8. Electronic communications networks andservices (frameworkdirective) ***II
A5-0435/2001
European Parliament legislative resolution on the Council common position for adopting a Euro-
pean Parliament and Council directive on a common regulatory framework for electronic com-munications networks and services (framework directive) (10420/1/2001 6dash C5-0415/2001 6dash
2000/0184(COD))
(Codecision procedure: second reading)
The European Parliament,
;dash having regard to the Council common position (10420/1/2001 ;dash C5-0415/2001)(
1),
;dash having regard to its position at first reading(2) on the Commission proposal to Parliament and the
Council (COM(2000)393)(3),
;dash having regard to the amended Commission proposal (COM(2001)380)(4),
;dash having regard to Article251(2) of the EC Treaty,
;dash having regard to Rule 80 of its Rules of Procedure,;dash having regard to the recommendation for second reading of the Committee on Industry, External
Trade, Research and Energy (A5-0435/2001),
1. Amends the common position as follows;
2. Calls on the Commission to communicate to the European Parliament as soon as possible the con-
crete steps the Commission will take to ensure the rapid adoption of an open European market for inter-active digital television services, in line with the remarks made by Commissioner Liikanen, on behalf of theCommission, in the telecommunications debate held in the European Parliament in plenary session on10 December 2001;
3. Instructs its President to forward its position to the Council and Commission.
COUNCIL
COMMON POSITIONAMENDMENTS
BY PARLIAMENT
Amendment 45
Recital 12
(12) Any party who is the subject of a decision by a national
regulatory authority should have the right to appeal to a bodythat is independent of the parties involved. This appeal pro-cedure is without prejudice to the rights of legal entities ornatural persons under national law.(12) Any party who is the subject of a decision by a national
regulatory authority should have the right to appeal to a bodythat is independent of the parties involved. This body may be a
court. Furthermore, any undertaking which considers that itsapplications for the granting of rights to install facilities
have not been dealt with in accordance with the principles
set out in this Directive should be entitled to appeal againstsuch decisions. This appeal procedure is without prejudice to
the rights of legal entities or natural persons under national lawand to the division of competences within national judicialsystems.
(1) OJ C 337, 30.11.2001, p. 34.
(2) OJ C 277, 1.10.2001, p. 91.
(3) OJ C 365 E, 19.12.2000, p. 198.
(4) OJ C 270 E, 25.9.2001, p. 199.C177E/142 EN 25.7.2002 Official Journal of the European Communities
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Amendment 49
Recital 15
(15) It is important that national regulatory authorities con-
sult all interested parties on proposed decisions and takeaccount of their comments before adopting a final decision. Inorder to ensure that decisions at national level do not have anadverse effect on the singlemarket or other Treaty objectives,
national regulatory authorities should also notify certain draftdecisions to the Commission and other national regulatoryauthorities to give them the opportunity to comment. It isappropriate for national regulatory authorities to consult inter-ested parties on all draft measures which have a significant
impact on the community of operators or users. In the caseof measures that have to be consulted with the Commissionand the other Member States, they should principally take theform of general decisions. The cases where Article6 pro-
cedures apply are defined in this Directive and in the Specific
Directives. This procedure is without prejudice to the notifica-
tion procedure provided for in Directive 98/34/EC and theCommission’s prerogatives under the Treaty in respect ofinfringements of Community law.(15) It is important that national regulatory authorities con-
sult all interested parties on proposed decisions and takeaccount of their comments before adopting a final decision. Inorder to ensure that decisions at national level do not have anadverse effect on the internalmarket or other Treaty objectives,
national regulatory authorities should also notify certain draftdecisions to the Commission and other national regulatoryauthorities to give them the opportunity to comment. It isappropriate for national regulatory authorities to consult inter-ested parties on all draft measures which have an effect on
trade between Member States. The cases where Article6 pro-
cedures apply are defined in this Directive and in the SpecificDirectives. The Commission should be able, after consulting
the Communications Committee, to require a national regu-latory authority to withdraw a draft measure where it con-
cerns definition of relevant markets or the designation or not
of undertakings with significant market power, and wheresuch decisions would create a barrier to the single Europeanmarket or would be incompatible with Community law and inparticular the policy objectives that national regulatory auth-orities should follow. This procedure is without prejudice to
the notification procedure provided for in Directive 98/34/ECand the Commission’s prerogatives under the Treaty in respectof infringements of Community law.
