COMMON POSITION (EC) No 58/96 adopted by the Council on 12 September 1996 with a view to the adoption of Directive 96/. . ./EC of the European Parliament and of the Council, of . . ., amending Council Directives 90/387/EEC and 92/44/EEC for the purpose of adaptation to a competitive environment in telecommunications (96/C 315/07)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 100a thereof,

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

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

Acting in accordance with the procedure laid down in Article 189b of the Treaty (3),

(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 (ONP) (4) concerns the harmonization of conditions for open and efficient access to and use of public telecommunications networks and, where applicable, services; whereas, in accordance with that Directive, the Council adopted Directive 92/44/EEC of 5 June 1992 on the application of open network provision to leased lines (5);

(2) Whereas Council resolution of 22 July 1993 on the review of the situation in the telecommunications sector and the need for further development in that market (6), combined with Council resolution of 22 December 1994 on the principles and timetable for the liberalization of telecommunications infrastructures (7), calls for the liberalization of telecommunications services and infrastructures by 1 January 1998 (with transitional periods for certain Member States); whereas this is supported by European Parliament resolution of 20 April 1993 on the Commission's 1992 review of the situation in the telecommunications sector (8), and European Parliament resolution of 19 May 1995 on the Green Paper on the liberalization of telecommunications infrastructures and cable television networks (Part II) (9);

(3) Whereas Council resolution of 22 July 1993 considered as a major goal for the Community's telecommunications policy the application throughout the Community and, where necessary, the adaptation, in the light of further liberalization, of open network provision principles in respect of the entities covered and of such issues as universal service, interconnection and access charges as well as the consequent questions connected with licensing conditions; whereas Council resolution of 18 September 1995 on the implementation of the future regulatory framework for telecommunications (10) called on the Commission, in accordance with the timetable set out in Council resolutions of 22 July 1993 and 22 December 1994, to present to the European Parliament and the Council before 1 January 1996 all legislative provisions intended to establish the European regulatory framework for telecommunications accompanying the full liberalization of this sector, in particular concerning the adaptation to the future competitive environment of open network provision measures;

(4) Whereas European Parliament resolution of 6 May 1994 on the Commission communication accompanied by the proposal for a Council resolution on universal service principles in the telecommunications sector (11) emphasizes the central importance of universal service principles; whereas Council resolution of 7 February 1994 on universal service principles in the telecommunications sector (12) provides a basic definition of universal service and calls upon the Member States to establish and maintain an appropriate regulatory framework in order to ensure it throughout their territories; whereas, as was recognized by the Council in that resolution, the concept of universal service must evolve to keep pace with advances in technology, market development and changes in user demand; whereas universal service in telecommunications will have a role to play in strengthening social and economic cohesion, in particular in remote, peripheral, landlocked and rural areas and islands of the Community; whereas, where justified, the net cost of universal service obligations may be shared by market players in accordance with Community law;

(5) Whereas the basic principles concerning access to and the use of public telecommunications networks and services, set out within the open network provision framework, must be adapted to ensure Europe-wide services in a liberalized environment, in order to benefit users and organizations providing public telecommunications networks and/or services; whereas a voluntary approach based on common technical standards and specifications, with consultations undertaken where necessary to satisfy user needs, is appropriate in a liberalized environment; whereas, nevertheless, the provision of universal service and the availability of a minimum set of services must be guaranteed to all users in the Community in accordance with the Community measures applicable; whereas a general framework for interconnection to public telecommunications networks and public telecommunications services is needed in order to provide end-to-end interoperability of services for Community users;

(6) Whereas open network provision conditions must not restrict the use of or access to public telecommunications networks or publicly available telecommunications services except on grounds of essential requirements or the exercise of special and exclusive rights retained by Member States in accordance with Community law;

(7) Whereas the provisions of this Directive do not prevent a Member State from taking measures justified in grounds set out in Articles 36 and 56 of the Treaty, and in particular on grounds of public security, public policy and public morality;

(8) Whereas in accordance with the principle of the separation of regulatory and operational functions, Member States should guarantee the independence of the national regulatory authority or authorities with a view to ensuring the impartiality of their decisions, and ensure that the national regulatory authority or authorities of each Member State will play a key role in the implementation of the regulatory framework set out in relevant Community legislation; whereas this requirement of independence is without prejudice to the institutional autonomy and constitutional obligations of the Member States, or to the principle of neutrality with regard to the rules in Member States governing the system of property ownership in accordance with Article 222 of the Treaty; whereas the national regulatory authorities should be in possession of all the resources necessary, in terms of staffing, expertise, and financial means, for the performance of their function;

