to handle and answer calls to the number ‘112’ at least as expeditiously and effectively as calls to national emergency numbers. It is important to increase awareness of ‘112’ in order to improve the level of protection and security of citizens travelling in the European Union. To this end, citizens should be made fully aware, when travelling in any Member State, in particular through information provided in international bus terminals, train stations, ports or airports and in telephone directories, payphone kiosks, subscriber and billing material, that ‘112’ can be used as a single emergency number throughout the Community. This is primarily the responsibility of the Member States, but the Commission should continue both to support and to supplement initiatives of the Member States to heighten awareness of ‘112’ and periodically to evaluate the public's awareness of it. The obligation to provide caller location information should be strengthened so as to increase the protection of citizens of the European Union. In particular, undertakings should make caller location information available to emergency services as soon as the call reaches that service, independently of the technology used.

| (32) | Member States should ensure that undertakings providing end-users with an electronic communications service designed for originating calls through a number or numbers in a national telephone numbering plan provide access to emergency services with such accuracy and reliability as is technically feasible for that electronic communications service. Network-independent service providers may not have control over networks and may not be able to ensure that emergency calls made through their service are routed with the same reliability as traditional integrated telephone service providers, as they may not be able to guarantee service availability, given that problems related to infrastructure are not under their control. Once internationally-recognised standards ensuring accurate and reliable routing and connection to the emergency services are in place, network-independent service providers should also fulfil the obligations related to access to emergency services at a level comparable to that required of other undertakings. |
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(32)

Member States should ensure that undertakings providing end-users with an electronic communications service designed for originating calls through a number or numbers in a national telephone numbering plan provide access to emergency services with such accuracy and reliability as is technically feasible for that electronic communications service. Network-independent service providers may not have control over networks and may not be able to ensure that emergency calls made through their service are routed with the same reliability as traditional integrated telephone service providers, as they may not be able to guarantee service availability, given that problems related to infrastructure are not under their control. Once internationally-recognised standards ensuring accurate and reliable routing and connection to the emergency services are in place, network-independent service providers should also fulfil the obligations related to access to emergency services at a level comparable to that required of other undertakings.

| (33) | Member States should take specific measures to ensure that emergency services, including ‘112’, are equally accessible to disabled end-users, in particular deaf, hearing-impaired, speech-impaired and deaf-blind users. This could involve the provision of special terminal devices for hearing-impaired users, text relay services, or other specific equipment. |
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(33)

Member States should take specific measures to ensure that emergency services, including ‘112’, are equally accessible to disabled end-users, in particular deaf, hearing-impaired, speech-impaired and deaf-blind users. This could involve the provision of special terminal devices for hearing-impaired users, text relay services, or other specific equipment.

| (34) | Voice calls remain the most robust and reliable form of access to emergency services. Other means of contact, such as text messaging, may be less reliable and may suffer from lack of immediacy. Member States should, however, if they deem it appropriate, be free to promote the development and implementation of other means of access to emergency services which are capable of ensuring access equivalent to voice calls. |
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(34)

Voice calls remain the most robust and reliable form of access to emergency services. Other means of contact, such as text messaging, may be less reliable and may suffer from lack of immediacy. Member States should, however, if they deem it appropriate, be free to promote the development and implementation of other means of access to emergency services which are capable of ensuring access equivalent to voice calls.

| (35) | Pursuant to its Decision 2007/116/EC of 15 February 2007 on reserving the national numbering range beginning with ‘116’ for harmonised numbers for harmonised services of social value, (13) the Commission has asked Member States to reserve numbers in the ‘116’ numbering range for certain services of social value. The appropriate provisions of that Decision should be reflected in Directive 2002/22/EC (Universal Service Directive) in order to integrate them more firmly into the regulatory framework for electronic communications networks and services and to facilitate access by disabled end-users. |
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(35)

Pursuant to its Decision 2007/116/EC of 15 February 2007 on reserving the national numbering range beginning with ‘116’ for harmonised numbers for harmonised services of social value, (13) the Commission has asked Member States to reserve numbers in the ‘116’ numbering range for certain services of social value. The appropriate provisions of that Decision should be reflected in Directive 2002/22/EC (Universal Service Directive) in order to integrate them more firmly into the regulatory framework for electronic communications networks and services and to facilitate access by disabled end-users.

| (36) | A single market implies that end-users are able to access all numbers included in the national numbering plans of other Member States and to access services using non-geographic numbers within the Community, including, among others, freephone and premium rate numbers. End-users should also be able to access numbers from the European Telephone Numbering Space (ETNS) and Universal International Freephone Numbers (UIFN). Cross-border access to numbering resources and associated services should not be prevented, except in objectively justified cases, for example to combat fraud or abuse (e.g. in connection with certain premium-rate services), when the number is defined as having a national scope only (e.g. a national short code) or when it is technically or economically unfeasible. Users should be fully informed in advance and in a clear manner of any charges applicable to freephone numbers, such as international call charges for numbers accessible through standard international dialling codes. |
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(36)

A single market implies that end-users are able to access all numbers included in the national numbering plans of other Member States and to access services using non-geographic numbers within the Community, including, among others, freephone and premium rate numbers. End-users should also be able to access numbers from the European Telephone Numbering Space (ETNS) and Universal International Freephone Numbers (UIFN). Cross-border access to numbering resources and associated services should not be prevented, except in objectively justified cases, for example to combat fraud or abuse (e.g. in connection with certain premium-rate services), when the number is defined as having a national scope only (e.g. a national short code) or when it is technically or economically unfeasible. Users should be fully informed in advance and in a clear manner of any charges applicable to freephone numbers, such as international call charges for numbers accessible through standard international dialling codes.

| (37) | In order to take full advantage of the competitive environment, consumers should be able to make informed choices and to change providers when it is in their interests. It is essential to ensure that they can do so without being hindered by legal, technical or practical obstacles, including contractual conditions, procedures, charges and so on. This does not preclude the imposition of reasonable minimum contractual periods in consumer contracts. Number portability is a key facilitator of consumer choice and effective competition in competitive markets for electronic communications. It should be implemented with the minimum delay. In any case, the technical transfer of the number should not exceed one day. Competent national authorities may establish the global process of the porting of numbers, taking into account national provisions on contracts and technical feasibility, and, where necessary, appropriate measures ensuring that consumers are protected throughout the switching process. This protection may include the limitation of porting abuse and the setting of speedy corrective action. |
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(37)

In order to take full advantage of the competitive environment, consumers should be able to make informed choices and to change providers when it is in their interests. It is essential to ensure that they can do so without being hindered by legal, technical or practical obstacles, including contractual conditions, procedures, charges and so on. This does not preclude the imposition of reasonable minimum contractual periods in consumer contracts. Number portability is a key facilitator of consumer choice and effective competition in competitive markets for electronic communications. It should be implemented with the minimum delay. In any case, the technical transfer of the number should not exceed one day. Competent national authorities may establish the global process of the porting of numbers, taking into account national provisions on contracts and technical feasibility, and, where necessary, appropriate measures ensuring that consumers are protected throughout the switching process. This protection may include the limitation of porting abuse and the setting of speedy corrective action.

| (38) | Legal ‘must-carry’ obligations may be applied to specified radio and television broadcast channels and complementary services supplied by a specified media service provider. Member States should provide a clear justification for the ‘must carry’ obligations in their national law so as to ensure that such obligations are transparent, proportionate and properly defined. In that regard, ‘must carry’ rules should be designed in a way which provides sufficient incentives for efficient investment in infrastructure. ‘Must carry’ rules should be periodically reviewed in order to keep them up-to-date with technological and market evolution and in order to ensure that they continue to be proportionate to the objectives to be achieved. Complementary services include, but are not limited to, services designed to improve accessibility for end-users with disabilities, such as videotext, subtitling, audio description and sign language. |
| --- | --- |

(38)

Legal ‘must-carry’ obligations may be applied to specified radio and television broadcast channels and complementary services supplied by a specified media service provider. Member States should provide a clear justification for the ‘must carry’ obligations in their national law so as to ensure that such obligations are transparent, proportionate and properly defined. In that regard, ‘must carry’ rules should be designed in a way which provides sufficient incentives for efficient investment in infrastructure. ‘Must carry’ rules should be periodically reviewed in order to keep them up-to-date with technological and market evolution and in order to ensure that they continue to be proportionate to the objectives to be achieved. Complementary services include, but are not limited to, services designed to improve accessibility for end-users with disabilities, such as videotext, subtitling, audio description and sign language.

| (39) | In order to overcome existing shortcomings in terms of consumer consultation and to appropriately address the interests of citizens, Member States should put in place an appropriate consultation mechanism. Such a mechanism could take the form of a body which would, independently of the national regulatory authority and service providers, carry out research into consumer-related issues, such as consumer behaviour and mechanisms for changing suppliers, and which would operate in a transparent manner and contribute to the existing mechanisms for stakeholder consultation. Furthermore, a mechanism could be established for the purpose of enabling appropriate cooperation on issues relating to the promotion of lawful content. Any cooperation procedures agreed pursuant to such a mechanism should, however, not allow for the systematic surveillance of internet usage. |
| --- | --- |

(39)

In order to overcome existing shortcomings in terms of consumer consultation and to appropriately address the interests of citizens, Member States should put in place an appropriate consultation mechanism. Such a mechanism could take the form of a body which would, independently of the national regulatory authority and service providers, carry out research into consumer-related issues, such as consumer behaviour and mechanisms for changing suppliers, and which would operate in a transparent manner and contribute to the existing mechanisms for stakeholder consultation. Furthermore, a mechanism could be established for the purpose of enabling appropriate cooperation on issues relating to the promotion of lawful content. Any cooperation procedures agreed pursuant to such a mechanism should, however, not allow for the systematic surveillance of internet usage.

| (40) | Universal service obligations imposed on an undertaking designated as having universal service obligations should be notified to the Commission. |
| --- | --- |

(40)

Universal service obligations imposed on an undertaking designated as having universal service obligations should be notified to the Commission.

| (41) | The processing of traffic data to the extent strictly necessary for the purposes of the detection, location and elimination of faults and malfunctions of network and information security, ensuring the availability, authenticity, integrity and confidentiality of stored or transmitted data, will help prevent unauthorised access and malicious code distribution, ‘denial of service’ attacks and damage to computer and electronic communication systems. |
| --- | --- |

(41)

The processing of traffic data to the extent strictly necessary for the purposes of the detection, location and elimination of faults and malfunctions of network and information security, ensuring the availability, authenticity, integrity and confidentiality of stored or transmitted data, will help prevent unauthorised access and malicious code distribution, ‘denial of service’ attacks and damage to computer and electronic communication systems.

| (42) | The liberalisation of electronic communications networks and services markets and rapid technological development have combined to boost competition and economic growth and resulted in a rich diversity of end-user services accessible via public electronic communications networks. It is necessary to ensure that consumers and users are afforded the same level of protection of privacy and personal data, regardless of the technology used to deliver a particular service. |
| --- | --- |

(42)

The liberalisation of electronic communications networks and services markets and rapid technological development have combined to boost competition and economic growth and resulted in a rich diversity of end-user services accessible via public electronic communications networks. It is necessary to ensure that consumers and users are afforded the same level of protection of privacy and personal data, regardless of the technology used to deliver a particular service.

| (43) | In line with the objectives of the regulatory framework for electronic communications networks and services and with the principles of proportionality and subsidiarity, and for the purposes of legal certainty and efficiency for European businesses and national regulatory authorities alike, this Directive focuses on public electronic communications networks and services, and does not apply to closed user groups and corporate networks. |
| --- | --- |

(43)

In line with the objectives of the regulatory framework for electronic communications networks and services and with the principles of proportionality and subsidiarity, and for the purposes of legal certainty and efficiency for European businesses and national regulatory authorities alike, this Directive focuses on public electronic communications networks and services, and does not apply to closed user groups and corporate networks.

| (44) | Technological progress allows the development of new applications based on devices for data collection and identification, which could be contactless devices using radio frequencies. For example, Radio Frequency Identification Devices (RFID) use radio frequencies to capture data from uniquely identified tags which can then be transferred over existing communications networks. The wide use of such technologies can bring considerable economic and social benefit and thus make a powerful contribution to the internal market, if their use is acceptable to citizens. To achieve this aim, it is necessary to ensure that all fundamental rights of individuals, including the right to privacy and data protection, are safeguarded. When such devices are connected to publicly available electronic communications networks or make use of electronic communications services as a basic infrastructure, the relevant provisions of Directive 2002/58/EC (Directive on privacy and electronic communications), including those on security, traffic and location data and on confidentiality, should apply. |
| --- | --- |

