1990L0388 — EN — 15.02.1996 — 003.001 — 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
►M1Commission Directive 94/46/EC of13 October 1994 L 268 15 19.10.1994
►M2Commission Directive 95/51/EC of18 October 1995 L 256 49 26.10.1995
►M3Commission Directive 96/2/EC of16 January 1996 L 20 59 26.1.1996
Corrected by:
►C1Corrigendum, OJ L 308, 29.11.1996, p. 59 (95/51/EC)
►C2Corrigendum, OJ L 66, 16.3.1996, p. 36 (96/2/EC)
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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 oftelecommunications in the Community is an
essential condition for the harmonious development of economicactivities and a competitive market in the Community, from thepoint ofview ofboth service providers and users. TheCommission has therefore adopted a programme, set out in its
Green Paper on the development ofthe common market f or
telecommunications services and equipment and in its commu-nication on the implementation ofthe Green Paper by 1992, f orprogressively 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 ofan openCommunity market for telecommunications services. The lastdecades have seen considerable technological advances in the
telecommunications sector. These allow an increasingly varied
range ofservices 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 ofrelated
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 ofArticle 90 (1) ofthe Treaty because they carry on anorganized business activity, namely the provision oftelecommu-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 ofexclusive orspecial rights that used to exist in the telecommunications sectorin their country. In all cases, the system ofexclusive or specialrights has been maintained in respect ofthe provision and
operation ofthe 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 ofspecial or exclusive rights to one or more
undertakings to operate the network derives from the discre-tionary power ofthe State. The granting by a Member State ofsuch rights inevitably restricts the provision ofsuch services byother undertakings to or from other Member States.1990L0388 — EN — 15.02.1996 — 003.001 — 2
(1) OJ No C 257, 4. 10. 1988, p. 1.
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(6) In practice, restrictions on the provision oftelecommunications
services within the meaning ofArticle 59 to or f rom other
Member States consist mainly in the prohibition on connectingleased lines by means ofconcentrators, 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 ofsignals to or f rom third
parties by means ofleased 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 ofthe protocol, code, f ormat 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 ofthe 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 ofthetelecommunications services is connected with the exercise ofofficial authority involving the right to use undue powerscompared with the ordinary law, privileges ofpublic power or apower ofcoercion over the public. The supply oftelecommunica-
tion services cannot in itselfthreaten public policy and cannot
affect public health.
(8) The Court ofJustice 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 ofintellectual property beinvoked in this connection. The only essential requirementsderogating from Article 59 which could justify restrictions on theuse ofthe public network are the maintenance ofthe integrity ofthe network, security ofnetwork operations and in justif ied 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 ofnetwork operations means ensuringthe availability ofthe public network in case ofemergency. Thetechnical integrity ofthe public network means ensuring its
normal operation and the interconnection ofpublic networks in
the Community on the basis ofcommon technical specif ications.The concept ofinteroperability ofservices means complying withsuch technical specifications introduced to increase the provisionofservices and the choice available to users. Data protection
means measures taken to warrant the confidentiality of commu-
nications and the protection ofpersonal 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 ofperma-nence, availability and quality ofthe service.1990L0388 — EN — 15.02.1996 — 003.001 — 3
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(11) When a Member State has entrusted a telecommunications
organization with the task ofproviding packet or circuit switched
data services for the public in general and when this service maybe obstructed because ofcompetition 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 ofthe achievement ofthe f undamental
objectives of the Treaty referred to in Article 2 thereof, includingthat ofstrengthening the Community's economic and socialcohesion as referred to in Article 130a, will also take into accountthe situation ofthose Member States in which the network f or the
provision ofthe packet or circuit switched services is not yet
sufficiently developed and which could justify the deferment forthese Member States until 1 January 1996 ofthe date f orprohibition on the simple resale ofleased line capacity.
(12) Article 59 ofthe Treaty requires the abolition ofany 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 introductionofany 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 ofthe Treaty prohibits as incompatible with the
common market any conduct by one or more undertakings that
involves an abuse ofa dominant position within the common
market or a substantial part ofit. 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 ofthe 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 ofthe
Member States constitute distinct geographical markets. This isessentially due to the existing difference between the rulesgoverning conditions ofaccess and technical operation, relating tothe provision ofthe network and ofsuch 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 ofthe network because they are the
only ones with networks in each Member State covering the
whole territory ofthose 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 ofconsumers;
(b) compel network users to use the services subject to exclusive
rights, and thus make the conclusion ofnetwork utilization1990L0388 — EN — 15.02.1996 — 003.001 — 4
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contracts dependent on acceptance ofsupplementary services
having no connection with the subject ofsuch contracts.
