Amended proposal for a European Parliament and Council Directive on the mutual recognition of licences and other national authorizations for telecommunications services (94/C 108/06) (Text with EEA relevance) COM(94) 41 final - COD 438

(Submitted by the Commission pursuant to Article 189A (2) of the EC Treaty on 24 March 1994)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Articles 57 (2), 66 and 100a thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the Economic and Social Committee (2),

1. Whereas Council Directive 90/387/EEC of 28 June 1990 on the establishment of the internal market for telecommunications services through the implementation of open network provision (3), and in particular Article 7 thereof, provides that the Council shall, where required, adopt measures for harmonizing declaration and/or licensing procedures for the provision of services via public telecommunications networks, with a view to establishing conditions in which there would be mutual recognition of declaration and/or licensing procedures;

2. Whereas under the directives adopted further to Directive 90/387/EEC, and in particular Council Directive 92/44/EEC of 5 June 1992 on the application of open network provision to leased lines (4), essential requirements are being harmonized in a way which facilitates the mutual recognition of national licences, declarations and other authorizations to operate certain services without licences;

3. Whereas the Council, in its resolution of 22 July 1993 on the review of the situation of the telecommunications sector and the need for further development in that market (5), recognized as key factors in the development of future regulatory policy for telecommunications in the Community the implementation of the principle of mutual recognition of national licences and authorizations based on harmonized conditions and with an interim solution based on one-stop-shopping procedure;

4. Whereas Article 7 of Directive 90/387/EEC provides for the harmonization of the declaration and/or licensing procedures as regards services operated via the public telecommunications network; whereas there is, moreover, a necessary link between the licences granted for the operation of mobile and satellite services and the exclusive use of certain frequencies; whereas the mutual recognition of licences granted for the operation of such services can for this reason only be envisaged in conjunction with the allocation of the required frequencies in the other Member States; whereas the use of frequencies in the Member States has yet been harmonized only to a limited extent and diverging band widths, frequencies and standards are still applied as regards many mobile services; whereas the mutual recognition of licences for the operation of mobile and satellite services therefore requires additional measures as regard the allocation and the coordinating of frequencies; whereas this will be dealt with in specific directives; whereas for these reasons telecommunications services such as mobile radio services and satellite services are at this stage not covered by this Directive;

5. Whereas in accordance with the phased approach proposed by the Commission in its communication of 28 April 1993 to the Council and the European Parliament on the consultation on the review of the situation in the telecommunications services sector (6), and approved in the Council resolution of 22 July 1993, voice telephony and telex services as defined in Article 2 of Directive 90/387/EEC are also excluded from the scope of this Directive; whereas specific provisions would have to be adopted to extend mutual recognition of licences to these services, taking account of their specificities;

6. Whereas the existing divergent authorization regimes for telecommunications services in the Community create obstacles to the establishment of an internal market for telecommunications services in conformity with the objective set out in Article 8A of the Treaty; whereas the importance of these differences and the necessity to ensure the possibility of providing telecommunications services throughout the Community require harmonization at Community level; whereas, pursuant to the principle of subsidiarity, the provisions of this Directive are strictly limited to what is necessary to overcome obstacles to the establishment of an internal market for telecommunications services, and thus leave major tasks with the national regulatory authorities of the Member States;

7. Whereas this Directive does not concern the mutual recognition of authorizations granted by third countries; whereas the coordination of Member States shall be strengthened with regard to services to/from non-Community countries in order to develop common procedures with regard to these services, building on the general principles which are in the course of being defined within the framework of the General Agreement on Tariffs and Trade (GATT) services agreement;

8. Whereas the approach which has been adopted to achieve mutual recognition of national licences and other authorizations, is to establish procedures whereby the undertakings involved may obtain a mutual recognition of their national authorizations; whereas the main objective is to achieve this by way of mutual recognition on the basis of the establishment of harmonized licensing conditions; whereas for those telecommunications services for which harmonization of licensing conditions has not yet been achieved, a transitional one-stop-shopping regime shall facilitate the obtention of authorizations;

