Proposal for a Directive of the European Parliament and of the Council on the authorisation of electronic communications networks and services
Date: 2000-07-12
Institutions: European Commission
Subjects: competition, single market, telecommunications, trade licence, transmission network

C 365 E/230

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Official Journal of the European Communities

19.12.2000

Proposal for a Directive of the European Parliament and of the Council on the authorisation of
electronic communications networks and services

(2000/C 365 E/18)

(Text with EEA relevance)

COM(2000) 386 final (cid:16) 2000/0188(COD)

(Submitted by the Commission on 28 August 2000)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

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
Committee,

the Economic and Social

Having regard to the opinion of the Committee of the Regions,

Acting in accordance with the procedure laid down in Article
251 of the Treaty,

Whereas:

the public consultation on the 1999
(1) The outcome of
electronic
regulatory framework for
the
review of
communications,
the Commission
reflected
communication of 26 April 2000 (1), has confirmed the
need for a more harmonised and less onerous market
access regulation for electronic communications services
and networks throughout the Community.

as

in

(2) Convergence between different electronic communications
services and networks and their technologies requires the
establishment of an authorisation system covering all
similar services in a similar way regardless of the tech-
nologies used.

(3) The least onerous system possible should be used to allow
the provision of electronic communications services and
networks in order to stimulate the development of new
electronic communications services and to allow service
providers and consumers to benefit from the economies
of scale of the single market.

Community and to facilitate cross border negotiation of
interconnection
communications
networks.

between

public

(6) The granting of

specific rights may continue to be
necessary for the use of radio frequencies and numbers,
including short codes, from the national numbering plan.
Rights to numbers may also be allocated from a European
numbering plan,
the virtual
country code :3883; which has been attributed to
Member countries of the European Conference of Post
and Telecommunications
(CEPT). Those rights of use
should not be restricted except where this is unavoidable
in view of the scarcity of radio frequencies and the need
to ensure the efficient use thereof.

including for

example

(7) The conditions which may be attached to the general
authorisation and to the specific rights of use, should
be limited to what
strictly necessary to ensure
compliance with essential requirements and obligations
under Community law.

is

(8) Specific obligations which may be imposed on providers
of electronic communications services and networks in
their
accordance with Community law by virtue of
in Directive
significant market power
. . ./. . ./EC of
the
Council of . . . (on a common regulatory framework for
electronic communications networks and services) should
be imposed separately from the general rights and obli-
gations under the general authorisation.

the European Parliament and of

defined

as

(9) The general authorisation should contain only conditions
which are specific to the electronic communications
sector.
to conditions
which are already applicable by virtue of other existing
national
law which is not specific to the electronic
communications sector.

It should not be made subject

(4) Those aims can be best achieved by general authorisation
of all electronic communications services and networks
without requiring any explicit decision or administrative
act by the national regulatory authority and by limiting
any procedural requirements to notification only.

(10) Where the demand for radio frequencies in a specific
range exceeds their availability, appropriate and trans-
parent procedures should be followed for the assignment
of such frequencies in order to avoid any discrimination
and optimise use of those scarce resources.

(5) It is necessary to include the rights of undertakings under
general authorisations explicitly in such authorisations in
the
to ensure a level playing field throughout
order

(1) COM(2000) 239.

(11) Where the harmonised assignment of radio frequencies to
particular undertakings has been agreed at European level,
Member States should strictly implement such agreements
in the granting of rights of use of radio frequencies from
the national frequency usage plan.

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(12) Providers of electronic communications

services and
networks may need a confirmation of their rights under
the general authorisation with respect to interconnection
and rights of way, in particular to facilitate negotiations
with other, regional or local, levels of government or with
this
service providers
purpose
should
provide declarations to undertakings upon request or
automatically in response to a notification under the
general authorisation.

in other Member States. For

the national

authorities

regulatory

(13) The penalties for non-compliance with conditions under
the general authorisation should be commensurate with
it
the infringement. Save in exceptional circumstances,
would not be proportionate to withdraw the right
to
provide electronic communications services or the right
to use radio frequencies or numbers where an under-
taking did not comply with one or more of the conditions
under the general authorisation. This is without prejudice
to urgent measures which Member States may need to
take in case of serious threats to public safety, security
interests of
or health or to economic and operational
other undertakings. This Directive
should also be
without prejudice to any claims for compensation for
damages between undertakings under national law.

