1990L0387 — EN — 14.07.1990 — 000.001 — 1
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B COUNCIL DIRECTIVE
of 28June 1990
on the establishment of the internal market for telecommunications services through the imple-
mentation of open network provision
(90/387/EEC)
(OJ L 192, 24.7.1990, p. 1)
Corrected by:
►C1Corrigendum, OJ L 85, 6.4.1993, p. 28 (90/387)
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COUNCIL DIRECTIVE
of 28June 1990
on the establishment of the internal market for telecommunications
services through the implementation of open network provision
(90/387/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic
Community, and in particular Article 100a thereof,
Having regard to the proposal from the Commission(1),
In cooperation with the European Parliament(2),
Having regard to the opinion of the Economic and Social Committee(3),
Whereas Article 8 a of the Treaty stipulates that the internal market
shall comprise an area without internal frontiers in which the freemovement of services is ensured, in accordance with the provisions ofthe Treaty;
Whereas the Commission submitted a Green Paper on the development
of the common market for telecommunications services and equipment,dated 30 June 1987, and a communication on the implementation of thatGreen Paper up to 1992, dated 9 February 1988;
Whereas the Council adopted on 30 June 1988 a resolution on the
development of the common market for telecommunications servicesand equipment up to 1992 (
4);
Whereas the full establishment of a Community-wide market in tele-
communications services will be promoted by the rapid introduction ofharmonized principles and conditions for open network provision;
Whereas, since situations differ and technical and administrative
constraints exist in the Member States, this objective should be realizedin stages;
Whereas the conditions of open network provision must be consistent
with certain principles and must not restrict access to networks andservices except for reasons of general public interest, hereinafterreferred to as ‘essential requirements';
Whereas the definition and application of such principles and essential
requirements must take full account of the fact that any restrictions ofthe right to provide services within and between Member States must beobjectively justified, must follow the principle of proportionality andmust not be excessive in relation to the aim pursued;
Whereas the conditions of open network provision must not allow for
any additional restrictions on the use of the public telecommunicationsnetwork and/or public telecommunications services except those restric-tions which may be derived from the exercise of special or exclusiverights granted by Member States and which are compatible withCommunity law;
Whereas tariff principles should be clearly laid down to ensure fair and
transparent conditions for all users;
Whereas this entire Directive must be read in the light of Annex III
which lays down a work programme for the first three years;
Whereas the establishment of harmonized conditions of open network
provision must be a progressive process and must be prepared with theassistance of a committee composed of representatives of the Member
(1) OJ No C 39, 16. 2. 1989, p. 8.
(2) OJ No C 158, 26. 6. 1989, p. 300, OJ No C 149, 18. 6. 1990.
(3) OJ No C 159, 26. 6. 1989, p. 37.
(4) OJ No C 257, 4. 10. 1988, p. 1.
1990L0387 — EN — 14.07.1990 — 000.001 — 3
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States, which consults the representatives of the telecommunications
organizations, the users, the consumers, the manufacturers and theservice providers; whereas this process must also be open to all partiesconcerned and therefore sufficient time must be given for publiccomment;
Whereas the Community-wide definition of harmonized technical inter-
faces and access conditions must be based on the definition of commontechnical specifications based on international standards and specifica-tions;
Whereas work to be undertaken in this area must take full account, inter
alia, of the framework resulting from the provisions of Council
Directive 83/189/EEC of 28 March 1983 laying down a procedure forthe provision of information in the field of technical standards andregulations(
1), as last amended by Directive 88/182/EEC (2), Council
Directive 86/361/EEC of 24 July 1986 on the initial stage of the mutualrecognition of type approval for telecommunications terminal equip-ment (
3) and Council Decision 87/95/EEC of 22 December 1986 on
standardization in the field of information technology and telecommuni-cations(
4);
Whereas the formal adoption on 12 February 1988 of the statutes of the
European Telecommunications Standards Institute (ETSI) and of theassociated internal rules has created a new mechanism for producingEuropean telecommunications standards;
Whereas the Council in its resolution of 27 April 1989 on standardiza-
tion in the field of information technology and telecommunications(
5)
supported the work of ETSI and invited the Commission to contributeto the coherent development of ETSI and lend it its support;
Whereas the Community-wide definition and implementation of
harmonized network termination points establishing the physical inter-face between the network infrastructure and users’ and other serviceproviders’ equipment will be an essential element of the overall conceptof open network provision;
Whereas Commission Directive 88/301/EEC of 16 May 1988 on
