WRITTEN QUESTION E-2316/01

by Elly Plooij-van Gorsel (ELDR) to the Commission

(31 July 2001)

Subject: Changes in telecommunications law in the Netherlands

The Netherlands government has forwarded draft legislation to the Council of State to amend the Telecommunications law and the Law on the independent postal and telecommunications authority (OPTA) in connection with clarifying and extending the regulations on access to broadcasting networks.

This proposal is at variance with the review of the Telecom package being conducted by the Council and Parliament and gives the OPTA the possibility of defining internet markets at Member State level. The Netherlands government is also threatening to regulate the market for interactive television services, although this market is still being developed.

1. Is the Commission aware of this proposed legislation?

2. If so, what is the Commission's opinion of this legislative proposal (including defining internet markets and regulating television services) within the framework of the review package?

3. Does the Commission consider that this proposal for legislation should be notified within the framework of the Transparency directive (98/48/EC(1))?

(1) OJ L 217, 5.8.1998, p. 18.

Answer given by Mr Liikanen on behalf of the Commission

(3 October 2001)

The Commission is aware of draft legislation being considered in Netherlands covering the issue of access to cable television (TV) networks. According to its information, the envisaged legislation will cover access to cable networks for broadcasting transmission and for Internet access purposes.

Referring to the question of the Honourable Member about whether the Commission considers that the proposed draft regulation should be notified under Directive 98/48/EC of the Parliament and of the Council of 20 July 1998 amending Directive 98/34/EC laying down a procedure for the provision of information in the field of technical standards and regulations(1) laying down a procedure for the provision of information in the field of technical standards and regulations, Article 1 of Directive 98/48/EC stipulates that the transparency directive does not apply to radio and television broadcasting services nor to rules relating to matters that have been harmonised by Community legislation in the field of telecommunications services. The current Community regulatory framework in telecommunications does not establish rules for providers of cable network infrastructure for Internet access purposes and, therefore, measures envisaged at national level for this type of access are subject to the transparency Directive 98/48/EC and should be notified to the Commission. The Commission will assess the proposed measures for its compatibility with Community law.

The envisaged Dutch draft legislation appears to take account of the coming changes in the Community regulatory framework. The new regulatory framework proposed by the Commission includes in its scope all type of electronic communication networks and services including those provided by cable networks. Moreover, the proposed new regulatory approach redefines the concept of significant market power in a dynamic way, empowering national regulatory authorities (NRAs) to impose, where justified by market analysis, defined obligations on undertakings deemed to have significant market power in a relevant market. The Commission will produce Guidelines to assist national regulatory authorities in defining markets and assessing the level of competition. Under Article 14 of the Framework Directive as proposed by the Commission, the Commission will also adopt a Decision, on a regular basis, listing those relevant markets whose characteristics may be such as to justify ex ante regulatory intervention. NRAs may not impose such obligations in markets not identified in the Decision without Commission agreement. It will require NRAs to assess the extent of competition in a given market in accordance with the Guidelines, and only impose or maintain obligations where competition is not effective. Otherwise obligations must be removed. The proposed new regulatory framework is still under co-decision, and the precise procedures are subject to discussion in the Parliament and Council. The new Community regulatory framework will not be applied until 2003, and therefore it would be premature for the Commission to make a full assessment of the compatibility of the envisaged Dutch legislation with the proposed Community regulatory framework.

(1) OJ L 217, 5.8.1998.