Amended proposal for a Directive of the European Parliament and of the Council on access to, and
interconnection of, electronic communications networks and associated facilities (1)
(2001/C 270 E/24)
(Text with EEA relevance)
COM(2001) 369 final  2000/0186(COD)
(Submitted by the Commission pursuant to Article 250(2) of the EC Treaty on 4 July 2001)
(1) OJ C 365 E, 19.12.2000, p. 215.
INITIAL PROPOSAL AMENDED PROPOSAL
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,Unchanged
Having regard to the Treaty establishing the European
Community, and in particular Article 95 thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the Economic and Social
Committee,Having regard to the opinion of the Economic and Social
Committee (1),
Having regard to the opinion of the Committee of the Regions, Having regard to the opinion of the Committee of the
Regions (2),
Acting in accordance with the procedure laid down in Article
251 of the Treaty,Unchanged
Whereas:
(1) Directive [. . ./. . ./EC of the European Parliament and of
the Council of . . . on a common regulatory frameworkfor electronic communications networks and services,]lays down the objectives of a regulatory framework to
cover electronic communications networks and services
in the Community, including fixed and mobile telecom-munications networks, cable television networks,networks used for terrestrial broadcasting, satellitenetworks and Internet networks, whether used for voice,fax, data or images. Such networks may have been auth-orised by Member States under Directive [. . ./. . ./EC ofthe European Parliament and of the Council of . . . onthe authorisation of electronic communications networksand services] or have been authorised under previousregulatory measures. The provisions of this Directiveapply to those networks that are used for the commercialprovision of publicly available electronic communicationsservices or for transmission of broadcasting signals. ThisDirective covers access and interconnection arrangementsbetween service suppliers. It does not apply to networksused for the provision of communications services
available only to a specific end-user or to a closed user
group, nor does it deal with access for end-users or otherswho are not supplying publicly available services.
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(1) OJ C 123, 25.4.2001, p. 50.
(2) OJ C (by letter of 16.2.2001 the Regions Committee has indicated
that it will not deliver its opinion on this Directive).EN 25.9.2001 Official Journal of the European Communities C 270 E/161
INITIAL PROPOSAL AMENDED PROPOSAL
(2) The term access has a wide range of meanings, and it is
therefore necessary to define precisely how that term isused in this Directive, without prejudice to how it may beused in other Community measures. The term operatorimplies control of the relevant network or facilities, butdoes not imply ownership; a network operator may ownthe underlying network or facilities or may rent some or
all of them.
(3) Directive 95/47/EC of the European Parliament and of the
Council of 24 October 1995 on the use of standards for
the transmission of television signals (
1) did not mandate
any specific digital television transmission system orservice requirement, and this opened an opportunity forthe market actors to take the initiative and developsuitable systems. Through the Digital Video BroadcastingGroup, European market actors have developed a familyof television transmission systems that have been adoptedby broadcasters throughout the world. These trans-missions systems have been standardised by theEuropean Telecommunications Standards Institute (ETSI)and have become International TelecommunicationsUnion Recommendations. In relation to wide screendigital television, the 16:9 aspect ratio is the referenceformat for wide-format television services andprogrammes, and is now established in Member States’markets as a result of Council Decision 93/424/EEC of
22 July 1993 on an action plan for the introduction of
advanced television services in Europe (
2).
(4) In an open and competitive market, there should be no
restrictions that prevent undertakings from negotiating
access and interconnection arrangements between them-selves, in particular on cross border agreements, subject tothe competition rules of the Treaty. In markets wherethere continue to be large differences in negotiatingpower between undertakings, and where some under-takings rely on infrastructure provided by others fordelivery of their services, it is appropriate to establish aframework to ensure that the market functions effectively.National regulatory authorities should have the power tosecure, where commercial negotiation fails, adequateaccess and interconnection and interoperability ofservices in the interest of end-users. This would be thecase for example if network operators were to unreas-onably restrict end-user choice for access to Internetportals and services. The use of ex-ante rules by national
regulatory authorities should be limited to those areas
where ex-post application of the remedies available
under competition law cannot achieve the same resultsin the same time-scale.(4) In an open and competitive market, there should be no
restrictions that prevent undertakings from negotiating
access and interconnection arrangements between them-selves, in particular on cross border agreements, subject tothe competition rules of the Treaty. In the context ofachieving a more efficient, truly pan-European market,with effective competition, more choice and competitiveservices to consumers, undertakings which receiverequests for access or interconnection should inprinciple conclude such agreements on a commercialbasis and negotiate in good faith. In markets wherethere continue to be large differences in negotiatingpower between undertakings, and where some under-takings rely on infrastructure provided by others fordelivery of their services, it is appropriate to establish aframework to ensure that the market functions effectively.National regulatory authorities should have the power tosecure, where commercial negotiation fails, adequate
access and interconnection and interoperability of
services in the interest of end-users. This would be thecase for example if network operators were to unreas-
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(1) OJ L 281, 23.11.1995, p. 51.
(2) OJ L 196, 5.8.1993, p. 48.EN C 270 E/162 Official Journal of the European Communities 25.9.2001
INITIAL PROPOSAL AMENDED PROPOSAL
onably restrict end-user choice for access to Internet
portals and services. The use of ex-ante rules by national
regulatory authorities should be limited to those areaswhere ex-post application of the remedies available
under competition law cannot achieve the same resultsin the same time-scale.
(5) National legal or administrative measures that link the
terms and conditions for access or interconnection to
the activities of the party seeking interconnection, andspecifically to the degree of its investment in networkinfrastructure, and not to the interconnection or accessservices provided, may cause market distortion and maytherefore not be compatible with competition rules. Inany case national regulatory authorities should take intoaccount the case-law of the Court of Justice and Court ofFirst Instance of the European Communities and may notconfirm pricing practices or prices contrary to Article81(1) or Article 82 of the Treaty.Unchanged
(6) Network operators who control access to their own
customers do so on the basis of unique numbers oraddresses from a published numbering or addressingrange. Other network operators need to be able todeliver traffic to those customers, and so need to be
able to interconnect directly or indirectly to each other.