(9) Whereas numbering and the more general concepts of addressing and naming play an important role; whereas adherence to a harmonized approach for numbering/addressing and, where applicable, naming, will contribute to Europe-wide end-to-end communications for users and the interoperability of services; whereas in addition to numbering it may be appropriate to apply the principles of objectivity, transparency, non-discrimination and proportionality in the allocation of names and addresses; whereas Commission Directive 96/19/EC of 13 March 1996 amending Directive 90/388/EEC with regard to the implementation of full competition in telecommunications markets (1) provides for adequate numbers to be available for all telecommunications services, and for numbers to be allocated in an objective, transparent, non-discriminatory and proportionate manner;

(10) Whereas in order to guarantee the provision of leased lines throughout the Community, Member States should ensure that at every point in their territories users have access to a minimum set of leased lines from at least one organization; whereas organizations with obligations to provide leased lines should be designated by Member States; whereas Member States must notify the Commission of the organizations subject to this Directive, the leased-line types within the minimum set which they are required to provide, and the geographical area in which this requirement applies; whereas, within a specific geographical area, all the leased line types provided by a notified organization are subject to the general provisions of this Directive;

(11) Whereas the market power of an organization depends on a number of factors, including its share of the relevant product or service market in the relevant geographical market, its turnover relative to the size of the market, its ability to influence market conditions, its control of the means of access to end-users, its access to financial resources and its experience in providing products and services in the market; whereas determining which organizations have significant market power should be a function of national regulatory authorities taking into account the situation on the relevant market;

(12) Whereas the concept of leased-lines services will evolve with new technological advances and market demand, allowing users a more flexible use of the leased-line bandwidth;

(13) Whereas, in order to achieve more efficient communications within the Community, it is important that Member States encourage the provision of an additional harmonized set of higher-order leased lines, taking into account market demand and progress with standardization;

(14) Whereas until an effective competitive environment is achieved, there is a need for the regulatory supervision of tariffs for leased lines with a view to ensuring cost orientation and transparency in accordance with the principle of proportionality; whereas it is appropriate to allow the requirements for cost orientation and transparency in specific markets to be set aside where no organization has significant market power or where effective competition ensures that tariffs for leased lines are reasonable;

(15) Whereas common technical regulations (CTRs) adopted under Council Directive 91/263/EEC of 29 April 1991 on the approximation of the laws of the Member States concerning telecommunications terminal equipment, including the mutual recognition of their conformity (1) and Council Directive 93/97/EEC of 29 October 1993 supplementing Directive 91/263/EEC in respect of satellite earth station equipment (2) define the conditions for the connection of terminal equipment to leased lines;

(16) Whereas certain amendments to existing open network provision measures are appropriate in order to ensure their consistency with new technical developments and with other regulatory measures that will form part of the overall regulatory framework for telecommunications;

(17) Whereas all the areas identified in Annex I to Directive 90/387/EEC as possible areas for the application of open network provision conditions have been addressed in analysis reports subject to public consultation, in accordance with the procedure laid down in Article 4 of that Directive; whereas all the priority measures identified in Annex III thereto have been adopted;

(18) Whereas in order to enable the Commission to carry out the monitoring task assigned to it by the Treaty, changes in national regulatory authority or authorities and the organizations affected must be swiftly communicated to the Commission;

(19) Whereas, in accordance with the principles of subsidiarity and proportionality as stated in Article 3b of the Treaty, the objective of adapting Directives 90/387/EEC and 92/44/EEC to a competitive environment in telecommunications cannot be sufficiently achieved by the Member States and can therefore be better achieved by the Community;

(20) Whereas the functioning of Directives 90/387/EEC and 92/44/EEC should be reviewed no later than 31 December 1999; whereas that review should take account of the increasing effectiveness of competition in telecommunications markets;

(21) Whereas under Articles 52 and 59 of the Treaty, the regulatory regime in the field of telecommunications should be compatible and consistent with the principles of freedom of establishment and freedom to provide services and should take into account the need to facilitate the introduction of new services as well as the widespread application of technological improvements,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Amendment to Directive 90/387/EEC

Directive 90/387/EEC is hereby amended as follows:

1. Article 1 shall be amended as follows:

(a) paragraph 2 shall be replaced by the following:

'2. The purpose of the conditions prescribed in paragraph 1 shall be to facilitate the provision of public telecommunications networks and/or public telecommunications services, within and between Member States, and in particular the provision of services by companies, firms or natural persons established in a Member State other than that of the company, firm or natural person for whom the services are intended.`;

(b) the following paragraph shall be added:

'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 and promoting by voluntary means harmonized technical interfaces for open and efficient access and interconnection, and associated standards and/or specifications, and - guaranteeing the privision of universal service in telecommunications, taking account of any future evolution,

throughout the Community.`.