(14) Subjecting service providers to reporting and information
obligations can be cumbersome, both for the undertaking
and for the national regulatory authority concerned. Such
obligations should therefore be proportionate, objectively
justified and limited to what is strictly necessary. It is not
necessary to require systematic and regular proof of
compliance with all conditions under the general author-
isation or attached to rights of use. Undertakings have a
right to know the purposes for which the information
they should provide will be used. The provision of
information should not be a condition for market
access. This Directive should be without prejudice to
Member States’ obligations to provide any information
necessary for the defence of Community interests within
the context of international agreements.

the national

(15) Administrative charges may be imposed on providers of
electronic communications services in order to finance
the activities of
regulatory authority in
managing the authorisation system and for the granting
of rights of use. Such charges should be limited to cover
the actual administrative costs for those activities. For this
purpose transparency should be created in the income
and expenditure of national regulatory authorities by
means of annual
sum of
reporting about
charges collected and the administrative costs incurred.
This will allow undertakings to verify that administrative
costs and charges are in balance. Administrative charges
should not act as a barrier to market entry. Such charges
should therefore be distributed in proportion to the
the undertaking
turnover on the relevant services of
concerned as
year
accounting
preceding the year of the administrative charge. Small
and medium-sized undertakings should not be required
to pay administrative charges.

calculated over

the total

the

(16)

In addition to administrative charges, usage fees may be
levied for the use of radio frequencies and numbers as an
instrument to ensure the optimal use of such resources.
Such fees should not hinder the development of inno-
vative services and competition in the market.

(17) Member States may need to amend rights, conditions,
procedures, charges and fees relating to general authoris-
ations and rights of use where this is objectively justified.
Such changes should be duly notified to all
interested
parties in good time giving them adequate opportunity
to express their views on any such amendments.

(18) The objective of

fees

that

access

to any

transparency requires

information regarding
charges,

service
providers, consumers and other interested parties have
rights,
easy
conditions, procedures,
and decisions
concerning the provision of electronic communications
services, rights of use of radio frequencies and numbers,
national frequency usage plans and national numbering
an
plans. The national
important
task in providing such information and
keeping it up to date and in centralising all relevant
information regarding rights of way where such rights
are administered by other levels of government.

regulatory authorities have

(19) The proper functioning of the single market on the basis
of the national authorisation regimes under this Directive
should be monitored. On the basis of the findings of such
monitoring,
further harmonisation measures may be
necessary where barriers to the single market remain.
Directive (on a common regulatory framework for elec-
tronic communications networks and services) provides
the procedural framework for any such measures.

(20) The replacement of authorisations existing on the date of
entry into force of this Directive by the general author-
isation and the individual rights of use in accordance with
this Directive should not lead to an increase in the obli-
gations for service providers operating under an existing
authorisation or to a reduction of their rights, unless this
would have a negative effect on the rights and obligations
of other undertakings,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Objective and scope

The aim of this Directive is to implement an internal
1.
market
in electronic communications services through the
harmonisation and simplification of authorisation rules and
conditions in order to facilitate the provision of electronic
communications
the
Community.

and networks

throughout

services

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This Directive shall apply to all authorisations relating to
services and

2.
the provision of electronic communications
networks.

interconnection of, electronic communications networks
and associated facilities).

Article 2

Definitions

(b) Establish electronic communications networks and be
granted the necessary rights of way in accordance with
Directive (on a common regulatory framework for elec-
tronic communications networks and services).

For the purposes of this Directive, the definitions in Directive
(on a common regulatory framework for electronic communi-
cations networks and services) shall apply.

Article 3

General

authorisation of

electronic
services and networks

communications

1. Member States shall not prevent an undertaking from
providing electronic communications
services or networks
except where this is necessary to protect public security,
safety or health.