(44)

Technological progress allows the development of new applications based on devices for data collection and identification, which could be contactless devices using radio frequencies. For example, Radio Frequency Identification Devices (RFID) use radio frequencies to capture data from uniquely identified tags which can then be transferred over existing communications networks. The wide use of such technologies can bring considerable economic and social benefit and thus make a powerful contribution to the internal market, if their use is acceptable to citizens. To achieve this aim, it is necessary to ensure that all fundamental rights of individuals, including the right to privacy and data protection, are safeguarded. When such devices are connected to publicly available electronic communications networks or make use of electronic communications services as a basic infrastructure, the relevant provisions of Directive 2002/58/EC (Directive on privacy and electronic communications), including those on security, traffic and location data and on confidentiality, should apply.

| (45) | The provider of a publicly available electronic communications service should take appropriate technical and organisational measures to ensure the security of its services. Without prejudice to Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (14), such measures should ensure that personal data can be accessed only by authorised personnel for legally authorised purposes, and that the personal data stored or transmitted, as well as the network and services, are protected. Moreover, a security policy with respect to the processing of personal data should be established in order to identify vulnerabilities in the system, and monitoring and preventive, corrective and mitigating action should be regularly carried out. |
| --- | --- |

(45)

The provider of a publicly available electronic communications service should take appropriate technical and organisational measures to ensure the security of its services. Without prejudice to Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (14), such measures should ensure that personal data can be accessed only by authorised personnel for legally authorised purposes, and that the personal data stored or transmitted, as well as the network and services, are protected. Moreover, a security policy with respect to the processing of personal data should be established in order to identify vulnerabilities in the system, and monitoring and preventive, corrective and mitigating action should be regularly carried out.

| (46) | Competent national authorities should monitor measures taken and disseminate best practices among providers of publicly available electronic communications services. |
| --- | --- |

(46)

Competent national authorities should monitor measures taken and disseminate best practices among providers of publicly available electronic communications services.

| (47) | A breach of security resulting in the loss or compromising of personal data of an individual subscriber may, if not addressed in an adequate and timely manner, result in substantial economic loss and social harm, including identity fraud. Therefore, as soon as the provider of publicly available electronic communications service becomes aware that such a breach has occurred, it should assess the risks associated with it, e.g. by establishing the type of data affected by the breach (including their sensitivity, context and the security measures in place), the cause and extent of the breach, the number of subscribers affected and the possible harm for subscribers as a result of the breach (e.g. identity theft, financial loss, loss of business or employment opportunities or physical harm). The subscribers concerned by security incidents that could result in a serious risk to their privacy (e.g. identity theft or fraud, physical harm, significant humiliation or damage to reputation) should be notified without delay in order to allow them to take the necessary precautions. The notification should include information about measures taken by the provider to address the breach, as well as recommendations for the users affected. Notification of a security breach to a subscriber should not be required if the provider has demonstrated to the competent authority that it has implemented appropriate technological protection measures, and that those measures were applied to the data concerned by the security breach. Such technological protection measures should render the data unintelligible to any person who is not authorised to access it. |
| --- | --- |

(47)

A breach of security resulting in the loss or compromising of personal data of an individual subscriber may, if not addressed in an adequate and timely manner, result in substantial economic loss and social harm, including identity fraud. Therefore, as soon as the provider of publicly available electronic communications service becomes aware that such a breach has occurred, it should assess the risks associated with it, e.g. by establishing the type of data affected by the breach (including their sensitivity, context and the security measures in place), the cause and extent of the breach, the number of subscribers affected and the possible harm for subscribers as a result of the breach (e.g. identity theft, financial loss, loss of business or employment opportunities or physical harm). The subscribers concerned by security incidents that could result in a serious risk to their privacy (e.g. identity theft or fraud, physical harm, significant humiliation or damage to reputation) should be notified without delay in order to allow them to take the necessary precautions. The notification should include information about measures taken by the provider to address the breach, as well as recommendations for the users affected. Notification of a security breach to a subscriber should not be required if the provider has demonstrated to the competent authority that it has implemented appropriate technological protection measures, and that those measures were applied to the data concerned by the security breach. Such technological protection measures should render the data unintelligible to any person who is not authorised to access it.

| (48) | National regulatory authorities should promote the interests of the citizens of the European Union by, inter alia, contributing to ensuring a high level of protection of personal data and privacy. To this end, they must have the necessary means to perform their duties, including access to comprehensive and reliable data about actual security incidents that have led to the personal data of individuals being compromised. |
| --- | --- |

(48)

National regulatory authorities should promote the interests of the citizens of the European Union by, inter alia, contributing to ensuring a high level of protection of personal data and privacy. To this end, they must have the necessary means to perform their duties, including access to comprehensive and reliable data about actual security incidents that have led to the personal data of individuals being compromised.

| (49) | When implementing measures transposing Directive 2002/58/EC (Directive on privacy and electronic communications), the authorities and courts of the Member States should not only interpret their national law in a manner consistent with that Directive, but should also ensure that they do not rely on an interpretation of it which would conflict with fundamental rights or general principles of Community law, such as the principle of proportionality. |
| --- | --- |

(49)

When implementing measures transposing Directive 2002/58/EC (Directive on privacy and electronic communications), the authorities and courts of the Member States should not only interpret their national law in a manner consistent with that Directive, but should also ensure that they do not rely on an interpretation of it which would conflict with fundamental rights or general principles of Community law, such as the principle of proportionality.

| (50) | Provision should be made for the Commission to adopt recommendations on the means to achieve an adequate level of privacy protection and security of personal data transmitted or processed in connection with the use of electronic communications networks in the internal market. |
| --- | --- |

(50)

Provision should be made for the Commission to adopt recommendations on the means to achieve an adequate level of privacy protection and security of personal data transmitted or processed in connection with the use of electronic communications networks in the internal market.

| (51) | In setting detailed rules concerning the format and procedures applicable to the notification of personal data breaches, due consideration should be given to the circumstances of the breach, including whether or not personal data had been protected by encryption or other means effectively limiting the likelihood of identity fraud or other forms of misuse. Moreover, such rules and procedures should take into account the legitimate interests of law enforcement authorities in cases where early disclosure could unnecessarily hamper the investigation of the circumstances of a breach. |
| --- | --- |

(51)

In setting detailed rules concerning the format and procedures applicable to the notification of personal data breaches, due consideration should be given to the circumstances of the breach, including whether or not personal data had been protected by encryption or other means effectively limiting the likelihood of identity fraud or other forms of misuse. Moreover, such rules and procedures should take into account the legitimate interests of law enforcement authorities in cases where early disclosure could unnecessarily hamper the investigation of the circumstances of a breach.

| (52) | Software that surreptitiously monitors the actions of the user or subverts the operation of the user's terminal equipment to the benefit of a third party (so-called ‘spyware’) poses a serious threat to the privacy of users. A high and equal level of protection of the private sphere of users needs to be ensured, regardless of whether unwanted spying programmes are inadvertently downloaded via electronic communications networks or are delivered and installed hidden in software distributed on other external data storage media, such as CDs, CD-ROMs or USB keys. Member States should encourage end-users to take the necessary steps to protect their terminal equipment against viruses and spyware. |
| --- | --- |

(52)

Software that surreptitiously monitors the actions of the user or subverts the operation of the user's terminal equipment to the benefit of a third party (so-called ‘spyware’) poses a serious threat to the privacy of users. A high and equal level of protection of the private sphere of users needs to be ensured, regardless of whether unwanted spying programmes are inadvertently downloaded via electronic communications networks or are delivered and installed hidden in software distributed on other external data storage media, such as CDs, CD-ROMs or USB keys. Member States should encourage end-users to take the necessary steps to protect their terminal equipment against viruses and spyware.

| (53) | Electronic communications service providers make substantial investments in order to combat unsolicited commercial communications (‘spam’). They are also in a better position than end-users in that they possess the knowledge and resources necessary to detect and identify spammers. Email service providers and other service providers should therefore be able to initiate legal action against spammers, and thus defend the interests of their customers, as part of their own legitimate business interests. |
| --- | --- |

(53)

Electronic communications service providers make substantial investments in order to combat unsolicited commercial communications (‘spam’). They are also in a better position than end-users in that they possess the knowledge and resources necessary to detect and identify spammers. Email service providers and other service providers should therefore be able to initiate legal action against spammers, and thus defend the interests of their customers, as part of their own legitimate business interests.

| (54) | The need to ensure an adequate level of protection of privacy and personal data transmitted and processed in connection with the use of electronic communications networks in the Community calls for effective implementation and enforcement powers in order to provide adequate incentives for compliance. Competent national authorities and, where appropriate, other relevant national bodies should have sufficient powers and resources to investigate cases of non-compliance effectively, including powers to obtain any relevant information they might need, to decide on complaints and to impose sanctions in cases of non-compliance. |
| --- | --- |

(54)

The need to ensure an adequate level of protection of privacy and personal data transmitted and processed in connection with the use of electronic communications networks in the Community calls for effective implementation and enforcement powers in order to provide adequate incentives for compliance. Competent national authorities and, where appropriate, other relevant national bodies should have sufficient powers and resources to investigate cases of non-compliance effectively, including powers to obtain any relevant information they might need, to decide on complaints and to impose sanctions in cases of non-compliance.

| (55) | The implementation and enforcement of the provisions of this Directive often require cooperation between the national regulatory authorities of two or more Member States, for example in combating cross-border spam and spyware. In order to ensure smooth and rapid cooperation in such cases, procedures relating for example to the quantity and format of information exchanged between authorities, or deadlines to be complied with, should be defined in recommendations. Such procedures will also allow the resulting obligations of market actors to be harmonised, contributing to the creation of a level playing field in the Community. |
| --- | --- |

(55)

The implementation and enforcement of the provisions of this Directive often require cooperation between the national regulatory authorities of two or more Member States, for example in combating cross-border spam and spyware. In order to ensure smooth and rapid cooperation in such cases, procedures relating for example to the quantity and format of information exchanged between authorities, or deadlines to be complied with, should be defined in recommendations. Such procedures will also allow the resulting obligations of market actors to be harmonised, contributing to the creation of a level playing field in the Community.

| (56) | Cross-border cooperation and enforcement should be reinforced in line with existing Community cross-border enforcement mechanisms, such as that laid down in Regulation (EC) No 2006/2004 (the Regulation on consumer protection cooperation) (15), by way of an amendment to that Regulation. |
| --- | --- |

(56)

Cross-border cooperation and enforcement should be reinforced in line with existing Community cross-border enforcement mechanisms, such as that laid down in Regulation (EC) No 2006/2004 (the Regulation on consumer protection cooperation) (15), by way of an amendment to that Regulation.

| (57) | The measures necessary for the implementation of Directive 2002/22/EC (Universal Service Directive) should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (16). |
| --- | --- |

(57)

The measures necessary for the implementation of Directive 2002/22/EC (Universal Service Directive) should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (16).

| (58) | In particular, the Commission should be empowered to adapt the Annexes to technical progress or changes in market demand. Since those measures are of general scope and are designed to amend non-essential elements of Directive 2002/22/EC (Universal Service Directive) by supplementing it with 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. |
| --- | --- |

(58)

In particular, the Commission should be empowered to adapt the Annexes to technical progress or changes in market demand. Since those measures are of general scope and are designed to amend non-essential elements of Directive 2002/22/EC (Universal Service Directive) by supplementing it with 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.

| (59) | Directives 2002/22/EC (Universal Service Directive) and 2002/58/EC (Directive on privacy and electronic communications) should therefore be amended accordingly. |
| --- | --- |

(59)

Directives 2002/22/EC (Universal Service Directive) and 2002/58/EC (Directive on privacy and electronic communications) should therefore be amended accordingly.

| (60) | In accordance with point 34 of the Interinstitutional Agreement on better law-making (17), Member States are encouraged to draw up, for themselves and in the interests of the Community, their own tables illustrating, as far as possible, the correlation between Directives 2002/22/EC (Universal Service Directive) and 2002/58/EC (Directive on privacy and electronic communications) and the transposition measures, and to make them public, |
| --- | --- |

(60)

In accordance with point 34 of the Interinstitutional Agreement on better law-making (17), Member States are encouraged to draw up, for themselves and in the interests of the Community, their own tables illustrating, as far as possible, the correlation between Directives 2002/22/EC (Universal Service Directive) and 2002/58/EC (Directive on privacy and electronic communications) and the transposition measures, and to make them public,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Amendments to Directive 2002/22/EC (Universal Service Directive)

Directive 2002/22/EC (Universal Service Directive) is hereby amended as follows:

| 1. | Article 1 shall be replaced by the following:
  ‘Article 1
  Subject-matter and scope
  1.   Within the framework of Directive 2002/21/EC (Framework Directive), this Directive concerns the provision of electronic communications networks and services to end-users. The aim is to ensure the availability throughout the Community of good-quality publicly available services through effective competition and choice and to deal with circumstances in which the needs of end-users are not satisfactorily met by the market. The Directive also includes provisions concerning certain aspects of terminal equipment intended to facilitate access for disabled end-users.
  2.   This Directive establishes the rights of end-users and the corresponding obligations of undertakings providing publicly available electronic communications networks and services. With regard to ensuring provision of universal service within an environment of open and competitive markets, this Directive defines the minimum set of services of specified quality to which all end-users have access, at an affordable price in the light of specific national conditions, without distorting competition. This Directive also sets out obligations with regard to the provision of certain mandatory services.
  3.   The provisions of this Directive concerning end-users’ rights shall apply without prejudice to Community rules on consumer protection, in particular Directives 93/13/EEC and 97/7/EC, and national rules in conformity with Community law.’; |
| --- | --- |

1.