2. Article 2 shall be replaced by the following:

'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 which permit the conveyance of signals between defined termination points by wire, by radio, by optical or by other electromagnetic means;

"Public telecommunications network" shall mean a telecommunications network used, in all or in part, for the provision of publicly available telecommunications services;

3. "Telecommunications services" shall mean services the provision of which consists wholly or partly in the transmission and routing of signals on telecommunications networks, with the exception of radio and television broadcasting;

4. "Universal service" shall mean a defined minimum set of services of specified quality which is available to all users regardless of their geographical location and, in the light of specific national conditions, at an affordable price;

5. "Network termination point" shall mean the physical point at which a user is provided with access to a public telecommunications network. The locations of network termination points shall be defined by the national regulatory authority and shall represent a boundary, for regulatory purposes, of the public telecommunications network;

6. "Essential requirements" shall mean the non-economic reasons in the public interest which may cause a Member State to impose conditions on the establishment and/or operation of telecommunications networks or the provision of telecommunications services. Those reasons shall be the security of network operations, the maintenance of network integrity and, where justified, the interoperability of services, data protection, the protection of the environment and town and country planning objectives as well as the effective use of the frequency spectrum and the avoidance of harmful interference between radio-based telecommunications systems and other space-based or terrestrial technical systems. Data protection may include protection of personal data, the confidentiality of information transmitted or stored and the protection of privacy;

7. "Interconnection" shall mean the physical and logical linking of telecommunications-network facilities used by the same or a different organization in order to allow the users of one organization to communicate with users of the same or another organization or to access services provided by another organization;

8. "Open network provision conditions" shall mean the conditions, harmonized in accordance with this Directive, which govern open and efficient access to public telecommunications networks and, where applicable, public telecommunications services and the efficient use of those networks and services.

Without prejudice to their application on a case-by-case basis, open network provision conditions may include harmonized conditions with regard to:

- technical interfaces, including the definition and implementation of network termination points, where required,

- usage conditions,

- tariff principles,

- access to frequencies and numbersaddresses/names, where required in accordance with the reference framework of the Annex;

9. "Technical specifications", "standards" and "terminal equipment" shall have the same meanings as in Article 1 of Directive 91/263/EEC (*).

(*) OJ No L 128, 23. 5. 1991, p. 1.` 3. Article 3 shall be amended as follows:

(a) paragraphs 2 and 3 shall be replaced by the following:

'2. Open network provision conditions shall not restrict access to public telecommunications networks or public telecommunications services, except on grounds of essential requirements within the framework of Community law. In addition, the conditions generally applicable to the connection of terminal equipment to the network shall apply.

3. Open network provision conditions may not allow for any additional restrictions on the use of the public telecommunications networks and/or public telecommunications services, except those which are compatible with Community law.`;

(b) paragraph 4 shall be deleted;

(c) paragraph 5 shall be replaced by the following:

'5. Without prejudice to the specific Directives adopted in the field of open network provision and in so far as the application of the essential requirements referred to in paragraph 2 may cause Member States to limit access to public telecommunications networks or services, the rules for uniform application of the essential requirements, in particular concerning the interoperability of services and the protection of data, shall be determined, where appropriate, by the Commission, in accordance with the procedure laid down in Article 10.`.

4. Article 4 shall be deleted.

5. Article 5 shall be replaced by the following:

'Article 5

1. References to standards and/or specifications drawn up as a basis for harmonized technical interfaces and/or service features for open network 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 to encourage the provision of harmonized telecommunications services to the 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 by European 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 provision of technical interfaces 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 ETSI or the European Committee for Standardization/European Committee for Electrotechnical Standardization CEN/Cenelec,

or, in the absence of such standards and/or specifications,

- international standards or recommendations adopted by the International Telecommunications Union (ITU), the International Organization for Standardization (ISO) or the International Electrotechnical Committee (IEC),

or, in the absence of such standards and/or specifications,

- national standards and/or specifications.

3. If the implementation of the standards and/or specifications referred to in paragraph 1 appears to be inadequate to insure the interoperability of transfrontier services in one or more Member States, the implementation of such standards and/or specifications may be made compulsory under the procedure laid down in Article 10, to the extent strictly necessary to ensure such interoperability and to improve freedom 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, the Commission shall, by publishing a notice to that effect in the Official 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 do not correspond to the objective of open and efficient access, interconnection and interoperability, in particular the basic principles and the essential requirements referred to in Article 3, it shall be decided whether or not it is necessary to withdraw references to those standards and/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 standards and/or specifications in the Official Journal of the European Communities.`.