2.
The provision of electronic communications services or
networks may only be subject to a general authorisation. The
undertaking concerned may be required to submit a notifi-
cation, but may not be required to obtain an explicit
decision or any other administrative act by the national regu-
latory authority before exercising the rights stemming from the
authorisation. Upon notification, an undertaking may begin
commercial activity, where necessary subject to the provisions
on rights of use in Articles 5, 6 and 7.

The notification referred to in paragraph 2 shall not
3.
entail more than a declaration by a legal or natural person
the intention to
regulatory authority of
to the national
communication
commence
of
provision
the
the minimal
networks or services and the submission of
information which is required to allow the national regulatory
authority to keep a register of providers of electronic
communications
information
must be limited to what is necessary for the identification of
the provider and the provider’s contact persons, the provider’s
address and a short description of the service to be provided.

services and networks. This

electronic

Article 4

Minimum list of rights derived from the general author-
isation

Undertakings authorised pursuant to Article 3, shall have the
right to:

(c) Be given an opportunity to be designated to provide
elements of a universal service obligation in part or all of
in accordance with Directive
the national
. . ./. . ./EC of the European Parliament and of the Council
of . . .
(on universal service and users’ rights relating to
electronic communications networks and services).

territory

Article 5

Rights to use radio frequencies and numbers

1. Member States shall, where possible, in particular where
the risk of harmful interference is negligible, not make the use
of radio frequencies subject to the grant of individual rights of
use but shall include the conditions for usage of such radio
frequencies in the general authorisation.

2. Where it is necessary to grant individual rights to use
radio frequencies and numbers, Member States shall grant
to any undertaking providing
such rights, upon request,
services under
to the
the general authorisation,
provisions of Articles 6 and 7 and any other rules ensuring
in accordance with
those resources
the efficient use of
Directive (on a common regulatory framework for electronic
communications networks and services).

subject

Such rights of use shall be granted through open, non-discrimi-
natory and transparent procedures. When granting rights of
use, Member States shall specify whether those rights can be
in accordance with
transferred and under which conditions,
Article 8 of Directive (on a common regulatory framework
for electronic communications networks and services). Where
Member States grant rights of use for a limited period of time,
the duration shall be appropriate for the service concerned.

3.
Decisions on rights of use shall be taken, communicated
and published as soon as possible and within two weeks after
receipt of the application by the competent authority in the
case of numbers, and within six weeks in the case of radio
frequencies.

(a) Provide electronic communications services to the public
and negotiate interconnection with other providers of
publicly available communications services covered by a
general authorisation anywhere in the Community in
accordance with Directive . . ./. . ./EC of
the European
Parliament and of the Council of . . . (on access to, and

4. Member States shall not limit the granting of rights of use
except where this is necessary to ensure the efficient use of
radio frequencies and in accordance with Article 7. Member
States shall grant rights to use frequency where it is available.

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Article 6

(d) review the limitation at reasonable intervals or at

the

Conditions attached to the general authorisation and to
the rights of use for radio frequencies and rights of use
for numbers

1.
The general authorisation for the provision of electronic
communications services or networks and the rights of use for
radio frequencies and rights of use for numbers shall be subject
only to the conditions listed respectively in Parts A, B and C of
the Annex. Such conditions shall be objectively justified in
relation
non-discriminatory,
the
proportionate and transparent.

concerned,

service

to

Specific obligations which may be imposed on providers
2.
of electronic communications
services and networks with
significant market power under Article 8 of Directive (on
access to, and interconnection of, electronic communications
networks and associated facilities) or on those designated to
provide universal service under Directive (on universal service
and users’
communications
networks and services), shall be legally separate from the
general rights and obligations under the general authorisation.
In order to achieve transparency for undertakings, the criteria
and procedures for imposing such specific obligations on indi-
vidual undertakings, shall be referred to in the general author-
isation.

relating to electronic

rights

3.
The general authorisation shall only contain conditions
which are specific for that sector as set out in Part A of the
Annex and shall not duplicate conditions which are applicable
to undertakings by virtue of other national legislation.

request of undertakings; and

(e) invite applications for rights of use.

