1990L0388 — EN — 30.07.1999 — 005.001 — 1
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B COMMISSION DIRECTIVE
of 28June 1990
on competition in the markets for telecommunications services
(90/388/EEC)
(OJ L 192, 24.7.1990, p. 10)
Amended by:
Official Journal
No page date
►M1 Commission Directive 94/46/EC of 13 October 1994 L 268 15 19.10.1994
►M2 Commission Directive 95/51/EC of 18 October 1995 L 256 49 26.10.1995
►M3 Commission Directive 96/2/EC of 16 January 1996 L 20 59 26.1.1996
►M4 Commission Directive 96/19/EC of 13 March 1996 L 74 13 22.3.1996
►M5 Commission Directive 1999/64/EC of 23 June 1999 L 175 39 10.7.1999
Corrected by:
►C1 Corrigendum, OJ L 308, 29.11.1996, p. 59 (95/51/EC)
►C2 Corrigendum, OJ L 66, 16.3.1996, p. 36 (96/2/EC)
NB: This consolidated version contains references to the European unit of account and/or the ecu, which from 1 January 1999
should be understood as references to the euro — Council Regulation (EEC) No 3308/80 (OJ L 345, 20.12.1980, p. 1) andCouncil Regulation (EC) No 1103/97 (OJ L 162, 19.6.1997, p. 1).
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COMMISSION DIRECTIVE
of 28June 1990
on competition in the markets for telecommunications services
(90/388/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic
Community, and in particular Article 90 (3) thereof,
Whereas:
(1) The improvement of telecommunications in the Community is an
essential condition for the harmonious development of economicactivities and a competitive market in the Community, from thepoint of view of both service providers and users. TheCommission has therefore adopted a programme, set out in its
Green Paper on the development of the common market for
telecommunications services and equipment and in its commu-nication on the implementation of the Green Paper by 1992, forprogressively introducing competition into the telecommunica-tions market. The programme does not concern mobile telephonyand paging services, and mass communication services such as
radio for television. The Council, in its resolution of 30 June
1988 (
1), expressed broad support for the objectives of this
programme, and in particular the progressive creation of an openCommunity market for telecommunications services. The lastdecades have seen considerable technological advances in the
telecommunications sector. These allow an increasingly varied
range of services to be provided, notably data transmissionservices, and also make it technically and economically possiblefor competition to take place between different service providers.
(2) In all the Member States the provision and operation oftelecommunications networks and the provision of related
services are generally vested in one or more telecommunications
organizations holding exclusive or special rights. Such rights arecharacterized by the discretionary powers which the Stateexercises, in various degrees with regard to access to the marketfor telecommunications services.
(3) The organizations entrusted with the provision and operation ofthe telecommunications network are undertakings within themeaning of Article 90 (1) of the Treaty because they carry on anorganized business activity, namely the provision of telecommu-nications services. They are either public untertakings or privateenterprises to which the State has granted exclusive or special
rights.
(4) Several Member States, while ensuring the performance of public
service tasks, have already revised the system of exclusive orspecial rights that used to exist in the telecommunications sectorin their country. In all cases, the system of exclusive or specialrights has been maintained in respect of the provision and
operation of the network. In some Member States, it has been
maintained for all telecommunications services, while in otherssuch rights cover only certain services. All Member States haveeither themselves imposed or allowed their telecommunicationsadministrations to impose restrictions on the free provision of
telecommunications services.
(5) The granting of special or exclusive rights to one or more
undertakings to operate the network derives from the discre-tionary power of the State. The granting by a Member State ofsuch rights inevitably restricts the provision of such services byother undertakings to or from other Member States.1990L0388 — EN — 30.07.1999 — 005.001 — 2
(1) OJ No C 257, 4. 10. 1988, p. 1.
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(6) In practice, restrictions on the provision of telecommunications
services within the meaning of Article 59 to or from other
Member States consist mainly in the prohibition on connectingleased lines by means of concentrators, multiplexers and otherequipment to the switched telephone network, in imposing accesscharges for the connection that are out of proportion to the serviceprovided, in prohibiting the routing of signals to or from third
parties by means of leased lines or applying volume sensitive
tariffs without economic justification or refusing to give serviceproviders access to the network. The effect of the usagerestrictions and the excessive charges in relation to net cost isto hinder the provision to or from other Member States of such
telecommunications services as:
— services designed to improve telecommunications functions,
e.g. conversion of the protocol, code, format or speed,
— information services providing access to data bases,
— remote data-processing services,
— message storing and forwarding services, e.g. electronic mail,— transaction services, e.g. financial transactions, electronic
commercial data transfer, teleshopping and telereservations,
— teleaction services, e.g. telemetry and remote monitoring.
(7) Articles 55, 56 and 66 of the Treaty allow exceptions on non-
economic grounds to the freedom to provide services. Therestrictions permitted are those connected, even occasionally,with the exercise of official authority, and those connected with
public policy, public security or public health. Since these are
exceptions, they must be interpreted restrictively. None of thetelecommunications services is connected with the exercise ofofficial authority involving the right to use undue powerscompared with the ordinary law, privileges of public power or apower of coercion over the public. The supply of telecommunica-
tion services cannot in itself threaten public policy and cannot
affect public health.