6. The following Article shall be inserted:

'Article 5 (a) 1. Where the tasks assigned to the national regulatory authority in Community legislation are undertaken by more than one body, Member States shall ensure that the tasks to be undertaken by each body are made public.

2. In order to guarantee the independence of national regulatory authorities:

- national regulatory authorities shall be legally distinct from and functionally independent of all organizations providing telecommunications networks, equipment or services,

- Member States that retain ownership or a significant degree of control of organizations providing telecommunications networks and/or services shall ensure effective structural separation of the regulatory function from activities associated with ownership or control.

3. Member States shall ensure that suitable mechanisms exist at national level under which a party affected by a decision of the national regulatory authority has a right of appeal to a body independent of the parties involved.

4. Member States may take steps to ensure that national regulatory authorities are able to obtain from organizations providing telecommunications networks and/or services all the information necessary for them to apply Community legislation.`.

7. Articles 6 and 7 shall be deleted.

8. Article 8 shall be replaced by the following:

'Article 8 The Commission shall examine and report to the European Parliament and to the Council on the functioning of this Directive, on the first occasion no later than 31 December 1999. The report shall be based inter 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, further measures for the adaptation of this Directive, taking account of developments towards a fully competitive environment, may be proposed in the report.`.

9. In the second paragraph of Article 9 (1), 'telecommunications organizations` shall be replaced by 'organizations providing public telecommunications networks and/or publicly available telecommunications services.`.

10. Annexes 1 and 3 shall be deleted.

11. Annex 2 shall be replaced by Annex I to this Directive.

Article 2

Amendment to Directive 92/44/EEC

Directive 92/44/EEC is hereby amended as follows:

1. 'Telecommunications organizations` shall be replaced by 'organizations notified in accordance with Article 11 (1) (a)` throughout.

2. The following paragraphs shall be added to Article 1:

'Member States shall ensure that at every point in their territory at least one organization is subject to the provisions of this Directive.

Member States shall ensure that obligations arising out of this Directive are not imposed on organizations without significant market power in the relevant leased-lines market, unless there are no organizations with significant market power in the relevant leased-lines market in a given Member State.`.

3. Article 2 shall be replaced by the following:

'Article 2

Definitions

1. The definitions given in Directive 90/387/EEC shall apply, where relevant, to this Directive.

2. In addition, for the purposes of this Directive,

- "leased lines" shall mean the telecommunications facilities which provide for transparent transmission capacity between network termination points and which do not include on-demand switching (switching functions which the user can control as part of the leased-line provision),

- "open network provision committee" shall mean the committee referred to in Articles 9 and 10 of Directive 90/387/EEC,

- "national regulatory authority" shall mean the body referred to in Article 5 (a) of Directive 90/387/EEC.

3. For the purpose of this Directive, an organization shall be presumed to have significant market power when its share of the relevant leased-lines market in a Member State is 25 % or more. The relevant leased-lines market shall be assessed on the basis of the type(s) of leased line offered in a particular geographical area. The geographical area may cover the whole or part of the territory of a Member State.

National regulatory authorities may determine that an organization with a market share that is less than 25 % of the relevant leased-lines market has significant market power. They may also determine that an organization with a market share that is 25 % or more of the relevant leased-lines market does not have significant market power.

In either case, the determination shall take into account the organization's ability to influence the leased-lines market conditions, its turnover relative to the size of the market, its access to financial resources and its experience in providing products and services in the market.`.

4. Article 3 shall be amended as follows:

(a) the second sentence of paragraph 1 shall be replaced by the following:

'Changes in existing offerings and information on new offerings shall be published as soon as possible. The national regulatory authority may lay down a suitable period of notice`;

(b) paragraph 3 shall be deleted.

5. The first subparagraph of the second indent in Article 4 shall be replaced by the following:

'- the typical delivery period, which is the period, counted from the date when the user has made a firm request for a leased line, in which 95 % of all leased lines of the same type have been put through to the customers,`.

6. Article 6 shall be amended as follows:

(a) paragraph 1 shall be replaced by the following:

'1. Member States shall ensure that when access to and use of leased lines is restricted in accordance with Community law those restrictions are imposed by the national regulatory authorities through regulatory means.

No technical restrictions shall be introduced or maintained for the interconnection of leased lines among each other or for the interconnection of leased lines and public telecommunications networks.`;

(b) the second subparagraph of paragraph 3 (a) shall be replaced by the following:

'An emergency situation in this context shall mean an exceptional case of force majeure, such as extreme weather, earthquakes, flood, lightning or fire.`;

(c) the first subparagraph of paragraph 4 and footnote 1 shall be replaced by the following:

'Access conditions relating to terminal equipment shall be considered to be fulfilled when the terminal equipment complies with the approval conditions laid down for its connection to the network-termination point of the type of leased line concerned in accordance with Directive 91/263/EEC (*) or 93/97/EEC (**).