2. Where a Member State finds that further rights to use
radio frequencies can be granted, it shall publish that finding
and invite applications for such rights.

3. Where the granting of rights of use for radio frequencies
needs to be limited, Member States shall grant such rights on
selection criteria which must be objective,
the basis of
non-discriminatory, detailed,
transparent and proportionate.
to the need to
Any such selection must give due weight
facilitate the development of competition and of innovative
services and to maximise benefits for users.

4. Where comparative bidding procedures are to be used,
Member States may extend the maximum period of six weeks
referred to in Article 5(3) for as long as necessary to ensure
that such procedures are fair, reasonable, open and transparent
to all interested parties, but by no longer than six months.

These time-limits shall be without prejudice to any applicable
international
radio
relating
frequencies and of orbital positions.

to the use of

agreements

4. Member States shall not duplicate the terms of
the
general authorisation where they grant the right to use radio
frequencies or numbers.

Article 8

Harmonised assignment of radio frequencies

Article 7

Procedure for limited granting of rights to use radio
frequencies

1. Where a Member State is considering to limit
granting of rights of use for radio frequencies, it shall:

the

conditions and procedures have been agreed,

Where the usage of radio frequencies has been harmonised and
access
in
accordance with Decision (on a regulatory framework for
radio spectrum policy
and other
Community rules, Member States shall grant the right of use
for radio frequencies in accordance therewith. They shall not
impose any conditions, additional criteria or procedures which
would restrict, alter or delay the correct implementation of the
harmonised assignment of radio frequencies.

in the Community)

(a) give due weight to the need to maximise benefits for users

and to facilitate the development of competition;

Article 9

(b) allow sufficient opportunity and a period of at least 30 days
including users and

to enable all
interested parties,
consumers, to express their views on any limitation;

(c) publish its decision to limit the granting of rights of use,

stating the reasons therefor;

Declarations to facilitate the exercise of rights of way and
rights of interconnection

At the request of an undertaking Member States shall, within
one week, issue declarations confirming that that undertaking
is authorised to apply for rights of way and/or to negotiate
interconnection under the general authorisation in order to
facilitate the exercise of
levels of
government or in relation to other undertakings. Where appro-
priate such declarations may also be issued as an automatic
reply following notification referred to in Article 3(2).

those rights at other

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Article 10

Compliance with the conditions of the general
authorisation or for rights of use

National regulatory authorities may require undertakings
1.
providing electronic communications
services or networks
covered by the general authorisation or enjoying rights of
use for radio frequencies or numbers to provide information
the
necessary to verify compliance with the conditions of
general authorisation or the rights of use, in accordance with
Article 11.

regulatory authority finds that an
2. Where a national
undertaking does not comply with one or more of
the
conditions of the general authorisation or the rights of use,
it shall notify the undertaking of those findings and give the
undertaking a reasonable opportunity to state its views or
remedy any breaches within one month after notification or
within any other period agreed between the undertaking
concerned and the national regulatory authority.

If

regulatory authority shall

the undertaking concerned does not

3.
remedy the
breaches within the period as referred to in paragraph 2, the
national
take appropriate and
proportionate measures aimed at ensuring compliance. The
measures and the reasons on which they are based, shall be
communicated to the undertaking concerned within one week
of their adoption and at least one week before they take effect.

4. Where a breach of the conditions of the general author-
isation or rights of use represents an immediate and serious
threat to public safety, security or health or creates serious
economic or operational problems for other providers or
users of electronic communications
services or networks,
Member States may take urgent interim measures to remedy
the situation. The undertaking concerned shall thereafter be
given a reasonable opportunity to state its view and to
propose any remedies.

Undertakings

shall have the right

taken by Member States under

to appeal against
5.
this Article in
measures
accordance with the procedure referred to in Article 4 of
Directive (on a common regulatory framework for electronic
communications networks and services).