(8) The Court of Justice caselaw also recognizes restrictions on thefreedom to provide services if they fulfil essential requirements inthe general interest and are applied without discrimination and inproportion to the objective. Consumer protection does not make itnecessary to restrict freedom to provide telecommunications
services since this objective can also be attained through free
competition. Nor can the protection of intellectual property beinvoked in this connection. The only essential requirementsderogating from Article 59 which could justify restrictions on theuse of the public network are the maintenance of the integrity ofthe network, security of network operations and in justified cases,
interoperability and data protection. The restrictions imposed,
however, must be adapted to the objectives pursued by theselegitimate requirements. Member States will have to make suchrestrictions known to the public and notify them to theCommission to enable it to assess their proportionality.
(9) In this context, the security of network operations means ensuringthe availability of the public network in case of emergency. Thetechnical integrity of the public network means ensuring its
normal operation and the interconnection of public networks in
the Community on the basis of common technical specifications.The concept of interoperability of services means complying withsuch technical specifications introduced to increase the provisionof services and the choice available to users. Data protection
means measures taken to warrant the confidentiality of commu-
nications and the protection of personal data.
(10) Apart from the essential requirements which can be included asconditions in the licensing or declaration procedures, MemberStates can include conditions regarding public-service require-ments which constitute objective, non-discriminatory andtransparent trade regulations regarding the conditions of perma-nence, availability and quality of the service.1990L0388 — EN — 30.07.1999 — 005.001 — 3
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(11) When a Member State has entrusted a telecommunications
organization with the task of providing packet or circuit switched
data services for the public in general and when this service maybe obstructed because of competition by private providers, theCommission can allow the Member State to impose additionalconditions for the provision of such a service, with respect also togeographical coverage. In assessing these measures, the Commis-
sion in the context of the achievement of the fundamental
objectives of the Treaty referred to in Article 2 thereof, includingthat of strengthening the Community's economic and socialcohesion as referred to in Article 130a, will also take into accountthe situation of those Member States in which the network for the
provision of the packet or circuit switched services is not yet
sufficiently developed and which could justify the deferment forthese Member States until 1 January 1996 of the date forprohibition on the simple resale of leased line capacity.
(12) Article 59 of the Treaty requires the abolition of any otherrestriction on the freedom of nationals of Member States who areestablished in a Community country to provide services topersons in other Member States. The maintenance or introductionof any exclusive or special right which does not correspond to theabovementioned criteria is therefore a breach of Article 90 in
conjunction with Article 59.
(13) Article 86 of the Treaty prohibits as incompatible with the
common market any conduct by one or more undertakings that
involves an abuse of a dominant position within the common
market or a substantial part of it. Telecommunications organiza-tions are also undertakings for the purposes of this Articlebecause they carry out economic activities, in particular theservice they provide by making telecommunications networks andservices available to users. This provision of the network
constitutes a separate services market as it is not interchangeable
with other services. On each national market the competitiveenvironment in which the network and the telecommunicationsservices are provided is homogeneous enough for the Commissionto be able to evaluate the power held by the organizations
providing the services on these territories. The territories of the
Member States constitute distinct geographical markets. This isessentially due to the existing difference between the rulesgoverning conditions of access and technical operation, relating tothe provision of the network and of such services. Furthermore,each Member State market forms a substantial part of the
common market.
(14) In each national market the telecommunications organizations
hold individually or collectively a dominant position for thecreation and the exploitation of the network because they are the
only ones with networks in each Member State covering the
whole territory of those States and because their governmentsgranted them the exclusive right to provide this network eitheralone or in conjunction with other organizations.
(15) Where a State grants special or exclusive rights to providetelecommunications services to organizations which already havea dominant position in creating and operating the network, theeffect of such rights is to strengthen the dominant position byextending it to services.
(16) Moreover, the special or exclusive rights granted to telecommu-nications organizations by the State to provide certaintelecommunications services mean such organizations:
(a) prevent or restrict access to the market for these telecommu-
nications services by their competitors, thus limiting
consumer choice, which is liable to restrict technological
progress to the detriment of consumers;
(b) compel network users to use the services subject to exclusive
rights, and thus make the conclusion of network utilization1990L0388 — EN — 30.07.1999 — 005.001 — 4
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contracts dependent on acceptance of supplementary services
having no connection with the subject of such contracts.
Each of these types of conduct represents a specific abuse of a
dominant position which is likely to have an appreciable effect on
trade between Member States, as all the services in question could
in principle be supplied by providers from other Member States.The structure of competition within the common market issubstantially changed by them. At all events, the special orexclusive rights for these services give rise to a situation which iscontrary to the objective in Article 3 (f) of the Treaty, which
provides for the institution of a system ensuring that competition
in the common market is not distorted, and requires a fortiori that
competition must not be eliminated. Member States have anobligation under Article 5 of the Treaty to abstain from anymeasure which could jeopardize the attainment of the objectives
of the Treaty, including that of Article 3 (f).