Each ofthese types ofconduct represents a specif ic abuse ofa
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 ofcompetition 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 ofthe Treaty to abstain f rom anymeasure which could jeopardize the attainment ofthe objectives
ofthe Treaty, including that ofArticle 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) ofthe Treaty allows derogation f rom the
application ofArticles 59 and 86 ofthe 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 ofauniversal 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 ofthe network still derive mainly f rom the operation
ofthe telephone service. Consequently, the opening-up ofvoice
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 ofnotif ying and calling up emergency services
in charge ofpublic saf ety.
(19) The provision ofleased lines f orms an essential part ofthetelecommunications 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 ofthe resale ofleased line capacity, i.e. including only
such processing, switching ofdata, 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 ofthe Community.Under these circumstances, these restrictions are compatible with
Article 90 (2) ofthe Treaty. This may also be the case as regards
the measures adopted by Member States to ensure that theactivities ofprivate service providers do not obstruct the publicswitched-data service.
(21) The rules ofthe Treaty, including those on competition, apply totelex services; however, the use ofthis service is graduallydeclining throughout the Community owing to the emergence ofcompeting means oftelecommunication such as telef ax. Theabolition ofcurrent restrictions on the use ofthe switchedtelephone network and leased lines will allow telex messages to1990L0388 — EN — 15.02.1996 — 003.001 — 5
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be retransmitted. In view ofthis 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 oftechnological 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 ofthe 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 ofsuch procedures, to require compliance with traderegulations f rom the standpoint ofconditions ofpermanence,
availability and quality ofthe 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 ofthe rules on f reecompetition 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 ofpacket- 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 ofdata 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 ofthe network and the technological improve-ment ofthe terminal equipment connected to it have broughtabout an increase in the number off unctions 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 oftelecommunication
services, and notably suppliers oftelephone and packet orcircuit-switched data transmission services enable operators to usethese functions.
(27) Pending the establishing ofCommunity 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 ofthe networks. IftheMember 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 oftype-
approval and mandatory interface specifications, frequencyallocation and monitoring ofconditions ofuse. In some cases,1990L0388 — EN — 15.02.1996 — 003.001 — 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 ofthe 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 ofactivities, 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 ofthe network, ofthe power to regulate access to themarket for telecommunication services constitutes a strengtheningofthat dominant position. Because ofthe conf lict ofinterests, 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 ofactivities theref ore constitutes an abuse ofthe dominant
position oftelecommunications organizations within the meaning
ofArticle 86. Ifit is the result ofa 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 ofthe measures ofMember 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 ofthe network and services,including telecommunications organizations where they areproviders ofservices, are treated equally and f airly.
(31) The holders ofspecial 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 oftime.
(32) Each Member State at present regulates the supply oftele-
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 ofcross-f rontier telecommunicationsservices more difficult for economic operators. This is why theCouncil, in its resolution of30 June 1988, considered that one of
the objectives ofa telecommunications policy was the creation of
an open Community market for telecommunications services, inparticular through the rapid definition, in the form of CouncilDirectives, oftechnical conditions, conditions ofuse andprinciples governing charges for an open network provision
(ONP). The Commission has presented a proposal to this end to
the Council. Harmonization ofthe conditions ofaccess is nothowever the most appropriate means ofremoving the barriers totrade resulting from infringements of the Treaty. The Commissionhas a duty to ensure that the provisions ofthe Treaty are appliedeffectively and comprehensively.1990L0388 — EN — 15.02.1996 — 003.001 — 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 ofobstacles to f reedom to provide services, discrimina-tion between nationals ofthe 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 ofArticle 90 (3) ofthe Treaty is theref ore themost appropriate means ofachieving that end,
HAS ADOPTED THIS DIRECTIVE:
Article 1
1. For the purposes ofthis Directive:
— ‘telecommunication organizations’ means public or private bodies,
and the subsidiaries they control, to which a Member State grants
special 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 given
geographical area,
— ‘special rights’ means the rights that are granted by a Member State
to a limited number ofundertakings through any legislative,regulatory or administrative instrument which, within a givengeographical area,
— limits to two or more the number ofsuch undertakings authorized
to provide a service or undertake an activity, otherwise than
according to objective, proportional and non-discriminatory
criteria, or
— designates, otherwise than according to such criteria, several
competing undertakings as being authorized to provide a serviceor 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 substantially
equivalent conditions,
— ‘public telecommunications network’ means the public telecommu-
nications infrastructure which permits the conveyance of signals
between defined network termination points by wire, by microwave,by optical means or by other electromagnetic means,
— ‘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 ofasatellite,
— ‘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, ofradiocommunica-tions to space segment (‘uplinks’), and in the establishment ofradiocommunications between space segment and satellite earthstations (‘downlinks’),1990L0388 — EN — 15.02.1996 — 003.001 — 8
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— ‘satellite communications services’ means service whose provision
makes use, wholly or partly, ofsatellite network services,
— ‘satellite services’ means the provision ofsatellite communications
services and/or the provision ofsatellite networks services,
— ‘mobile and personal communications services’ means services other
than satellite services whose provision consists, wholly or partly, inthe establishment ofradiocommunications to a mobile user, andmakes use wholly or partly ofmobile and personal communications
systems,
— ‘mobile and personal communications systems’ means systems
consisting ofthe establishment and operation ofa mobile networkinfrastructure whether connected or not to public network termina-
tion points, to support the transmission and provision of
radiocommunications services to mobile users,
— ‘network termination point’ means all physical connections and their
technical access specifications which form part of the publictelecommunications network and are necessary for access to andefficient communication through that public network,
— ‘essential requirements’ means the non-economic reasons in the
public interest which may cause a Member State to impose
conditions on the establishment and/or operation oftelecommunica-tions networks or the provision oftelecommunications services.These reasons are the security ofnetwork operations, maintenance ofnetwork integrity, and where justified, interoperability of services,data protection, the protection ofthe environment and town and
country planning objectives as well as the efficient use of the
frequency spectrum and the avoidance of harmful interferencebetween radio-based telecommunications systems and other space-based or terrestrial technical systems.