Article 11

Information required under the general authorisation and
for rights of use

1. Without prejudice to information and reporting obli-
gations under national legislation other than the general auth-
orisation, Member States shall not require undertakings to
provide more information under
the general authorisation
than is proportionate and objectively justified for:

(a) systematic verification of compliance with conditions 1 and
2 of Part A, condition 6 of Part B and condition 5 of Part C

the Annex and of compliance with obligations as

of
referred to in Article 6(2);

(b) case-by-case verification of compliance with conditions as
set out in the Annex where a complaint has been received
or where the national
regulatory authority has other
reasons to believe that a condition is not complied with;

(c) comparative bidding procedures for radio frequencies;

(d) publication of comparative overviews of quality and price

of services for the benefit of consumers;

(e) clearly defined statistical purposes;

interconnection

(f) market analysis for the purposes of Directive (on access to,
communications
and
networks
(on
universal service and users’ rights relating to electronic
communications networks and services).

and associated facilities) or Directive

electronic

of,

The information referred to in points (a), (b), (d), (e) and (f) of
the first subparagraph may not be required prior to or as a
condition for market access.

2. Where Member States require undertakings to provide
information as referred to in paragraph 1, they shall inform
them of the specific purpose for which this information is to
be used.

Article 12

Administrative charges

Any administrative charges imposed on undertakings

1.
providing a service under the general authorisation shall:

(a) in total, cover only the administrative costs incurred in the
the applicable
the granting of

management, control and enforcement of
general authorisation scheme and of
rights of use; and

(b) be apportioned between the individual undertakings in
proportion to the turnover of each undertaking within
the last accounting year on the services covered by the
general authorisation, or for which the rights of use are
granted, and provided within the national market of the
Member State imposing the charges.

Undertakings with an annual turnover for the relevant
less than EUR 10

2.
services referred to in paragraph 1(b) of
million shall be exempt from paying administrative charges.

3. Where Member States impose administrative charges,
they shall publish a yearly overview of their administrative
costs and of the total sum of the charges collected.
If the
total sum of
the charges exceeds the administrative costs,
appropriate adjustments shall be made in the following year.

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Article 13

Fees for rights of use and rights of way

Member States may allow the assigning authority to impose
fees for the rights to use radio frequencies, numbers or rights
of way which reflect the need to ensure the optimal use of
these resources. Such fees shall be non-discriminatory, trans-
parent, objectively justified and proportionate in relation to
their intended purpose and take into particular account the
need to foster the development of
innovative services and
competition.

Article 14

Amendment of rights and obligations

Member States may amend the rights, conditions, procedures,
charges and fees concerning general authorisations and rights
of use or rights of way in objectively justified cases and in a
proportionate manner. Member States shall give appropriate
intention to make such amendments and
notice of
their
allow interested parties,
including users and consumers, a
sufficient period of no less than four weeks to express their
views on the proposed amendments.

Article 15

Publication of information

1. Member States shall ensure that all relevant information
on rights, conditions, procedures, charges, fees and decisions
is
concerning general
published and kept up to date in an appropriate manner so
as to provide easy access to that information for all interested
parties.

and rights of use

authorisations

fees,

charges,

procedures

conditions
2. Where
concerning rights of way are determined at different levels of
government, Member States shall publish and keep up to date a
register of all such charges, fees, procedures and conditions in
an appropriate manner so as to provide easy access to that
information for all interested parties.

and

Article 16

Functioning of the internal market

Where divergences between national charges, fees, procedures
or conditions concerning general authorisation or the grant of
the
rights of use create barriers
Commission may adopt measures to harmonise such charges,
fees, procedures or
in accordance with the
procedure referred to in Article 19(3) of Directive (on a
common regulatory framework for electronic communications
networks and services).

to the internal market,

conditions

In order to identify any such barriers to the single market, the
Commission shall periodically review the functioning of the
national authorisation systems and the development of cross-
border service provision within the Community and report to
the European Parliament and to the Council.

Article 17

Existing authorisations

1. Member States
existence on the date of entry into force of
into line with the provisions of
December 2001 at the latest.

shall bring authorisations already in
this Directive
this Directive by 31

2. Where application of paragraph 1 results in a reduction
of the rights or an extension of the obligations under author-
isations already in existence, Member States may extend the
validity of those rights and obligations until 30 June 2002 at
the latest, provided that the rights of other undertakings under
Community law are not effected thereby. Member States shall
notify such extensions to the Commission and state the reasons
therefor.