The existing rights and obligations to negotiate intercon-nection should therefore be maintained. It is also appro-priate to maintain the obligations formerly laid down inDirective 95/47/EC requiring all electronic communi-cations networks used for the distribution of digitaltelevision services to be capable of distributing wide-screen television services and programmes, so that usersare able to receive such programmes in the format inwhich they were transmitted.
(7) Directive 95/47/EC provided an initial regulatory
framework for the nascent digital television industrywhich should be maintained, including in particular theobligation to provide conditional access on fair, reasonableand non-discriminatory terms. Technological and marketdevelopments make it necessary to review these obli-
gations on a regular basis, in particular to determine
whether there is justification for extending obligations tonew gateways, such as electronic programme guides(EPGs) and applications program interfaces (APIs) for thebenefit of European citizens.(7) Competition rules alone may not be sufficient to ensure
cultural diversity and media pluralism in the area ofdigital television. Directive 95/47/EC provided an initialregulatory framework for the nascent digital televisionindustry which should be maintained, including inparticular the obligation to provide conditional access
on fair, reasonable and non-discriminatory terms, in
order to make sure that a wide variety of programmingand services is available. Technological and market devel-opments make it necessary to review these obligations ona regular basis, in particular to determine whether there isjustification for extending obligations to new gateways,such as electronic programme guides (EPGs) andapplications program interfaces (APIs) for the benefit ofEuropean citizens.EN 25.9.2001 Official Journal of the European Communities C 270 E/163
INITIAL PROPOSAL AMENDED PROPOSAL
(8) In order to ensure continuity of existing agreements and
to avoid a legal vacuum, it is necessary to ensure thatobligations for access and interconnection imposedunder Articles 4, 6, 7 , 8, 11, 12, and 14 of Directive97/33/EC of the European Parliament and of theCouncil of 30 June 1997 on interconnection in telecom-munications with regard to ensuring universal service and
interoperability through application of the principles of
Open Network Provision (ONP) (
1), as amended by
Directive 98/61/EC (2), obligations on special access
imposed under Article 16 of Directive 98/10/EC of theEuropean Parliament and of the Council of 26 February1998 on the application of open network provision (ONP)to voice telephony and on universal service for telecom-munications in a competitive environment (
3), and obli-
gations concerning the provision of leased line trans-mission capacity under Council Directive 92/44/EEC of5 June 1992 on the application of open networkprovision to leased lines (
4), as last amended by
Commission Decision No 98/80/EC (5), are initially
carried over into the new regulatory framework, but aresubject to immediate review in the light of prevailingmarket conditions. Such a review should also extend tothose organisations covered by Regulation of the
European Parliament and of the Council of on
unbundled access to the local loop. The review shouldbe carried out using an economic market analysis basedon competition law methodology. The aim is to reduceex-ante sector specific rules progressively as competition in
the market develops. However the procedure also takesaccount of the possibility of new bottlenecks arising as aresult of technological development, which may requireex-ante regulation, for example in the area of broadband
access networks. It may well be the case that competitiondevelops at different speeds in different market segmentsand in different Member States, and national regulatoryauthorities should be able to relax regulatory obligationsin those markets where competition is delivering thedesired results. In order to ensure that market players insimilar circumstances are treated in similar ways in
different Member States, the Commission should be able
to ensure harmonised application of the provisions of thisDirective. The Community and its Member States havetaken commitments on interconnection of telecommuni-cations networks in the context of the World TradeOrganisation agreement on basic telecommunicationsthat need to be respected.(8) In order to ensure continuity of existing agreements and
to avoid a legal vacuum, it is necessary to ensure thatobligations for access and interconnection imposedunder Articles 4, 6, 7 , 8, 11, 12, and 14 of Directive97/33/EC of the European Parliament and of theCouncil of 30 June 1997 on interconnection in telecom-munications with regard to ensuring universal service and
interoperability through application of the principles of
Open Network Provision (ONP) (
1), as amended by
Directive 98/61/EC (2), obligations on special access
imposed under Article 16 of Directive 98/10/EC of theEuropean Parliament and of the Council of 26 February1998 on the application of open network provision (ONP)to voice telephony and on universal service for telecom-munications in a competitive environment (
3), and obli-
gations concerning the provision of leased line trans-mission capacity under Council Directive 92/44/EEC of5 June 1992 on the application of open networkprovision to leased lines (
4), as last amended by
Commission Decision No 98/80/EC (5), are initially
carried over into the new regulatory framework, but aresubject to immediate review in the light of prevailingmarket conditions. Such a review should also extend tothose organisations covered by Regulation (EC)
2887/2000 of the European Parliament and of the
Council of 18 December 2000 on unbundled access tothe local loop (
6). The review should be carried out using
an economic market analysis based on competition lawmethodology. The aim is to reduce ex-ante sector specific
rules progressively as competition in the market develops.However the procedure also takes account of the possi-bility of new bottlenecks arising as a result of tech-nological development, which may require ex-ante regu-
lation, for example in the area of broadband accessnetworks. It may well be the case that competitiondevelops at different speeds in different market segmentsand in different Member States, and national regulatoryauthorities should be able to relax regulatory obligationsin those markets where competition is delivering thedesired results. In order to ensure that market players in
similar circumstances are treated in similar ways in
different Member States, the Commission should be ableto ensure harmonised application of the provisions of thisDirective. The Community and its Member States havetaken commitments on interconnection of telecommuni-cations networks in the context of the World TradeOrganisation agreement on basic telecommunicationsthat need to be respected.
___________
(1) OJ L 199, 26.7.1997 , p. 32.
(2) OJ L 268, 3.10.1998, p. 37.
(3) OJ L 101, 1.4.1998, p. 24.
(4) OJ L 165, 19.6.1992, p. 27.
(5) OJ L 14, 20.1.1998, p. 27.___________
(1) OJ L 199, 26.7.1997 , p. 32.