Data protection may include protection ofpersonal data, the
confidentiality of information transmitted or stored as well as theprotection ofprivacy,
— ‘voice telephony’ means the commercial provision for the public of
the direct transport and switching ofspeech in real-time betweenpublic switched network termination points, enabling any user to use
equipment connected to such a network termination point in order to
communicate with another termination point,
— ‘telex service’ means the commercial provision for the public of
direct transmission oftelex messages in accordance with the relevantComité consultatifinternational 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 f or the public ofdirect transport ofdata between public
switched network termination points, enabling any user to useequipment connected to such a network termination point in order tocommunicate with another termination point,
— ‘simple resale ofcapacity’ 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.1990L0388 — EN — 15.02.1996 — 003.001 — 9
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This Directive shall be without prejudice to the specific rules adopted by
the Member States in accordance with Community law, governing thedistribution ofaudiovisual programmes intended f or the general public,
and the content ofsuch programmes.
2. This Directive shall not apply to telex.
Article 2
Without prejudice to Article 1 (2), Member States shall withdraw all
those measures which grant:
(a) exclusive rights for the supply of telecommunications services
otherwise than voice telephony and
(b) special rights which limit to two or more the number ofundertakings
authorized to supply such telecommunication services, otherwisethan according to objective, proportional and non-discriminatorycriteria, or
(c) special rights which designate, otherwise than according to such
criteria, several competing undertakings to provide such telecom-munication services.
They shall take the measures necessary to ensure that any operator is
entitled to supply any such telecommunications services, otherwise than
voice telephony.
Member States which make the supply ofsuch services subject to a
licensing or declaration procedure aimed at compliance with theessential requirements shall ensure that the conditions for the grant oflicences are objective, non-discriminatory and transparent, that reasons
are given for any refusal, and that there is a procedure for appealing
against any such refusal.
Without prejudice to Article 3, Member States shall inform the
Commission no later than 31 December 1990 ofthe measures taken tocomply with this Article and shall inform it of any existing regulationsor ofplans to introduce new licensing procedures or to change existing
procedures.
Member States shall communicate the criteria on which authorizations
are granted, together with the conditions attached to such authorizationsand to the declaration procedures for the operation of transmitting earthstations.
Member States shall continue to inform the Commission of any plans to
introduce new licensing procedures or to change existing procedures.
Article 3
As regards packet- or circuit-switched data services, Member States
may, until 31 December 1992, under the authorization proceduresreferred to in Article 2, prohibit economic operators from offering leasedline capacity for simple resale to the public.
Member States shall, no later than 30 June 1992, notify to the
Commission at the planning stage any licensing or declaration procedurefor the provision of packet- or circuit-switched data services for the
public which are aimed at compliance with:
— essential requirements, or
— trade regulations relating to conditions ofpermanence, availability
and quality ofthe service, or
— measures to safeguard the task of general economic interest which
they have entrusted to a telecommunications organization for theprovision ofswitched data services, ifthe perf ormance ofthat task islikely to be obstructed by the activities ofprivate service providers.1990L0388 — EN — 15.02.1996 — 003.001 — 10
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The whole ofthese conditions shall f orm a set ofpublic-service
specifications and shall be objective, non-discriminatory and trans-parent.
Member States shall ensure, no later than 31 December 1992, that such
licensing or declaration procedures for the provision of such services are
published.
Before they are implemented, the Commission shall verify the
compatibility ofthese projects with the Treaty.