Amendment 2
Recital 27
(27) It is essential that ex-ante regulatory obligations should
only be imposed where there is not effective competition andwhere national and Community competition law remedies arenot sufficient to address the problem. It is necessary thereforefor the Commission to draw up guidelines at Community level
in accordance with the principles of competition law for
national regulatory authorities to follow in assessing whethercompetition is effective in a given market and in assessing sig-nificant market power. National regulatory authorities shouldanalyse whether a given product or service market is effectivelycompetitive in a given geographical area, which could be thewhole or a part of the territory of the Member State concernedor neighbouring parts of territories of Member States con-sidered together. An analysis of effective competition shouldinclude an analysis as to whether the market is prospectivelycompetitive, and thus whether any lack of effective competitionis durable. Those guidelines will also address the issue of newly(27) It is essential that ex-ante regulatory obligations should
only be imposed where there is not effective competition, i.e.
in markets where there are one or more undertakings withsignificant market power, and where national and Community
competition law remedies are not sufficient to address the
problem. It is necessary therefore for the Commission to draw
up guidelines at Community level in accordance with the prin-ciples of competition law for national regulatory authorities tofollow in assessing whether competition is effective in a givenmarket and in assessing significant market power. Nationalregulatory authorities should analyse whether a given productor service market is effectively competitive in a given geo-graphical area, which could be the whole or a part of the ter-ritory of the Member State concerned or neighbouring parts ofterritories of Member States considered together. An analysis ofeffective competition should include an analysis as to whetherthe market is prospectively competitive, and thus whether any25.7.2002 EN C177E/143 Official Journal of the European Communities
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emerging markets, where de facto the market leader is likely to
have a substantial market share but should not be subjected toinappropriate obligations. The Commission should review the
Guidelines regularly to ensure that they remain appropriate in
a rapidly developing market. National regulatory authoritieswill need to cooperate with each other where the relevant mar-ket is found to be pan-European. A pan-European market
means a trans-national market covering the Community or asubstantial part thereof.lack of effective competition is durable. Those guidelines will
also address the issue of newly emerging markets, where defacto the market leader is likely to have a substantial market
share but should not be subjected to inappropriate obligations.
The Commission should review the Guidelines regularly toensure that they remain appropriate in a rapidly developingmarket. National regulatory authorities will need to cooperatewith each other where the relevant market is found to betransnational.
Amendment 46
Recital 30a (new)
(30a) Interoperability of digital interactive television ser-
vices and enhanced digital television equipment, at the levelof the consumer, should be encouraged in order to ensure thefree flow of information, media pluralism and cultural diver-sity. It is desirable for consumers to have the capability ofreceiving, regardless of the transmission mode, all digitalinteractive television services having regard to technologicalneutrality, future technological progress, the need to promotethe take-up of digital television, and the state of competitionin the markets for digital television services. Digital inter-active television platform operators should strive to imple-ment an open Application Program Interface (API) whichconforms to standards or specifications adopted by a Euro-
pean Standards Organisation. Migration from existing APIs
to new open APIs should be encouraged and organised, forexample by Memoranda of Understanding between all rel-evant market players. Open APIs facilitate interoperability,i.e. the portability of interactive content between deliverymechanisms, and full functionality of this content onenhanced digital television equipment. However, the need notto hinder the functioning of the receiving equipment and toprotect it from malicious attacks, for example from viruses,should be taken into account.
Amendment 50
Recital 34
(34) National regulatory authorities and national competition
authorities should have the right to exchange information, in
order to allow them to cooperate fully together. National regu-
latory authorities should have the same rights and duties ofconfidentiality in respect of exchange of information as a(34) National regulatory authorities and national competition
authorities should provide each other with the information
necessary to apply the provisions of this Directive and theSpecific Directives , in order to allow them to cooperate fully
together.In respect of the information exchanged, the receiv-C177E/144 EN 25.7.2002 Official Journal of the European Communities
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‘competent authority’ for the purposes of Council Regulation
No 17 of 6 February 1962: First Regulation implementingArticles81 and 82 of the Treaty (
1).ing authority should ensure the same level of confidentiality
as the originating authority.