competition in the markets in telecommunications terminal equip-ment (
6) requires Member States to ensure that users who so request are
given access to network termination points within a reasonable timeperiod;
Whereas one of the principal aims of the establishment of an internal
market in telecommunications services must be the creation of condi-tions to promote the development of Europe-wide services;
Whereas, in its abovementioned resolution of 30 June 1988, the Council
considered the taking fully into account of the external aspects ofCommunity measures on telecommunications to be a major policy goal;
Whereas the Community attaches very great importance to the
continued growth of cross-border telecommunications services, to thecontribution that telecommunications services provided by companies,firms or natural persons established in a Member State may make to thegrowth of the Community market, and to the increased participation ofCommunity service providers in third country markets; whereas it willtherefore be necessary, as specific Directives are drawn up, to ensurethat these objectives are taken into account with a view to reaching asituation where the progressive realization of the internal market fortelecommunications services will, where appropriate, be accompaniedby reciprocal market opening in other countries;
(1) OJ No L 109, 26. 4. 1983, p. 8.
(2) OJ No L 81, 26. 3. 1988, p. 75.
(3) OJ No L 217, 5. 8. 1986, p. 21.
(4) OJ No L 36, 7. 2. 1987, p. 31.
(5) OJ No C 117, 11. 5. 1989, p. 1.
(6) OJ No L 131, 27. 5. 1988, p. 73.
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Whereas this result should be achieved preferably through multilateralnegotiations in the framework of GATT, it being understood that bilat-eral discussions between the Community and third countries may alsocontribute to this process;
Whereas this Directive should not address the problems of mass media,
meaning problems linked to broadcasting and distribution of televisionprogrammes via telecommunications means, in particular cable televi-sion networks, which need special consideration;
Whereas neither should this Directive address the question of communi-
cation via satellite for which, according to the abovementioned Councilresolution of 30 June 1988, a common position should be worked out;
Whereas the Council, on the basis of a report which the Commission is
to submit to the European Parliament and the Council, and in accord-ance with Article 100b of the Treaty, will review, during 1992, anyremaining conditions for access to telecommunications services whichhave not been harmonized, the effects of these conditions on the work-ings of the internal market for telecommunications services, and theextent to which this market needs to be further opened up,
HAS ADOPTED THIS DIRECTIVE:
Article 1
1. This Directive concerns the harmonization of conditions for open
and efficient access to and use of public telecommunications networksand, where applicable, public telecommunications services.
2. The conditions referred to in paragraph 1 are designed to facilitate
the provision of services using public telecommunications networksand/or public telecommunications services, within and between MemberStates, and in particular the provision of services by companies, firms ornatural persons established in a Member State other than that of thecompany, firm or natural person for whom the services are intended.
Article 2
For the purposes of this Directive:
1. ‘telecommunications organizations'means public or private bodies,
to which a Member State grants special or exclusive rights for theprovision of a public telecommunications network and, whereapplicable, public telecommunications services.
For the requirements of this Directive, Member States shall notify
the Commission of the bodies to which they have granted special orexclusive rights;
2. ‘special or exclusive rights'means the rights granted by a Member
State or a public authority to one or more public or private bodiesthrough any legal, regulatory or administrative instrument reservingthem the right to provide a service or undertake an activity;
3. ‘public telecommunications network'means the public telecommu-
nications infrastructure which permits the conveyance of signalsbetween defined network termination points by wire, by micro-wave, by optical means or by other electromagnetic means;
4. — ‘telecommunications services' means services whose provision
consists wholly or partly in the transmission and routing ofsignals on a telecommunications network by means of telecom-munications processes, with the exception of radio broadcastingand television;
— ‘public telecommunications services'means telecommunications
services whose supply Member States have specificallyentrustedinter alia to one or more telecommunications organ-
izations;
5. ‘network termination point' means all physical connections and
their technical access specifications which form part of the public
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telecommunications network and are necessary for access to and
efficient communication through that public network;
6. ‘essential requirements' means the non-economic reasons in the
general interest which may cause a Member State to restrict accessto the public telecommunications network or public telecommunica-tions services. These reasons are security of network operations,maintenance of network integrity and, in justified cases, interoper-ability of services and data protection.