(2) OJ L 268, 3.10.1998, p. 37 .
(3) OJ L 101, 1.4.1998, p. 24.
(4) OJ L 165, 19.6.1992, p. 27.
(5) OJ L 14, 20.1.1998, p. 27.
(6) OJ L 336, 30.12.2000, p. 4.EN C 270 E/164 Official Journal of the European Communities 25.9.2001
INITIAL PROPOSAL AMENDED PROPOSAL
(9) Directive 97/33/EC laid down a range of obligations to be
imposed on undertakings with significant market power,namely transparency, non-discrimination, accountingseparation, access, and price control including cost orien-tation. This range of possible obligations should be main-tained but, in addition, they should be established as a setof maximum obligations that can be applied to under-
takings, in order to avoid over-regulation. Exceptionally,
in order to comply with international commitments orCommunity law it may be appropriate to impose obli-gations for access or interconnection on all marketplayers, as is currently the case for conditional accesssystems for digital television services. In all cases, ex-ante
regulation is only justified where the remedies availableunder competition rules cannot achieve the desired resultsas quickly.Unchanged
(10) Transparency of terms and conditions for access and inter-
connection, including prices, serve to speed upnegotiation, avoid disputes, and give confidence tomarket players that a service is not being provided ondiscriminatory terms. Openness and transparency oftechnical interfaces can be particularly important in
ensuring interoperability.
(11) The principle of non-discrimination ensures that under-
takings with market power do not distort competition, inparticular where they are vertically integrated under-takings that supply services to competitors with whomthey compete on downstream markets.
(12) Accounting separation allows internal price transfers to be
rendered visible, and allows national regulatory authoritiesto check compliance with obligations for non-discrimi-nation where applicable. In this regard the Commissionpublished Recommendation 98/322/EC of 8 April 1998on interconnection in a liberalised telecommunicationsmarket (Part 2  accounting separation and cost
accounting) (
1).
(13) Mandating access to network infrastructure can be
justified as a means of increasing competition, butnational regulatory authorities need to balance the rightsof an infrastructure owner to exploit its infrastructure forits own benefit, and the rights of other service providersto access facilities that are essential for the provision ofcompeting services. The imposition by national regulatoryauthorities of mandated access that increases competitionin the short term should not reduce incentives forcompetitors to invest in alternative facilities that willsecure more competition in the long term. TheCommission has published a Notice on the applicationof the competition rules to access agreements in the tele-communications sector (
2), which addresses these issues.
___________
(1) OJ L 141, 13.5.1998, p. 6.
(2) OJ C 265, 22.8.1998, p. 2.EN 25.9.2001 Official Journal of the European Communities C 270 E/165
INITIAL PROPOSAL AMENDED PROPOSAL
(14) Price control may be necessary when market analysis in a
particular market reveals inefficient competition. Theregulatory intervention may be relatively light, such asan obligation that prices for carrier selection arereasonable as laid down in Directive 97/33/EC, or muchheavier such as an obligation that prices are cost orientedto provide full justification for those prices where
competition is not sufficiently strong to prevent
excessive pricing. In particular operators with significantmarket power should avoid a price squeeze whereby thedifference between their retail prices and the intercon-nection prices charged to competitors who providesimilar retail services is not adequate to ensure sustainablecompetition. In its Recommendation 98/195/EC of8 January 1998 on interconnection in a liberalised tele-communications market (Part 1  interconnectionpricing) (
1), the Commission recommended the use of
long-run average incremental costs, as the basis for inter-connection prices in the Community that serves topromote efficiency and sustainable competition.
(15) Publication of information by Member States will ensure
that market players and potential market entrants
understand their rights and obligations, and know whereto find the relevant detailed information. Publication inthe National Gazette helps interested parties in otherMember States to find the relevant information.
(16) In order to determine the correct application of
Community law, the Commission needs to know whichundertakings have been designated as having significantmarket power and what obligations have been placedupon market players by national regulatory authorities.In addition to national publication of this information,it is therefore necessary for Member States to send thisinformation to the Commission.
(17) Given the pace of technological and market developments,
the implementation of this Directive should be reviewedwithin three years of its entry into force to determine if itis meeting its objectives.
(18) Since the measures necessary for the implementation of
this Directive are measures of general scope within themeaning of Article 2 of Council Decision 1999/468/EC of28 June 1999 laying down the procedures for the exerciseof implementing powers conferred on the Commission (
2),
they should be adopted by use of the regulatoryprocedure provided for in Article 5 of that Decision,
___________
(1) OJ L 73, 12.3.1998, p. 42.
(2) OJ L 184, 17 .7.1999, p. 23.EN C 270 E/166 Official Journal of the European Communities 25.9.2001
INITIAL PROPOSAL AMENDED PROPOSAL
HAVE ADOPTED THIS DIRECTIVE:
CHAPTER I
SCOPE, AIM AND DEFINITIONS
Article 1
Scope and aim
1. Within the framework set out in Directive [on a common
regulatory framework for electronic communications networksand services], this Directive harmonises the way in whichMember States regulate access to, and interconnection of, elec-tronic communications networks and associated facilities. The
aim is to establish a regulatory framework, in accordance with
internal market principles, for the market between suppliers ofnetworks and services that will result in sustainablecompetition, interoperability of services and consumer benefits.
2. The Directive establishes rights and obligations for under-
takings owning or operating public communications networksand associated facilities, and undertakings seeking intercon-nection and/or access to those networks or associated facilities.It sets out objectives for national regulatory authorities with
regard to network access and interconnection, and lays down
procedures to ensure that obligations imposed by nationalregulatory authorities are reviewed and where appropriatewithdrawn once the desired objectives have been achieved.
Article 2
Definitions
The definitions in Directive [on a common regulatory
framework for electronic communications networks andservices] shall apply, where relevant.
The following definitions shall also apply:(a) access means the making available of facilities and/or
services, to another undertaking, under defined conditions,on either an exclusive or non-exclusive basis, for thepurpose of providing electronic communications services.