(1) OJ 13, 21.2.1962, p. 204. Regulation as last amended by Regu-
lation (EC) No 1216/1999 (OJ L 148, 15.6.1999, p. 5).
Amendment 41
Recital 34a (new)
(34a) The Commission has indicated its intention to set up
a European Regulators Group for Electronic CommunicationsNetworks and Services which would constitute a suitablemechanism for encouraging cooperation and coordination ofnational regulatory authorities, in order to promote the devel-opment of the internal market for electronic communicationsnetworks and services, and to seek to achieve consistentapplication, in all Member States, of the provisions set outin this Directive and the Specific Directives, in particular inareas where national law implementing Community law gives
national regulatory authorities considerable discretionary
powers in application of the relevant rules.
Amendment 42
Recital 34b (new)
(34b) National regulatory authorities should be required to
cooperate with each other and with the Commission in atransparent manner to ensure consistent application, in allMember States, of the provisions of this Directive and theSpecific Directives. This cooperation could take place, interalia, in the Communications Committee or in a group com-prising European regulators. Member States should decidewhich bodies are national regulatory authorities for the pur-poses of this Directive and the Specific Directives.
Amendment 43
Recital 34c (new)
(34c) Measures that could affect trade between Member
States are measures that may have an influence, direct orindirect, actual or potential, on the pattern of trade betweenMember States in a manner which might create a barrier tothe single European market. They comprise measures thathave a significant impact on operators or users in otherMember States, which include, inter alia: measures which25.7.2002 EN C177E/145 Official Journal of the European Communities
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affect prices for users in other Member States; measures
which affect the ability of an undertaking established inanother Member State to provide an electronic communi-
cations service, and in particular measures which affect the
ability to offer services on a pan-European basis; andmeasures which affect market structure or access, leading torepercussions for undertakings in other Member States.
Amendment 6
Article2, point (a)
(a) ‘electronic communications network’ means transmission
systems and, where applicable, switching or routing equip-ment and other resources which permit the conveyance ofsignals by wire, by radio, by optical or by other electrom-agnetic means, including satellite networks, fixed (circuit-and packet-switched, including Internet) and mobile ter-restrial networks, networks used for radio and televisionbroadcasting, and cable television networks, irrespectiveof the type of information conveyed;(a) ‘electronic communications network’ means transmission
systems and, where applicable, switching or routing equip-ment and other resources which permit the conveyance ofsignals by wire, by radio, by optical or by other electrom-agnetic means, including satellite networks, fixed (circuit-and packet-switched, including Internet) and mobile ter-restrial networks, electricity cable systems, to the extent
that they are used for the purpose of transmitting sig-nals,networks used for radio and television broadcasting,
and cable television networks, irrespective of the type ofinformation conveyed;
Amendment 52
Article2, point (la) (new)
(1a) ‘transnational markets’ means markets identified in
accordance with Article14 covering the Community or asubstantial part thereof;
Amendment 47
Article2, points (ma) and (mb) (new)
(ma) ‘enhanced digital television equipment’ means set-top
boxes intended for connection to television sets or inte-grated digital television sets, able to receive digital inter-
active television services;
(mb) ‘API (Application Program Interface)’ means the soft-
ware interface between applications, made available bybroadcasters or service providers, and the resources inthe enhanced digital television equipment for digitaltelevision and radio services;C177E/146 EN 25.7.2002 Official Journal of the European Communities
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Amendment 51
Article3, paragraph5
5. National regulatory authorities and national competition
authorities shall have the right to exchange information. In
order to facilitate cooperation and the mutual exchange ofinformation, national regulatory authorities shall have thesame rights and duties of confidentiality in respect ofexchange of information as a ‘competent authority’ as
defined in Regulation No 17.5. National regulatory authorities and national competition
authorities shall provide each other with the information
necessary for the application of the provisions of this Direc-tive and the Specific Directives. In respect of the informationexchanged, the receiving authority shall ensure the same levelof confidentiality as the originating authority.