Article 1 shall be replaced by the following:

‘Article 1

Subject-matter and scope

1.   Within the framework of Directive 2002/21/EC (Framework Directive), this Directive concerns the provision of electronic communications networks and services to end-users. The aim is to ensure the availability throughout the Community of good-quality publicly available services through effective competition and choice and to deal with circumstances in which the needs of end-users are not satisfactorily met by the market. The Directive also includes provisions concerning certain aspects of terminal equipment intended to facilitate access for disabled end-users.

2.   This Directive establishes the rights of end-users and the corresponding obligations of undertakings providing publicly available electronic communications networks and services. With regard to ensuring provision of universal service within an environment of open and competitive markets, this Directive defines the minimum set of services of specified quality to which all end-users have access, at an affordable price in the light of specific national conditions, without distorting competition. This Directive also sets out obligations with regard to the provision of certain mandatory services.

3.   The provisions of this Directive concerning end-users’ rights shall apply without prejudice to Community rules on consumer protection, in particular Directives 93/13/EEC and 97/7/EC, and national rules in conformity with Community law.’;

| 2. | Article 2 shall be amended as follows:






  (a) | point (b) shall be deleted; |
| --- | --- | --- |

2.

Article 2 shall be amended as follows:

(a)

point (b) shall be deleted;

| (b) | points (c) and (d) shall be replaced by the following:






  ‘(c) | “publicly available telephone service” means a service made available to the public for originating and receiving, directly or indirectly, national or national and international calls through a number or numbers in a national or international telephone numbering plan; |
| --- | --- | --- |

(b)

points (c) and (d) shall be replaced by the following:

‘(c)

“publicly available telephone service” means a service made available to the public for originating and receiving, directly or indirectly, national or national and international calls through a number or numbers in a national or international telephone numbering plan;

| (d) | “geographic number” means a number from the national telephone numbering plan where part of its digit structure contains geographic significance used for routing calls to the physical location of the network termination point (NTP);’; |
| --- | --- |

(d)

“geographic number” means a number from the national telephone numbering plan where part of its digit structure contains geographic significance used for routing calls to the physical location of the network termination point (NTP);’;

| (c) | point (e) shall be deleted; |
| --- | --- |

(c)

point (e) shall be deleted;

| (d) | point (f) shall be replaced by the following:






  ‘(f) | “non-geographic number” means a number from the national telephone numbering plan that is not a geographic number. It includes, inter alia, mobile, freephone and premium rate numbers.’; |
| --- | --- | --- |

(d)

point (f) shall be replaced by the following:

‘(f)

“non-geographic number” means a number from the national telephone numbering plan that is not a geographic number. It includes, inter alia, mobile, freephone and premium rate numbers.’;

| 3. | Article 4 shall be replaced by the following:
  ‘Article 4
  Provision of access at a fixed location and provision of telephone services
  1.   Member States shall ensure that all reasonable requests for connection at a fixed location to a public communications network are met by at least one undertaking.
  2.   The connection provided shall be capable of supporting voice, facsimile and data communications at data rates that are sufficient to permit functional Internet access, taking into account prevailing technologies used by the majority of subscribers and technological feasibility.
  3.   Member States shall ensure that all reasonable requests for the provision of a publicly available telephone service over the network connection referred to in paragraph 1 that allows for originating and receiving of national and international calls are met by at least one undertaking.’; |
| --- | --- |

3.

Article 4 shall be replaced by the following:

‘Article 4

Provision of access at a fixed location and provision of telephone services

1.   Member States shall ensure that all reasonable requests for connection at a fixed location to a public communications network are met by at least one undertaking.

2.   The connection provided shall be capable of supporting voice, facsimile and data communications at data rates that are sufficient to permit functional Internet access, taking into account prevailing technologies used by the majority of subscribers and technological feasibility.

3.   Member States shall ensure that all reasonable requests for the provision of a publicly available telephone service over the network connection referred to in paragraph 1 that allows for originating and receiving of national and international calls are met by at least one undertaking.’;

| 4. | Article 5(2) shall be replaced by the following:
  ‘2.   The directories referred to in paragraph 1 shall comprise, subject to the provisions of Article 12 of 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) (18), all subscribers of publicly available telephone services. |
| --- | --- |

4.

Article 5(2) shall be replaced by the following:

‘2.   The directories referred to in paragraph 1 shall comprise, subject to the provisions of Article 12 of 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) (18), all subscribers of publicly available telephone services.

| 5. | Article 7 shall be replaced by the following:
  ‘Article 7
  Measures for disabled end-users
  1.   Unless requirements have been specified under Chapter IV which achieve the equivalent effect, Member States shall take specific measures to ensure access to, and affordability of, the services identified in Article 4(3) and Article 5 for disabled end-users which is comparable to that enjoyed by other end-users. Member States may oblige national regulatory authorities to assess the general need and the specific requirements, including the extent and concrete form of such specific measures for disabled end-users.
  2.   Member States may take specific measures, in the light of national conditions, to ensure that disabled end-users can also take advantage of the choice of undertakings and service providers available to the majority of end-users.’; |
| --- | --- |

5.

Article 7 shall be replaced by the following:

‘Article 7

Measures for disabled end-users

1.   Unless requirements have been specified under Chapter IV which achieve the equivalent effect, Member States shall take specific measures to ensure access to, and affordability of, the services identified in Article 4(3) and Article 5 for disabled end-users which is comparable to that enjoyed by other end-users. Member States may oblige national regulatory authorities to assess the general need and the specific requirements, including the extent and concrete form of such specific measures for disabled end-users.

2.   Member States may take specific measures, in the light of national conditions, to ensure that disabled end-users can also take advantage of the choice of undertakings and service providers available to the majority of end-users.’;

| 6. | in Article 8, the following paragraph shall be added:
  ‘3.   When an undertaking designated in accordance with paragraph 1 intends to dispose of a substantial part or all of its local access network assets to a separate legal entity under different ownership, it shall inform in advance the national regulatory authority in a timely manner, in order to allow that authority to assess the effect of the intended transaction on the provision of access at a fixed location and of telephone services pursuant to Article 4. The national regulatory authority may impose, amend or withdraw specific obligations in accordance with Article 6(2) of Directive 2002/20/EC (Authorisation Directive).’; |
| --- | --- |

6.

in Article 8, the following paragraph shall be added:

‘3.   When an undertaking designated in accordance with paragraph 1 intends to dispose of a substantial part or all of its local access network assets to a separate legal entity under different ownership, it shall inform in advance the national regulatory authority in a timely manner, in order to allow that authority to assess the effect of the intended transaction on the provision of access at a fixed location and of telephone services pursuant to Article 4. The national regulatory authority may impose, amend or withdraw specific obligations in accordance with Article 6(2) of Directive 2002/20/EC (Authorisation Directive).’;

| 7. | Article 9(1), (2) and (3) shall be replaced by the following:
  ‘1.   National regulatory authorities shall monitor the evolution and level of retail tariffs of the services identified in Articles 4 to 7 as falling under the universal service obligations and either provided by designated undertakings or available on the market, if no undertakings are designated in relation to those services, in particular in relation to national consumer prices and income.
  2.   Member States may, in the light of national conditions, require that designated undertakings provide to consumers tariff options or packages which depart from those provided under normal commercial conditions, in particular to ensure that those on low incomes or with special social needs are not prevented from accessing the network referred to in Article 4(1) or from using the services identified in Article 4(3) and Articles 5, 6 and 7 as falling under the universal service obligations and provided by designated undertakings.
  3.   Member States may, besides any provision for designated undertakings to provide special tariff options or to comply with price caps or geographical averaging or other similar schemes, ensure that support is provided to consumers identified as having low incomes or special social needs.’; |
| --- | --- |

7.

Article 9(1), (2) and (3) shall be replaced by the following:

‘1.   National regulatory authorities shall monitor the evolution and level of retail tariffs of the services identified in Articles 4 to 7 as falling under the universal service obligations and either provided by designated undertakings or available on the market, if no undertakings are designated in relation to those services, in particular in relation to national consumer prices and income.

2.   Member States may, in the light of national conditions, require that designated undertakings provide to consumers tariff options or packages which depart from those provided under normal commercial conditions, in particular to ensure that those on low incomes or with special social needs are not prevented from accessing the network referred to in Article 4(1) or from using the services identified in Article 4(3) and Articles 5, 6 and 7 as falling under the universal service obligations and provided by designated undertakings.

3.   Member States may, besides any provision for designated undertakings to provide special tariff options or to comply with price caps or geographical averaging or other similar schemes, ensure that support is provided to consumers identified as having low incomes or special social needs.’;

| 8. | Article 11(4) shall be replaced by the following:
  ‘4.   National regulatory authorities shall be able to set performance targets for those undertakings with universal service obligations. In so doing, national regulatory authorities shall take account of views of interested parties, in particular as referred to in Article 33.’; |
| --- | --- |

8.

Article 11(4) shall be replaced by the following:

‘4.   National regulatory authorities shall be able to set performance targets for those undertakings with universal service obligations. In so doing, national regulatory authorities shall take account of views of interested parties, in particular as referred to in Article 33.’;

| 9. | the title of Chapter III shall be replaced by the following: |
| --- | --- |

9.

the title of Chapter III shall be replaced by the following:

| 10. | Article 16 shall be deleted; |
| --- | --- |

10.

Article 16 shall be deleted;

| 11. | Article 17 shall be amended as follows:






  (a) | paragraph 1 shall be replaced by the following:
  ‘1.   Member States shall ensure that national regulatory authorities impose appropriate regulatory obligations on undertakings identified as having significant market power on a given retail market in accordance with Article 14 of Directive 2002/21/EC (Framework Directive) where:






  (a) | as a result of a market analysis carried out in accordance with Article 16 of Directive 2002/21/EC (Framework Directive), a national regulatory authority determines that a given retail market identified in accordance with Article 15 of that Directive is not effectively competitive; and |
| --- | --- | --- | --- |

11.

Article 17 shall be amended as follows:

(a)

paragraph 1 shall be replaced by the following:

‘1.   Member States shall ensure that national regulatory authorities impose appropriate regulatory obligations on undertakings identified as having significant market power on a given retail market in accordance with Article 14 of Directive 2002/21/EC (Framework Directive) where:

(a)

as a result of a market analysis carried out in accordance with Article 16 of Directive 2002/21/EC (Framework Directive), a national regulatory authority determines that a given retail market identified in accordance with Article 15 of that Directive is not effectively competitive; and

| (b) | the national regulatory authority concludes that obligations imposed under Articles 9 to 13 of Directive 2002/19/EC (Access Directive) would not result in the achievement of the objectives set out in Article 8 of Directive 2002/21/EC (Framework Directive).’; |
| --- | --- |

(b)

the national regulatory authority concludes that obligations imposed under Articles 9 to 13 of Directive 2002/19/EC (Access Directive) would not result in the achievement of the objectives set out in Article 8 of Directive 2002/21/EC (Framework Directive).’;

| (b) | paragraph 3 shall be deleted; |
| --- | --- |

(b)

paragraph 3 shall be deleted;

| 12. | Articles 18 and 19 shall be deleted; |
| --- | --- |

12.

