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This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►B COUNCIL DIRECTIVE
of 28June 1990
on the establishment of the internal market for telecommunications services through the imple-
mentation of open network provision
(90/387/EEC)
(OJ L 192, 24.7.1990, p. 1)
Amended by:
OfficialJournal
No page date
►M1 Directive 97/51/EC of the European Parliament and of the Council of 6
October 1997 L 295 23 29.10.1997
Corrected by:
►C1 Corrigendum, OJ L 85, 6.4.1993, p. 28 (90/387)
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▼B
COUNCIL DIRECTIVE
of 28June 1990
on the establishment of the internal market for telecommunications
services through the implementation of open network provision
(90/387/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic
Community, and in particular Article 100a thereof,
Having regard to the proposalfrom the Commission (1),
In cooperation with the European Parliament (2),
Having regard to the opinion of the Economic and SocialCommittee (3),
Whereas Article 8 a of the Treaty stipulates that the internal market
shall comprise an area without internal frontiers in which the freemovement of services is ensured, in accordance with the provisions ofthe Treaty;
Whereas the Commission submitted a Green Paper on the development
of the common market for telecommunications services and equipment,dated 30 June 1987, and a communication on the implementation of thatGreen Paper up to 1992, dated 9 February 1988;
Whereas the Counciladopted on 30 June 1988 a resol ution on the
development of the common market for telecommunications servicesand equipment up to 1992 (
4);
Whereas the full establishment of a Community-wide market in tele-
communications services will be promoted by the rapid introduction ofharmonized principles and conditions for open network provision;
Whereas, since situations differ and technicaland administrative
constraints exist in the Member States, this objective should be realizedin stages;
Whereas the conditions of open network provision must be consistent
with certain principles and must not restrict access to networks andservices except for reasons of generalpubl ic interest, hereinafterreferred to as ‘essentialrequirements';
Whereas the definition and application of such principles and essential
requirements must take full account of the fact that any restrictions ofthe right to provide services within and between Member States must beobjectively justified, must follow the principle of proportionality andmust not be excessive in relation to the aim pursued;
Whereas the conditions of open network provision must not allow for
any additional restrictions on the use of the public telecommunicationsnetwork and/or public telecommunications services except those restric-tions which may be derived from the exercise of specialor excl usiverights granted by Member States and which are compatible withCommunity law;
Whereas tariff principles should be clearly laid down to ensure fair and
transparent conditions for all users;
Whereas this entire Directive must be read in the light of Annex III
which lays down a work programme for the first three years;
Whereas the establishment of harmonized conditions of open network
provision must be a progressive process and must be prepared with theassistance of a committee composed of representatives of the Member
(1) OJ No C 39, 16. 2. 1989, p. 8.
(2) OJ No C 158, 26. 6. 1989, p. 300, OJ No C 149, 18. 6. 1990.
(3) OJ No C 159, 26. 6. 1989, p. 37.
(4) OJ No C 257, 4. 10. 1988, p. 1.