Amendment 44
Article4, paragraph1
1. Member States shall ensure that effective mechanisms
exist at national level under which auser or undertaking pro-
viding electronic communications networks and/or serviceshas, where affected by a decision of a national regulatory auth-
ority, the right of appeal against the decision to an appeal body
that is independent of the parties involved.1. Member States shall ensure that effective mechanisms
exist at national level under which anyuser or undertaking
providing electronic communications networks and/or serviceswho isaffected by a decision of a national regulatory authority
hasthe right of appeal against the decision to an appeal body
that is independent of the parties involved. This body, which
may be a court, shall have the appropriate expertise availableto it to enable it to carry out its functions. Member Statesshall ensure that the merits of the case are duly taken intoaccount and that there is an effective appeal mechanism.Pending the outcome of any such appeal, the decision of thenational regulatory authority shall stand, unless the appealbody decides otherwise.
Amendment 39
Article6
1.Except in cases falling within Article18 or 19 Member
States shall ensure that where national regulatory authoritiesintend to take measures in accordance with this Directive orthe Specific Directives which have a significant impact on themarket, they give interested parties the opportunity to com-ment on the draft measure within a reasonable period. Nationalregulatory authorities shall publish their national consultationprocedures.Except in cases falling within Articles6a(6) , 18 or 19 Member
States shall ensure that where national regulatory authoritiesintend to take measures in accordance with this Directive orthe Specific Directives which have a significant impact on therelevant market, they give interested parties the opportunity to
comment on the draft measure within a reasonable period.National regulatory authorities shall publish their national con-sultation procedures. Member States shall ensure the estab-
lishment of a single information point through which all cur-rent consultations can be accessed. The results of theconsultation procedure shall be made publicly available bythe national regulatory authority, except in the case of con-fidential information in accordance with Community andnational law on business confidentiality.
2. In addition to the consultation referred to in para-
graph1, where a national regulatory authority intends totake measures which have a significant impact on the marketunder Article14(3) or Article15(3), (4) and (5) of this Direc-tive or Article8(3) of Directive 2001/…/EC (Access Direc-25.7.2002 EN C177E/147 Official Journal of the European Communities
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tive), it shall at the same time make the draft measure
accessible to the Commission and the national regulatoryauthorities in other Member States, together with the reason-
ing on which the measure is based, in accordance with Arti-
cle5(3) of this Directive, and inform the Commission andother national regulatory authorities thereof. National regu-latory authorities and the Commission may make commentsto the national regulatory authority concerned only withinone month or within the period referred to in paragraph1 ifthat period is longer. The one-month period cannot be pro-longed.
3. The national regulatory authority concerned shall take
the utmost account of comments of other national regulatoryauthorities and the Commission, and, except in cases referredto in paragraph4, may adopt the resulting draft measureand, where it does so, shall communicate it to the Commis-sion.
4. If the resulting draft measure referred to in para-
graph3:
(a) is significantly different in substance from the draft
measure made available according to paragraph2; or
(b) if the Commission has indicated to the national regula-
tory authority that it has serious doubts as to the com-
patibility of the draft measure made available accordingto paragraph2 with Community law and in particularthe objectives referred to in Article7, then the measureshall not be adopted for a further one month. Withinthat period the Commission may, where appropriate,make public a detailed opinion which it shall communi-cate to the national regulatory authority concerned stat-ing why it considers that the draft measure is not com-patible with Community law, and in particular theobjectives referred to in Article7. The national regula-tory authority may adopt the envisaged measures afterthe publication of the detailed opinion of the Commis-sion, or after the one-month period has expired, andshall communicate them to the Commission. In any casethe one-month period cannot be prolonged. If thenational regulatory authority chooses not to follow the
detailed opinion of the Commission, it shall communicate
its reasoning to the Commission.
5. In exceptional circumstances, where a national regula-
tory authority considers that there is an urgent need to act,by way of derogation from the procedure set out in para-graphs1, 2, 3 and 4, in order to safeguard competition andprotect the interests of users, it may adopt measures immedi-ately. It shall, without delay, communicate those measures,with full reasons, to the Commission and the other nationalregulatory authorities.C177E/148 EN 25.7.2002 Official Journal of the European Communities
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Amendment 40
Article6a (new)
Article6aConsolidating the internal market for electronic communi-
cations
1. In carrying out their tasks under this Directive and the
Specific Directives, national regulatory authorities shall takethe utmost account of the objectives set out in Article7,including insofar as they relate to the functioning of theinternal market.