Data protection may include protection of personal data, the confi-
dentiality of information transmitted or stored as well as the protec-tion of privacy;
7. ‘voice telephony' means the commercial provision ►
C1for the
public of direct network ◄of real-time speech ►C1via the
public switched network ◄or networks such that any user can use
equipment connected to a network termination point to communi-cate with another user of equipment connected to another termina-tion point;
8. ‘telex service' means the commercial provision for the public of
direct transport of telex messages in accordance with the relevant‘Comité consultatif international télégraphique et téléphonique'(CCITT) recommendation via the public switched network ornetworks, whereby any user can use equipment connected to anetwork termination point to communicate with another user usinganother termination point;
9. ‘packet- and circuit-switched data services' means the commercial
provision for the public of direct transport of data via the publicswitched network or networks such that any equipment connectedto a network termination point can communicate with equipmentconnected to another termination point;
10. ‘open network provision conditions'means the conditions, harmon-
ized according to the provisions of this Directive, which concernthe open and efficient access to public telecommunicationsnetworks and, where applicable, public telecommunicationsservices and the efficient use of those networks and services.
Without prejudice to their application on a case-by-case basis, the
open network provision conditions may include harmonized condi-tions with regard to:
— technical interfaces, including the definition and implementation
of network termination points, where required,
— usage conditions, including access to frequencies where
required,
— tariff principles;
11. ‘technical specifications', ‘standards' and ‘terminal equipment' are
given the same meaning for those terms as in Article 2 of Directive86/361/EEC.
Article 3
1. Open network provision conditions must comply with a number of
basic principles set out hereafter, namely that:
— they must be based on objective criteria,
— they must be transparent and published in an appropriate manner,— they must guarantee equality of access and must be non-discrimina-
tory, in accordance with Community law.
2. Open network provision conditions must not restrict access to
public telecommunications networks or public telecommunicationsservices, except for reasons based on essential requirements, within theframework of Community law, namely:
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— security of network operations,
— maintenance of network integrity,— interoperability of services, in justified cases,— protection of data, as appropriate.
In addition, the conditions generally applicable to the connection of
terminal equipment to the network shall apply.
3. Open network provision conditions may not allow for any addi-
tional restrictions on the use of the public telecommunications networksand/or public telecommunications services except the restrictions whichmay be derived from the exercise of special or exclusive rights grantedby Member States and which are compatible with Community law.
4. The Council, acting in accordance with Article 100a of the Treaty,
may, if necessary, modify the points set out in paragraphs 1 and 2.
5. Without prejudice to the specific Directives provided for in Article
6 and in so far as the application of the essential requirements referredto in paragraph 2 of this Article may cause a Member State to limitaccess to one of its public telecommunications networks or services, therules for uniform application of the essential requirements, in particularconcerning the interoperability of services and the protection of data,shall be determined, where appropriate, by the Commission, in accord-ance with the procedure laid down in Article 10.
Article 4
1. Open network provision conditions shall be defined in stages
under the procedure set out hereafter.
2. Open network provision conditions shall concern the areas
selected in accordance with the list in Annex I.
The Council, acting in accordance with Article 100a of the Treaty, may,
if necessary, modify this list.
3. Using the list referred to in paragraph 2, the Commission shall
draw up a work programme each year, under the procedure laid down inArticle 9.