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▼B
States, which consults the representatives of the telecommunications
organizations, the users, the consumers, the manufacturers and theservice providers; whereas this process must also be open to all partiesconcerned and therefore sufficient time must be given for publiccomment;
Whereas the Community-wide definition of harmonized technicalinter-
faces and access conditions must be based on the definition of commontechnicalspecifications based on internationalstandards and specifica-tions;
Whereas work to be undertaken in this area must take full account, inter
alia, of the framework resulting from the provisions of Council
Directive 83/189/EEC of 28 March 1983 laying down a procedure forthe provision of information in the field of technical standards andregulations (
1), as last amended by Directive 88/182/EEC (2), Council
Directive 86/361/EEC of 24 July 1986 on the initial stage of the mutualrecognition of type approvalfor tel ecommunications terminalequip-ment (
3) and CouncilDecision 87/95/EEC of 22 December 1986 on
standardization in the field of information technology and telecommuni-cations (
4);
Whereas the formaladoption on 12 February 1988 of the statutes of the
European Telecommunications Standards Institute (ETSI) and of theassociated internalrul es has created a new mechanism for producingEuropean telecommunications standards;
Whereas the Councilin its resol ution of 27 April1989 on standardiza-
tion in the field of information technology and telecommunications (
5)
supported the work of ETSI and invited the Commission to contributeto the coherent development of ETSI and lend it its support;
Whereas the Community-wide definition and implementation of
harmonized network termination points establishing the physical inter-face between the network infrastructure and users’ and other serviceproviders’ equipment will be an essential element of the overall conceptof open network provision;
Whereas Commission Directive 88/301/EEC of 16 May 1988 on
competition in the markets in telecommunications terminal equip-ment (
6) requires Member States to ensure that users who so request are
given access to network termination points within a reasonable timeperiod;
Whereas one of the principalaims of the establ ishment of an internal
market in telecommunications services must be the creation of condi-tions to promote the development of Europe-wide services;
Whereas, in its abovementioned resolution of 30 June 1988, the Council
considered the taking fully into account of the external aspects ofCommunity measures on telecommunications to be a major policy goal;
Whereas the Community attaches very great importance to the
continued growth of cross-border telecommunications services, to thecontribution that telecommunications services provided by companies,firms or naturalpersons establ ished in a Member State may make to thegrowth of the Community market, and to the increased participation ofCommunity service providers in third country markets; whereas it willtherefore be necessary, as specific Directives are drawn up, to ensurethat these objectives are taken into account with a view to reaching asituation where the progressive realization of the internal market fortelecommunications services will, where appropriate, be accompaniedby reciprocalmarket opening in other countries;
(1) OJ No L 109, 26. 4. 1983, p. 8.
(2) OJ No L 81, 26. 3. 1988, p. 75.
(3) OJ No L 217, 5. 8. 1986, p. 21.
(4) OJ No L 36, 7. 2. 1987, p. 31.
(5) OJ No C 117, 11. 5. 1989, p. 1.
(6) OJ No L 131, 27. 5. 1988, p. 73.
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Whereas this result should be achieved preferably through multilateralnegotiations in the framework of GATT, it being understood that bilat-eraldiscussions between the Community and third countries may al socontribute to this process;
Whereas this Directive should not address the problems of mass media,
meaning problems linked to broadcasting and distribution of televisionprogrammes via telecommunications means, in particular cable televi-sion networks, which need specialconsideration;
Whereas neither should this Directive address the question of communi-
cation via satellite for which, according to the abovementioned Councilresolution of 30 June 1988, a common position should be worked out;
Whereas the Council, on the basis of a report which the Commission is
to submit to the European Parliament and the Council, and in accord-ance with Article 100b of the Treaty, will review, during 1992, anyremaining conditions for access to telecommunications services whichhave not been harmonized, the effects of these conditions on the work-ings of the internalmarket for tel ecommunications services, and theextent to which this market needs to be further opened up,
HAS ADOPTED THIS DIRECTIVE:
Article 1
1. This Directive concerns the harmonization of conditions for open
and efficient access to and use of public telecommunications networksand, where applicable, public telecommunications services.
▼
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2. The purpose of the conditions prescribed in paragraph 1 shall be tofacilitate the provision of public telecommunications networks and/orpublic telecommunications services, within and between MemberStates, and in particular the provision of services by companies, firms ornaturalpersons establ ished in a Member State other than that of thecompany, firm or naturalperson for whom the services are intended.
3. Open network provision conditions shall aim at:
— ensuring the availability of a minimum set of services,
— securing access and interconnection to public telecommunications
networks and public telecommunications services,
— encouraging the provision of harmonized telecommunications
services to the benefit of users, in particular by identifying andpromoting by voluntary means harmonized technical interfaces foropen and efficient access and interconnection, and associated stan-dards and/or specifications and
— guaranteeing the provision of universalservice in tel ecommunica-
tions, taking account of any future evolution,
throughout the Community.