17) The exclusive rights to telecommunications services granted to
public undertakings or undertakings to which Member States havegranted special or exclusive rights for the provision of thenetwork are incompatible with Article 90 (1) in conjunction with
Article 86.
(18) Article 90 (2) of the Treaty allows derogation from the
application of Articles 59 and 86 of the Treaty where suchapplication would obstruct the performance, in law or in fact, of
the particular task assigned to the telecommunications organiza-
tions. This task consists in the provision and exploitation of auniversal network, i.e. one having general geographical coverage,and being provided to any service provider or user upon requestwithin a reasonable period of time. The financial resources for thedevelopment of the network still derive mainly from the operation
of the telephone service. Consequently, the opening-up of voice
telephony to competition could threaten the financial stability ofthe telecommunications organizations. The voice telephonyservice, whether provided from the present telephone networkor forming part of the ISDN service, is currently also the most
important means of notifying and calling up emergency services
in charge of public safety.
(19) The provision of leased lines forms an essential part of thetelecommunications organizations' tasks. There is at present, inalmost all Member States, a substantial difference between
charges for use of the data transmission service on the switched
network and for use of leased lines. Balancing those tariffswithout delay could jeopardize this task. Equilibrium in suchcharges must be achieved gradually between now and 31December 1992. In the meantime it must be possible to requireprivate operators not to offer to the public a service consisting
merely of the resale of leased line capacity, i.e. including only
such processing, switching of data, storing, or protocol conversionas is necessary for transmission in real time. The Member Statesmay therefore establish a declaration system through whichprivate operators would undertake not to engage in simple resale.
However, no other requirement may be imposed on such
operators to ensure compliance with this measure.
(20) These restrictions do not affect the development of trade to suchan extent as would be contrary to the interests of the Community.Under these circumstances, these restrictions are compatible with
Article 90 (2) of the Treaty. This may also be the case as regards
the measures adopted by Member States to ensure that theactivities of private service providers do not obstruct the publicswitched-data service.
(21) The rules of the Treaty, including those on competition, apply totelex services; however, the use of this service is graduallydeclining throughout the Community owing to the emergence ofcompeting means of telecommunication such as telefax. Theabolition of current restrictions on the use of the switchedtelephone network and leased lines will allow telex messages to1990L0388 — EN — 30.07.1999 — 005.001 — 5
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be retransmitted. In view of this particular trend, an individual
approach is necessary. Consequently, this Directive should notapply to telex services.
(22) The Commission will in any event reconsider in the course of1992 the remaining special or exclusive rights on the provision ofservices taking account of technological development and theevolution towards a digital infrastructure.
(23) Member States may draw up fair procedures for ensuring
compliance with the essential requirements without prejudice to
the harmonization of the latter at Community level within theframework of the Council Directives on open network provision(ONP). As regards data-switching, Member States must be able,as part of such procedures, to require compliance with traderegulations from the standpoint of conditions of permanence,
availability and quality of the service, and to include measures to
safeguard the task of general economic interest which they haveentrusted to a telecommunications organization. The proceduresmust be based on specific objective criteria and be appliedwithout discrimination. The criteria should in particular be
justified and proportional to the general interest objective, and
be duly motivated and published. The Commission must be ableto examine them in depth in the light of the rules on freecompetition and freedom to provide services. In any event,Member States that have not notified the Commission of theirplanned licensing criteria and procedures within a given time may
no longer impose any restrictions on the freedom to provide data
transmission services to the public.
(24) Member States should be given more time to draw up generalrules on the conditions governing the provision of packet- orcircuit-switched data services for the public.
(25) Telecommunications services should not be subject to anyrestriction, either as regards free access by users to the services,or as regards the processing of data which may be carried outbefore messages are transmitted through the network or aftermessages have been received, except where this is warranted byan essential requirement in proportion to the objective pursued.
(26) The digitization of the network and the technological improve-ment of the terminal equipment connected to it have broughtabout an increase in the number of functions previously carriedout within the network and which can now be carried out by usersthemselves with increasingly sophisticated terminal equipment. It
is necessary to ensure that suppliers of telecommunication
services, and notably suppliers of telephone and packet orcircuit-switched data transmission services enable operators to usethese functions.
(27) Pending the establishing of Community standards with a view toan open network provision (ONP), the technical interfaces
currently in use in the Member States should be made publicly
available so that firms wishing to enter the markets for theservices in question can take the necessary steps to adapt theirservices to the technical characteristics of the networks. If theMember States have not yet established such technical interfaces,they should do so as quickly as possible. All such draft measures
should be communicated to the Commission in accordance with
Council Directive 83/189/EEC (
1), as last amended by Directive
88/182/EEC (2).