Article 18

Transposition

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive by 31 December 2001 at
the latest. They shall
forthwith inform the Commission thereof.

When Member States adopt those provisions, they shall contain
a reference to this Directive or be accompanied by such
reference on the occasion of
their official publication.
Member States shall determine how such reference is to be
made.

2. Member States shall communicate to the Commission the
text of the provisions of national law which they adopt in the
field governed by this Directive and of any subsequent
amendments to those provisions.

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.

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ANNEX

The conditions listed in this Annex provide the maximum list of conditions which may be attached to general
authorisations (Part A), rights to use radio frequencies (Part B) and rights to use numbers (Part C) as referred to in
Article 6(1) and Article 11(a).

A. Conditions which may be imposed by general authorisation

1. Financial contributions to the funding of universal service in conformity with Directive (on universal service and

users’ rights relating to electronic communications networks and services).

2. Administrative charges in conformity with Article 12 of this Directive.

3. Interoperability of services and interconnection of networks in conformity with Directive (on access to, and

interconnection of, electronic communications networks and associated facilities).

4. Accessibility of numbers from the national numbering plan to end-users in conformity with Directive (on

universal service and users’ rights relating to electronic communications networks and services).

5. Environmental and town and country planning requirements, including conditions linked to the granting of
access to public or private land and conditions linked to collocation and facility sharing in conformity with
Directive (on a common regulatory framework for electronic communications networks and services).

6. Mandatory transmission of specified radio and TV broadcasts in conformity with Directive (on universal service

and users’ rights relating to electronic communications networks and services).

7. Personal data and privacy protection specific to the electronic communications sector in conformity with
Directive (on the processing of personal data and the protection of privacy in the electronic communications
sector).

8. Consumer protection rules specific to the electronic communications sector including conditions in conformity
with Directive (on universal service and users’ rights relating to electronic communications networks and
services).

9. Obligations in relation to broadcasting content, in particular those concerning the protection of minors in
accordance with Article 2(a)(2) of Council Directive 89/552/EEC of 3 October 1989 on the coordination of
certain provisions laid down by law, regulation or administrative action in Member States concerning the
pursuit of television broadcasting activities, as amended by Directive 97/36/EC of the European Parliament
and of the Council.

10.

Information to be provided under a notification procedure in accordance with Article 3(3) of this Directive and
for other purposes as included in Article 11 of this Directive.

11. Enabling of legal interception by competent national authorities in conformity with Directive (on the processing
of personal data and the protection of privacy in the electronic communications sector and Directive 95/46/EC).

12. Terms of use during major disasters to ensure communications between emergency services and authorities and

broadcasts to the general public.

13. Measures regarding the limitation of exposure of the general public to electromagnetic fields caused by elec-

tronic communications networks in accordance with Community law.

B. Conditions which may be attached to rights of use for radio frequencies

1. Designation of service for which the frequency shall be used, including conditions in relation to the content to be

provided.

2. Efficient use of frequencies in conformity with Directive (on a common regulatory framework for electronic

communications networks and services).

3. Avoidance of harmful interference.

4. Maximum duration in conformity with Article 5 of this Directive.

5. Transfer of rights and conditions for such transfer in conformity with Directive (on a common regulatory

framework for electronic communications networks and services).

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6. Usage fees in accordance with Article 13 of this Directive.

7. Any commitments which the undertaking obtaining the usage right has made in the course of a comparative

bidding procedure.

C. Conditions which may be attached to rights of use for numbers

1. Designation of service for which the number shall be used.

2.

Efficient use of numbers in conformity with Directive (on a common regulatory framework for electronic
communications networks and services).

3. Number portability requirements in conformity with Directive (on universal service and users’ rights relating to

electronic communications networks and services).

4. Maximum duration in conformity with Article 5 of this Directive.

5.

Transfer of rights and conditions for such transfer in conformity with Directive (on a common regulatory
framework for electronic communications networks and services).

6. Usage fees in accordance with Article 13 of this Directive.