4. For the work programme referred to in paragraph 3, the Commis-
sion shall:
(a) initiate detailed analysis, in consultation with the committee
referred to in Article 9, and draw up reports on the results of thisanalysis;
(b) invite, by publication of a notice to that effect in the Official
Journal of the European Communities , public comment by all
parties concerned on the reports on the detailed analysis providedfor in subparagraph (a). The period for submitting such commentshall be not less than three months from the date of publication ofthe said notice;
(c) request, where appropriate, the European Telecommunications Stan-
dards Institute (ETSI) to draw up European standards, takingaccount of international standardization as a basis for setting up,where required, within specified time limits, harmonized technicalinterfaces and/or service features. In so doing, ETSI shall coordi-nate, in particular, with the Joint European Standards InstitutionCEN/Cenelec;
(d) draw up proposals for open network provision conditions in accord-
ance with Article 3 and with the open network provision referenceframework described in Annex II.
5. For 1990, 1991 and 1992 a work programme shall be drawn up in
order to implement the guidelines in Annex III.
Article 5
1. Reference to European standards drawn up as a basis for harmon-
ized technical interfaces and/or service features for open network provi-sion according to Article 4 (4) (c) shall be published in the Official
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Journal of the European Communities as suitable for open network
provision.
2. The standards mentioned under paragraph 1 shall carry with them
the presumption:
(a) that a service provider who complies with those standards fulfils the
relevant essential requirements, and
(b) that a telecommunications organization which complies with those
standards fulfils the requirement of open and efficient access.
3. If the implementation of European standards within the meaning
of Article 5 (2) appears inadequate to ensure the interoperability oftransfrontier services in one or more Member States, reference to Euro-pean standards may be made compulsory under the procedure laid downin Article 10, to the extent strictly necessary to ensure such interoper-ability and to improve freedom of choice for users. The procedureprovided for in this paragraph may in no way affect the implementationof Articles 85 and 86 of the Treaty.
4. Where a Member State or the Commission considers that the
harmonized standards mentioned under paragraph 1 do not correspondto the objective of open and efficient access, in particular the basicprinciples and the essential requirements referred to in Article 3, theCommission or the Member State concerned shall bring the matterbefore the committee referred to in Article 9, giving the reasons there-fore. The committee shall deliver an opinion without delay.
5. In the light of the committee’s opinion and after consultation of
the standing committee set up by Directive 83/189/EEC, the Commis-sion shall inform the Member States whether or not it is necessary towithdraw references to those standards from the Official Journal of the
European Communities .
Article 6
Following the completion of the procedures set out in Articles 4 and 5,
and acting in accordance with Article 100a of the Treaty, the Councilshall adopt specific Directives establishing open network provisionconditions including a time schedule for implementing them.
Article 7
The Council, acting in accordance with Article 100a of the Treaty,
taking Article 8c of the Treaty into consideration, shall, where required,adopt measures for harmonizing declaration and/or licensing proceduresfor the provision of services via public telecommunications networks,with a view to establishing conditions in which there would be mutualrecognition of declaration and/or licensing procedures.
Article 8
During 1992 the Council, on the basis of a report which the Commis-
sion shall submit to the European Parliament and the Council, shallreview progess on harmonization and any restrictions on access totelecommunications networks and services still remaining, the effects ofthose restrictions on the operation of the internal telecommunicationsmarket, and measures which could be taken to remove those restric-tions, in conformity with Community law, taking account of technolog-ical development and in accordance with the procedure provided forunder Article 100b of the Treaty.
Article 9
1. The Commission shall be assisted by a committee of a advisory
nature composed of the representatives of the Member States andchaired by the representative of the Commission.
The committee shall, in particular, consult the representatives of the
telecommunications organizations, the users, the consumers, the manu-facturers and the service providers. It shall lay down its rules of proce-dure.
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2. The representative of the Commission shall submit to thecommittee a draft of the measures to be taken. The committee shalldeliver its opinion on the draft, within a time limit which the chairmanmay lay down according to the urgency of the matter, if necessary bytaking a vote.
The opinion shall be recorded in the minutes; in addition, each Member
State shall have the right to ask to have its position recorded in theminutes.