Article 2
For the purposes of this Directive:
1. ‘users' shall mean individuals, including consumers, or organizations
using or requesting publicly available telecommunications services;
2. ‘telecommunications network' shall mean transmission systems and,
where applicable, switching equipment and other resources whichpermit the conveyance of signals between defined termination pointsby wire, by radio, by opticalor by other el ectromagnetic means;
‘public telecommunications network' shall mean a telecommunica-
tions network used, wholly or in part, for the provision of publiclyavailable telecommunications services;
3. ‘telecommunications services' shall mean services the provision of
which consists wholly or partly in the transmission and routing of
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signals on telecommunications networks, with the exception of radio
and television broadcasting;
4. ‘universalservice' shal lmean a defined minimum set of services of
specified quality which is available to all users regardless of theirgeographical location and, in the light of specific national conditions,at an affordable price;
5. ‘network termination point' shal lmean the physicalpoint at which a
user is provided with access to a public telecommunications network.The locations of network termination points shall be defined by thenational regulatory authority and shall represent a boundary, forregulatory purposes, of the public telecommunications network;
6. ‘essentialrequirements' shal lmean the non-economic reasons in the
public interest which may cause a Member State to impose condi-tions on the establishment and/or operation of telecommunicationsnetworks or the provision of telecommunications services. Thosereasons shall be the security of network operations, the maintenanceof network integrity and, where justified, the interoperability ofservices, data protection, the protection of the environment and townand country planning objectives as well as the effective use of thefrequency spectrum and the avoidance of harmfulinterferencebetween radio-based telecommunications systems and other space-based or terrestrialtechnicalsystems. Data protection may incl udeprotection of personaldata, the confidential ity of information trans-mitted or stored and the protection of privacy;
7. ‘interconnection' shall mean the physical and logical linking of tele-
communications networks used by the same or a different organ-ization in order to allow the users of one organization to communi-cate with users of the same or another organization or to accessservices provided by another organizations. Services may beprovided by the parties involved or other parties who have access tothe network;
8. ‘open network provision conditions' shall mean the conditions,
harmonized in accordance with this Directive, which govern openand efficient access to public telecommunications networks and,where applicable, public telecommunications services and the effi-cient use of those networks and services.
Without prejudice to their application on a case-by-case basis, open
network provision conditions may include harmonized conditionswith regard to:
— technical interfaces, including the definition and implementation
of network termination points, where required,
— usage conditions,— tariff principles and— access to frequencies and numbers/addresses/names, where
required in accordance with the reference framework of theAnnex;
9. ‘technicalspecifications', ‘standards' and ‘terminalequipment' shal l
have the same meanings as in Article 1 of Directive 91/263/EEC (
1).
▼B
Article 3
1. Open network provision conditions must comply with a number of
basic principles set out hereafter, namely that:
— they must be based on objective criteria,
— they must be transparent and published in an appropriate manner,— they must guarantee equality of access and must be non-discrimina-
tory, in accordance with Community law.
(1) OJ L 128, 23. 5. 1991, p. 1.
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2. Open network provision conditions shall not restrict access topublic telecommunications networks or public telecommunicationsservices, except on grounds of essentialrequirements within the frame-work of Community law. In addition, the conditions generally applic-able to the connection of terminal equipment to the network shall apply.
3. Open network provision conditions may not allow for any addi-
tional restrictions on the use of the public telecommunications networksand/or public telecommunications services, except those which arecompatible with Community law.
5. Without prejudice to the specific Directives adopted in the field ofopen network provision and in so far as the application of the essentialrequirements referred to in paragraph 2 may cause Member States tolimit access to public telecommunications networks or services, therules for uniform application of the essential requirements, in particularconcerning the interoperability of services and the protection of data,shall be determined, where appropriate, by the Commission, in accord-ance with the procedure laid down in Article 10.