Articles 18 and 19 shall be deleted;

| 13. | Articles 20 to 23 shall be replaced by the following:
  ‘Article 20
  Contracts
  1.   Member States shall ensure that, when subscribing to services providing connection to a public communications network and/or publicly available electronic communications services, consumers, and other end-users so requesting, have a right to a contract with an undertaking or undertakings providing such connection and/or services. The contract shall specify in a clear, comprehensive and easily accessible form at least:






  (a) | the identity and address of the supplier; |
| --- | --- | --- |

13.

Articles 20 to 23 shall be replaced by the following:

‘Article 20

Contracts

1.   Member States shall ensure that, when subscribing to services providing connection to a public communications network and/or publicly available electronic communications services, consumers, and other end-users so requesting, have a right to a contract with an undertaking or undertakings providing such connection and/or services. The contract shall specify in a clear, comprehensive and easily accessible form at least:

(a)

the identity and address of the supplier;

| (b) | the services provided, including in particular,






  — | information on the provider's traffic management policies, |
| --- | --- | --- |

(b)

the services provided, including in particular,

—

information on the provider's traffic management policies,

| — | the minimum service quality levels offered, namely the time for the initial connection and, where appropriate, other quality of service parameters, as defined by the national regulatory authorities, |
| --- | --- |

—

the minimum service quality levels offered, namely the time for the initial connection and, where appropriate, other quality of service parameters, as defined by the national regulatory authorities,

| — | the types of maintenance service offered and customer support services provided, as well as the means of contacting these services, |
| --- | --- |

—

the types of maintenance service offered and customer support services provided, as well as the means of contacting these services,

| — | any restrictions imposed by the provider on the use of terminal equipment supplied; |
| --- | --- |

—

any restrictions imposed by the provider on the use of terminal equipment supplied;

| (c) | where an obligation exists under Article 25, the subscriber's options as to whether or not to include his or her personal data in a directory, and the data concerned; |
| --- | --- |

(c)

where an obligation exists under Article 25, the subscriber's options as to whether or not to include his or her personal data in a directory, and the data concerned;

| (d) | details of prices and tariffs, the means by which up-to-date information on all applicable tariffs and maintenance charges may be obtained, payment methods offered and any differences in costs due to payment method; |
| --- | --- |

(d)

details of prices and tariffs, the means by which up-to-date information on all applicable tariffs and maintenance charges may be obtained, payment methods offered and any differences in costs due to payment method;

| (e) | the duration of the contract and the conditions for renewal and termination of services and of the contract, including:






  — | conditions regarding minimum contract duration related to promotions, |
| --- | --- | --- |

(e)

the duration of the contract and the conditions for renewal and termination of services and of the contract, including:

—

conditions regarding minimum contract duration related to promotions,

| — | any charges related to portability of numbers and other identifiers, |
| --- | --- |

—

any charges related to portability of numbers and other identifiers,

| — | any charges due on termination of the contract, including cost recovery with respect to terminal equipment; |
| --- | --- |

—

any charges due on termination of the contract, including cost recovery with respect to terminal equipment;

| (f) | any compensation and the refund arrangements which apply if contracted service quality levels are not met; |
| --- | --- |

(f)

any compensation and the refund arrangements which apply if contracted service quality levels are not met;

| (g) | the means of initiating procedures for the settlement of disputes in accordance with Article 34; |
| --- | --- |

(g)

the means of initiating procedures for the settlement of disputes in accordance with Article 34;

| (h) | the type of action that might be taken by the undertaking in reaction to security or integrity incidents or threats and vulnerabilities. |
| --- | --- |

(h)

the type of action that might be taken by the undertaking in reaction to security or integrity incidents or threats and vulnerabilities.

Member States may also require that the contract include any information which may be provided by the relevant public authorities for this purpose on the use of electronic communications networks and services to engage in unlawful activities or to disseminate harmful content, and on the means of protection against risks to personal security, privacy and personal data, referred to in Article 21(4)(a) and relevant to the service provided.

2.   Member States shall ensure that where contracts are concluded between subscribers and undertakings providing electronic communications services that allow voice communication, subscribers are clearly informed as to whether or not access to emergency services and caller location information is provided. Providers of electronic communications services shall ensure that customers are clearly informed in advance of the conclusion of a contract of any limitation on access to emergency services, and of any change to access to emergency services.

3.   Member States shall ensure that subscribers have a right to withdraw from their contract without penalty upon notice of modification to the contractual conditions proposed by the undertakings providing electronic communications networks and/or services. Subscribers shall be given adequate notice, not shorter than one month, of any such modification, and shall be informed at the same time of their right to withdraw, without penalty, from their contract if they do not accept the new conditions. Member States shall ensure that national regulatory authorities are able to specify the format of such notifications.

Article 21

Transparency and publication of information

1.   Member States shall ensure that national regulatory authorities are able to oblige undertakings providing electronic communications networks and/or services to publish transparent, comparable, adequate and up-to-date information, as set out in Annex II, on applicable prices and tariffs and standard terms and conditions in respect of access to, and use of, services provided by them to end-users and consumers. National regulatory authorities may specify additional requirements regarding the form in which such information is published to ensure transparency, comparability, clarity and accessibility for the benefit of consumers.

2.   National regulatory authorities shall encourage the provision of comparable information to enable end-users and consumers to make an independent evaluation of the cost of alternative usage patterns, for instance by means of interactive guides or similar techniques. Member States shall ensure that national regulatory authorities may make such guides or techniques available, in particular where they are not available, on the market free of charge or at a reasonable price. Third parties shall have a right to use, free of charge, the information published by undertakings providing electronic communications networks and/or services for the purposes of selling or making available such guides or techniques.

3.   Member States shall ensure that national regulatory authorities are able to oblige undertakings providing electronic communications services to inter alia:

| (a) | provide applicable tariff information to subscribers regarding any number or service subject to particular pricing conditions; with respect to individual categories of services, national regulatory authorities may require such information to be provided immediately prior to connecting the call; |
| --- | --- |

(a)

provide applicable tariff information to subscribers regarding any number or service subject to particular pricing conditions; with respect to individual categories of services, national regulatory authorities may require such information to be provided immediately prior to connecting the call;

| (b) | inform subscribers of any change to the provider's traffic management policies; |
| --- | --- |

(b)

inform subscribers of any change to the provider's traffic management policies;

| (c) | inform subscribers of their right to determine whether or not to include their personal data in a directory, and of the types of data concerned, in accordance with Article 12 of Directive 2002/58/EC (Directive on privacy and electronic communications); and |
| --- | --- |

(c)

inform subscribers of their right to determine whether or not to include their personal data in a directory, and of the types of data concerned, in accordance with Article 12 of Directive 2002/58/EC (Directive on privacy and electronic communications); and

| (d) | regularly inform disabled subscribers of details of products and services designed for them. |
| --- | --- |

(d)

regularly inform disabled subscribers of details of products and services designed for them.

If deemed appropriate, national regulatory authorities may promote self- or co-regulatory measures prior to imposing any obligation.

4.   Member States may require that undertakings referred to in paragraph 3 distribute public interest information free of charge to existing and new subscribers, where appropriate. In such a case, that information shall be provided by the relevant public authorities in a standardised format and shall, inter alia, cover the following topics:

| (a) | the most common uses of electronic communications services to engage in unlawful activities or to disseminate harmful content, particularly where it may prejudice respect for the rights and freedoms of others, including infringements of copyright and related rights, and their legal consequences; and |
| --- | --- |

(a)

the most common uses of electronic communications services to engage in unlawful activities or to disseminate harmful content, particularly where it may prejudice respect for the rights and freedoms of others, including infringements of copyright and related rights, and their legal consequences; and

| (b) | the means of protection against risks to personal security, privacy and personal data when using electronic communications services. |
| --- | --- |

(b)

the means of protection against risks to personal security, privacy and personal data when using electronic communications services.

Article 22

Quality of service

1.   Member States shall ensure that national regulatory authorities are, after taking account of the views of interested parties, able to require undertakings that provide publicly available electronic communications networks and/or services to publish comparable, adequate and up-to-date information for end-users on the quality of their services and measures taken to ensure comparable access for disabled end-users. That information shall, on request, be supplied to the national regulatory authority in advance of its publication.

2.   National regulatory authorities may specify, inter alia, the quality of service parameters to be measured and the content, form and manner of the information to be published, including possible quality certification mechanisms, in order to ensure that end-users have access to comprehensive, comparable, reliable and user-friendly information. Where appropriate, the parameters, definitions and measurement methods set out in Annex III may be used.

3.   In order to prevent the degradation of service and the hindering or slowing down of traffic over networks, Member States shall ensure that national regulatory authorities are able to set minimum quality of service requirements on an undertaking or undertakings providing public communications networks.

Article 23

Availability of services

Member States shall take all necessary measures to ensure the fullest possible availability of publicly available telephone services provided over public communications networks in the event of catastrophic network breakdown or in cases of force majeure. Member States shall ensure that undertakings providing publicly available telephone services take all necessary measures to ensure uninterrupted access to emergency services.’;

| 14. | the following Article shall be inserted:
  ‘Article 23a
  Ensuring comparable access and choice for disabled end-users
  1.   Member States shall enable relevant national authorities to specify, where appropriate, requirements to be met by undertakings providing publicly available electronic communication services to ensure that disabled end-users:






  (a) | have access to electronic communications services comparable to that enjoyed by the majority of end-users; and |
| --- | --- | --- |

14.

the following Article shall be inserted:

‘Article 23a

Ensuring comparable access and choice for disabled end-users

1.   Member States shall enable relevant national authorities to specify, where appropriate, requirements to be met by undertakings providing publicly available electronic communication services to ensure that disabled end-users:

(a)

have access to electronic communications services comparable to that enjoyed by the majority of end-users; and

| (b) | benefit from the choice of undertakings and services available to the majority of end-users. |
| --- | --- |

(b)

benefit from the choice of undertakings and services available to the majority of end-users.

2.   In order to be able to adopt and implement specific arrangements for disabled end-users, Member States shall encourage the availability of terminal equipment offering the necessary services and functions.’;

| 15. | Article 25 shall be amended as follows:






  (a) | the title shall be replaced by the following:
  ‘Telephone directory enquiry services’; |
| --- | --- | --- |

15.

Article 25 shall be amended as follows:

(a)

the title shall be replaced by the following:

‘Telephone directory enquiry services’;

| (b) | paragraph 1 shall be replaced by the following:
  ‘1.   Member States shall ensure that subscribers to publicly available telephone services have the right to have an entry in the publicly available directory referred to in Article 5(1)(a) and to have their information made available to providers of directory enquiry services and/or directories in accordance with paragraph 2 of this Article.’; |
| --- | --- |

(b)

paragraph 1 shall be replaced by the following:

‘1.   Member States shall ensure that subscribers to publicly available telephone services have the right to have an entry in the publicly available directory referred to in Article 5(1)(a) and to have their information made available to providers of directory enquiry services and/or directories in accordance with paragraph 2 of this Article.’;

| (c) | paragraphs 3, 4 and 5 shall be replaced by the following:
  ‘3.   Member States shall ensure that all end-users provided with a publicly available telephone service can access directory enquiry services. National regulatory authorities shall be able to impose obligations and conditions on undertakings that control access of end-users for the provision of directory enquiry services in accordance with the provisions of Article 5 of Directive 2002/19/EC (Access Directive). Such obligations and conditions shall be objective, proportionate, non-discriminatory and transparent.
  4.   Member States shall not maintain any regulatory restrictions which prevent end-users in one Member State from accessing directly the directory enquiry service in another Member State by voice call or SMS, and shall take measures to ensure such access in accordance with Article 28.
  5.   Paragraphs 1 to 4 shall apply subject to the requirements of Community legislation on the protection of personal data and privacy and, in particular, Article 12 of Directive 2002/58/EC (Directive on privacy and electronic communications).’; |
| --- | --- |

(c)

paragraphs 3, 4 and 5 shall be replaced by the following:

‘3.   Member States shall ensure that all end-users provided with a publicly available telephone service can access directory enquiry services. National regulatory authorities shall be able to impose obligations and conditions on undertakings that control access of end-users for the provision of directory enquiry services in accordance with the provisions of Article 5 of Directive 2002/19/EC (Access Directive). Such obligations and conditions shall be objective, proportionate, non-discriminatory and transparent.

4.   Member States shall not maintain any regulatory restrictions which prevent end-users in one Member State from accessing directly the directory enquiry service in another Member State by voice call or SMS, and shall take measures to ensure such access in accordance with Article 28.