(28) Under national legislation, telecommunications organizations aregenerally given the function of regulating telecommunications
services, particularly as regards licensing, control of type-
approval and mandatory interface specifications, frequencyallocation and monitoring of conditions of use. In some cases,1990L0388 — EN — 30.07.1999 — 005.001 — 6
(1) OJ No L 109, 26. 4. 1983, p. 8.
(2) OJ No L 81, 26. 3. 1988, p. 75.
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the legislation lays down only general principles governing the
operation of the licensed services and leaves it to thetelecommunications organizations to determine the specific
operating conditions.
(29) This dual regulatory and commercial function of the telecommu-
nications organizations has a direct impact on firms offeringtelecommunications services in competition with the organiza-tions in question. By this bundling of activities, the organizationsdetermine or, at the very least, substantially influence the supply
of services offered by their competitors. The delegation to an
undertaking which has a dominant position for the provision andexploitation of the network, of the power to regulate access to themarket for telecommunication services constitutes a strengtheningof that dominant position. Because of the conflict of interests, this
is likely to restrict competitors' access to the markets in
telecommunications services and to limit users' freedom ofchoice. Such arrangements may also limit the outlets forequipment for handling telecommunications messages and,consequently, technological progress in that field. This combina-tion of activities therefore constitutes an abuse of the dominant
position of telecommunications organizations within the meaning
of Article 86. If it is the result of a State measure, the measure isalso incompatible with Article 90 (1) in conjunction with Article86.
(30) To enable the Commission to carry out effectively the monitoringtask assigned to it by Article 90 (3), it must have available certain
essential information. That information must in particular give the
Commission a clear view of the measures of Member States, sothat it can ensure that access to the network and the variousrelated services are provided by each telecommunicationsorganization to all its customers on non-discriminatory tariffand other terms. Such information should cover:
— measures taken to withdraw exclusive rights pursuant to this
Directive,
— the conditions on which licences to provide telecommunica-
tions services are granted.
The Commission must have such information to enable it to
check, in particular, that all the users of the network and services,including telecommunications organizations where they areproviders of services, are treated equally and fairly.
(31) The holders of special or exclusive rights to provide telecommu-nications services that will in future be open to competition havebeen able in the past to impose long-term contracts on their
customers. Such contracts would in practice limit the ability of
any new competitors to offer their services to such customers andof such customers to benefit from such services. Users musttherefore be given the right to terminate their contracts within areasonable length of time.
(32) Each Member State at present regulates the supply of tele-
communications services according to its own concepts. Even the
definition of certain services differs from one Member State toanother. Such differences cause distortions of competition likelyto make the provision of cross-frontier telecommunicationsservices more difficult for economic operators. This is why theCouncil, in its resolution of 30 June 1988, considered that one of
the objectives of a telecommunications policy was the creation of
an open Community market for telecommunications services, inparticular through the rapid definition, in the form of CouncilDirectives, of technical conditions, conditions of use andprinciples governing charges for an open network provision
(ONP). The Commission has presented a proposal to this end to
the Council. Harmonization of the conditions of access is nothowever the most appropriate means of removing the barriers totrade resulting from infringements of the Treaty. The Commissionhas a duty to ensure that the provisions of the Treaty are appliedeffectively and comprehensively.1990L0388 — EN — 30.07.1999 — 005.001 — 7
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(33) Article 90 (3) assigns clearly-defined duties and powers to the
Commission to monitor relations between Member States and
their public undertakings and undertakings to which they havegranted special or exclusive rights, particularly as regards theremoval of obstacles to freedom to provide services, discrimina-tion between nationals of the Member States and competition. Acomprehensive approach is necessary in order to end the
infringements that persist in certain Member States and to give
clear guidelines to those Member States that are reviewing theirlegislation so as to avoid further infringements. A Directivewithin the meaning of Article 90 (3) of the Treaty is therefore themost appropriate means of achieving that end,
HAS ADOPTED THIS DIRECTIVE:
Article 1
1. For the purposes of this Directive:
— ‘telecommunication organizations’ means public or private bodies,
and the subsidiaries they control, to which a Member State grantsspecial or exclusive rights for the provision of a public telecommu-nications network and, when applicable, telecommunicationsservices,
— ‘exclusive rights’ means the rights that are granted by a Member
State to one undertaking through any legislative, regulatory oradministrative instrument, reserving it the right to provide atelecommunication service or undertake an activity within a givengeographical area,
— ‘special rights’ means the rights that are granted by a Member State
to a limited number of undertakings through any legislative,regulatory or administrative instrument which, within a given
geographical area,
— limits to two or more the number of such undertakings authorized
to provide a service or undertake an activity, otherwise thanaccording to objective, proportional and non-discriminatory
criteria, or
— designates, otherwise than according to such criteria, several
competing undertakings as being authorized to provide a service
or undertake an activity, or
— confers on any undertaking or undertakings, otherwise than
according to such criteria, legal or regulatory advantages whichsubstantially affect the ability of any other undertaking to providethe same telecommunications service or to undertake the sameactivity in the same geographical area under substantiallyequivalent conditions,