It covers inter alia : access to network elements and
associated facilities and services, which may involve theconnection of equipment, by wire or wireless means;access to physical infrastructure including buildings, ductsand masts; access to software systems including operationalsupport systems; access to number translation or systemsoffering equivalent functionality; access to mobile networks,in particular for roaming; access to conditional accesssystems for digital television services. Interconnection is a(a) access means the making available of facilities and/or
services, to another undertaking, under defined conditions,on either an exclusive or non-exclusive basis, for thepurpose of providing electronic communications services.
It covers inter alia : access to network elements and
associated facilities and services, which may involve theconnection of equipment, by fixed or non-fixed means,including in particular access to the local loop and tofacilities and services necessary to provide services overthe local loop; access to physical infrastructure includingbuildings, ducts and masts; access to software systemsincluding operational support systems; access to numbertranslation or systems offering equivalent functionality;EN 25.9.2001 Official Journal of the European Communities C 270 E/167
INITIAL PROPOSAL AMENDED PROPOSAL
specific type of access implemented between public
network operators. Access in this Directive does not referto access by end-users.access to fixed and mobile networks, in particular for
national and international roaming; access to conditionalaccess systems for digital television services and to elec-tronic programme guides. Interconnection is a specifictype of access implemented between public networkoperators. Access in this Directive does not refer toaccess by end-users.
(b) interconnection means the physical and logical linking of
public electronic communications networks used by thesame or a different undertaking in order to allow theusers of by one undertaking to communicate with usersof the same or another undertaking, or to access servicesprovided by another undertaking. Services may be providedby the parties involved or other parties who have access tothe network.(b) interconnection means the physical and logical linking of
public electronic communications networks used by thesame or a different undertaking in order to allow theusers of a network provided by one undertaking tocommunicate with users of a network provided by thesame or another undertaking, or to access servicesprovided by another undertaking. Services may beprovided by the parties involved or other parties whohave access to the network.
(c) operator means an undertaking providing, operating or
controlling a publicly available electronic communicationsnetwork or an associated facility such as a conditional
access system, by means of which it can restrict or deny
service providers’ access to the end-user or the end-user’schoice of services.Unchanged
(d) wide-screen digital television service means a television
service that consists wholly or partially of programmesproduced and edited to be displayed in a full height wide-screen format using anamorphic expansion. The 16:9format is the reference format for wide-screen televisionservices.
(e) end-user means a user not providing publicly available
electronic communications networks or services.
(f) local loop means the circuit connecting the network termi-
nation point at the subscriber’s premises to the maindistribution frame or equivalent facility in a fixed publiccommunications network.
CHAPTER II
GENERAL FRAMEWORK FOR REGULATING ACCESS
AND INTERCONNECTIONUnchanged
Article 3
General framework for access and interconnection
1. Member States shall ensure that there are no restrictions
which prevent undertakings in the same Member State or inEN C 270 E/168 Official Journal of the European Communities 25.9.2001
INITIAL PROPOSAL AMENDED PROPOSAL
different Member States from negotiating between themselves
agreements on technical and commercial arrangements foraccess and/or interconnection, in accordance withCommunity law. The undertaking requesting access or inter-connection does not need to be authorised to operate in theMember State where access or interconnection is requested,where it is not providing services in that Member State.
2. Without prejudice to Article 26 of Directive [on universal
service and users’ rights relating to electronic communicationsnetworks and services], Member States shall not maintain legalor other administrative measures obliging operators, whengranting network access or interconnection, to offer differentterms and conditions to different undertakings for the sameservices, and/or imposing obligations that are not related tothe actual access and interconnection services provided.
Article 4
Rights and obligations for undertakings
1. All undertakings authorised to operate electronic
communications networks for the provision of publicly
available electronic communications services shall have aright and, when requested by other undertakings so authorised,an obligation to negotiate interconnection with each other forthe purpose of providing the services in question, in order toensure provision and interoperability of services throughoutthe Community.1. All undertakings authorised by virtue of a general auth-
orisation pursuant to Directive EC . . ./. . . [on the authorisation
of electronic communications networks and services] andoperating electronic communications networks for theprovision of publicly available electronic communicationsservices shall have a right and, when requested by other under-takings authorised in any Member State, an obligation tonegotiate interconnection with each other for the purpose ofproviding the services in question, in order to ensure provisionand interoperability of services throughout the Community.
Operators shall offer access and interconnection on terms
consistent with the relevant decisions of national regulatoryauthorities pursuant to Article 5 to 8.
2. Electronic communications networks used for the
distribution of digital television services shall be capable ofdistributing wide-screen television services and programmes.Network operators that receive and re-distribute wide-screentelevision services or programmes shall maintain that widescreen format.UnchangedEN 25.9.2001 Official Journal of the European Communities C 270 E/169
INITIAL PROPOSAL AMENDED PROPOSAL
3. Without prejudice to Article 11 of Directive on [author-
isation of electronic communications networks and services],national regulatory authorities shall ensure that undertakingsthat acquire information from another undertaking during theprocess of negotiating access or interconnection arrangementsuse that information solely for the purpose for which it wassupplied and respect at all times the confidentiality of
information transmitted or stored. The information shall not
be passed on to any other party, in particular otherdepartments, subsidiaries or partners, for whom suchinformation could provide a competitive advantage.
National regulatory authorities shall be granted powers by
Member States to impose penalties for non-compliance with
the provision of the previous sub-paragraph.
Article 5
Powers and responsibilities of the national regulatory
authorities with regard to access and interconnectionUnchanged
1. National regulatory authorities shall, acting in pursuit of
the objectives set out in Article 7 of Directive [on a commonregulatory framework for electronic communications networksand services], encourage and secure adequate network accessand interconnection, and interoperability of services, exercisingtheir responsibility in a way that promotes efficiency,sustainable competition, and gives the maximum benefit toend-users.1. National regulatory authorities shall, acting in pursuit of
the objectives set out in Article 7 of Directive [on a commonregulatory framework for electronic communications networksand services], take all reasonable measures to ensure whereappropriate the integrity of the networks, encourage andsecure adequate network access and interconnection, interoper-ability of services and end-to-end connectivity of servicesdesignated as universal services, exercising their responsibilityin a way that promotes efficiency, sustainable competition, andgives the maximum benefit to end-users.