(*) OJ No L 128, 23. 5. 1991, p. 1.

(**) OJ No L 290, 24. 11. 1993, p. 1.`.

7. Article 7 shall be amended as follows:

(a) the following paragraph shall be inserted:

'2 (a) Member States shall encourage provision of the additional types of leased lines specified in Annex III, taking into account market demand and progress with standardization`;

(b) paragraph 3 shall be replaced by the following:

'3. The amendments necessary to adapt Annexes II and III to new technical developments and to changes in market demand, including the possible deletion of certain types of leased lines from the Annexes, shall be adopted by the Commission under the procedure provided for in Article 10 of Directive 90/387/EEC, taking into account the state of development of national networks.`.

8. Article 8 (2) shall be replaced by the following:

'2. The national regulatory authority shall ensure that the organizations notified in accordance with Article 11 (1) (a) adhere to the principle of non-discrimination when providing leased lines. Those organizations shall apply similar conditions in similar circumstances to organizations providing similar services, and shall provide leased lines to others under the same conditions and of the same quality as they provide for their own services, or those of their subsidiaries or partners, where applicable.`.

9. Article 9 shall be deleted.

10. Article 10 shall be amended as follows:

(a) paragraph 1 (a) shall be replaced by the following:

'(a) tariffs for leased lines shall be independent of the type of application which the users of the leased lines implement, without prejudice to the principle of non-discrimination set out in Article 8 (2);`

(b) paragraph 2 (b) (iii) shall be replaced by the following:

'(iii) when neither direct nor indirect measures of cost allocation can be found, the cost category shall be allocated on the basis of a general allocator computed by using the ratio of all expenses directly assigned or allocated to leased lines, on the one hand, to those allocated to other services, on the other hand;` (c) the following paragraph shall be added:

'4. The national regulatory authority shall not apply the requirements of paragraph 1 where an organization does not have significant market power in respect of a specific leased-lines offering in a specific geographical area.

The national regulatory authority may decide not to apply the requirements of paragraph 1 in a specific geographical area where it is satisfied that there is effective competition in the relevant leased-lines market as evidenced by tariffs that already comply with those requirements.`.

11. Article 11 shall be amended as follows:

(a) paragraph 1 shall be replaced by the following:

'1. Member States shall notify the Commission of their national regulatory authority or authorities responsible for carrying out the tasks specified in this Directive.

They shall promptly notify the Commission of any changes in their national regulatory authorities.`;

(b) the following paragraph shall be inserted:

'1 (a) National regulatory authorities shall notify the Commission of the names of those organizations providing leased lines subject to requirements under this Directive. That notification shall, where appropriate, include the types of leased lines that each organization is required to provide in each geographical area in order to comply with Article 1 and shall include any cases where, pursuant to Article 10 (4), Article 10 (1) is not applied.`;

(c) the second subparagraph of paragraph 2 shall be replaced by the following:

'The national regulatory authority shall keep available and submit to the Commission on request the data on all cases in which access to or use of leased lines has been restricted, as well as details of the measures taken, including the reasons why they were taken.`.

12. Article 14 shall be replaced by the following:

'Article 14 Report The Commission shall examine and report to the European Parliament and to the Council on the functioning of this Directive, on the first occasion no later than 31 December 1999. The report shall be based, inter alia, on the information supplied by the Member States to the Commission and to the open network provision Committee. The report shall include an assessment of the need for continuation of this Directive, taking account of developments towards a fully competitive environment. Where necessary, further measures for the adaptation of this Directive may be proposed in the report.`.

13. Annex I shall be amended as follows:

(a) footnote 1 shall be replaced by the following:

'(1) OJ No L 109, 26. 4. 1983, p. 8. Directive as last amended by European Parliament and Council Directive 94/10/EC (OJ No L 100, 19. 4. 1994, p. 30).`;

(b) in Section D, points 1, 2, 3, 5 and 6 shall be deleted;

(c) Section E shall be replaced by the following:

'E. Conditions for the attachment of terminal equipment The information on the attachment conditions must include a complete overview of the requirements with which terminal equipment to be attached to the relevant leased line must comply in accordance with Directive 91/263/EEC or Directive 93/97/EEC.`.

14. Annex II to this Directive shall be added as Annex III.

Article 3

Transposition

1. The Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive no later than 31 December 1997. They shall immediately inform the Commission thereof.

When the Member States adopt these provisions, these shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by the Member States.

2. The Member States shall communicate to the Commission the texts of the main provisions of national law which they adopt in the field covered by this Directive.