The Commission shall take the utmost account of the opinion delivered
by the committee. It shall inform the committee of the manner in whichits opinion has been taken into account.
Article 10
1. Notwithstanding the provisions of Article 9, the following proce-
dure shall apply in respect of the matters covered by Article 3 (5) andArticle 5 (3).
2. The representative of the Commission shall submit to the
committee a draft of the measures to be taken. The committee shalldeliver its opinion on the draft within a time limit which the chairmanmay lay down according to the urgency of the matter. The opinion shallbe delivered by the majority laid down in Article 148 (2) of the Treatyin the case of decisions which the Council is required to adopt on aproposal from the Commission. The votes of the representatives of theMember States within the committee shall be weighted in the mannerset out in that Article. The chairman shall not vote.
3. The Commission shall adopt the measures envisaged if they are in
accordance with the opinion of the committee.
4. If the measures envisaged are not in accordance with the opinion
of the committee, or if no opinion is delivered, the Commission shall,without delay, submit to the Council a proposal relating to the measuresto be taken. The Council shall act by a qualified majority.
If on the expiry of a period of three months from the date of referral to
the Council, the Council has not acted, the proposed measures shall beadopted by the Commission.
Article 11
1. Member States shall bring into force the laws, regulations and
administrative provisions necessary in order to comply with thisDirective before 1 January 1991 at the latest. They shall forthwithinform the Commission thereof.
2. Member States shall communicate to the Commission the texts of
the provisions of national law which they adopt in the field governed bythis Directive.
Article 12
This Directive is addressed to the Member States.
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ANNEXI
Areas for which open network provision conditions may be drawn up in
accordance with Article 4
Areas shall be selected from the following list in accordance with the procedures
laid down in Article 4:
1. leased lines;2. packet- and circuit-switched data services;3. Integrated Services Digital Network (ISDN);4. voice telephony service;5. telex service;6. mobile services, as applicable;
subject to further study,
7. new types of access to the network, such as access, under certain conditions,
to the circuits connecting subscriber premises to the public network exchange(‘data over voice') and access to the network’s new intelligent functions,according to progress on definition and technological development;
8. access to the broadband network, according to progress on definition and
technological development.
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ANNEXII
Reference framework for drawing up proposals on open network provision
conditions in accordance with Article 4 (4) (d)
Proposals on open network provision conditions as defined in Article 2 (10)
should be drawn up in accordance with the following reference framework:
1.Common principles
In drawing up the conditions described in this Annex, due account will be
taken of the relevant rules of the Treaty.
Open network provision conditions shall be drawn up in such a way as to
facilitate the service providers’ and users’ freedom of action without undulylimiting the telecommunications organizations’ responsibility for the func-tioning of the network and the best possible condition of communicationschannels.
Member States may, in accordance with Community law, take any measure
enabling the telecommunications organizations to develop the new opportuni-ties deriving from open network provision.
2.Harmonized technical interfaces and/or service features
In drawing up open network provision conditions the following scheme
should be taken into account for the definition of technical interfaces atappropriate open network termination points:
— for existing services and networks, existing interfaces should be adopted;
— for entirely new services or the improvement of existing services, existing
interfaces should also be adopted, as far as feasible. When existinginterfaces are not suitable, enhancements and/or new interfaces will haveto be specified;
— for networks that are still to be introduced, but for which the standardiza-
tion programme has already commenced, open network provision require-ments falling within the terms of Article 3 should be taken into accountwhen specifying new interfaces.
Open network provision proposals must, wherever possible, be in line with
the ongoing work in the European Conference of Postal and Telecommunica-tions Administrations (CEPT), CCITT, ETSI and CEN-Cenelec.
Work undertaken in this area shall take full account of the framework
resulting from the provisions of Council Directive 83/189/EEC of 28 March1983 laying down a procedure for the provision of information in the field oftechnical standards and regulations (
1), as last amended by Directive 88/
182/EEC (2), Council Directive 86/361/EEC of 24 July 1986 on the initial
stage of the mutual recognition of type approval for telecommunicationsterminal equipment (
3) and Council Decision 87/95/EEC of 22 December
1986 on standardization in the field of information technology and telecom-munications (
4).