9. Whereas, on the basis of mutually recognized national authorizations, the telecommunications services providers will be allowed to operate, throughout the Community, any or all of the activities for which they are holder of an authorization from one Member State, in all other Member States by establishing branches or by providing services; whereas the mutually recognized national authorizations will not free its holders from the obligation to comply with national legislation which is not specifically related to telecommunications;

10. Whereas for some categories of telecommunications services it might appear unnecessary to proceed to a prior harmonization of the conditions for authorization; whereas it should therefore be possible to grant mutual recognition of national authorizations for certain categories of telecommunications services without prior harmonization;

11. Whereas in order to take advantage of the existing expertize national regulatory authorities in a wider European context, it should be possible to give mandates for the harmonization of licensing conditions to the European Committee for Telecommunications Regulatory Affairs (Ectra) which has been established in the framework of the European Conference of Postal and Telecommunications Administrations (CEPT);

12. Whereas, as a transitional measure, a coordinated one-stop-shopping procedure should be established facilitating the application for national authorizations in cases where mutual recognition is not yet achieved; whereas the introduction of mandatory time limits is necessary to render the procedure more efficient; whereas it is expected that with the establishment of the appropriate harmonized conditions, the licensing mechanism for individual applications under a transitional one-stop-shopping regime will be progressively replaced by the mechanism for national licensing of service categories on the basis of mutual recognition;

13. Whereas, in respect of the one-stop-shopping procedure, bodies such as Ectra, recognized as competent in this area, could be relied upon for the administration of such a procedure, subject to the establishment of suitable arrangements for cooperation;

14. Whereas in cases of new service categories for which harmonized Community licensing conditions have not yet been agreed and in cases where certain telecommunications services might not be covered by any of the established service categories applications for mutual recognition can be dealt with under the transitional one-stop-shopping regime until the harmonized conditions for the service category in question have been elaborated;

15. Whereas the new procedure of mutual recognition may increase the current workload of the national regulatory authorities and bring about new costs; whereas these authorities should have the right to assign the supplementary costs incurred to the applicants for mutual recognition; whereas the principle of transparency requires an appropriate publication of the fees assigned for the processing and the monitoring of the authorizations;

16. Whereas compliance by the holders of mutually recognized national authorizations with the terms of these licences must be guaranteed; whereas appropriate measures to ensure such compliance should be taken by the national regulatory authorities; whereas however these measures should be subject to review in an appeal mechanism;

17. Whereas in this framework an efficient procedure must be provided for the modification and the withdrawal of a mutually recognized national authorization which guarantees at the same time that the rights of the defence are upheld in the assessment of such non-compliance;

18. Whereas a means of appeal should be established to ensure the full application of the procedures set out in this Directive; whereas a conciliation procedure allowing for an amicable settlement of disputes relating to the application of the procedures should be an essential element of this means of appeal;

19. Whereas the Community Telecommunications Committee set up by this Directive shall be composed of representatives of the national regulatory authorities of the Member States, and should assist the Commission in the implementation of this Directive; whereas major tasks in the implementation of this Directive have been conferred on the Member States;

20. Whereas the confidentiality of the data collected according to the procedures set out in the present Directive and covered by the obligation of professional secrecy must in any case be guaranteed;

21. Whereas, however, the transparency of the authorization procedures set out in this Directive must be achieved to improve their efficiency; whereas the relevant national regulatory authorities must be clearly identified;

22. Whereas the Commission will, within the review of the provisions of this Directive and its implementation up until 1 January 1996, evaluate for which telecommunications services there have not yet been adopted decisions concerning mutual recognition of authorizations; whereas the review will pay special attention as to whether these services can be covered by mutual recognition of authorization without prior harmonization,

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I

SCOPE AND DEFINITIONS

Article 1

Objective

This Directive aims at implementing a single market in telecommunications services through the establishment of procedures allowing a service provider authorized to operate telecommunications services in one Member State to provide part or all of these services on a Community-wide basis without having to obtain individual licences or authorizations from other Member States.

Article 2

Definitions

The definitions given in Directive 90/387/EEC shall apply, where relevant to this Directive. In addition, for the purposes of this Directive:

1. 'national regulatory authority` means the body or bodies in each Member State, legally distinct and functionally independent of the telecommunications organizations, entrusted by the Member States inter alia with the regulatory functions addressed in this Directive;

2. 'national authorizations` means individual authorizations such as licences or declarations or general regulatory authorizations in the form of, for example, legislation or class licences, which allow the provision of telecommunications services in a Member State, in conformity with Community law.