Article 4

Entry into force

This Directive shall enter into force on the 20 day after that of its publication in the Official Journal of the European Communities.

Article 5

Addressees

This Directive is addressed to the Member States.

Done at . . .

For the European Parliament The President For the Council The President

(1) OJ No C 62, 1. 3. 1996, p. 3.

(2) OJ No C 204, 15. 7. 1996, p. 14.

(3) Opinion of the European Parliament of 22 May 1996 (OJ No C 166, 10. 6. 1996, p. 91), Council common position of 12 September 1996 (not yet published in the Official Journal) and Decision of the European Parliament of . . . (not yet published in the Official Journal).

(4) OJ No L 192, 24. 7. 1990, p. 1.

(5) OJ No L 165, 19. 6. 1992, p. 27. Directive as amended by Commission Decision 94/439/EC (OJ No L 181, 15. 7. 1994, p. 40).

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

(7) OJ No C 379, 31. 12. 1994, p. 4.

(8) OJ No C 150, 31. 5. 1993, p. 39.

(9) OJ No C 151, 19. 6. 1995, p. 479.

(10) OJ No C 258, 3. 10. 1995, p. 1.

(11) OJ No C 205, 25. 7. 1994, p. 551.

(12) OJ No C 48, 16. 2. 1994, p. 1.

(1) OJ No L 74, 22. 3. 1996, p. 13.

(1) OJ No L 128, 23. 5. 1991, p. 1. Directive as last amended by Directive 93/68/EEC (OJ No L 220, 30. 8. 1993, p. 1).

(2) OJ No L 290, 24. 11. 1993, p. 1.

ANNEX I

'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 into account 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 technical interfaces 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. When existing interfaces are not suitable, enhancements and/or new interface specifications will have to be specified,

- for networks that are still to be introduced but for which the standardization programme has already commenced, open network provision requirements falling within the terms of Article 3 should be taken into account when new interface and network functions specifications are developed.

Open network provision proposals must, wherever possible, be in line with the ongoing work in the European standardization bodies, in particular the ETSI, and must also take into account work in international standardization organizations, 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:

- typical delivery period,

- typical repair time,

- quality of service, in particular availability and quality of transmission,

- 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 personal data and confidentiality of communications, where required.

3. Harmonized tariff principles Tariff principles must be consistent with the principles stated in Article 3 (1).

Those principles imply, in particular, that:

- tariffs must be based on objective criteria and, until such time as competition becomes effective in keeping down prices for users, must in principle be cost-oriented, on the understanding that the fixing of the actual tariff level will continue to be the province of national legislation and is not the subject of open network provision conditions. Where an organization no longer has significant market power in the relevant market, the requirement for cost-orientation may be set aside by the competent national regulatory authority. One of the aims should be the definition of efficient tariff principles throughout the Community while ensuring 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 in accordance with the competition rules of the Treaty. In particular, additional features introduced to provide certain specific extra services must, 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 Treaty and must also take into account the principle of fair sharing in the global cost of the resources used, the need for a reasonable level of return on investment and, where appropriate, the financing of universal service in accordance 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, provided that the tariff differentials are commercially justifiable and do not conflict with 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 service-provider 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-end interconnection of users and the interoperability of services. Furthermore, the allocation of numbers/addresses/names should be fair, proportionate and consistent with the requirements for equal access.

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, where applicable, of adequate naming, for all public telecommunications services,

- to ensure the coordination of national positions in international organizations and forums 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 regulatory authority, in order to guarantee independence from organizations providing public telecommunications networks or publicly available telecommunications services,

- to ensure that the procedures for allocating individual numbers/addresses/names, prefixes and short codes and/or addressing/numbering ranges are transparent, equitable and timely and that the allocation is carried out in an objective, transparent and non-discriminatory manner, taking into account 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 or certain short codes, in particular where these are used for services of general public interest (e.g. directory services or emergency services), or to ensure equal access.

5. Access to frequencies

Member States must ensure that frequencies are made available for telecommunications services in accordance with Community law. Access to frequencies granted by means of licences or other authorizations must comply with Council resolution of 19 November 1992 on the implementation in the Community of the European Radiocommunications Committee Decisions (2).

(1) Common position (EC) No 34/96 adopted by the Council on 18 June 1996 with a view to adopting a directive of the European Parliament and of the Council on interconnection in telecommunications with regard to ensuring universal service and interoperability through application of the principles of open network provision (ONP) (OJ No C 220, 29. 7. 1996, p. 13).