Article 5
1. References to standards and/or specifications drawn up as a basis
for harmonized technicalinterfaces and/or service features for opennetwork provision shall be published in the Official Journal of the
European Communities as suitable for the requirement of open and
efficient access, interconnection and interoperability in order toencourage the provision of harmonized telecommunications services tothe benefit of users throughout the Community.
Where necessary, the Commission may, in consultation with the
committee referred to in Article 9, request standards to be drawn up byEuropean standardization bodies.
2. Member States shall encourage the use of the standards and/or
specifications to which reference is made in the Official Journal of the
European Communities , in accordance with paragraph 1, for the provi-
sion of technicalinterfaces and/or network functions.
As long as such standards and/or specifications are not adopted,
Member States shall encourage:
— standards and/or specifications adopted by European standardization
bodies such as the European Telecommunications Standards Insti-tute (ETSI) or the joint European standards institution, the EuropeanCommittee for Standardization (CEN)/European Committee forElectrotechnical Standardization (Cenelec),
or, in the absence of such standards and/or specifications,
— internationalstandards or recommendations adopted by the Inter-
nationalTel ecommunications Union (ITU), the InternationalOrgan-ization for Standardization (ISO) or the InternationalEl ectrotech-nicalCommittee (IEC),
or, in the absence of such standards and/or specifications,
— nationalstandards and/or specifications.
3. If the implementation of the standards and/or specifications
referred to in paragraph 1 appears to be inadequate to ensure theinteroperability of transfrontier services in one or more Member States,the implementation of such standards and/or specifications may bemade compulsory under the procedure laid down in Article 10, to theextent strictly necessary to ensure such interoperability and to improvefreedom of choice for users, subject to Articles 85 and 86 of the Treaty.
Before the implementation of the standards and/or specifications is
made compulsory in accordance with the first subparagraph, theCommission shall, by publishing a notice to that effect in the Official
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Journal of the European Communities , invite public comment by all
parties concerned.
4. Where a Member State or the Commission considers that the
harmonized standards and/or specifications referred to in paragraph 1 donot correspond to the objective of open and efficient access, intercon-nection and interoperability, in particular the basic principles and theessential requirements referred to in Article 3, it shall be decidedwhether or not it is necessary to withdraw references to those standardsand/or specifications from the Official Journal of the European
Communities in accordance with the procedure laid down in Article 10.
5. The Commission shall inform the Member States of any such
decision and publish information on the withdrawal of those standardsand/or specifications in the Official Journal of the European Communi-
ties.
Article 5a
1. Where the tasks assigned to the nationalregul atory authority in
Community legislation are undertaken by more than one body, MemberStates shall ensure that the tasks to be undertaken by each body aremade public.
2. In order to guarantee the independence of nationalregul atory
authorities:
— national regulatory authorities shall be legally distinct from and
functionally independent of all organizations providing telecommu-nications networks, equipment or services,
— Member States that retain ownership or a significant degree of
controlof organizations providing tel ecommunications networksand/or services shal lensure effective structuralseparation of theregulatory function from activities associated with ownership orcontrol.
3. Member States shall ensure that suitable mechanisms exist at
nationall evelunder which a party affected by a decision of the nationalregulatory authority has a right of appeal to a body independent of theparties involved.
4. Member States may take steps to ensure that nationalregul atory
authorities are able to obtain from organizations providing telecommu-nications networks and/or services all the information necessary forthem to apply Community legislation.
Article 8
The Commission shall examine and report to the European Parliament
and to the Councilon the functioning of this Directive, on the firstoccasion no later than 31 December 1999. The report shall be basedinter alia on the information supplied by the Member States to the
Commission and to the committee referred to in Articles 9 and 10.Where necessary, the report shall examine what provisions of thisDirective should be adapted in the light of the developments in themarket. Further measures may be proposed in the report in pursuit ofthe aims of this Directive. The Commission shall also investigate in thereport the added value of the setting up of a European RegulatoryAuthority to carry out those tasks which would prove to be betterundertaken at Community level.