2. National regulatory authorities shall contribute to the
development of the internal market by cooperating with eachother and with the Commission in a transparent manner toensure the consistent application, in all Member States, of
the provisions of this Directive and the Specific Directives.
To this end, they shall, in particular, seek to agree on thetypes of instruments and remedies best suited to address par-ticular types of situations in the marketplace.
3. In addition to the consultation referred to in Article6,
where a national regulatory authority intends to take ameasure which:
(a) falls within the scope of Article14 or 15 of this Direc-
tive, Article5 or 8 of Directive 2001/…/EC (AccessDirective) or Article16 of Directive 2001/…/EC (Univer-sal Service Directive), and
(b) would affect trade between Member States,
it shall at the same time make the draft measure accessible to
the Commission and the national regulatory authorities inother Member States, together with the reasoning on whichthe measure is based, in accordance with Article5(3), andshall inform the Commission and other national regulatoryauthorities thereof. National regulatory authorities and theCommission may make comments to the national regulatoryauthority concerned only within one month or within the
period referred to in Article6 if that period is longer. The
one-month period may not be exended.
4. Where an intended measure covered by paragraph3
aims at:
(a) defining a relevant market which differs from those
defined in the Recommendation in accordance with Arti-cle14(1), or
(b) deciding whether or not to designate an undertaking as
having, either individually or jointly with others, signifi-cant market power, under Article15(3), (4) or (5),
and would affect trade between Member States and the Com-
mission has indicated to the national regulatory authoritythat it considers that the draft measure would create a bar-rier to the single European market or if it has serious doubts25.7.2002 EN C177E/149 Official Journal of the European Communities
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as to its compatibility with Community law and in particular
the objectives referred to in Article7, then the draft measureshall not be adopted for a further two months. This period
may not be extended. Within this period the Commission
may, in accordance with the procedure set out in Arti-cle20(2), take a decision requiring the national regulatoryauthority concerned to withdraw the draft measure. Thisdecision shall be accompanied by a detailed and objectiveanalysis of why it considers that the draft measure shouldnot be adopted together with specific proposals for amendingthe draft measure.
5. The national regulatory authority concerned shall take
the utmost account of comments of other national regulatoryauthorities and the Commission and may, except in casescovered by paragraph4, adopt the resulting draft measureand, where it does so, shall communicate it to the Commis-sion.
6. In exceptional circumstances, where a national regula-
tory authority considers that there is an urgent need to act,by way of derogation from the procedure set out in para-graphs3 and 4, in order to safeguard competition and protectthe interests of users, it may adopt immediately proportionateand provisional measures. It shall, without delay, communi-cate those measures, with full reasons, to the Commissionand the other national regulatory authorities. A decision bythe national regulatory authority to render such measurespermanent or extend the time for which they are applicableshall be subject to the provisions of paragraphs3 and 4.
Amendment 53
Article7, paragraph3, point (b)
(b) encouraging the establishment and development of pan-
European networks and the interoperability of pan-Euro-pean services,(b) encouraging the establishment and development of pan-
European networks and the interoperability of pan-Euro-pean services and end-to-end connectivity ,
Amendment 23
Article7, paragraph3, point (d)
(d) cooperating with each other and with the Commission in a
transparent manner to ensure the consistent application ofthis Directive and the Specific Directives.(d) cooperating with each other and with the Commission in a
transparent manner to ensure the development of consist-
ent regulatory practice and the consistent application of
this Directive and the Specific Directives.