(2) OJ No C 318, 4. 12. 1992, p. 1.`

ANNEX II

'ANNEX III >TABLE>

`

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 10 January 1996, the Commission submitted a proposal amending the Council ONP framework Directive (90/387/EEC) and the Council leased lines-Directive (92/44/EEC) for the purpose of adapting them to a competitive environment in telecommunications in the context of total liberalization of the sector from 1 January 1998.

The proposal is based on Article 100a of the EC Treaty.

2. The European Parliament delivered its first-reading opinion on 22 May 1996.

The Economic and Social Committee delivered its opinion on 25 April 1996.

In the light of these opinions, the Commission submitted an amended proposal on 31 July 1996.

3. The Council adopted its common position, under Article 189b of the Treaty, on 12 September 1996.

II. OBJECTIVE

This proposal is an essential part of the regulatory reform package needed to enable full liberalization of telecommunications services and infrastructure from 1 January 1998. As such, it amends two of the key existing Directives relating to open network provision (ONP) in order to adapt them to the new competitive environment.

The most important change to the ONP framework Directive concerns provisions aimed at guaranteeing the independence of national regulatory authorities (NRAs) and effective structural separation of the regulatory function from activities associated with ownership or control. In addition, emphasis has now been placed on achieving harmonized conditions of access to and use of public telecommunications networks through observance of voluntary standards.

The leased-line Directive (92/44/EEC) has been amended essentially to ensure that all users have access to leased lines from at least one operator throughout each Member State, under harmonized conditions of access and use. The obligation to provide leased lines will however only be placed on operators with significant market power, unless there is no operator with significant market power in the relevant leased-lines market.

In addition, the requirement for cost-orientation of tariffs as specified in Directive 92/44/EEC has been relaxed where strong competition exists in the provision of leased lines in the relevant leased-line market.

III. THE COMMON POSITION

(Unless otherwise indicated, the references to the recitals and the Articles are those used in the common position).

1. General comments

The Council's common position is largely in line with the objectives of the Commission proposal, amending it where necessary in order to align it with the terms of the common position on the interconnection Directive (1), particularly in terms of the definitions contained in Article 2.

With regard to the amendments adopted by the European Parliament, the Council has in most cases followed the line taken by the Commission in its amended proposal.

Where it has made changes to the Commission proposal or where it has not taken up the amendments put forward by the European Parliament, the Council's attitude has been guided by a concern to:

- ensure consistency with other relevant Community legislation, in particular the common position on the interconnection Directive which was adopted on 18 June 1996,

- clarify the scope of certain provisions (for example Article 1 (2) of Directive 92/44/EC as amended).

2. Specific comments

(i) The Council has included in its common position amendments 2, 4 (first part) and 17 of the European Parliament and incorporated all bar the last three words of amendment 9. The words not accepted ('in full autonomy`) are already covered by the first part of recital 8.

In addition, the Council accepted the principle contained in amendment 13 of the European Parliament in adding a new paragraph (3) to Article 2 of Directive 92/44/EEC as amended, which reflects the definition of 'significant market power` of an undertaking as agreed in the common position on the interconnection Directive.

(ii) However, the Council was unable to go along with the Commission's acceptance of the following two amendments proposed by the European Parliament:

Amendment 10 (Article 8 of Directive 90/387/EEC) and Amendment 14 (Article 14 of Directive 92/44/EEC)

The Council considered that the wording proposed by the European Parliament was unnecessary as the common position already provides for the Commission's report on the functioning of the two Directives to take account of developments towards a fully competitive environment (i.e. developments in the market).

Moreover, with regard to the second part of amendment 10, the Council took the view that the report on the functioning of the ONP framework Directive was not the appropriate place to examine the possibility of establishing a European Regulatory Authority.

(iii) It should also be noted that the Council has included in its common position a number of new provisions or modifications to the Commission's proposal.

The main points are summarised hereafter:

Recitals

Recital 4: In line with provisions in the common position on the interconnection Directive, a reference to the sharing of net cost of universal service obligations was added.

Recital 7: This new recital was already included in the common position on the interconnection Directive. It points out that this amending Directive is without prejudice to the provisions of Articles 36 and 56 of the Treaty relating to public security, public policy and public morality.

Recital 8: The Council felt it necessary to clarify that the requirement for independence of NRAs in Article 5 (a) of Directive 90/387/EEC was without prejudice to the institutional autonomy and constitutional obligations of Member States and the provisions of Article 222 of the Treaty.

In addition, recitals 9, 11, 14 have been modified and a new recital 6 added in conformity with changes in the corresponding Articles. Recitals 6 and 21 of the Commission's proposal were deleted as they were no longer relevant to the text of the common position.

Directive 90/387/EEC

Article 1 (3): The indent relating to guaranteeing the provision of universal service was amended to include a reference to the evolution of universal service.