— ‘public telecommunications’ network means a telecommunications
network used inter alia for the provision of public telecommunica-
tions services,
— ‘public telecommunications service’ means a telecommunications
service available to the public,
— ‘telecommunications services’ means services whose provision
consists wholly or partly in the transmission and/or routing ofsignals on a telecommunications network,
— ‘satellite earth station network’ means a configuration of two or
more earth stations which interwork by means by means of a
satellite,
— ‘satellite network services’ means the establishment and operation of
satellite earth station networks; these services consist, as a minimum,in the establishment, by satellite earth stations, of radiocommunica-tions to space segment (‘uplinks’), and in the establishment ofradiocommunications between space segment and satellite earthstations (‘downlinks’),1990L0388 — EN — 30.07.1999 — 005.001 — 8
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— ‘satellite communications services’ means service whose provision
makes use, wholly or partly, of satellite network services,
— ‘satellite services’ means the provision of satellite communications
services and/or the provision of satellite networks services,
— ‘mobile and personal communications services’ means services other
than satellite services whose provision consists, wholly or partly, inthe establishment of radiocommunications to a mobile user, andmakes use wholly or partly of mobile and personal communicationssystems,
— ‘mobile and personal communications systems’ means systems
consisting of the establishment and operation of a mobile networkinfrastructure whether connected or not to public network termina-tion points, to support the transmission and provision ofradiocommunications services to mobile users,
— ‘network termination point’ means all physical connections and their
technical access specifications which form part of the public
telecommunications network and are necessary for access to andefficient communication through that public network,
— ‘essential requirements’ means the non-economic reasons in the
general interest which may cause a Member State to imposeconditions on the establishment and/or operation of telecommunica-tions networks or the provision of telecommunications services.
These reasons are security of network operations, maintenance of
network integrity, and, in justified cases, interoperability of services,data protection, the protection of the environment and town andcountry planning objectives as well as the effective use of thefrequency spectrum and the avoidance of harmful interferencebetween radio based telecommunications systems and other, space-
based or terrestrial, technical systems.
Data protection may include protection of personal data, the
confidentiality of information transmitted or stored as well as theprotection of privacy,
— ‘voice telephony’ means the commercial provision for the public of
the direct transport and switching of speech in real-time between
public switched network termination points, enabling any user to use
equipment connected to such a network termination point in order tocommunicate with another termination point,
— ‘telex service’ means the commercial provision for the public of
direct transmission of telex messages in accordance with the relevant
Comité consultatif international télégraphique et téléphonique
(CCITT) recommendation between public switched network termi-nation points, enabling any user to use equipment connected to sucha network termination point in order to communicate with anothertermination point,
— ‘packet- and circuit-switched data services’ means the commercial
provision for the public of direct transport of data between publicswitched network termination points, enabling any user to useequipment connected to such a network termination point in order tocommunicate with another termination point,
— ‘simple resale of capacity’ means the commercial provision on
leased lines for the public of data transmission as a separate service,
including only such switching, processing, data storage or protocolconversion as is necessary for transmission in real time to and fromthe public switched network,
— ‘cable TV network’ means any mainly wire-based infrastructure
approved by a Member State for delivery or distribution of radio ortelevision signals to the public,
— ‘telecommunications network’ means the transmission equipment
and, where applicable, switching equipment and other resourceswhich permit the conveyance of signals between defined termination1990L0388 — EN — 30.07.1999 — 005.001 — 9
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points by wire, by radio, by optical or by other electromagnetic
means,
— ‘interconnection’ means the physical and logical linking of the
telecommunications facilities of organizations providing telecom-
munications networks and/or telecommunications services, in orderto allow the users of one organization to communicate with the usersof the same or another organization or to access services provided bythird organizations.
This Directive shall be without prejudice to the specific rules adopted by
the Member States in accordance with Community law, governing thedistribution of audiovisual programmes intended for the general public,and the content of such programmes.
Article 2
1. Member States shall withdraw all those measures which grant:
(a) exclusive rights for the provision of telecommunications services,
including the establishment and the provision of telecommunications
networks required for the provision of such services; or
(b) special rights which limit to two or more the number of undertakings
authorized to provide such telecommunications services or to
establish or provide such networks, otherwise than according toobjective, proportional and non-discriminatory criteria; or
(c) special rights which designate, otherwise than according to
objective, proportional and non-discriminatory several competingundertakings to provide such telecommunications services or toestablish or provide such networks.
2. Member States shall take the measures necessary to ensure that any
undertaking is entitled to provide the telecommunications services
referred to in paragraph 1 or to establish or provide the networksreferred to in paragraph 1.
Without prejudice to Article 3c and the third paragraph of Article 4,
Member States may maintain special and exclusive rights until 1 January
1998 for voice telephony and for the establishment and provision ofpublic telecommunications networks.