Additional features will be identified where required. They may be classified
as:
— inclusive if they are provided in association with a specific interface and
included in the standard offering,
— optional if they can be requested as an option with regard to a specific
open network provision offering.
Work shall include the drawing up of proposals for time schedules for the
introduction of interfaces and service features, taking account of the state ofdevelopment of telecommunications networks and services in theCommunity.
3.Harmonized supply and usage conditions
Supply and usage conditions shall identify conditions of access and of provi-
sion of services, as far as required.
(1) OJ No L 109, 26. 4. 1983, p. 8.
(2) OJ No L 81, 26. 3. 1988, p. 75.
(3) OJ No L 217, 5. 8. 1986, p. 21.
(4) OJ No L 36, 7. 2. 1987, p. 31.
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They may include as applicable:
(a) supply conditions such as:
— maximum provision time (delivery period),
— quality of service, in particular the quality of transmission,— maintenance,— network malfunction reporting facilities;
(b) usage conditions such as:— conditions for resale of capacity,
— conditions for shared use,— conditions for interconnection with public and private networks.
Usage conditions may include conditions regarding access to frequencies, as
applicable, and measures concerning protection of personal data and confiden-tiality of communications, where required.
Harmonized tariff principles
Tariff principles must be consistent with the principles set out in Article 3 (1).These principles imply, in particular, that:
— tariffs must be based on objective criteria and especially in the case of
services and areas subject to special or exclusive rights must in principlebe cost-oriented, on the understanding that the fixing of the actual tarifflevel will continue to be the province of national legislation and is not thesubject of open network provision conditions. When these tariffs aredetermined, one of the aims should be the definition of efficient tariffprinciples throughout the Community while ensuring a general service forall,
— tariffs must be transparent and must be properly published,— in order to leave users a choice between the individual service elements
and where technology so permits, tariffs must be sufficiently unbundled inaccordance with the competition rules of the Treaty. In particular, addi-tional features introduced to provide certain specific extra services must,as a general rule, be charged independently of the inclusive features andtransportation as such,
— tariffs must be non-discriminatory and guarantee equality of treatment.
Any charge for access to network resources or services must comply with the
principles set out above and with the competition rules of the Treaty and mustalso take into account the principle of fair sharing in the global cost of theresources used and the need for a reasonable level of return on investment.
There may be different tariffs, in particular to take account of excess traffic
during peak periods and lack of traffic during off-periods, provided that thetariff differentials are commercially justifiable and do not conflict with theabove principles.
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ANNEXIII
Guidelines for implementation of the framework Directive up to 31
December 1992
In an initial phase, and without prejudice to the procedures laid down in Article 4
(2) and (3), work to be undertaken in 1990, 1991 and 1992 concerning Articles 4,5 and 6 will implement the following priorities:
1. adoption of specific Directives pursuant to Article 6 covering leased lines and
the voice telephony service;
2. implementation by 1 January 1991 of harmonized technical interfaces and/or
service features for packet-switched data services and ISDN (IntegratedServices Digital Network); reference to such interfaces and features may bemade compulsory before that date in accordance with the procedure set out inArticle 5 (3);
3. adoption by the Council by 1 July 1991, acting on a proposal from the
Commission, of a recommendation on the supply of technical interfaces,conditions of usage and tariff principles applying to provision of packet-switched data services complying with open network principles; this recom-mendation would in particular call on Member States to ensure that at leastone such service was provided on their territory;
4. adoption by the Council by 1 January 1992, acting on a proposal from the
Commission, of a similar recommendation on ISDN;
5. examination in 1992, with a view to its adoption, on a proposal from the
Commission, of a specific Directive on packet-switched data services. Thatproposal should take into account the initial results of the implementation ofthe recommendation referred to in point 3;
6. subsequent examination of a proposal for a Directive on ISDN. That proposal
should also take into account the initial results of the implementation of therecommendation referred to in point 4.