5.   Paragraphs 1 to 4 shall apply subject to the requirements of Community legislation on the protection of personal data and privacy and, in particular, Article 12 of Directive 2002/58/EC (Directive on privacy and electronic communications).’;

| 16. | Articles 26 and 27 shall be replaced by the following:
  ‘Article 26
  Emergency services and the single European emergency call number
  1.   Member States shall ensure that all end-users of the service referred to in paragraph 2, including users of public pay telephones, are able to call the emergency services free of charge and without having to use any means of payment, by using the single European emergency call number “112” and any national emergency call number specified by Member States.
  2.   Member States shall ensure that undertakings providing end-users with an electronic communications service for originating national calls to a number or numbers in a national telephone numbering plan provide access to emergency services.
  3.   Member States shall ensure that calls to the single European emergency call number “112” are appropriately answered and handled in the manner best suited to the national organisation of emergency systems. Such calls shall be answered and handled at least as expeditiously and effectively as calls to the national emergency number or numbers, where these continue to be in use.
  4.   Member States shall ensure that access for disabled end-users to emergency services is comparable to that enjoyed by other end-users. Measures taken to ensure that disabled end-users are able to access emergency services whilst travelling in other Member States shall be based to the greatest extent possible on European standards or specifications published in accordance with the provisions of Article 17 of Directive 2002/21/EC (Framework Directive), and they shall not prevent Member States from adopting additional requirements in order to pursue the objectives set out in this Article.
  5.   Member States shall ensure that, to the extent technically feasible, undertakings concerned make caller location information available free of charge to the authority handling emergency calls as soon as the call reaches that authority. This applies to all calls to the single European emergency call number “112”. Member States may extend this obligation to cover calls to national emergency numbers. Where undertakings referred to in paragraph 2 wish to claim that providing caller location information is not technically feasible, they shall bear the burden of proving this.
  6.   Member States shall ensure that citizens are adequately informed about the existence and use of the single European emergency call number “112”, in particular through initiatives specifically targeting persons travelling between Member States.
  Article 27
  European telephone access codes
  1.   Member States shall ensure that the “00” code is the standard international access code. Special arrangements for making calls between locations adjacent to one another across borders between Member States may be established or continued. End-users in the locations concerned shall be fully informed of such arrangements.
  2.   Member States shall ensure that all undertakings that provide publicly available telephone services allowing international calls handle all calls to and from the European Telephone Numbering Space (ETNS), without prejudice to the need for undertakings to recover their costs.’; |
| --- | --- |

16.

Articles 26 and 27 shall be replaced by the following:

‘Article 26

Emergency services and the single European emergency call number

1.   Member States shall ensure that all end-users of the service referred to in paragraph 2, including users of public pay telephones, are able to call the emergency services free of charge and without having to use any means of payment, by using the single European emergency call number “112” and any national emergency call number specified by Member States.

2.   Member States shall ensure that undertakings providing end-users with an electronic communications service for originating national calls to a number or numbers in a national telephone numbering plan provide access to emergency services.

3.   Member States shall ensure that calls to the single European emergency call number “112” are appropriately answered and handled in the manner best suited to the national organisation of emergency systems. Such calls shall be answered and handled at least as expeditiously and effectively as calls to the national emergency number or numbers, where these continue to be in use.

4.   Member States shall ensure that access for disabled end-users to emergency services is comparable to that enjoyed by other end-users. Measures taken to ensure that disabled end-users are able to access emergency services whilst travelling in other Member States shall be based to the greatest extent possible on European standards or specifications published in accordance with the provisions of Article 17 of Directive 2002/21/EC (Framework Directive), and they shall not prevent Member States from adopting additional requirements in order to pursue the objectives set out in this Article.

5.   Member States shall ensure that, to the extent technically feasible, undertakings concerned make caller location information available free of charge to the authority handling emergency calls as soon as the call reaches that authority. This applies to all calls to the single European emergency call number “112”. Member States may extend this obligation to cover calls to national emergency numbers. Where undertakings referred to in paragraph 2 wish to claim that providing caller location information is not technically feasible, they shall bear the burden of proving this.

6.   Member States shall ensure that citizens are adequately informed about the existence and use of the single European emergency call number “112”, in particular through initiatives specifically targeting persons travelling between Member States.

Article 27

European telephone access codes

1.   Member States shall ensure that the “00” code is the standard international access code. Special arrangements for making calls between locations adjacent to one another across borders between Member States may be established or continued. End-users in the locations concerned shall be fully informed of such arrangements.

2.   Member States shall ensure that all undertakings that provide publicly available telephone services allowing international calls handle all calls to and from the European Telephone Numbering Space (ETNS), without prejudice to the need for undertakings to recover their costs.’;

| 17. | the following Article shall be inserted:
  ‘Article 27a
  Harmonised numbers for harmonised services of social value, including the missing children hotline number
  1.   Member States shall promote the specific numbers in the numbering range beginning with “116” identified by Commission Decision 2007/116/EC of 15 February 2007 on reserving the national numbering range beginning with “116” for harmonised numbers for harmonised services of social value (19). They shall encourage the provision within their territory of the services for which such numbers are reserved.
  2.   Member States shall facilitate access by disabled end-users to services provided under the “116” numbering range. Measures taken to facilitate disabled end-users’ access to such services whilst travelling in other Member States may include ensuring compliance with relevant standards or specifications published in accordance with the provisions of Article 17 of Directive 2002/21/EC (Framework Directive).
  3.   Member States shall ensure that citizens are adequately informed of the existence and use of services provided under the “116” numbering range, in particular through initiatives specifically targeting persons travelling between Member States.
  4.   Member States shall, in addition to measures of general applicability to all numbers in the “116” numbering range taken pursuant to paragraphs 1, 2, and 3, facilitate citizens’ access to a service operating a hotline to report cases of missing children. The hotline shall be available on the number 116000. |
| --- | --- |

17.

the following Article shall be inserted:

‘Article 27a

Harmonised numbers for harmonised services of social value, including the missing children hotline number

1.   Member States shall promote the specific numbers in the numbering range beginning with “116” identified by Commission Decision 2007/116/EC of 15 February 2007 on reserving the national numbering range beginning with “116” for harmonised numbers for harmonised services of social value (19). They shall encourage the provision within their territory of the services for which such numbers are reserved.

2.   Member States shall facilitate access by disabled end-users to services provided under the “116” numbering range. Measures taken to facilitate disabled end-users’ access to such services whilst travelling in other Member States may include ensuring compliance with relevant standards or specifications published in accordance with the provisions of Article 17 of Directive 2002/21/EC (Framework Directive).

3.   Member States shall ensure that citizens are adequately informed of the existence and use of services provided under the “116” numbering range, in particular through initiatives specifically targeting persons travelling between Member States.

4.   Member States shall, in addition to measures of general applicability to all numbers in the “116” numbering range taken pursuant to paragraphs 1, 2, and 3, facilitate citizens’ access to a service operating a hotline to report cases of missing children. The hotline shall be available on the number 116000.

| 18. | Article 28 shall be replaced by the following:
  ‘Article 28
  Access to numbers and services
  1.   Member States shall ensure that, where technically and economically feasible, and except where a called subscriber has chosen for commercial reasons to limit access by calling parties located in specific geographical areas, relevant national authorities take all necessary steps to ensure that end-users are able to:






  (a) | access and use services using non-geographic numbers within the Community; and |
| --- | --- | --- |

18.

Article 28 shall be replaced by the following:

‘Article 28

Access to numbers and services

1.   Member States shall ensure that, where technically and economically feasible, and except where a called subscriber has chosen for commercial reasons to limit access by calling parties located in specific geographical areas, relevant national authorities take all necessary steps to ensure that end-users are able to:

(a)

access and use services using non-geographic numbers within the Community; and

| (b) | access all numbers provided in the Community, including those in the national numbering plans of Member States, those from the ETNS and Universal International Freephone Numbers (UIFN). |
| --- | --- |

(b)

access all numbers provided in the Community, including those in the national numbering plans of Member States, those from the ETNS and Universal International Freephone Numbers (UIFN).

2.   Member States shall ensure that the relevant authorities are able to require undertakings providing public communications networks and/or publicly available electronic communications services to block, on a case-by-case basis, access to numbers or services where this is justified by reasons of fraud or misuse and to require that in such cases providers of electronic communications services withhold relevant interconnection or other service revenues.’;

| 19. | Article 29 shall be amended as follows:






  (a) | paragraph 1 shall be replaced by the following:
  ‘1.   Member States shall ensure that national regulatory authorities are able to require all undertakings that provide publicly available telephone services and/or public communications networks to make available to end-users the additional facilities listed in Part B of Annex I, subject to technical feasibility and economic viability.’; |
| --- | --- | --- |

19.

Article 29 shall be amended as follows:

(a)

paragraph 1 shall be replaced by the following:

‘1.   Member States shall ensure that national regulatory authorities are able to require all undertakings that provide publicly available telephone services and/or public communications networks to make available to end-users the additional facilities listed in Part B of Annex I, subject to technical feasibility and economic viability.’;

| (b) | paragraph 3 shall be replaced by the following:
  ‘3.   Without prejudice to Article 10(2), Member States may impose the obligations set out in points (a) and (e) of Part A of Annex I as a general requirement on all undertakings providing access to public communications networks and/or publicly available telephone services.’; |
| --- | --- |

(b)

paragraph 3 shall be replaced by the following:

‘3.   Without prejudice to Article 10(2), Member States may impose the obligations set out in points (a) and (e) of Part A of Annex I as a general requirement on all undertakings providing access to public communications networks and/or publicly available telephone services.’;

| 20. | Article 30 shall be replaced by the following:
  ‘Article 30
  Facilitating change of provider
  1.   Member States shall ensure that all subscribers with numbers from the national telephone numbering plan who so request can retain their number(s) independently of the undertaking providing the service in accordance with the provisions of Part C of Annex I.
  2.   National regulatory authorities shall ensure that pricing between operators and/or service providers related to the provision of number portability is cost-oriented, and that direct charges to subscribers, if any, do not act as a disincentive for subscribers against changing service provider.
  3.   National regulatory authorities shall not impose retail tariffs for the porting of numbers in a manner that would distort competition, such as by setting specific or common retail tariffs.
  4.   Porting of numbers and their subsequent activation shall be carried out within the shortest possible time. In any case, the time taken for the technical transfer of the number shall not exceed one day.
  Competent national authorities may establish the global process of porting of numbers, taking into account national provisions on contracts and technical feasibility, including where necessary measures ensuring that subscribers are protected throughout the switching process.
  5.   Member States shall ensure that contracts concluded between users and undertakings providing electronic communications services do not mandate an initial commitment period that exceeds 24 months.
  6.   Without prejudice to any minimum contractual period, Member States shall ensure that conditions and procedures for contract termination do not act as a disincentive against changing service provider.’; |
| --- | --- |

20.

Article 30 shall be replaced by the following:

‘Article 30

Facilitating change of provider

1.   Member States shall ensure that all subscribers with numbers from the national telephone numbering plan who so request can retain their number(s) independently of the undertaking providing the service in accordance with the provisions of Part C of Annex I.

2.   National regulatory authorities shall ensure that pricing between operators and/or service providers related to the provision of number portability is cost-oriented, and that direct charges to subscribers, if any, do not act as a disincentive for subscribers against changing service provider.

3.   National regulatory authorities shall not impose retail tariffs for the porting of numbers in a manner that would distort competition, such as by setting specific or common retail tariffs.

4.   Porting of numbers and their subsequent activation shall be carried out within the shortest possible time. In any case, the time taken for the technical transfer of the number shall not exceed one day.

Competent national authorities may establish the global process of porting of numbers, taking into account national provisions on contracts and technical feasibility, including where necessary measures ensuring that subscribers are protected throughout the switching process.

5.   Member States shall ensure that contracts concluded between users and undertakings providing electronic communications services do not mandate an initial commitment period that exceeds 24 months.

6.   Without prejudice to any minimum contractual period, Member States shall ensure that conditions and procedures for contract termination do not act as a disincentive against changing service provider.’;

| 21. | Article 31(1) shall be replaced by the following:
  ‘1.   Member States may impose reasonable “must carry” obligations, for the transmission of specified radio and television broadcast channels and complementary services, particularly accessibility services to enable appropriate access for disabled end-users, on undertakings under their jurisdiction providing electronic communications networks used for the distribution of radio or television broadcast channels to the public where a significant number of end-users of such networks use them as their principal means to receive radio and television broadcast channels. Such obligations shall only be imposed where they are necessary to meet general interest objectives as clearly defined by each Member State and shall be proportionate and transparent.
  The obligations referred to in the first subparagraph shall be reviewed by the Member States at the latest within one year of ... (20), except where Member States have carried out such a review within the previous two years.
  Member States shall review “must carry” obligations on a regular basis.’; |
| --- | --- |

21.