Member States shall, however, ensure that all remaining restrictions on
the provision of telecommunications services other than voice telephony
over networks established by the provider of the telecommunications
services, over infrastructures provided by third parties and by means ofsharing of networks, other facilities and sites are lifted and the relevantmeasures notified to the Commission no later than 1 July 1996.
As regards the dates set out in the second and third subparagraphs of this
paragraph, in Article 3 and in Article 4a (2), Member States with less
developed networks shall be granted upon request an additionalimplementation period of up to five years and Member States withvery small networks shall be granted upon request an additionalimplementation period of up to two years, provided it is needed toachieve the necessarystructural adjustments. Such a request must include
a detailed description of the planned adjustments and a precise
assessment of the timetable envisaged for their implementation. Theinformation provided shall be made available to any interested party ondemand having regard to the legitimate interest of undertakings in theprotection of their business secrets.
3. Member States which make the supply of telecommunications
services or the establishment or provision of telecommunicationsnetworks subject to a licensing, general authorization or declarationprocedure aimed at compliance with the essential requirements shallensure that the relevant conditions are objective, non-discriminatory,1990L0388 — EN — 30.07.1999 — 005.001 — 10
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proportionate and transparent, that reasons are given for any refusal, and
that there is a procedure for appealing against any refusal.
The provision of telecommunications services other than voice
telephony, the establishment and provision of public telecommunica-tions networks and other telecommunications networks involving the useof radio frequencies, may be subjected only to a general authorization ora declaration procedure.
4. Member States shall communicate to the Commission the criteria
on which licences, general authorizations and declaration procedures arebased together with the conditions attached thereto.
Member States shall continue to inform the Commission of any plans to
introduce new licensing, general authorization and declaration proce-dures or to change existing procedures.
Article 3
As regards voice telephony and the provision of public telecommunica-
tions networks, Member States shall, no later than 1 January 1997,notify to the Commission, before implementation, any licensing ordeclaration procedure which is aimed at compliance with:
— essential requirements, or
— trade regulations relating to conditions of permanence, availability
and quality of the service, or
— financial obligations with regard to universal service, according to
the principles set out in Article 4c.
Conditions relating to availability can include requirements to ensure
access to customer databases necessary for the provision of universaldirectory information.
The whole of these conditions shall form a set of public-service
specifications and shall be objective, non-discriminatory, proportionate
and transparent.
Member States may limit the number of licences to be issued only where
related to the lack of availability spectrum and justified under the
principle of proportionality.
Member States shall ensure, no later than 1 July 1997, that such
licensing or declaration procedures for the provision of voice telephonyand of public telecommunications networks are published. Before they
are implemented, the Commission shall verify the compatibility of these
drafts with the Treaty.
As regards packet- or circuit-switched data services, Member States
shall abolish the adopted set of public-service specifications. They may
replace these by the declaration procedures or general authorizations
referred to in Article 2.
Article 3a
In addition to the requirements set out in the second paragraph of Article
2 Member States shall, in attaching conditions to licences or generalauthorizations for mobile and personal communications systems, ensure
the following:
(i) licensing conditions must not contain conditions other than those
justified on the grounds of the essential requirements and, in thecase of systems for use by the general public, public servicerequirements in the form of trade regulation within the meaning ofArticle 3;
(ii) licensing conditions for mobile network operators must ensure
transparent and non-discriminatory behaviour between fixed and
mobile network operators in common ownership;
(iii) licensing conditions should not include unjustified technical
restrictions. Member States may not, in particular, preventcombination of licences or restrict the offer of different technol-1990L0388 — EN — 30.07.1999 — 005.001 — 11
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ogies making use of distinct frequencies, where multistandard
equipment is available.
As far as frequencies are available, member States shall award licences
according to open, non-discriminatory, and transparent procedures.
Member States may limit the number of licences for mobile and
personal communications systems to be issued only on the basis of
essential requirements and only where related to the lack of availabilityof frequency spectrum and justified under the principle of proportion-ality.
Licence award procedures may consider public service requirements in
the form of trade regulation within the meaning of Article 3, provided
the solution which least restricts competition is chosen. The relevant
conditions related to trade regulations may be attached to the licencesgranted.
Member States which are granted an additional implementation period
to abolish the restrictions with regard to infrastructure as provided for inArticle 3c, shall not during that period grant any further mobile orpersonal communications licence to ►
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zations, or any associated organization. Where telecommunications
organizations in such Member States ◄do not or no longer enjoy
exclusive or special rights, within the meaning of points (b) and (c) ofthe first paragraph of Article 2, for the establishment and the provisionof the public network infrastructure, they shall not a priori be excluded
from such licensing procedures.
Article 3b
The designation of radiofrequencies for specific communication services
must be based on objective criteria. Procedures must be transparent and
published in an appropriate manner.
Member States shall publish every year or make available on request,
the allocation scheme of frequencies reserved for mobile and personalcommunications services, according to the scheme set out in the Annex,including the plans for future extension of such frequencies.
This designation must be reviewed by Member States at regular
appropriate intervals.