Article 2: Where relevant, the definitions have been aligned with those agreed in the common position on the interconnection Directive.

Article 3 (2): Paragraph 2 of the framework ONP Directive was amended in line with the changes to the definition of 'essential requirements` agreed in the context of the interconnection Directive.

Article 5 (2): The reference to standards and specifications developed by international bodies having a wide acceptance across the sector has been deleted, in line with the interconnection Directive.

Article 5 (4) and (5): The comitology procedure in paragraph 4 was changed from an advisory committee under Article 9 of the ONP framework Directive to a regulatory committee type IIIa pursuant to Article 10. The wording of paragraph 5 has been amended accordingly.

Directive 92/44/EEC

Article 1: The drafting was modified to clarify that where the obligations of this Directive are not imposed on organizations without significant market power, this refers to organizations in the relevant leased-line market. Moreover, the text specifies that where there are no organizations with significant market power in a specified leased-line market, the obligations of paragraph 1 apply.

Article 2 (3): This paragraph provides a definition of organizations with 'significant market power` in line with the interconnection Directive.

Article 2 (5): The definition of 'network termination point` was modified to clarify that the technical location of this point is to be determined by the national regulatory authority.

Article 6 (1): This paragraph which relates to the question of 'special and exclusive rights` was rephrased to align with Article 3 (3) of Directive 90/387/EEC as amended. (A new recital 6 was inserted to reflect the same aim).

Article 6 (3) (a): The text of Directive 92/44/EEC relating to 'essential requirements` has been aligned with the text of the common position on the interconnection Directive.

Article 8 (4): This paragraph relating to the provision of information was considered unnecessary in this context and the general obligation to provide information achieved through a more general provision in Article 5 (a) (4) of Directive 90/387/EEC as amended.

Article 10 (1) (a): It was considered useful to clarify that this provision was without prejudice to the principle of non-discrimination set out in Article 8 (2).

Article 10 (4): This paragraph was added to specify that the cost-orientation principles of Article 10 (1) need not be applied where there was sufficient effective competition in the relevant leased-line market. (Corresponding modifications were made to the first indent of Annex I Section 3 and to recital 14).

Annex I Section 3: A reference to the financing of universal service in accordance with the common position on the interconnection Directive was added to the paragraph dealing with any charges for access to network resources or services.

Annex I Section 4: The content of the first two paragraphs has been condensed and transferred to recital 9. References to prefixes and short codes have been included and a reference to the principle of proportionality has been added to the fourth indent. (Recital 9 was also modified in this respect).

Annex I Section 5: This paragraph on access to frequencies was added in order to align the Annex with the definition of ONP conditions in Article 2.

(iv) It should also be noted that at the 'Telecommunications` Council of 27 June 1996, the Commission clarified the meaning of the requirement in Article 5 (a) of Directive 90/387/EEC as amended for 'effective structural separation of the regulatory function from activities associated with ownership or control` along the following lines:

- In accordance with Article 189 of the Treaty, the proposed revision of Directive 90/387/EEC (including new Article 5 (a) sets out a result to be achieved, but leaves to the national authorities the choice of form and methods.

In accordance with Article 222 of the Treaty, nothing in this Directive in any way prejudices the rules in Member States governing the system of property ownership.

The aim of effective structural separation can be achieved in a number of ways depending on the legal and administrative traditions in a Member State. Possible mechanisms could include placing the regulatory and operational activities in separate ministries, or placing the regulatory activities with an independent regulatory agency, or having both activities in one ministry, with appropriate safeguards which guarantee the effectiveness of the separation.

That means the emphasis is on the effectiveness of the separation, not its form. In order to ensure effective separation, Member States must, in particular, ensure that:

- regulatory decisions are not influenced by ownership considerations,

- commercially sensitive information gained by the regulatory body in the course of its supervision of the market is not passed over to the body which acts as shareholder or owner of the operator, where it could be used to gain competitive advantage for a State-owned or State-controlled operator,

- special safeguards are enforced for any transfer of staff from the regulatory body to the body which acts as shareholder or owner of the operator, and from the latter to the regulatory body,

- the two activities of regulation and supervision/ownership have separate financial accounting, personnel management, and reporting structures,

- no members of staff in either body face a conflict of interest between meeting government objectives as shareholder/owner, and government objectives or obligations as regulator.

The above safeguards must be reflected in the constitution and the actual behaviour of the regulatory body.

(1) Common position No 34/96 adopted by the Council on 18 June 1996 with a view to adopting a directive of the European Parliament and of the Council on interconnection in telecommunications with regard to ensuring universal service and interoperability through application of the principles of open network provision (ONP) (OJ No C 220, 29. 7. 1996, p. 13).