COMMON POSITION (EC) No 16/98 adopted by the Council on 12 February 1998 with a view to adopting Directive 98/. . ./EC of the European Parliament and of the Council of . . . amending Directive 97/33/EC with regard to operator number portability and carrier pre-selection (98/C 91/04)

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),

Whereas the Commission organised a broad public consultation on the basis of a Green Paper on a numbering policy for telecommunications services in Europe;

Whereas this consultation underlined the importance of equal quantitative and qualitative access to numbering resources for all market players and the crucial significance of adequate numbering mechanisms, in particular for number portability and carrier selection, as key facilitators of consumer choice and effective competition in a liberalised telecommunications environment;

Whereas the Council adopted a resolution (4) on 22 September 1997 inviting the Commission to submit proposals to the European Parliament and to the Council regarding the accelerated introduction of number portability and regarding the introduction of carrier pre-selection;

Whereas on 17 July 1997 the European Parliament adopted a resolution (5) calling on the Commission to submit a proposal for an amendment to an already existing directive with a view to introducing carrier pre-selection and number portability;

Whereas, in the interests of the consumer and taking into account specific national market situations, national regulatory authorities may extend the obligation to provide carrier pre-selection with call-by-call override to organisations operating public telecommunications networks without significant market power, where this does not impose a disproportionate burden on such organisations or create a barrier to entry in the market for new operators;

Whereas Directive 97/33/EC of the European Parliament and of the Council of 30 June 1997 on interconnection in telecommunications with regard to ensuring universal service and interoperability through application of the principles of open network provision (ONP) (6) should therefore be amended accordingly,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Directive 97/33/EC is hereby amended as follows:

1. the following definitions shall be added to Article 2(1):

'(h) "subscriber" means any natural or legal person who or which is party to a contract with the provider of publicly available telecommunications services for the supply of such services;

(i) "geographic number" means a number from the national numbering plan where part of its digit structure contains geographic significance used for routing calls to the physical location of the network termination point of the subscriber to whom the number has been assigned;`;

2. the first subparagraph of Article 12(5) shall be replaced by the following:

'5. National regulatory authorities shall encourage the earliest possible introduction of operator number portability whereby subscribers who so request can retain their number(s) on the fixed public telephone network and the integrated services digital network (ISDN) independent of the organisation providing service, in the case of geographic numbers at a specific location and in the case of other than geographic numbers at any location, and shall ensure that this facility is available by 1 January 2000 at the latest or, in those countries which have been granted an additional transition period, as soon as possible after, but no later than two years after any later date agreed for full liberalisation of voice telephony services.`;

3. the following paragraph shall be added to Article 12:

'7. National regulatory authorities shall require at least organisations operating public telecommunications networks as set out in Part 1 of Annex I and notified by national regulatory authorities as organisations having significant market power, to enable their subscribers, including those using ISDN, to access the switched services of any interconnected provider of publicly available telecommunications services. For this purpose facilities shall be in place by 1 January 2000 at the latest or, in those countries which have been granted an additional transition period, as soon as possible thereafter, but no later than two years after any later date agreed for full liberalisation of voice telephony services, which allow the subscriber to choose these services by means of pre-selection with a facility to override any pre-selected choice on a call-by-call basis by dialling a short prefix.

In order to ensure that charges to consumers are reasonable, national regulatory authorities shall ensure that pricing for interconnection related to the provision of this facility is reasonable.`;

4. the first sentence of Article 20(2) shall be replaced by the following:

'2. Deferment of the obligations under Article 12(5) and (7) may be requested where the Member States concerned can prove that they would impose an excessive burden on certain organisations or classes of organisation.`.

Article 2

1. Member States shall take the measures necessary to comply with this Directive before 31 December 1998. They shall forthwith inform the Commission thereof.

When Member States adopt these measures they 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. Member States shall communicate to the Commission the text of the main provisions of domestic law which they adopt in the field governed by this Directive.

Article 3

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

Article 4

This Directive is addressed to the Member States.

Done at . . .

For the European Parliament

The President

For the Council

The President

(1) OJ C 330, 1.11.1997, p. 19, and OJ C 13, 17.1.1998, p. 10.

(2) OJ C 73, 9.3.1998, p. 107.