Article 31(1) shall be replaced by the following:

‘1.   Member States may impose reasonable “must carry” obligations, for the transmission of specified radio and television broadcast channels and complementary services, particularly accessibility services to enable appropriate access for disabled end-users, on undertakings under their jurisdiction providing electronic communications networks used for the distribution of radio or television broadcast channels to the public where a significant number of end-users of such networks use them as their principal means to receive radio and television broadcast channels. Such obligations shall only be imposed where they are necessary to meet general interest objectives as clearly defined by each Member State and shall be proportionate and transparent.

The obligations referred to in the first subparagraph shall be reviewed by the Member States at the latest within one year of ... (20), except where Member States have carried out such a review within the previous two years.

Member States shall review “must carry” obligations on a regular basis.’;

| 22. | Article 33 shall be amended as follows:






  (a) | paragraph 1 shall be replaced by the following:
  ‘1.   Member States shall ensure as far as appropriate that national regulatory authorities take account of the views of end-users, consumers (including, in particular, disabled end-users), manufacturers and undertakings that provide electronic communications networks and/or services on issues related to all end-user and consumer rights concerning publicly available electronic communications services, in particular where they have a significant impact on the market.
  In particular, Member States shall ensure that national regulatory authorities establish a consultation mechanism ensuring that in their decisions on issues related to end-user and consumer rights concerning publicly available electronic communications services, due consideration is given to consumer interests in electronic communications.’; |
| --- | --- | --- |

22.

Article 33 shall be amended as follows:

(a)

paragraph 1 shall be replaced by the following:

‘1.   Member States shall ensure as far as appropriate that national regulatory authorities take account of the views of end-users, consumers (including, in particular, disabled end-users), manufacturers and undertakings that provide electronic communications networks and/or services on issues related to all end-user and consumer rights concerning publicly available electronic communications services, in particular where they have a significant impact on the market.

In particular, Member States shall ensure that national regulatory authorities establish a consultation mechanism ensuring that in their decisions on issues related to end-user and consumer rights concerning publicly available electronic communications services, due consideration is given to consumer interests in electronic communications.’;

| (b) | the following paragraph shall be added:
  ‘3.   Without prejudice to national rules in conformity with Community law promoting cultural and media policy objectives, such as cultural and linguistic diversity and media pluralism, national regulatory authorities and other relevant authorities may promote cooperation between undertakings providing electronic communications networks and/or services and sectors interested in the promotion of lawful content in electronic communication networks and services. That cooperation may also include coordination of the public interest information to be provided pursuant to Article 21(4)(a) and Article 20(1).’; |
| --- | --- |

(b)

the following paragraph shall be added:

‘3.   Without prejudice to national rules in conformity with Community law promoting cultural and media policy objectives, such as cultural and linguistic diversity and media pluralism, national regulatory authorities and other relevant authorities may promote cooperation between undertakings providing electronic communications networks and/or services and sectors interested in the promotion of lawful content in electronic communication networks and services. That cooperation may also include coordination of the public interest information to be provided pursuant to Article 21(4)(a) and Article 20(1).’;

| 23. | Article 34(1) shall be replaced by the following:
  ‘1.   Member States shall ensure that transparent, simple and inexpensive out-of-court procedures are available for dealing with unresolved disputes between consumers and undertakings providing electronic communications networks and/or services arising under this Directive and relating to the contractual conditions and/or performance of contracts concerning the supply of those networks and/or services. Member States shall adopt measures to ensure that such procedures enable disputes to be settled fairly and promptly and may, where warranted, adopt a system of reimbursement and/or compensation. Member States may extend these obligations to cover disputes involving other end-users.’; |
| --- | --- |

23.

Article 34(1) shall be replaced by the following:

‘1.   Member States shall ensure that transparent, simple and inexpensive out-of-court procedures are available for dealing with unresolved disputes between consumers and undertakings providing electronic communications networks and/or services arising under this Directive and relating to the contractual conditions and/or performance of contracts concerning the supply of those networks and/or services. Member States shall adopt measures to ensure that such procedures enable disputes to be settled fairly and promptly and may, where warranted, adopt a system of reimbursement and/or compensation. Member States may extend these obligations to cover disputes involving other end-users.’;

| 24. | Article 35 shall be replaced by the following:
  ‘Article 35
  Adaptation of annexes
  Measures designed to amend non-essential elements of this Directive and necessary to adapt Annexes I, II, III, and VI to technological developments or changes in market demand shall be adopted by the Commission in accordance with the regulatory procedure with scrutiny referred to in Article 37(2).’; |
| --- | --- |

24.

Article 35 shall be replaced by the following:

‘Article 35

Adaptation of annexes

Measures designed to amend non-essential elements of this Directive and necessary to adapt Annexes I, II, III, and VI to technological developments or changes in market demand shall be adopted by the Commission in accordance with the regulatory procedure with scrutiny referred to in Article 37(2).’;

| 25. | Article 36(2) shall be replaced by the following:
  ‘2.   National regulatory authorities shall notify to the Commission the universal service obligations imposed upon undertakings designated as having universal service obligations. Any changes affecting these obligations or of the undertakings affected under the provisions of this Directive shall be notified to the Commission without delay.’; |
| --- | --- |

25.

Article 36(2) shall be replaced by the following:

‘2.   National regulatory authorities shall notify to the Commission the universal service obligations imposed upon undertakings designated as having universal service obligations. Any changes affecting these obligations or of the undertakings affected under the provisions of this Directive shall be notified to the Commission without delay.’;

| 26. | Article 37 shall be replaced by the following:
  ‘Article 37
  Committee procedure
  1.   The Commission shall be assisted by the Communications Committee set up under Article 22 of Directive 2002/21/EC (Framework Directive).
  2.   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.’; |
| --- | --- |

26.

Article 37 shall be replaced by the following:

‘Article 37

Committee procedure

1.   The Commission shall be assisted by the Communications Committee set up under Article 22 of Directive 2002/21/EC (Framework Directive).

2.   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.’;

| 27. | Annexes I, II, III and VI shall be replaced by the text appearing in Annexes I and II to this Directive; |
| --- | --- |

27.

Annexes I, II, III and VI shall be replaced by the text appearing in Annexes I and II to this Directive;

| 28. | Annex VII shall be deleted. |
| --- | --- |

28.

Annex VII shall be deleted.

Article 2

Amendments to Directive 2002/58/EC (Directive on privacy and electronic communications)

Directive 2002/58/EC (Directive on privacy and electronic communications) is hereby amended as follows:

| 1. | Article 1(1) shall be replaced by the following:
  ‘1.   This Directive provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy, with respect to the processing of personal data in the electronic communication sector and to ensure the free movement of such data and of electronic communication equipment and services in the Community.’; |
| --- | --- |

1.

Article 1(1) shall be replaced by the following:

‘1.   This Directive provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy, with respect to the processing of personal data in the electronic communication sector and to ensure the free movement of such data and of electronic communication equipment and services in the Community.’;

| 2. | Article 2 shall be amended as follows:






  (a) | point (c) shall be replaced by the following:






  ‘(c) | “location data” means any data processed in an electronic communications network or by an electronic communications service, indicating the geographic position of the terminal equipment of a user of a publicly available electronic communications service;’; |
| --- | --- | --- | --- |

2.

Article 2 shall be amended as follows:

(a)

point (c) shall be replaced by the following:

‘(c)

“location data” means any data processed in an electronic communications network or by an electronic communications service, indicating the geographic position of the terminal equipment of a user of a publicly available electronic communications service;’;

| (b) | point (e) shall be deleted; |
| --- | --- |

(b)

point (e) shall be deleted;

| (c) | the following point shall be added:






  ‘(h) | “personal data breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed in connection with the provision of a publicly available electronic communications service in the Community.’; |
| --- | --- | --- |

(c)

the following point shall be added:

‘(h)

“personal data breach” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed in connection with the provision of a publicly available electronic communications service in the Community.’;

| 3. | Article 3 shall be replaced by the following:
  ‘Article 3
  Services concerned
  This Directive shall apply to the processing of personal data in connection with the provision of publicly available electronic communications services in public communications networks in the Community, including public communications networks supporting data collection and identification devices.’; |
| --- | --- |

3.

Article 3 shall be replaced by the following:

‘Article 3

Services concerned

This Directive shall apply to the processing of personal data in connection with the provision of publicly available electronic communications services in public communications networks in the Community, including public communications networks supporting data collection and identification devices.’;

| 4. | Article 4 shall be amended as follows:






  (a) | the title shall be replaced by the following:
  ‘Security of processing’; |
| --- | --- | --- |

4.

Article 4 shall be amended as follows:

(a)

the title shall be replaced by the following:

‘Security of processing’;

| (b) | the following paragraphs shall be added:
  ‘3.   In the case of a personal data breach, the provider of publicly available electronic communications services shall assess the scope of the personal data breach, evaluate its seriousness and consider whether it is necessary to notify the personal data breach to the competent national authority and subscriber concerned, taking into account the relevant rules set by the competent national authority in accordance with paragraph 4.
  When the personal data breach represents a serious risk for the subscriber's privacy, the provider of publicly available electronic communications services shall notify the competent national authority and the subscriber of the breach without undue delay.
  The notification to the subscriber shall at least describe the nature of the personal data breach and the contact points where more information can be obtained, and shall recommend measures to mitigate the possible negative effects of the personal data breach. The notification to the competent national authority shall, in addition, describe the consequences of, and the measures proposed or taken by the provider to address, the personal data breach.
  4.   Member States shall ensure that the competent national authority is able to set detailed rules and, where necessary, issue instructions concerning the circumstances in which notification of personal data breaches by providers of a publicly available electronic communications service is necessary, the format applicable to such notification and the manner in which the notification is to be made.
  5.   In order to ensure consistency in implementation of the measures referred to in paragraphs 1 to 4 the Commission may, following consultation with the European Network and Information Security Agency (ENISA), the Article 29 Working Party and the European Data Protection Supervisor, adopt recommendations concerning, inter alia, the circumstances, format and procedures applicable to the information and notification requirements referred to in this Article.’; |
| --- | --- |

(b)

the following paragraphs shall be added:

‘3.   In the case of a personal data breach, the provider of publicly available electronic communications services shall assess the scope of the personal data breach, evaluate its seriousness and consider whether it is necessary to notify the personal data breach to the competent national authority and subscriber concerned, taking into account the relevant rules set by the competent national authority in accordance with paragraph 4.

When the personal data breach represents a serious risk for the subscriber's privacy, the provider of publicly available electronic communications services shall notify the competent national authority and the subscriber of the breach without undue delay.

The notification to the subscriber shall at least describe the nature of the personal data breach and the contact points where more information can be obtained, and shall recommend measures to mitigate the possible negative effects of the personal data breach. The notification to the competent national authority shall, in addition, describe the consequences of, and the measures proposed or taken by the provider to address, the personal data breach.

4.   Member States shall ensure that the competent national authority is able to set detailed rules and, where necessary, issue instructions concerning the circumstances in which notification of personal data breaches by providers of a publicly available electronic communications service is necessary, the format applicable to such notification and the manner in which the notification is to be made.

5.   In order to ensure consistency in implementation of the measures referred to in paragraphs 1 to 4 the Commission may, following consultation with the European Network and Information Security Agency (ENISA), the Article 29 Working Party and the European Data Protection Supervisor, adopt recommendations concerning, inter alia, the circumstances, format and procedures applicable to the information and notification requirements referred to in this Article.’;

| 5. | Article 5(3) shall be replaced by the following:
  ‘3.   Member States shall ensure that the storing of information, or access to information already stored, in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned is provided with clear and comprehensive information, in accordance with Directive 95/46/EC, inter alia about the purposes of the processing, and is offered the right to refuse such processing by the data controller. This shall not prevent any technical storage or access for the sole purpose of carrying out or facilitating the transmission of a communication over an electronic communications network, or as strictly necessary in order to provide an information society service explicitly requested by the subscriber or user.’; |
| --- | --- |

5.