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B
Article 9
1. The Commission shall be assisted by a committee of a advisory
nature composed of the representatives of the Member States andchaired by the representative of the Commission.
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The committee shall, in particular, consult the representatives of the►
M1organizations providing public telecommunications networks
and/or publicly available telecommunications services ◄, the users, the
consumers, the manufacturers and the service providers. It shall laydown its rules of procedure.
2. The representative of the Commission shall submit to the
committee a draft of the measures to be taken. The committee shalldeliver its opinion on the draft, within a time limit which the chairmanmay lay down according to the urgency of the matter, if necessary bytaking a vote.
The opinion shall be recorded in the minutes; in addition, each Member
State shall have the right to ask to have its position recorded in theminutes.
The Commission shall take the utmost account of the opinion delivered
by the committee. It shall inform the committee of the manner in whichits opinion has been taken into account.
Article 10
1. Notwithstanding the provisions of Article 9, the following proce-
dure shall apply in respect of the matters covered by Article 3 (5) andArticle 5 (3).
2. The representative of the Commission shall submit to the
committee a draft of the measures to be taken. The committee shalldeliver its opinion on the draft within a time limit which the chairmanmay lay down according to the urgency of the matter. The opinion shallbe delivered by the majority laid down in Article 148 (2) of the Treatyin the case of decisions which the Councilis required to adopt on aproposalfrom the Commission. The votes of the representatives of theMember States within the committee shall be weighted in the mannerset out in that Article. The chairman shall not vote.
3. The Commission shall adopt the measures envisaged if they are in
accordance with the opinion of the committee.
4. If the measures envisaged are not in accordance with the opinion
of the committee, or if no opinion is delivered, the Commission shall,without del ay, submit to the Councila proposalrel ating to the measuresto be taken. The Council shall act by a qualified majority.
If on the expiry of a period of three months from the date of referralto
the Council, the Council has not acted, the proposed measures shall beadopted by the Commission.
Article 11
1. Member States shall bring into force the laws, regulations and
administrative provisions necessary in order to comply with thisDirective before 1 January 1991 at the latest. They shall forthwithinform the Commission thereof.
2. Member States shall communicate to the Commission the texts of
the provisions of national law which they adopt in the field governed bythis Directive.
Article 12
This Directive is addressed to the Member States.
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ANNEX
REFERENCE FRAMEWORK FOR THE APPLICATION OF ONP
CONDITIONS
The application of open network provision conditions as defined in Article 2 (8)
should be in accordance with the following reference framework, taking intoaccount the relevant rules of the Treaty:
1.Harmonized technical interfaces and/or network functions
When open network provision conditions are drawn up the following scheme
should be taken into account for the definition of specifications for technicalinterfaces and/or network functions:
— for existing services and networks, existing interface specifications should
be adopted,
— for entirely new services or the improvement of existing services, existing
interface specifications should also be adopted, as far as feasible. Whenexisting interfaces are not suitable, enhancements and/or new interfacespecifications will have to be specified,
— for networks that are still to be introduced but for which the standardiza-
tion programme has already commenced, open network provision require-ments falling within the terms of Article 3 should be taken into accountwhen new interface and network functions specifications are developed.
Open network provision proposals must, whenever possible, be in line with
the ongoing work in the European standardization bodies, in particular theETSI, and must also take into account work in international standardizationorganizations, such as the ITU-T.
2.Harmonized supply and usage conditions
Supply and usage conditions identify conditions of access and of provision of
services, as far as required.
(a) supply conditions concern conditions under which a service is offered to
users. They may include:
— typicaldel ivery period,
— typicalrepair time,— quality of service, in particular availability and quality of transmis-
sion,
— maintenance and network management;
(b) usage conditions concern conditions which apply to users, such as:
— conditions for network access,
— conditions for shared use,— conditions regarding protection of personaldata and confidential ity of
communications, where required.