2. Member States shall ensure that national regulatory auth-
orities are empowered to impose the obligations identified inArticle 6, to 13 of this Directive on operators that have beendesignated as having significant market power in a relevantmarket. In the absence of agreement between undertakingson access and interconnection arrangements, Member Statesshall ensure that the national regulatory authority isempowered to intervene at the request of either of the
parties involved or at its own initiative, taking account of the
policy objectives and procedures included in Articles 6, 7 , and13 to 18 of Directive [on a common regulatory framework forelectronic communications networks and services].2. Member States shall ensure that national regulatory auth-
orities are empowered to impose the obligations identified inArticle 6, on operators of conditional access systems, and inArticles 7 to 13 of this Directive on operators that have beendesignated as having significant market power in a relevantmarket. In a competitive market, interconnection of andaccess to networks should in principle be agreed on the basisof commercial negotiation between the companies concerned.
In the absence of agreement between undertakings on access
and interconnection arrangements, Member States shall ensurethat the national regulatory authority is empowered tointervene at the request of either of the parties involved orat its own initiative, taking account of the policy objectivesand procedures included in Articles 6, 7 , and 13 to 18 ofDirective [on a common regulatory framework for electroniccommunications networks and services].EN C 270 E/170 Official Journal of the European Communities 25.9.2001
INITIAL PROPOSAL AMENDED PROPOSAL
2a. Member States shall ensure that, where an analysis
carried out in accordance with Article 14 of Directive [on acommon regulatory framework for electronic communicationsnetworks and services] establishes that there is effectivecompetition in a specific market, national regulatory authoritieswithdraw any ex ante obligations imposed upon operators inrespect of that market pursuant to Articles 7 to 13.
CHAPTER III
OBLIGATIONS ON OPERATORS AND MARKET REVIEW
PROCEDURESUnchanged
Article 6
Conditional access systems and other associated facilities
1. Member States shall ensure that, in relation to conditional
access to digital television services broadcast to viewers in theCommunity, irrespective of the means of transmission, theconditions laid down in Part I of the Annex apply.1. Member States shall ensure that, in relation to conditional
access to digital television services broadcast to viewers in theCommunity, irrespective of the means of transmission, theconditions laid down in Part I of the Annex I apply.
2. Conditions relating to access to other associated facilities
referred to in Part II of the Annex may be adopted inaccordance with the procedure referred to in Article 14(2).2. Where required by market and technological devel-
opments, action will be taken by the Commission to extendthe contents of part I of Annex I, in consultation with theCommunications Committee, acting in accordance with theprocedure referred to in Article 14(2), in particular to takeaccount of other associated facilities such as those listed in
part II of Annex I and new and emerging associated facilities.
3. In the light of market and technological developments,
the Annex may be amended in accordance with the procedurereferred to in Article 14(2).3. In the light of market and technological developments,
Annex I may be amended in accordance with the procedurereferred to in Article 14(2).
Article 7
Review of former obligations for access and
interconnectionUnchanged
1. Member States shall maintain all obligations on under-
takings providing publicly available electronic communicationsnetworks concerning access and interconnection that were in
force prior to the date of entry into force of this Directive
under Articles 4, 6, 7 , 8, 11, 12, and 14 of Directive97/33/EC, Article 16 of Directive 98/10/EC, Articles 7 and 8of Directive 92/44/EC and Article 3 of Regulation referring tounbundled access to the local loop until such time as theseobligations have been reviewed and a determination made inaccordance with paragraph 3.1. Member States shall maintain all obligations on under-
takings providing publicly available electronic communicationsnetworks concerning access and interconnection that were in
force prior to the date of entry into force of this Directive
under Articles 4, 6, 7 , 8, 11, 12, and 14 of Directive97/33/EC, Article 16 of Directive 98/10/EC, Articles 7 and 8of Directive 92/44/EC and deriving from Article 3 of Regu-lation (EC) 2887/2000 referring to unbundled access to localloops made of twisted metallic pairs, until such time as theseobligations have been reviewed and a determination made inaccordance with paragraph 3.EN 25.9.2001 Official Journal of the European Communities C 270 E/171
INITIAL PROPOSAL AMENDED PROPOSAL
2. The relevant markets for the obligations referred to in
paragraph 1 will be included in the initial Decision onRelevant Product and Service Markets to be published by theCommission in accordance with the procedure laid down inArticle 14 of Directive [on a common regulatory frameworkfor electronic communications networks and services].Unchanged
3. Member States shall ensure that, immediately following
the entry into force of this Directive, and periodicallythereafter, national regulatory authorities undertake a marketanalysis, in accordance with the procedure laid down in Article14 of Directive [on a common regulatory framework for elec-tronic communications networks and services] to determinewhether to maintain, amend or withdraw these obligations.An appropriate period of notice shall be given to partiesaffected by such amendment or withdrawal of obligations.
Article 8
Imposition, amendment or withdrawal of obligations
1. Where an operator is deemed to have significant market
power on a specific market as a result of a market analysiscarried out in accordance with Article 14 of Directive [on acommon regulatory framework for electronic communicationsnetworks and services], national regulatory authorities shallimpose one or more of the obligations set out in Articles 9to 13 of this Directive as appropriate, in order to avoid
distortions of competition. The specific obligation(s) imposed
shall be based on the nature of problem identified.
National regulatory authorities shall not impose obligations
under this Article where they are satisfied that there iseffective competition. To this end, market analysis should becarried out regularly. Without prejudice to the provisions ofparagraph 2, the obligations set out in Articles 9 to 13 of thisDirective shall only be imposed on undertakings designated as
having significant market power in a relevant market.