Article 5(3) shall be replaced by the following:

‘3.   Member States shall ensure that the storing of information, or access to information already stored, in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned is provided with clear and comprehensive information, in accordance with Directive 95/46/EC, inter alia about the purposes of the processing, and is offered the right to refuse such processing by the data controller. This shall not prevent any technical storage or access for the sole purpose of carrying out or facilitating the transmission of a communication over an electronic communications network, or as strictly necessary in order to provide an information society service explicitly requested by the subscriber or user.’;

| 6. | Article 6 shall be amended as follows:






  (a) | paragraph 1 shall be replaced by the following:
  ‘1.   Traffic data relating to subscribers and users processed and stored by the provider of a public communications network or publicly available electronic communications service shall be erased or made anonymous when it is no longer needed for the purpose of the transmission of a communication. This shall be without prejudice to paragraphs 2, 3, 5 and 7 of this Article and Article 15(1).’; |
| --- | --- | --- |

6.

Article 6 shall be amended as follows:

(a)

paragraph 1 shall be replaced by the following:

‘1.   Traffic data relating to subscribers and users processed and stored by the provider of a public communications network or publicly available electronic communications service shall be erased or made anonymous when it is no longer needed for the purpose of the transmission of a communication. This shall be without prejudice to paragraphs 2, 3, 5 and 7 of this Article and Article 15(1).’;

| (b) | paragraph 3 shall be replaced by the following:
  ‘3.   For the purpose of marketing electronic communications services or for the provision of value added services, the provider of a publicly available electronic communications service may process the data referred to in paragraph 1 to the extent and for the duration necessary for such services or marketing, if the subscriber or user to whom the data relate has given his or her prior consent. Users or subscribers shall be given the possibility to withdraw their consent for the processing of traffic data at any time.’; |
| --- | --- |

(b)

paragraph 3 shall be replaced by the following:

‘3.   For the purpose of marketing electronic communications services or for the provision of value added services, the provider of a publicly available electronic communications service may process the data referred to in paragraph 1 to the extent and for the duration necessary for such services or marketing, if the subscriber or user to whom the data relate has given his or her prior consent. Users or subscribers shall be given the possibility to withdraw their consent for the processing of traffic data at any time.’;

| (c) | the following paragraph shall be added:
  ‘7.   Traffic data may be processed to the extent strictly necessary to ensure network and information security, as defined by Article 4(c) of Regulation (EC) No 460/2004 of the European Parliament and of the Council of 10 March 2004 establishing the European Network and Information Security Agency (21). |
| --- | --- |

(c)

the following paragraph shall be added:

‘7.   Traffic data may be processed to the extent strictly necessary to ensure network and information security, as defined by Article 4(c) of Regulation (EC) No 460/2004 of the European Parliament and of the Council of 10 March 2004 establishing the European Network and Information Security Agency (21).

| 7. | Article 13 shall be replaced by the following:
  ‘Article 13
  Unsolicited communications
  1.   The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail (including short message services (SMS) and multimedia messaging services (MMS)) for the purposes of direct marketing may be allowed only in respect of subscribers or users who have given their prior consent.
  2.   Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details at the time of their collection and on the occasion of each message in case the customer has not initially refused such use.
  3.   Member States shall take appropriate measures to ensure that unsolicited communications for the purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers or users concerned or in respect of subscribers or users who do not wish to receive these communications, the choice between these options to be determined by national legislation, taking into account that both options must be free of charge for the subscriber or user.
  4.   In any event, the practice of sending electronic mail for the purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or in contravention of Article 6 of Directive 2000/31/EC, or without a valid address to which the recipient may send a request that such communications cease, shall be prohibited.
  5.   Paragraphs 1 and 3 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected.
  6.   Without prejudice to any administrative remedy for which provision may be made, inter alia, under Article 15a(2), Member States shall ensure that any natural or legal person adversely affected by infringements of national provisions adopted pursuant to this Article and therefore having a legitimate interest in the cessation or prohibition of such infringements, including an electronic communications service provider protecting its legitimate business interests, may bring legal proceedings in respect of such infringements. Member States may also lay down specific rules on penalties applicable to providers of electronic communications services which by their negligence contribute to infringements of national provisions adopted pursuant to this Article.’; |
| --- | --- |

7.

Article 13 shall be replaced by the following:

‘Article 13

Unsolicited communications

1.   The use of automated calling systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail (including short message services (SMS) and multimedia messaging services (MMS)) for the purposes of direct marketing may be allowed only in respect of subscribers or users who have given their prior consent.

2.   Notwithstanding paragraph 1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details at the time of their collection and on the occasion of each message in case the customer has not initially refused such use.

3.   Member States shall take appropriate measures to ensure that unsolicited communications for the purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers or users concerned or in respect of subscribers or users who do not wish to receive these communications, the choice between these options to be determined by national legislation, taking into account that both options must be free of charge for the subscriber or user.

4.   In any event, the practice of sending electronic mail for the purposes of direct marketing disguising or concealing the identity of the sender on whose behalf the communication is made, or in contravention of Article 6 of Directive 2000/31/EC, or without a valid address to which the recipient may send a request that such communications cease, shall be prohibited.

5.   Paragraphs 1 and 3 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected.

6.   Without prejudice to any administrative remedy for which provision may be made, inter alia, under Article 15a(2), Member States shall ensure that any natural or legal person adversely affected by infringements of national provisions adopted pursuant to this Article and therefore having a legitimate interest in the cessation or prohibition of such infringements, including an electronic communications service provider protecting its legitimate business interests, may bring legal proceedings in respect of such infringements. Member States may also lay down specific rules on penalties applicable to providers of electronic communications services which by their negligence contribute to infringements of national provisions adopted pursuant to this Article.’;

| 8. | the following Article shall be inserted:
  ‘Article 15a
  Implementation and enforcement
  1.   Member States shall lay down the rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive 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 where the breach has subsequently been rectified. The Member States shall notify those provisions to the Commission by ... (22), and shall notify it without delay of any subsequent amendment affecting them.
  2.   Member States shall ensure that the competent national authority and, where relevant, other national bodies have the power to order the cessation of the infringements referred to in paragraph 1.
  3.   Member States shall ensure that the competent national authority and, where relevant, other national bodies have all necessary investigative powers and resources, including the power to obtain any relevant information they might need to monitor and enforce national provisions adopted pursuant to this Directive.
  4.   In order to ensure effective cross-border cooperation in the enforcement of the national laws adopted pursuant to this Directive and to create harmonised conditions for the provision of services involving cross-border data flows, the Commission may adopt recommendations, following consultation with ENISA, the Article 29 Working Party and the relevant regulatory authorities.’. |
| --- | --- |

8.

the following Article shall be inserted:

‘Article 15a

Implementation and enforcement

1.   Member States shall lay down the rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive 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 where the breach has subsequently been rectified. The Member States shall notify those provisions to the Commission by ... (22), and shall notify it without delay of any subsequent amendment affecting them.

2.   Member States shall ensure that the competent national authority and, where relevant, other national bodies have the power to order the cessation of the infringements referred to in paragraph 1.

3.   Member States shall ensure that the competent national authority and, where relevant, other national bodies have all necessary investigative powers and resources, including the power to obtain any relevant information they might need to monitor and enforce national provisions adopted pursuant to this Directive.

4.   In order to ensure effective cross-border cooperation in the enforcement of the national laws adopted pursuant to this Directive and to create harmonised conditions for the provision of services involving cross-border data flows, the Commission may adopt recommendations, following consultation with ENISA, the Article 29 Working Party and the relevant regulatory authorities.’.

Article 3

Amendment to Regulation (EC) No 2006/2004

In the Annex to Regulation (EC) No 2006/2004 (the Regulation on consumer protection cooperation), the following point shall be added:

| ‘17. | 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): Article 13 (OJ L 201, 31.7.2002, p. 37).’. |
| --- | --- |

‘17.

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): Article 13 (OJ L 201, 31.7.2002, p. 37).’.

Article 4

Transposition

1.   Member States shall adopt and publish by ... the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate to the Commission the text of those measures.

They shall apply those measures from ....

When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by the Member States.

2.   Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 5

Entry into force

This Directive shall enter into force on the day following that of its publication in the Official Journal of the European Union.

Article 6

Addressees

This Directive is addressed to the Member States.

Done at ....

For the European Parliament

The President

...

For the Council

The President

...

---

(1)  OJ C 224, 30.8.2008, p. 50.

1

(2)  OJ C 257, 9.10.2008, p. 51.

2

(3)  OJ C 181, 18.7.2008, p. 1.

3

(4)  Opinion of the European Parliament of 24 September 2008 (not yet published in the Official Journal), Council Common Position of 16 February 2009 and Position of the European Parliament of ...

4

(5)  OJ L 108, 24.4.2002, p. 7.

5

(6)  OJ L 108, 24.4.2002, p. 21.

6

(7)  OJ L 108, 24.4.2002, p. 33.

7

(8)  OJ L 108, 24.4.2002, p. 51.

8

(9)  OJ L 201, 31.7.2002, p. 37.

9

(10)  OJ L 91, 7.4.1999, p. 10.

10

(11)  OJ L 178, 17.7.2000, p. 1.

11

(12)  OJ L 249, 17.9.2002, p. 21.

12

(13)  OJ L 49, 17.2.2007, p. 30.

13

(14)  OJ L 281, 23.11.1995, p. 31.

14

(15)  OJ L 364, 9.12.2004, p. 1.

15

(16)  OJ L 184, 17.7.1999, p. 23.

16

(17)  OJ C 321, 31.12.2003, p. 1.

17

(18)  OJ L 201, 31.7.2002, p. 37.’;

18

(19)  OJ L 49, 17.2.2007, p. 30.’;

19

(20)  The date referred to in Article 4(1).

20

(21)  OJ L 77, 13.3.2004, p. 1.’;

21

(22)  The date referred to in Article 4(1).

22

---

ANNEX I

ANNEX I

DESCRIPTION OF FACILITIES AND SERVICES REFERRED TO IN ARTICLE 10 (CONTROL OF EXPENDITURE), ARTICLE 29 (ADDITIONAL FACILITIES) AND ARTICLE 30 (FACILITATING CHANGE OF PROVIDER)

Part A:

Facilities and services referred to in Article 10

(a)   Itemised billing

Member States are to ensure that national regulatory authorities, subject to the requirements of relevant legislation on the protection of personal data and privacy, may lay down the basic level of itemised bills which are to be provided by designated undertakings (as established in Article 8) to consumers free of charge in order that they can:

| (i) | allow verification and control of the charges incurred in using the public communications network at a fixed location and/or related publicly available telephone services; and |
| --- | --- |

(i)

allow verification and control of the charges incurred in using the public communications network at a fixed location and/or related publicly available telephone services; and

| (ii) | adequately monitor their usage and expenditure and thereby exercise a reasonable degree of control over their bills. |
| --- | --- |

(ii)

adequately monitor their usage and expenditure and thereby exercise a reasonable degree of control over their bills.

Where appropriate, additional levels of detail may be offered to subscribers at reasonable tariffs or at no charge.

Calls which are free of charge to the calling subscriber, including calls to helplines, are not to be identified in the calling subscriber's itemised bill.

(b)   Selective barring for outgoing calls or premium SMS or MMS, free of charge

i.e. the facility whereby the subscriber can, on request to a designated undertaking that provides telephone services, bar outgoing calls or premium SMS or MMS of defined types or to defined types of numbers free of charge.

(c)   Pre-payment systems

Member States are to ensure that national regulatory authorities may require designated undertakings to provide means for consumers to pay for access to the public communications network and use of publicly available telephone services on pre-paid terms.

(d)   Phased payment of connection fees

Member States are to ensure that national regulatory authorities may require designated undertakings to allow consumers to pay for connection to the public communications network on the basis of payments phased over time.

(e)   Non payment of bills

Member States are to authorise specified measures, which are to be proportionate, non-discriminatory and published, to cover non-payment of telephone bills issued by undertakings designated in accordance with Article 8. These measures are to ensure that due warning of any consequent service interruption or disconnection is given to the subscriber beforehand. Except in cases of fraud, persistent late payment or non-payment, these measures are to ensure, as far as is technically feasible that any service interruption is confined to the service concerned. Disconnection for non-payment of bills should take place only after due warning is given to the subscriber. Member States may allow a period of limited service prior to complete disconnection, during which only calls that do not incur a charge to the subscriber (e.g. “112” calls) are permitted.

Part B:

Facilities referred to in Article 29

(a)   Tone dialling or DTMF (dual-tone multi-frequency operation)

i.e. the public communications network and/or publicly available telephone services supports the use of DTMF tones as defined in ETSI ETR 207 for end-to-end signalling throughout the network both within a Member State and between Member States.

(b)   Calling-line identification

i.e. the calling party's number is presented to the called party prior to the call being established.

This facility should be provided in accordance with relevant legislation on protection of personal data and privacy, in particular Directive 2002/58/EC (Directive on privacy and electronic communications).