(3) Opinion of the European Parliament of 20 November 1997 (OJ C 371, 8.12.1997, p. 180), Council common position of 12 February 1998 and Decision of the European Parliament of . . . (not yet published in the Official Journal)).

(4) OJ C 303, 4.10.1997, p. 1.

(5) OJ C 286, 22.9.1997, p. 232.

(6) OJ L 199, 26.7.1997, p. 32.

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 1 October 1997, the Commission adopted a proposal amending Directive 97/33/EC on interconnection with regard to operator number portability and carrier pre-selection.

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

2. The European Parliament delivered its first-reading opinion on 20 November 1997.

The Economic and Social Committee delivered its opinion on 10 December 1997.

In the light of these opinions, the Commission submitted an amended proposal on 1 December 1997.

3. The Council adopted its common position, under Article 189b of the Treaty, on 12 February 1998.

II. OBJECTIVE

The proposal was put forward by the Commission in response to the results of the public consultation on its Green Paper on numbering policy and the views of the European Parliament and the Council as expressed respectively in their resolutions of 17 July and 22 September 1997.

This proposal amends in two main respects the Interconnection Directive, which is an essential part of the new regulatory framework for the liberalised telecommunications market from 1 January 1998. It brings forward the date for the introduction of operator number portability from 1 January 2003 at least in all major centres of population to 1 January 2000 for all of the fixed network and creates a legal base for EU-wide introduction of carrier pre-selection by 1 January 2000.

III. COMMON POSITION

1. General comments

The Council's common position is generally in line with the objective of the Commission proposal to require the rapid introduction of number portability and carrier pre-selection. However, the Council has amended the proposal so that the common position more closely reflects the views expressed by the Council in its Resolution of 22 September 1997 with regard to the date for the introduction of number portability and carrier pre-selection and on whom the obligation to offer carrier pre-selection may be placed.

The Council has accepted the one amendment proposed by the European Parliament in its first reading which extends the possibility for deferment under Article 20(2) of the Interconnection Directive (1) for number portability to include carrier pre-selection.

2. Specific comments

The modifications to the Commission's proposal, apart from the amendment from the European Parliament, are summarised hereafter:

(i) Date for the introduction of number portability and carrier pre-selection (Articles 12(5) and 12(7))

As indicated above, the common position confirms introduction of these facilities by 1.1.2000, but allows for later introduction of not more than two years after the respective dates for liberalisation of voice telephony services in those Member States (ES, IRL, P, GR and LUX) which have been granted a transition period in that respect.

This would therefore give these Member States the same amount of time as other Member States in which to prepare for the introduction of these new facilities after the liberalisation of voice telephony services.

It is also to be noted that with a view to conformity of presentation the reference to the date of 1 January 2000 has been deleted from the fourth recital.

(ii) Scope of the obligation to provide carrier pre-selection (Article 12(7))

The common position goes further than the Commission proposal in that it allows Member States to extend, in the interest of the consumer, the obligation to provide carrier pre-selection to operators other than those with significant market power ('. . . at least . . . organisations having significant market power . . .`).

In order to clarify the circumstances in which national regulatory authorities may extend this obligation to organisations without significant market power, a new recital has been added.

(iii) Reference to integrated services digital network (ISDN) (Article 12(5) and 12(7))

In order to clarify that operators are obliged to offer number portability and carrier pre-selection to all subscribers using the fixed public telephone network, including those using ISDN, the common position contains a specific reference to ISDN in paragraphs 5 and 7 of Article 12.

(iv) Other changes

Where it has made other changes to the Commission proposal, the Council's attitude has been guided by a concern to:

- ensure consistency with the Interconnection Directive (i.e. the last subparagraph of Article 12(5) relating to reasonable charges to the consumer for the provision of number portability has been added to Article 12(7) so that this concept also applies to carrier pre-selection),

- clarify the scope of certain provisions, in particular in what circumstances subscribers can retain their numbers on the fixed network (i.e. in Article 12(5) the term 'operator number portability` is used; a reference to 'geographic` and non-geographic numbers has been inserted; definitions of 'subscriber` and 'geographic number` have been added to Article 2 of the Interconnection Directive).

(1) It should be noted that the Commission has provided a statement for the minutes of the Council which clarifies the circumstances under which deferment under Article 20(2) would be granted.