Amendment 25
Article10, paragraph2a (new)
2a. Member States shall ensure that effective mechanisms
exist to allow undertakings to appeal against decisions on thegranting of rights to install facilities to a body that is inde-pendent of the parties involved.C177E/150 EN 25.7.2002 Official Journal of the European Communities
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Amendment 26
Article14, paragraph1, subparagraph1
1. After consultation with national regulatory authorities the
Commission shall adopt a Recommendation on Relevant Pro-duct and Service Markets (hereinafter ‘the Recommendation’).The Recommendation shall identify in accordance with AnnexI hereto those product and service markets within the elec-tronic communications sector, the characteristics of whichmay be such as to justify the imposition of regulatory obli-gations set out in the Specific Directives, without prejudice tomarkets that may be defined in specific cases under competi-tion law. The Commission shall define markets in accordance
with the principles of competition law.1. After public consultation and consultation with national
regulatory authorities the Commission shall adopt a Recom-mendation on Relevant Product and Service Markets (herein-after ‘the Recommendation’). The Recommendation shall iden-tify in accordance with Annex I hereto those product andservice markets within the electronic communications sector,the characteristics of which may be such as to justify theimposition of regulatory obligations set out in the SpecificDirectives, without prejudice to markets that may be definedin specific cases under competition law. The Commission shall
define markets in accordance with the principles of competi-
tion law.
Amendment 27
Article14, paragraph4
4. After consultation with national regulatory authorities the
Commission may, acting in accordance with the procedure ref-erred to in Article20(3), adopt a Decision identifying pan-
European markets.4. After consultation with national regulatory authorities the
Commission may, acting in accordance with the procedure ref-erred to in Article20(3), adopt a Decision identifying trans-
national markets.
Amendment 29
Article15, paragraph5
5. In the case of pan-European markets identified in the
Decision referred to in Article14(4), the national regulatory
authorities concerned shall jointly conduct the market analysis
taking the utmost account of the Guidelines and decide on anyimposition, maintenance, amendment or withdrawal of regula-tory obligations referred to in paragraph2 of this Article in aconcerted fashion.5. In the case of transnational markets identified in the
Decision referred to in Article14(4), the national regulatory
authorities concerned shall jointly conduct the market analysis
taking the utmost account of the Guidelines and decide on anyimposition, maintenance, amendment or withdrawal of regula-tory obligations referred to in paragraph2 of this Article in aconcerted fashion.
Amendment 48
Article16a (new)
Article16a
Interoperability of digital interactive television services
1. In order to promote the free flow of information, media
pluralism and cultural diversity, Member States shall encour-age, in accordance with the provisions of Article16(2):
(a) providers of digital interactive television services for dis-
tribution to the public in the Community on digitalinteractive television platforms, regardless of the trans-mission mode, to use an open API;25.7.2002 EN C177E/151 Official Journal of the European Communities
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(b) providers of all enhanced digital television equipment
deployed for the reception of digital interactive televisionservices on interactive digital television platforms to
comply with an open API in accordance with the mini-
mum requirements of the relevant standards or specifi-cations.
2. Without prejudice to Article5(1)(b) of Directive 2001/
…/EC (Access Directive) Member States shall encourage pro-prietors of APIs to make available on fair, reasonable andnon-discriminatory terms, and against appropriate remuner-ation, all such information as is necessary to enable providersof digital interactive television services to provide all servicessupported by the API in a fully functional form.
3. Within one year after the date of application referred to
in Article26(1), second subparagraph, the Commission shallexamine the effects of this Article. If interoperability andfreedom of choice for users have not been adequately achievedin one or more Member States, the Commission may takeaction in accordance with the procedure laid down in Arti-cle16(3) and (4).
Amendment 37
Annex I, point 3a (new)
3a. Additional marketsThe national market for international roaming services on
public mobile telephone networks.
9. Access to electronic communications networks and associated facilities
(access directive) ***II
A5-0434/2001
European Parliament legislative resolution on the Council common position for adopting a Euro-
pean Parliament and Council directive on access to, and interconnection of, electronic communi-cations networks and associated facilities (access directive) (10418/1/2001 6dash C5-0416/2001 6dash
2000/0186(COD))
(Codecision procedure: second reading)
The European Parliament,
;dash having regard to the Council common position (10418/1/2001 ;dash C5-0416/2001)(
1),
;dash having regard to its position at first reading(2) on the Commission proposal to Parliament and the
Council (COM(2000)384)(3),
(1) OJ C 337, 30.11.2001, p. 1.
(2) OJ C 277, 1.10.2001, p. 72.
(3) OJ C 365 E, 19.12.2000, p. 215.C177E/152 EN 25.7.2002 Official Journal of the European Communities
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