3. 'satellite services` means the establishment and operation of satellite earth station networks (satillite network services) and provision of services whose provision makes use, wholly or partly, of satellite network services (satellite communications services).

4. 'mobile radio services` means telecommunications services which are provided via a radio link to the mobile terminal of the user;

5. 'licence`, means an individual authorization issued by a national regulatory authority and required as a condition for the provision of a telecommunications service, in conformity with Community law;

6. 'declaration` means the communication to a national regulatory authority by a service provider of his intention to provide a telecommunications service;

7. 'one-stop shopping procedure` means an arrangement facilitating the obtention of national authorizations for telecommunications services from more than one national regulatory authority in a coordinated procedure and at a single location;

8. 'Community Telecommunications Committee` (CTC), means the Committee established by Article 16 of this Directive.

Article 3

Scope

1. This Directive shall apply to all national authorizations relating to the provision of telecommunications services on public telecommunications networks.

2. It shall not apply to national authorizations for the provision of voice telephony and telex as defined in Article 2 of Directive 90/387/EEC, mobile radio services and satellite services.

CHAPTER II

RECOGNITION OF NATIONAL AUTHORIZATIONS TO OPERATE

Article 4

Right to provide services on the basis of recognized authorizations

Member States shall ensure that undertakings which have been granted a national authorization recognized under the procedures set out in this Directive are allowed to start providing without delay the telecommunications services specified in this authorization on their territory.

Article 5

Effects of recognition

1. Member States shall ensure that the only restrictions imposed on the provision of the services by the holders of recognized national authorizations are those imposed in accordance with the procedures set out in this Directive.

2. Paragraph 1 shall not prevent Member States from subjecting the provision of services to national legislation in conformity with Community law and not specifically related to telecommunications services.

CHAPTER III

MUTUAL RECOGNITION ACCORDING TO COMMON LICENSING REGIMES AND PROCEDURE FOR HARMONIZATION

Article 6

Harmonization of conditions for authorization

1. Where appropriate, harmonized conditions for authorization shall be determined for certain telecommunications services. For this purpose, the Commission may, in accordance with the procedure laid down in Article 17:

(a) as a first step, adopt the measure identifying the category of telecommunications service for which harmonized licensing conditions are required, as well as a mandate to Ectra to elaborate these conditions; the mandate shall, in particular, define the tasks to be performed and lay down a time schedule for the elaboration of the conditions;

(b) as a second step, once harmonized licensing conditions have been elaborated by Ectra, adopt a decision setting out the corresponding common licensing conditions or parts thereof implementing essential requirements in conformity with Community law.

2. Where appropriate and in particular in cases where the time schedule laid down in accordance with paragraph 1 (a) is not respected, common licensing conditions may be adopted by the Commission in accordance with the procedure laid down in Article 17, without following the procedures laid down in paragraph 1 (a) and (b).

Article 7

Mutual recognition of national authorizations without need for prior harmonization

1. It may further be decided by the Commission, in accordance with the procedure laid down in Article 17, that mutual recognition of national authorizations may be granted for certain categories of telecommunications services which have not been the subject of a harmonization pursuant to Article 6.

2. A decision taken in application of paragraph 1 may include conditions ensuring compliance with essential requirements laid down in Community law as well as conditions necessary to safeguard special or exclusive rights for the provision of telecommunications services compatible with Community law, which shall be complied with by the providers of the services covered.

Article 8

Mutual recognition

The telecommunications services which fall under a harmonized service category covered by a decision adopted pursuant to Article 6 (1) (b) or (2), or which fall under a service category covered by a decision adopted pursuant to Article 7, may be provided throughout the European Community under the conditions set out in that decision.

Article 9

Publication of recognized service categories

The Commission shall publish a list of the categories of services covered by decisions adopted pursuant to Article 6 (1) (b), Article 6 (2) or Article 7, including where applicable the relevant conditions, in the Official Journal of the European Communities and update it whenever necessary.