2. National regulatory authorities may, without prejudice to
the provisions of Article 6, impose on operators, includingoperators other than those with significant market power, theobligations set out in Article 9 to 13 in relation to intercon-nection, in order to comply with international commitments.
Exceptionally, with the prior agreement of the Commission,
national regulatory authorities may impose on operators with
significant market power obligations for access or intercon-nection that go beyond those set out in Articles 9 to 13 ofthis Directive, provided that all such obligations are justified inthe light of the objectives laid down in Article 1 of thisDirective and in Article 7 of Directive [on a common regu-latory framework for electronic communications networks andservices], and are proportionate to the aim pursued.UnchangedEN C 270 E/172 Official Journal of the European Communities 25.9.2001
INITIAL PROPOSAL AMENDED PROPOSAL
2a. Obligations imposed in accordance with this article shall
be based on the nature of the problem identified, and shall beproportionate and justified in the light of the objectives laiddown in article 7 of Directive [on a common regulatoryframework for electronic communications networks andservices]. Such obligations shall only be imposed followingconsultation in accordance with Article 6 of that Directive.
National regulatory authorities shall consider the decision’s
impact on all the undertakings present on the market, interalia on the basis of quantitative market data analysis, with aview to ensuring that it will not deter investment anddestabilise new operators and market entry, which wouldmake it difficult to preserve a sustainable competitiveenvironment.
3. In relation to the first subparagraph of paragraph 2,
national regulatory authorities shall notify decisions toimpose, modify or withdraw obligations on market players tothe Commission, in accordance with the procedures in Article6(2), (3) and (4) of Directive on [a common regulatoryframework for electronic communications networks andservices].3. In relation to the first subparagraph of paragraph 2,
national regulatory authorities shall notify draft decisions toimpose, modify or withdraw obligations on market players tothe Commission, in accordance with the procedures in Article6(2), (3) and (4) of Directive on [a common regulatoryframework for electronic communications networks andservices].
3a. Before withdrawing an obligation from an operator,
national regulatory authorities shall give operators with inter-connection and access arrangements with that operator,adequate notice to enable them to find alternative serviceproviders or to re-negotiate a commercial agreement underthe new basis.
Article 9
Obligation of transparencyUnchanged
1. National regulatory authorities may, in accordance with
the provisions of Article 8, impose obligations for transparency
in relation to interconnection and/or network access, requiringoperators to make publicly available specified information, suchas technical specifications, network characteristics, terms andconditions for supply and use, and prices.1. National regulatory authorities may, in accordance with
the provisions of Article 8, impose obligations for transparency
in relation to interconnection and/or network access, requiringoperators to make publicly available specified information, suchas technical specifications, network characteristics (includingspecific information on possible changes that might be madeto the networks), terms and conditions for supply and use, andprices, provided that the information is not confidential.
2. In particular where an operator has obligations of
non-discrimination, national regulatory authorities mayrequire that operator to publish a reference offer, sufficientlyunbundled, giving a description of the relevant offeringsbroken down into components according to market needs,and the associated terms and conditions including prices.Unchanged
3. National regulatory authorities may specify the precise
information to be made available, the level of detail requiredand the manner of publication.EN 25.9.2001 Official Journal of the European Communities C 270 E/173
INITIAL PROPOSAL AMENDED PROPOSAL
3a. Notwithstanding paragraph 3, where an operator has
obligations under Article 12 concerning unbundled access tolocal loops made of twisted metallic pairs, national regulatoryauthorities shall ensure the publication of a reference offercontaining at least the elements set out in Annex II. In thelight of market and technological developments, Annex IImay be amended in accordance with the procedures referred
to in Article 14(2).
Article 10
Obligation of non-discrimination
1. A national regulatory authority may, in accordance with
the provisions of Article 8, impose obligations of non-discrimi-nation, in relation to interconnection and/or network access.
2. Obligations of non-discrimination shall ensure, in
particular, that the operator applies similar conditions insimilar circumstances to other undertakings providing similarservices, and provides services and information to others underthe same conditions and of the same quality as they provide fortheir own services, or those of their subsidiaries or partners.Unchanged
Article 11
Obligation of accounting separation
1. A national regulatory authority may, in accordance with
the provisions of Article 8, impose obligations for accountingseparation in relation to specified activities related to intercon-nection and/or network access.
In particular, a national regulatory authority may require a
vertically integrated company to make transparent itswholesale prices and its internal transfer prices, in situationswhere a market analysis indicates that the operator concernedprovides input facilities that are essential to other serviceproviders, while competing itself on the same downstreammarket.
2. To facilitate the verification of compliance with obli-
gations of transparency, national regulatory authorities shall
have the power to require that accounting records, including
data on revenues received from third parties, are provided onrequest.2. To facilitate the verification of compliance with obli-
gations of transparency, national regulatory authorities shall
have the power to require that accounting records, including
data on revenues received from third parties, are provided onrequest. National regulatory authorities shall have the power todetermine the accounting format in which this data are to bekept and to require auditing of these data in accordance withthe standard laid down by the national regulatory authorityitself.
National regulatory authorities may publish such information
as would contribute to an open and competitive market, whilerespecting national and Community rules on commercial confi-dentiality.UnchangedEN C 270 E/174 Official Journal of the European Communities 25.9.2001
INITIAL PROPOSAL AMENDED PROPOSAL
Article 12
Obligations of access to, and use of, specific network
facilities
1. A national regulatory authority may, in accordance with
the provisions of Article 8, impose obligations on operators togrant access to, and use of, specific facilities and/or associatedservices, inter alia in situations where the national regulatory
authority considers that denial of access would hinder theemergence of a sustainable competitive market at the retaillevel, or would not be in the end-user’s interest.1. A national regulatory authority may, in accordance with
the provisions of Article 8, impose obligations on operators togrant access to, and use of, specific facilities and/or associatedservices, inter alia in situations where the national regulatory
authority considers that denial of access or unreasonable termsand conditions having a similar effect would hinder theemergence of a sustainable competitive market at the retaillevel, or would not be in the end-user’s interest.