Member States shall ensure, before 1 July 1997, that adequate numbers
are available for all telecommunications services. They shall ensure thatnumbers are allocated in an objective, non-discriminatory, proportionateand transparent manner, in particular on the basis of individualapplication procedures.
Article 3c
Member States shall ensure that all restrictions on operators of mobile
and personal communications systems with regard to the establishment
of their own infrastructure, the use of infrastructures provided by third
and the sharing of infrastructure, other facilities and sites, subject tolimiting the use of such infrastructures to those activities provided for intheir licence or authorization, are lifted.
Article 3d
Without prejudice to the future harmonization of national interconnec-
tion rules in the context of ONP, Member States shall ensure that directinterconnection between mobile communications systems, as well as
between mobile communications systems and fixed telecommunications
networks, is allowed. In order to achieve this, restrictions oninterconnection shall be lifted.
Member States shall ensure that operators of mobile communications
systems for the public have the right to interconnect their systems withthe public telecommunications network. To this end, Member Statesshall guarantee access to the necessary number of points of1990L0388 — EN — 30.07.1999 — 005.001 — 12
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interconnection to the public telecommunications network in the
licences for mobile services. Member States shall ensure that thetechnical interfaces offered at such points of interconnection are the
least restrictive interfaces available as regards the features of the mobile
services.
Member States shall ensure that interconnection conditions with the
public telecommunications network of the telecommunications organi-zations are set on the basis of objective criteria, are transparent and non-discriminatory, and compatible with the principle of proportionality.They shall ensure that, in case of appeal, full access to interconnectionagreements is given to National Regulatory Authorities and that such
information is made available to the Commission on request.
Article 4
As long as Member States maintain special or exclusive rights for the
provision and operation of fixed public telecommunications networksthey shall take the necessary measures to make the conditions governingaccess to the networks objective and non-discriminatory and shallpublish them.
In particular, they shall ensure that operators who so request can obtain
leased lines within a reasonable period, that there are no restrictions ontheir use other than those justified in accordance with Article 2.
Member States shall:
— abolish all restrictions on the supply of transmission capacity by
cable TV networks and allow the use of cable networks for theprovision of telecommunications services, other than voice tele-phony;
— ensure that interconnection of cable TV networks with the public
telecommunications network is authorized for such purpose, inparticular interconnection with leased lines, and that the restrictionson the direct interconnection of cable TV networks by cable TV
operators are abolished.
Member States shall inform the Commission no later than 31 December
1990 of the steps they have taken to comply with this Article.
Each time the charges for leased lines are increased, Member States
shall provide information to the Commission on the factors justifyingsuch increases.
Article 4 a
1. Without prejudice to future harmonization of the national
interconnection regimes by the European Parliament and the Councilin the framework of ONP, Member States shall ensure that thetelecommunications organizations provide interconnection to their voicetelephony service and their public switched telecommunications networkto other undertakings authorized to provide such services or networks,
on non-discriminatory, proportional and transparent terms, which are
based on objective criteria.
2. Member States shall ensure in particular that the telecommunica-
tions organizations publish, no later than 1 July 1997, the terms andconditions for interconnection to the basic functional components oftheir voice telephony service and their public switched telecommunica-tions networks, including the interconnection points and the interfacesoffered according to market needs.
3. Furthermore, Member States shall not prevent that organizations
providing telecommunications networks and/or services who so requestcan negotiate interconnection agreements with telecommunications1990L0388 — EN — 30.07.1999 — 005.001 — 13
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organizations for access to the public switched telecommunications
network regarding special network access and/or conditions meetingtheir specific needs.
If commercial negotiations do not lead to an agreement within a
reasonable time period, Member States shall upon request from either
party and within a reasonable time period, adopt a reasoned decision
which establishes the necessary operational and financial conditions andrequirements for such interconnection without prejudice to otherremedies available under the applicable national law or underCommunity law.
4. Member States shall ensure that the cost accounting system
implemented by telecommunications organizations with regard to theprovision of voice telephony and public telecommunications networks
identifies the cost elements relevant for pricing interconnection
offerings.
5. The measures provided for in paragraphs 1 to 4 shall apply for a
period of five years from the date of the effective abolition of special
and exclusive rights for the provision of voice telephony granted to thetelecommunications organization. The Commission shall, however,review this Article if the European Parliament and the Council adopta directive harmonizing interconnection conditions before the end of thisperiod.
Article 4 b
Member States shall ensure that all exclusive rights with regard to the
establishment and provision of directory services, including both thepublication of directories and directory enquiry services, on theirterritory are lifted.
Article 4 c
Without prejudice to the harmonization by the European Parliament and
the Council in the framework of ONP, any national scheme which isnecessary to share the net cost of the provision of universal serviceobligations entrusted to the telecommunications organizations, withother organizations whether it consists of a system of supplementarycharges or a universal service fund, shall:
(a) apply only to undertakings providing public telecommunications
networks;
(b) allocate the respective burden to each undertaking according to
objective and non-discriminatory criteria and in accordance with the
principle of proportionality.