3.Harmonized tariff principles
Tariff principles must be consistent with the principles started in Article 3 (1).Those principles imply, in particular, that:
— tariffs must be based on objective criteria and, untilsuch time as
competition becomes effective in keeping down prices for users, must inprinciple be cost oriented, on the understanding that the fixing of theactual tariff level will continue to be the province of national legislationand is not the subject of open network provisions conditions. Where anorganization no longer has significant market power in the relevantmarket, the requirement for cost orientation may be set aside by thecompetent national regulatory authority. One of the aims should be thedefinition of efficient tariff principles throughout the Community whileensuring a general service for all,
— tariffs must be transparent and must be properly published,— in order to leave users a choice between the individual service elements
and where technology so permits, tariffs must be sufficiently unbundled inaccordance with the competition rules of the Treaty. In particular, addi-tionalfeatures introduced to provide certain specific extra services must,
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as a general rule, be charged independently of the inclusive features and
transportation as such,
— tariffs must be non-discriminatory and guarantee equality of treatment,
except for restrictions which are compatible with Community law.
Any charge for access to network resources or services must comply with
the principles set out above and with the competition rules of the Treatyand must also take into account the principle of fair sharing in the globalcost of the resources used, the need for a reasonable level of return oninvestment and, where appropriate, the financing of universalservice inaccordance with the interconnection Directive (
1).
There may be different tariffs, in particular to take account of excess traffic
during peak periods and lack of traffic during off-peak periods, providedthat the tariff differentials are commercially justifiable and do not conflictwith the above principles.
4.Harmonized approach to numbering/addressing/naming
Numbering/addressing and in some instances naming provide for the selection
of the destination or destinations, or for the selection of a service, of a serviceprovider or a network operator.
Adherence to a harmonized approach for numbering/addressing and, where
applicable, naming is therefore essential to guarantee Europe-wide end-to-endinterconnection of users and the interoperability of services. Furthermore, theallocation of numbers/addresses/names should be fair, proportionate andconsistent with the requirements for equalaccess.
To achieve that, it is necessary:
— to ensure the provision, according to harmonized principles, of adequate
ranges of numbers and addresses, prefixes and short codes and, whereapplicable, of adequate naming, for all public telecommunicationsservices,
— to ensure the coordination of nationalpositions in internationalorgan-
izations and fora where decisions are taken on numbering/addressing/naming, taking into account possible future developments in numbering/addressing/naming at European level,
— to ensure that the relevant national telecommunications numbering/
addressing/naming plans are under the supervision of the national regula-tory authority, in order to guarantee independence from organizationsproviding public telecommunications networks or publicly available tele-communications services,
— to ensure the effective implementation of number portability in order to
remove any obstacles for users in choosing their suppliers,
— to ensure that the procedures for allocating individual numbers/addresses/
names, prefixes and short codes and/or addressing/numbering ranges aretransparent, equitable and timely and that the allocation is carried out inan objective, transparent and non-discriminatory manner, taking intoaccount the principle of proportionality,
— to give national regulatory authorities the possibility of laying down
conditions for the use in numbering/addressing plans of certain prefixes orcertain short codes, in particular where these are used for services ofgeneralpubl ic interest (e.g. directory services or emergency services), orto ensure equalaccess.
5.Access to frequencies
Member States must ensure that frequencies are made available for telecom-
munications services in accordance with Community law. Access to frequen-cies granted by means of licences or other authorizations must comply withthe Council resolution of 19 November 1992 on the implementation in theCommunity of the European Radiocommunications Committee Decisions (
2).
(1) Directive 97/33/EC of the European Parliament and of the Council of 30 June 1997
on interconnection in telecommunications with regard to ensuring universal serviceand interoperability through application of the principles of open network provision(ONP) (OJ L 199, 26. 7. 1997, p. 32).
(
2) OJ C 318, 4. 12. 1992, p. 1.