Operators may be required inter alia :
(a) to give third parties access to specified network elements
and/or facilities;
(b) not to withdraw access to facilities already granted;
(c) to provide resale of specified services;
(d) to grant open access to technical interfaces, protocols or
other key technologies that are indispensable for the inter-operability of services;
(e) to provide collocation or other forms of facility sharing,
including duct, building or mast sharing;
(f) to provide specified services needed to ensure interoper-
ability of end-to-end services to users, including facilitiesfor intelligent network services or roaming on mobilenetworks;
(g) to provide access to operational support systems or similar
software systems necessary to ensure fair competition inthe provision of services;
(h) to interconnect networks or network facilities.Unchanged
National regulatory authorities may attach to those obligations
conditions covering fairness, reasonableness, timeliness, trans-parency and/or non-discrimination.EN 25.9.2001 Official Journal of the European Communities C 270 E/175
INITIAL PROPOSAL AMENDED PROPOSAL
2. When imposing the obligations referred in paragraph 1,
national regulatory authorities shall take account in particularof:2. When national regulatory authorities are considering
whether to impose the obligations referred in paragraph 1,and in particular when assessing whether such obligationswould be proportionate to the objectives set out in Article 7of the Directive [on a common regulatory framework for elec-tronic communications networks and services], they shall takeaccount in particular of the following factors:
(a) the technical and economic viability of using or installing
competing facilities, in the light of the rate of market devel-opment;(a) the technical and economic viability of using or installing
competing facilities, in the light of the rate of market devel-opment, taking into account the nature and type of inter-connection and access involved;
(b) the feasibility of providing the access proposed, in relation
to the capacity available;Unchanged
(c) the initial investment by the facility owner, bearing in mind
the risks involved in making the investment;
(d) the need to safeguard competition in the long term;
(e) where appropriate, any relevant intellectual property rights.
National regulatory authorities shall consult with interested
parties before deciding on access obligations. They shall giveinterested parties an opportunity to state their views on thefactors listed before. When publishing a decision national regu-latory authorities must state how the views of interested partieshave been heard and taken into account.
Article 13
Price control and cost accounting obligationsUnchanged
1. A national regulatory authority may, in accordance with
the provisions of Article 8, impose price controls, including
obligations for cost orientation of prices and obligationsconcerning cost accounting systems, for the provision ofspecific types of interconnection and/or network access, insituations where a market analysis indicates that a potentiallack of effective competition means that the operatorconcerned might be capable of sustaining prices at anexcessively high level, or applying a price squeeze, to thedetriment of end users.1. A national regulatory authority may, in accordance with
the provisions of Article 8, impose price controls, including
obligations for cost orientation of prices and obligationsconcerning cost accounting systems, for the provision ofspecific types of interconnection and/or network access, insituations where a market analysis indicates an existing anddurable market failure which means that the operatorconcerned is capable of sustaining prices at an excessivelyhigh level for a non-transient period, or applying a lastingprice squeeze, thereby preventing competition, to thedetriment of end users.
National regulatory authorities shall take into account the
investment made by the operator and the risks involved.The imposition of price controls by the national regulatory
authority shall not negatively affect competition in the longterm nor discourage investments in alternative infrastructures.National regulatory authorities shall take into account theinvestment made by the operator and the risks involved.
2. National regulatory authorities shall ensure that any
pricing methodology that is mandated serves to promote effi-ciency and sustainable competition and maximise consumerbenefits.UnchangedEN C 270 E/176 Official Journal of the European Communities 25.9.2001
INITIAL PROPOSAL AMENDED PROPOSAL
3. Where an operator has an obligation regarding the cost
orientation of its prices, the burden of proof that charges arederived from costs including a reasonable rate of return oninvestment shall lie with the operator concerned. Nationalregulatory authorities may require an operator to provide fulljustification for its prices, and may, where appropriate, requireprices to be adjusted.3. Where an operator has an obligation regarding the cost
orientation of its prices, the burden of proof that charges arederived from costs including a reasonable rate of return oninvestment shall lie with the operator concerned. For thepurpose of determining the cost efficient provision ofservices, national regulatory authorities may require theimplementation of cost accounting methods independent of
those used by the undertaking. National regulatory authorities
may require an operator to provide full justification for itsprices, and may, where appropriate, require prices to beadjusted.
4. National regulatory authorities shall ensure that, where
implementation of a cost accounting system is mandated in
order to support price controls, a description of the costaccounting system is made publicly available, showing atleast the main categories under which costs are grouped andthe rules used for the allocation of costs. Compliance with thecost accounting system shall be verified by a qualified inde-pendent body. A statement concerning compliance shall bepublished annually.Unchanged
CHAPTER IV
PROCEDURAL PROVISIONS
Article 14
Committee
1. The Commission shall be assisted by the Communications
Committee instituted by Article 19 of Directive [on a commonregulatory framework for electronic communications networksand services].
2. Where reference is made to this paragraph, the regulatory
procedure laid down in Article 5 of Decision 1999/468/ECshall apply, in compliance with Article 7 and 8 thereof.
3. The period provided for in Article 5(6) of Decision
1999/468/EC shall be three months.
