4.

Likewise, Articles 8 and 12 of the Directive permit national authorities to impose obligations on telecommunications operators. For the purposes of the present proceedings, the following provisions of these articles fall to be considered: “Article 8 Imposition, amendment or withdrawal of obligations 1. Member States shall ensure that national regulatory authorities are empowered to impose the obligations identified in Articles 9 to 13a. 2. Where an operator is designated as having significant market power on a specific market as a result of a market analysis carried out in accordance with Article 16 of Directive 2002/21/EC (Framework Directive), national regulatory authorities shall impose the obligations set out in Articles 9 to 13 of this Directive as appropriate. … 4. Obligations imposed in accordance with this Article shall be based on the nature of the problem identified, proportionate and justified in the light of the objectives laid down in Article 8 of Directive 2002/21/EC (Framework Directive). Such obligations shall only be imposed following consultation in accordance with Articles 6 and 7 of that Directive. 5. In relation to the third indent of the first subparagraph of paragraph 3, national regulatory authorities shall notify decisions to impose, amend or withdraw obligations on market players to the Commission, in accordance with the procedure referred to in Article 7 of Directive 2002/21/EC (Framework Directive). 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 to meet reasonable requests for access to, and use of, specific network elements and associated facilities, inter alia in situations where the national regulatory authority considers that denial of access or unreasonable terms and conditions having a similar effect would hinder the emergence of a sustainable competitive market at the retail level, 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, including access to network elements which are not active and/or unbundled access to the local loop, to, inter alia, allow carrier selection and/or pre-selection and/or subscriber line resale offer; … National regulatory authorities may attach to those obligations conditions covering fairness, reasonableness and timeliness. 2. When national regulatory authorities are considering the obligations referred in paragraph 1, and in particular when assessing how such obligations would be imposed proportionate to the objectives set out in Article 8 of Directive 2002/21/EC (Framework Directive), they shall take account 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 development, taking into account the nature and type of interconnection and/or access involved, including the viability of other upstream access products such as access to ducts; (b) the feasibility of providing the access proposed, in relation to the capacity available; (c) the initial investment by the facility owner, taking account of any public investment made and the risks involved in making the investment; (d) the need to safeguard competition in the long term, with particular attention to economically efficient infrastructure-based competition; (e) where appropriate, any relevant intellectual property rights; (f) the provision of pan-European services. …’