CHAPTER IV

TRANSITIONAL ONE-STOP-SHOPPING PROCEDURE

Article 10

Scope of transitional procedure

The provisions laid down in Articles 11 and 12 set out a one-stop-shopping procedure applicable to the telecommunications services which have not been subject of a decision in accordance with Article 6 (1) (b), Article 6 (2) or Article 7.

Article 11

Administration

1. The Commission shall undertake, where appropriate, the necessary steps to establish arrangements for one-stop-shopping procedures set out in Article 12, including the recognition of suitable arrangements for its technical administration.

2. References to such arrangements will be published in the Official Journal of the European Communities.

Article 12

One-stop-shopping procedure

A one-stop shopping-procedure established in conformity with Article 11 shall conform to tho following conditions:

1. the one-stop-shopping procedure is open to all service providers wishing to operate telecommunications services in the European Community;

2. the submission of applications and/or declarations at a single location is possible and one or more entities are defined with which the application and/or declaration can be filed;

3. within seven days of filing, the application(s) and/or declaration(s) shall be provided to the national regulatory authorities concerned by the entity with which the application was filed;

4. when a national regulatory authority submits the provision of a service to a licence, it shall take a decision on the grant of such licence and inform the applicant as well as the entity with which the application was filed of that decision within six weeks of the receipt of the application.

When a national regulatory authority submits the provision of a service to a declaration requirement, it may raise objections against the provision of the service declared and inform the applicant as well as the entity with which the application was filed of these objections within six weeks of the receipt of the declaration;

5. where appropriate, national regulatory authorities shall endeavour to shorten the time period of six weeks indicated in paragraph 4 for certain categories of telecommunications services, in response to commercial needs.

6. if no licence is issued or if no objections are made within the time limits set out in paragraph 4, the national regulatory authority shall inform the applicant as well as the entity with which the application was filed of the reasons for its decision;

7. the entity with which the applications and/or declarations may be filed shall report annually to the Commission on the operation of the one-stop-shopping procedure, including in particular, information on refusals of applications and objections raised to declarations.

CHAPTER V

MONITORING PROCEDURE

Article 13

Implementation, modification and withdrawal of authorizations by Member States

1. Where a national regulatory authority considers that a licensee no longer complies with the conditions set out in conformity with this Directive it may take appropriate measures to ensure compliance with these conditions.

2. The Commission may, upon request of a party concerned, initiate the procedure set out in Article 15.

3. If no conciliation procedure is initiated within two weeks of the request of the party concerned to the Commission or no agreement is reached according to the procedure set out in Article 15, the Commission shall, after having given the parties involved the opportunity of being heard, decide in conformity with the procedure set out in Article 17 whether the measures taken shall be maintained or modified.

4. The Commission notifies the decisions taken in accordance with paragraphs 2 and 3 to the undertaking involved and informs the national regulatory authorities thereof.

CHAPTER VI

APPEAL PROCEDURE

Article 14

Appeal to the Commission

1. When an authorization is not granted as set out in this Directive, the applicant may submit a copy of his application(s) and/or declaration(s) to the Commission and ask the Commission to initiate the conciliation procedure set out in Article 15.

2. If no conciliation procedure is initiated within three weeks of the receipt of the appeal by the Commission, or no agreement is reached according to the procedure set out in Article 15 at the latest three months after the first meeting of the working group, a decision shall be taken by the Commission in accordance with Article 17 on the basis, where applicable, of the relevant national licensing regime notified in accordance with Article 20.

Article 15

Conciliation procedure

Without prejudice to:

(a) any action that the Commission or any Member State might take pursuant to the Treaty, and in particular Article 169 and 170 thereof;

(b) the rights of the applicant or any other person under applicable national law;

the following conciliation procedure may be applied:

1. the chairman of the CTC shall convene as soon as possible a working group including at least two members of the CTC and the chairman of the CTC or another official of the Commission appointed by him. The working group shall not include members of the CTC representing a national regulatory authority involved;

2. the working group shall meet within 10 days. The chairman of the CTC may decide, upon proposal of any of the members of the working group, to invite a maximum of two other independent experts to advise it;

3. the working group shall give the applicant, the national regulatory authorities of the Member States concerned and the telecommunications organizations or other parties involved the opportunity to present their opinion in oral or written form;

4. the working group shall endeavour to reach agreement between the service provider and the national regulatory authorities of the Member States involved;

5. the applicant and the members of the CTC involved shall bear their own costs of participating in the procedure;

6. whenever an agreement is reached, the authorization shall be granted by the national regulatory authority(ies) concerned within two weeks of the agreement.