Article 3a
In addition to the requirements set out in the second paragraph ofArticle
2 Member States shall, in attaching conditions to licences or generalauthorizations for mobile and personal communications systems, ensurethe following:
(i) licensing conditions must not contain conditions other than those
justified on the grounds of the essential requirements and, in the
case ofsystems f or 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 andmobile 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-ogies making use ofdistinct f requencies, where multistandardequipment 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 oflicences f or mobile and
personal communications systems to be issued only on the basis ofessential requirements and only where related to the lack ofavailability
of frequency spectrum and justified under the principle of proportion-
ality.
Licence award procedures may consider public service requirements in
the f orm oftrade regulation within the meaning ofArticle 3, provided
the solution which least restricts competition is chosen. The relevantconditions 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 ►
C2telecommunications organi-
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 ofpoints (b) and (c) ofthe first paragraph of Article 2, for the establishment and the provisionofthe public network inf rastructure, 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 andpublished 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.1990L0388 — EN — 15.02.1996 — 003.001 — 11
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Article 3c
Member States shall ensure that all restrictions on operators ofmobile
and personal communications systems with regard to the establishmentoftheir own inf rastructure, the use ofinf rastructures provided by thirdand 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 ofONP, Member States shall ensure that direct
interconnection between mobile communications systems, as well as
between mobile communications systems and fixed telecommunicationsnetworks, is allowed. In order to achieve this, restrictions oninterconnection shall be lifted.
Member States shall ensure that operators ofmobile communications
systems for the public have the right to interconnect their systems with
the public telecommunications network. To this end, Member Statesshall guarantee access to the necessary number ofpoints ofinterconnection to the public telecommunications network in thelicences for mobile services. Member States shall ensure that the
technical interfaces offered at such points of interconnection are the
least restrictive interfaces available as regards the features of the mobileservices.
Member States shall ensure that interconnection conditions with the
public telecommunications network ofthe telecommunications organi-
zations are set on the basis ofobjective criteria, are transparent and non-discriminatory, and compatible with the principle ofproportionality.They shall ensure that, in case ofappeal, f ull access to interconnectionagreements is given to National Regulatory Authorities and that suchinformation is made available to the Commission on request.
Article 4
Member States which maintain special or exclusive rights for the
provision and operation of ►
M3fixed◄public telecommunications
networks shall take the necessary measures to make the conditionsgoverning access to the networks objective and non-discriminatory andpublish 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 oftransmission capacity by
cable TV networks and allow the use ofcable networks f or theprovision oftelecommunications services, other than voice tele-
phony;
— ensure that interconnection ofcable TV networks with the public
telecommunications network is authorized for such purpose, inparticular interconnection with leased lines, and that the restrictionson the direct interconnection ofcable TV networks by cable TVoperators are abolished.
Member States shall inform the Commission no later than 31 December
1990 ofthe 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.1990L0388 — EN — 15.02.1996 — 003.001 — 12
▼B
▼M2
▼B
▼B
Article 5
Without prejudice to the relevant international agreements, Member
States shall ensure that the characteristics ofthe technical interf aces
necessary for the use of public networks are published by 31 December1990 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 oftelecommunications
services, and existing restrictions on the processing ofsignals bef ore
their transmission via the public network or after their reception, unless
the necessity ofthese restrictions f or compliance with public policy oressential requirements is demonstrated.
Without prejudice to harmonized Community rules adopted by the
Council on the provision ofan open network, Member States shall
ensure as regards services providers including the telecommunications
organizations 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 ofauthorization 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, soas 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 authorizedsatellite earth station network operator are abolished, and shall autorizewithin their territory any space-segment supplier to verify that the
satellite earth station network for use in connection with the space
segment ofthe supplier in question is in conf ormity with the publishedconditions for access to his space segment capacity.
Article 7
Member States shall ensure that from 1 July 1991 the grant of operating
licences, the control oftype approval and mandatory specif ications, theallocation off requencies and surveillance ofusage conditions are carriedout by a body independent ofthe 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 ensure that as soon as the relevant special or
exclusive rights have been withdrawn, telecommunications organiza-tions make it possible for customers bound to them by a contract withmore than one year to run for the supply of telecommunications serviceswhich was subject to such a right at the time it was concluded toterminate the contract at six months' notice.1990L0388 — EN — 15.02.1996 — 003.001 — 13
▼M1
▼B
▼M1
▼B
▼B
Article 9
Member States shall communicate to the Commission the necessary
information to allow it to draw up, for a period of three years, at the end
ofeach year, an overall report on the application ofthis Directive. The
Commission shall transmit this report to the Member States, the Council,the European Parliament and the Economic and Social Committee.
Article 10
In 1992, the Commission will carry out an overall assessment ofthe
situation in the telecommunications sector in relation to the aims ofthisDirective.
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 ofthat Article, particularly in the light of
technological evolution and the development oftrade within the
Community.
Article 11
This Directive is addressed to the Member States.1990L0388 — EN — 15.02.1996 — 003.001 — 14