Article 15
Publication of, and access to, information
1. Member States shall ensure that the specific obligations
imposed on undertakings under this Directive are publishedand that the specific product/service and geographicalmarkets are identified. They shall ensure that up-to-dateinformation, and particularly does not comprise businesssecrets, is made publicly available in a manner that guaranteesall interested parties easy access to that information.1. Member States shall ensure that the specific obligations
imposed on undertakings under this Directive are publishedand that the specific product/service and geographicalmarkets are identified. They shall ensure that up-to-dateinformation, provided that the information is not confidential,and particularly does not comprise business secrets, is madepublicly available in a manner that guarantees all interestedparties easy access to that information.EN 25.9.2001 Official Journal of the European Communities C 270 E/177
INITIAL PROPOSAL AMENDED PROPOSAL
2. Member States shall send to the Commission a copy of all
such information published. The Commission shall make thisinformation available in a readily accessible form, and shalldistribute the information to the Communications Committeeand the High Level Communications Group as appropriate.Unchanged
Article 16
Notification
1. Member States shall notify to the Commission by
31 December 2001 at the latest the national regulatory auth-orities responsible for the tasks set out in this Directive.
2. National regulatory authorities shall notify to the
Commission the names of operators deemed to have significantmarket power for the purposes of this Directive, and the obli-gations imposed upon them under this Directive. Any changesaffecting the obligations imposed upon undertakings or of the
undertakings affected under the provisions of this Directive
shall be notified to the Commission without delay.
Article 17
Review
The Commission shall periodically review the functioning of
this Directive and report to the European Parliament and to theCouncil, on the first occasion not later than three years afterthe date of entry into force of this Directive. For this purpose,the Commission may request from Member States information,which shall be supplied promptly on request.
Article 18
Transposition
1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with thisDirective by 31 December 2001 at the latest. They shallforthwith inform the Commission thereof.
When Member States adopt those provisions, they shall contain
a reference to this Directive or be accompanied by such areference on the occasion of their official publication.Member States shall determine how such reference is to bemade.
2. Member States shall communicate to the Commission the
text of the provisions of national law which they adopt in thefield governed by this Directive and of any subsequentamendments to those provisions.EN C 270 E/178 Official Journal of the European Communities 25.9.2001
INITIAL PROPOSAL AMENDED PROPOSAL
Article 19
Entry into force
This Directive shall enter into force on the twentieth day
following that of its publication in the Official Journal of the
European Communities .
Article 20
Addressees
This Directive is addressed to the Member States.
ANNEX I
CONDITIONS FOR ACCESS TO DIGITAL TELEVISION
SERVICES BROADCAST TO VIEWERS IN THE COMMUNITYUnchanged
Part I  Conditions for conditional access systems to be applied
in accordance with Article 6(1)
In relation to conditional access to digital television services broadcast
to viewers in the Community, irrespective of the means of trans-
mission, Member States must ensure in accordance with Article 6
that the following conditions apply:
(a) conditional access systems operated on the market in the
Community shall have the necessary technical capability for cost-
effective transcontrol allowing the possibility for full control by
network operators at local or regional level of the services usingsuch conditional access systems;
(b) all operators of conditional access services, irrespective of the
means of transmission, who produce and market access servicesto digital television services shall:
 offer to all broadcasters, on a fair, reasonable and non-discrimi-
natory basis compatible with Community competition law,
technical services enabling the broadcasters’ digitally-transmittedservices to be received by viewers authorised by means ofdecoders administered by the service operators, and comply
with Community competition law,
 keep separate financial accounts regarding their activity as
conditional access providers.
(c) when granting licences to manufacturers of consumer equipment,
holders of industrial property rights to conditional access productsand systems shall ensure that this is done on fair, reasonable andnon-discriminatory terms. Taking into account technical and
commercial factors, holders of rights shall not subject the
granting of licences to conditions prohibiting, deterring ordiscouraging the inclusion in the same product of:
 a common interface allowing connection with several other
access systems, or
 means specific to another access system, provided that the
licensee complies with the relevant and reasonable conditionsensuring, as far as he is concerned, the security of transactions
of conditional access system operators.EN 25.9.2001 Official Journal of the European Communities C 270 E/179
INITIAL PROPOSAL AMENDED PROPOSAL
Part II  Other associated facilities to be considered under the
review procedure in Article 6(2)
 Access to application program interfaces (APIs); Access to electronic programme guides (EPGs);  Access to navigation systems, eg, electronic programme guides
(EPGs);
 Access to digital radio services.
ANNEX II
MIMIMUM LIST OF ITEMS TO BE INCLUDED IN A REFERENCE
OFFER FOR UNBUNDLED ACCESS TO LOCAL LOOPS MADE
OF TWISTED METALLIC PAIRS TO BE PUBLISHED BY
DESIGNATED OPERATORS
A. Conditions for unbundled access to local loops made of
twisted metallic pairs
1. Network elements to which access is offered covering in
particular the following elements:
(a) access to the local loops;
(b) access to non-voice band frequency spectrum, in the case of
shared access to a metallic twisted pair;
2. Information concerning the locations of physical access sites (
1)
availability of local loops in specific parts of the access network;
3. Technical conditions related to access and use of the local loops
including the technical characteristics of the twisted metallicpair;
4. Ordering and provisioning procedures, usage restrictions.
B.Collocation services
1. Information on the operator’s relevant sites (
1)
2. Collocation options at the sites indicated under point 1
(including physical collocation and, as appropriate, distant collo-cation and virtual collocation);
3. Equipment characteristics: restrictions, if any, on equipment that
can be collocated;
4. Security issues: measures put in place by designated operators to
ensure the security of their locations;
___________
(1) Availability of this information may be restricted to interested parties only, in
order to avoid public security concerns.EN C 270 E/180 Official Journal of the European Communities 25.9.2001
INITIAL PROPOSAL AMENDED PROPOSAL
5. Access conditions for staff of competitive operators;
6. Safety standards;
7. Rules for the allocation of space where collocation space is
limited;
8. Conditions for beneficiaries to inspect the locations at which
physical collocation is available, or sites where collocation has
been refused on grounds of lack of capacity.
C.Information systems
Conditions for access to operator’s operational support systems,
information systems or databases for pre-ordering, provisioning,ordering, maintenance and repair requests and billing.
D.Supply conditions
1. Lead time for responding to requests for supply of services and
facilities; service level agreements, fault resolution, procedures toreturn to a normal level of service and quality of service parameters;
2. Standard contract terms, including, where appropriate, compen-
sation provided for failure to meet lead times;
3. Prices or pricing formulae for each feature, function and facility
listed above.EN 25.9.2001 Official Journal of the European Communities C 270 E/181