CHAPTER VII

COMMUNITY TELECOMMUNICATIONS COMMITTEE

Article 16

Composition of the CTC

The Commission shall be assisted by a committee composed of representatives of the national regulatory authorities of the Member States and chaired by a representative of the Commission. The Committee shall be called the Community Telecommunications Committee (CTC).

Article 17

Procedures for the CTC

1. The representative of the Commission shall submit to the Committee a draft of the measures to be taken. The Committee shall deliver its opinion on the draft, within a time limit which the chairman may lay down according to the urgency of the matter, if necessary by taking 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 the minutes. The Commission shall take the utmost account of the opinion delivered by the Committee. It shall inform the Committee of the manner in which its opinion has been taken into account.

2. The Commission shall where necessary inform the Committee on the outcome of regular consultations with representatives of telecommunications organizations, users, consumers, manufacturers, service providers and trade unions.

In addition, the CTC shall, taking account of the Community's telecommunications policy, foster the exchange of information between the Member States and between the Member States and the Commission, pertaining to the situation and the development of regulatory activities as regards the authorization of telecommunications services.

CHAPTER VIII

FINAL PROVISIONS

Article 18

Fees

Member States may allow their national regulatory authority to impose a reasonable cost-based fee for the processing of the application for the recognition of national authorizations and of the monitoring of authorizations recognized in accordance with the procedures set out in this Directive in view of covering the administrative costs incurred.

Article 19

Confidentiality

1. Without prejudice to the provisions of Article 20 the Commission and the national regulatory authorities, their officials and other servants, as well as experts called in pursuant to Article 15 (2), shall not disclose any information acquired by them as a result of the implementation of this Directive and of the kind covered by the obligation of professional or commercial secrecy.

2. The provisions of paragraph 1 shall not prevent publication of information on licensing conditions which do not include information of a confidential nature.

Article 20

Notification

1. The national regulatory authorities shall supply the Commission with the following information:

- the names and addresses of the national authorities and bodies competent to issue national authorizations,

- information on its national authorization regimes, including conditions and procedures, in particular whether and for which services individual authorizations are required,

- criteria on the basis of which applications will be assessed,

- general national regulation specifically relevant in the area of telecommunications services.

This information should be at a level of detail sufficient to see the terms and conditions against which national authorizations are granted, or the criteria against which the applications will be considered.

2. Member States shall notify any changes in respect of the information supplied under paragraph 1 within two weeks of their entry into force.

Article 21

Review procedures

1. The national regulatory authorities shall establish an annual report on the application of the procedures set out in Chapters III and IV and transmit it to the Commission before 1 March of the following year.

2. On the basis of the results of the implementation of this Directive up to 1 January 1996 the Commission will review whether a modification of its provisions is necessary, on the basis of a report to be provided to the Parliament and the Council. This report will include an assessment, on the basis of the experience gained, of the need for further evolution of the structures as regards authorizations.

Article 22

Implementation of the Directive

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive on 1 October 1995 at the latest. They shall forthwith inform the Commission thereof.

When Member States adopt these provisions, they shall contain a reference to this Directive or shall be accompanied by such reference at the time of their official publications. The procedure for such reference shall be adopted by the Member States.

2. Member States shall notifiy the Commission a list of their representatives to the CTC not later than two months after the adoption of this Directive. The CTC shall assume its functions three months after the adoption of this Directive.

Article 23

Addressees

This Directive is addressed to the Member States.

(1) OJ No C 248, 25. 9. 1992, p. 4.

(2) OJ No C 108, 19. 4. 1993, p. 45.

(3) OJ No C 192, 24. 7. 1990, p. 1.

(4) OJ No L 165, 19. 6. 1992, p. 27.

(5) OJ No C 213, 6. 8. 1993, p. 1.

(6) COM(93) 159 final.