Member States shall communicate any such scheme to the Commission
so that it can verify the scheme's compatibility with the Treaty.
Member States shall allow their telecommunications organizations to re-
balance tariffs taking account of specific market conditions and of the
need to ensure the affordability of a universal service, and, in particular,Member States shall allow them to adapt current rates which are not inline with costs and which increase the burden of universal serviceprovision, in order to achieve tariffs based on real costs. Where suchrebalancing cannot be completed before 1 January 1998 the Member
States concerned shall report to the Commission on the future phasing
out of the remaining tariff imbalances. This shall include a detailedtimetable for implementation.
In any case, within three months after the European Parliament and the
Council adopt a Directive harmonizing interconnection conditions, theCommission will assess whether further initiatives are necessary toensure the consistency of both Directives and take the appropriatemeasures.
In addition, the Commission shall, no later than 1 January 2003, review
the situation in the Member States and assess in particular whether thefinancing schemes in place do not limit access to the relevant markets.1990L0388 — EN — 30.07.1999 — 005.001 — 14
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In this case, the Commission will examine whether there are other
methods and make any appropriate proposals.
Article 4 d
Member States shall not discriminate between providers of public
telecommunications networks with regards to the granting of rights ofway for the provision of such networks.
Where the granting of additional rights of way to undertakings wishing
to provide public telecommunications networks is not possible due toapplicable essential requirements, Member States shall ensure access to
existing facilities established under rights of way which may not be
duplicated, at reasonable terms.
Article 5
Without prejudice to the relevant international agreements, Member
States shall ensure that the characteristics of the technical interfaces
necessary for the use of public networks are published by 31 December
1990 at the latest.
Member States shall communicate to the Commission, in accordance
with Directive 83/189/EEC, any draft measure drawn up for this
purpose.
Article 6
Member States shall, as regards the provision of telecommunications
services, and existing restrictions on the processing of signals before
their transmission via the public network or after their reception, unlessthe necessity of these restrictions for compliance with public policy oressential requirements is demonstrated.
Without prejudice to harmonized Community rules adopted by the
Council on the provision of an open network, Member States shallensure as regards services providers including the telecommunicationsorganizations that there is no discrimination either in the conditions ofuse or in the charges payable.
Member States shall ensure that any fees imposed on providers of
services as part of authorization procedures, shall be based on objective,
transparent and non-discriminatory criteria.
Fees, the criteria upon which they are based, and any changes thereto,
shall be published in an appropriate and sufficiently detailed manner, so
as to provide easy access to that information.
Member States shall notify to the Commission no later than nine months
after publication of this Directive, and thereafter whenever changes
occur, the manner in which the information is made available. The
Commission shall regularly publish references to such notifications.
Member States shall inform the Commission of the measures taken or
draft measures introduced in order to comply with this Article by 31December 1990 at the latest.
Member States shall ensure that any regulatory prohibition or
restrictions on the offer of space-segment capacity to any authorized
satellite earth station network operator are abolished, and shall autorizewithin their territory any space-segment supplier to verify that thesatellite earth station network for use in connection with the spacesegment of the supplier in question is in conformity with the publishedconditions for access to his space segment capacity.1990L0388 — EN — 30.07.1999 — 005.001 — 15
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Article 7
Member States shall ensure that from 1 July 1991 the grant of operating
licences, the control of type approval and mandatory specifications, the
allocation of frequencies and ►M4numbers, as well as the ◄
surveillance of usage conditions are carried out by a body independentof the telecommunications organizations.
They shall inform the Commission of the measures taken or draft
measures introduced to that end no later than 31 December 1990.
Article 8
Member States shall, in the authorization schemes for the provision of
voice telephony and public telecommunications networks, at least ensurethat where such authorization is granted to undertakings to which they
also grant special or exclusive rights in areas other than telecommunica-
tions, such undertakings keep separate financial accounts as concernsactivities as providers of voice telephony and/or networks and otheractivities, as soon as they achieve a turnover of more than ECU 50million in the relevant telecommunications market.
Article 9
Each Member State shall ensure that no telecommunications organisa-
tion operates its cable TV network using the same legal entity as it uses
for its public telecommunications network, when such organisation:
(a) is controlled by that Member State or benefits from special rights;
and
(b) is dominant in a substantial part of the common market in the
provision of public telecommunications networks and public voice
telephony services; and
(c) operates a cable TV network established under special or exclusive
right in the same goegraphic area.
Article 10
In 1992, the Commission will carry out an overall assessment of the
situation in the telecommunications sector in relation to the aims of this
Directive.
In 1994, the Commission shall assess the effects of the measures
referred to in Article 3 in order to see whether any amendments need tobe made to the provisions of that Article, particularly in the light oftechnological evolution and the development of trade within theCommunity.
Article 11
This Directive is addressed to the Member States.1990L0388 — EN — 30.07.1999 — 005.001 — 16
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