To the extent technically feasible, operators should provide data and signals to facilitate the offering of calling-line identity and tone dialling across Member State boundaries.

Part C:

Implementation of the number portability provisions referred to in Article 30

The requirement that all subscribers with numbers from the national numbering plan, who so request can retain their number(s) independently of the undertaking providing the service shall apply:

| (a) | in the case of geographic numbers, at a specific location; and |
| --- | --- |

(a)

in the case of geographic numbers, at a specific location; and

| (b) | in the case of non-geographic numbers, at any location. |
| --- | --- |

(b)

in the case of non-geographic numbers, at any location.

This Part does not apply to the porting of numbers between networks providing services at a fixed location and mobile networks.

ANNEX II

INFORMATION TO BE PUBLISHED IN ACCORDANCE WITH ARTICLE 21 (TRANSPARENCY AND PUBLICATION OF INFORMATION)

The national regulatory authority has a responsibility to ensure that the information in this Annex is published, in accordance with Article 21. It is for the national regulatory authority to decide which information is to be published by the undertakings providing public communications networks and/or publicly available telephone services and which information is to be published by the national regulatory authority itself, so as to ensure that consumers are able to make informed choices.

1.   Name(s) and address(es) of undertaking(s)

i.e. names and head office addresses of undertakings providing public communications networks and/or publicly available telephone services.

2.   Description of services offered

2.1.   Scope of services offered.

2.2.   Standard tariffs indicating the services provided and the content of each tariff element (e.g. charges for access, all types of usage charges, maintenance charges), and including details of standard discounts applied and special and targeted tariff schemes and any additional charges, as well as costs with respect to terminal equipment.

2.3.   Compensation/refund policy, including specific details of any compensation/refund schemes offered.

2.4.   Types of maintenance service offered.

2.5.   Standard contract conditions, including any minimum contractual period, termination of the contract and procedures and direct charges related to the portability of numbers and other identifiers, if relevant.

3.   Dispute settlement mechanisms, including those developed by the undertaking.

4.   Information about rights as regards universal service, including, where appropriate, the facilities and services mentioned in Annex I.

ANNEX III

QUALITY OF SERVICE PARAMETERS

Supply-time and quality-of-service parameters, definitions and measurement methods referred to articles 11 and 22

For undertakings providing access to a public communications network

| Parameter
  (Note 1) | Definition | Measurement method |
| --- | --- | --- |
| Supply time for initial connection | ETSI EG 202 057 | ETSI EG 202 057 |
| Fault rate per access line | ETSI EG 202 057 | ETSI EG 202 057 |
| Fault repair time | ETSI EG 202 057 | ETSI EG 202 057 |

Parameter

(Note 1)

Definition

Measurement method

Supply time for initial connection

ETSI EG 202 057

ETSI EG 202 057

Fault rate per access line

ETSI EG 202 057

ETSI EG 202 057

Fault repair time

ETSI EG 202 057

ETSI EG 202 057

For undertakings providing a publicly available telephone service

| Parameter | Definition | Measurement method |
| --- | --- | --- |
| Call set up time
  (Note 2) | ETSI EG 202 057 | ETSI EG 202 057 |
| Response times for directory enquiry services | ETSI EG 202 057 | ETSI EG 202 057 |
| Proportion of coin and card operated public pay-telephones in working order | ETSI EG 202 057 | ETSI EG 202 057 |
| Bill correctness complaints | ETSI EG 202 057 | ETSI EG 202 057 |
| Unsuccessful call ratio
  (Note 2) | ETSI EG 202 057 | ETSI EG 202 057 |

Parameter

Definition

Measurement method

Call set up time

(Note 2)

ETSI EG 202 057

ETSI EG 202 057

Response times for directory enquiry services

ETSI EG 202 057

ETSI EG 202 057

Proportion of coin and card operated public pay-telephones in working order

ETSI EG 202 057

ETSI EG 202 057

Bill correctness complaints

ETSI EG 202 057

ETSI EG 202 057

Unsuccessful call ratio

(Note 2)

ETSI EG 202 057

ETSI EG 202 057

Version number of ETSI EG 2020 57-1 is 1.2.1 (October 2005)

Note 1

Parameters should allow for performance to be analysed at a regional level (i.e. no less than level 2 in the Nomenclature of Territorial Units for Statistics (NUTS) established by Eurostat).

Note 2

Member States may decide not to require up-to-date information concerning the performance for these two parameters to be kept if evidence is available to show that performance in these two areas is satisfactory.

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ANNEX II

‘ANNEX VI

INTEROPERABILITY OF DIGITAL CONSUMER EQUIPMENT REFERRED TO IN ARTICLE 24

1.   Common scrambling algorithm and free-to-air reception

All consumer equipment intended for the reception of conventional digital television signals (i.e. broadcasting via terrestrial, cable or satellite transmission which is primarily intended for fixed reception, such as DVB-T, DVB-C or DVB-S), for sale or rent or otherwise made available in the Community, capable of descrambling digital television signals, is to possess the capability to:

| — | allow the descrambling of such signals according to a common European scrambling algorithm as administered by a recognised European standards organisation, currently ETSI; |
| --- | --- |

—

allow the descrambling of such signals according to a common European scrambling algorithm as administered by a recognised European standards organisation, currently ETSI;

| — | display signals that have been transmitted in the clear provided that, in the event that such equipment is rented, the rentee is in compliance with the relevant rental agreement. |
| --- | --- |

—

display signals that have been transmitted in the clear provided that, in the event that such equipment is rented, the rentee is in compliance with the relevant rental agreement.

2.   Interoperability for analogue and digital television sets

Any analogue television set with an integral screen of visible diagonal greater than 42 cm which is put on the market for sale or rent in the Community is to be fitted with at least one open interface socket, as standardised by a recognised European standards organisation, e.g. as given in the CENELEC EN 50 049-1:1997 standard, permitting simple connection of peripherals, especially additional decoders and digital receivers.

Any digital television set with an integral screen of visible diagonal greater than 30 cm which is put on the market for sale or rent in the Community is to be fitted with at least one open interface socket (either standardised by, or conforming to a standard adopted by, a recognised European standards organisation, or conforming to an industry-wide specification) e.g. the DVB common interface connector, permitting simple connection of peripherals, and able to pass all the elements of a digital television signal, including information relating to interactive and conditionally accessed services.’

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STATEMENT OF THE COUNCIL’S REASONS

I.   INTRODUCTION

In November 2007, the Commission adopted its proposal (1) for a Directive of the European Parliament and of the Council amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sectors and Regulation (EC) No 2006/2004 on consumer protection cooperation. The proposal was submitted to the Council on 29 November 2007.

The European Parliament adopted its opinion at first reading on 24 September 2008.

The Committee of the Regions adopted its opinion on 19 June 2008 (2).

The Economic and Social Committee adopted its opinion on 29 May 2008 (3).

The Commission adopted its amended proposal on 6 November 2008.

The Council adopted its common position on 16 February 2009.

II.   OBJECTIVE

The proposed Directive, which is one of three proposals reviewing the EU's regulatory framework for electronic communication networks and services, proposes amendments to three legislative texts: Directive 2002/22/EC (‘Universal Service Directive’), Directive 2002/58/EC (‘Privacy and e-Privacy Directive’) and Regulation (EC) No 2006/2004 on consumer protection cooperation.

In its proposal concerning the Universal Service Directive, the Commission's aim is to deal with the four major directions of change it has outlined: transparency and publication of information for endusers, facilitating access for disabled endusers, emergency services and access to the 112 call number, and basic connectivity and quality of service (neutrality of the internet).

The Commission proposal on the Privacy Directive covers the following main issues: ensuring that consumers are notified when personal data concerning them have been compromised by a network security breach, giving operators and national regulatory authorities (NRAs) more responsibilities for the security and integrity of all electronic communication networks and services, strengthening the competent authorities’ implementation and enforcement powers, particularly to combat ‘spam’, and clarifying that EU rules apply to data-collection and identification devices supported by public electronic communication networks.

The Regulation on consumer protection cooperation is amended to strengthen transnational cooperation and enforcement of the rules, in accordance with an existing Community mechanism established by that Regulation.

III.   ANALYSIS OF THE COMMON POSITION

General comments

The Common Position incorporates all, part or the thrust of a large number of amendments adopted at first reading by the European Parliament (87 of a total of 155). These amendments improve or clarify the text of the proposed Directive. Others, however, do not appear in the Common Position because the Council has deemed them redundant or unacceptable or, in certain cases, because the provisions in the Commission's initial proposal have been deleted or radically reworked. In particular, the Council has stressed the need to examine the proposals carefully in order to maintain an appropriate balance as regards proportionality and subsidiarity, and to avoid imposing unnecessary burdens both on the NRAs and on the undertakings concerned, while ensuring competition and guaranteeing benefits to endusers.

The Council, like the European Parliament, has opted for an approach emphasising the importance of facilitating access for disabled endusers. The Council also agrees with the European Parliament regarding a specific article on harmonised numbers for harmonised services of social value, even if the level of detail decided on by the Council is not totally in line with the Parliament's view.

One overall difference compared with the Commission proposal concerns the question of committee procedure and references to the authority. Another overall difference, this time compared with the European Parliament's position, concerns references to the content. In both cases, the number of such references has been reduced to a minimum.

Moreover, the Council has added or modified a number of provisions in order to clarify the text's objectives and their implementation.

Specific comments

The Council's Common Position is largely in line with that of the European Parliament. The most important points on which the Council has opted for an approach differing from that of the European Parliament or the Commission are indicated hereafter:

1.   Contracts

The Council endorsed the general approach of the Commission proposals but, in agreement here with the European Parliament, thought it necessary to increase the level of detail in the information to be provided in contracts, particularly as regards service-quality indicators, customer services and conditions governing the minimum duration of contracts in the case of promotions.

2.   Quality of service

The chief question examined by the Council was that of the level and nature of Commission intervention. The approach adopted is to leave it up to the NRAs to determine the minimum quality requirements for service involving undertakings which provide public communication networks.

3.   Notification of breaches of security

The Council examined in detail the question of notification of breaches of security. It opted for an approach enabling the provider of an electronic communication service accessible to the public to assess the seriousness of the breach and the need to notify the NRA and/or the subscriber concerned, contrary to the European Parliament which would not like to leave such assessment entirely up to the discretion of the provider and would prefer to make notification to the NRA compulsory in all cases together with publication of the breaches committed. To ensure an appropriate level of harmonisation, the Council is making it compulsory for Member States to see that the NRAs are able to issue detailed rules concerning the circumstances, format and procedures applicable to the information and notification requirements relating to breaches of personal data.

Council's position on the European Parliament's amendments

The Council accepted all, part or the thrust of amendments 2, 3, 4, 5, 6, 7, 8, 15, 16, 19, 20, 24, 32, 36, 37, 38, 44, 45, 46, 47, 48, 49, 51, 53, 55, 60, 61, 62, 63, 64, 65, 66, 67, 68, 70, 71, 72, 73, 75, 76, 77, 78, 79, 80, 82, 84, 85, 86, 87, 89, 90, 91, 95, 99, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 118, 119, 129, 131, 132, 138, 141, 144, 149, 150, 151, 152, 165, 180, 181, 182, 188, 189, 192, 193 and 194.

The Council did not accept amendments 1, 10, 11, 12, 14, 17, 18, 21, 22, 23, 25, 26, 27, 28, 29, 31, 35, 39, 40, 41, 42, 43, 50, 52, 54, 56, 57, 58, 59, 69, 83, 88, 92, 93, 96, 97, 98, 100, 101, 114, 115, 116, 117, 120, 122, 124, 125, 127, 128, 133, 135, 136, 137, 139, 140, 142, 143, 145, 146, 147, 157, 163, 166, 174, 183, 184, 185, 186, 187 and 190.

IV.   CONCLUSIONS

The Council thinks that the Common Position constitutes a balanced set of measures conducive to promoting competition, strengthening the internal market and defending the citizen's interests.

The Common Position would make it possible to ensure that consumer rights remain a major factor in the regulatory policy pursued in this sector. It would, moreover, maintain an appropriate balance as regards proportionality and subsidiarity, and avoid imposing unnecessary burdens both on the NRAs and on the undertakings concerned, while ensuring competition and guaranteeing benefits to endusers.

The Council hopes to conduct constructive discussions with the European Parliament with a view to rapid adoption of the Directive.

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(1)  COM(2007) 698 final.

(2)  OJ C 257, 9.10.2008, p. 51.

(3)  OJ C 224, 30.8.2008, p. 50.

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