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 (presented by the Commission pursuant to Article 250 (2) of the EC Treaty)
Date: 2001-07-04
Institutions: European Commission
Subjects: approximation of laws, competition, new technology, telecommunications, transmission network

25.9.2001

EN

Official Journal of the European Communities

C 270 E/161

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 (cid:151) 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
Committee,

the Economic and Social

Having regard to the opinion of
Committee (1),

the Economic and Social

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

Having regard to the opinion of
Regions (2),

the Committee of

the

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

Unchanged

Whereas:

cable

television

networks,

terrestrial broadcasting,

(1) Directive [. . ./. . ./EC of the European Parliament and of
the Council of . . . on a common regulatory framework
for 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-
networks,
munications
networks used for
satellite
networks and Internet networks, whether used for voice,
fax, data or images. Such networks may have been auth-
orised by Member States under Directive [. . ./. . ./EC of
the European Parliament and of the Council of . . . on
the authorisation of electronic communications networks
and services] or have been authorised under previous
regulatory measures. The provisions of
this Directive
apply to those networks that are used for the commercial
provision of publicly available electronic communications
services or for transmission of broadcasting signals. This
Directive covers access and interconnection arrangements
between service suppliers. It does not apply to networks
used for
services
available only to a specific end-user or to a closed user
group, nor does it deal with access for end-users or others
who are not supplying publicly available services.

the provision of

communications

___________
(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).

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INITIAL PROPOSAL

AMENDED PROPOSAL

(2) The term (cid:145)access(cid:146) has a wide range of meanings, and it is
therefore necessary to define precisely how that term is
used in this Directive, without prejudice to how it may be
used in other Community measures. The term (cid:145)operator(cid:146)
implies control of the relevant network or facilities, but
does not imply ownership; a network operator may own
the 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 or
service requirement, and this opened an opportunity for
the market actors to take the initiative and develop
suitable systems. Through the Digital Video Broadcasting
Group, European market actors have developed a family
of television transmission systems that have been adopted
the world. These trans-
by broadcasters
missions
the
European Telecommunications Standards Institute (ETSI)
International Telecommunications
and have become
Union Recommendations.
In relation to wide screen
digital television, the 16:9 aspect ratio is the reference
format
and
programmes, 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).

been standardised

for wide-format

systems have

throughout

television

services

by

(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 to
In markets where
the competition rules of the Treaty.
there continue to be large differences
in negotiating
power between undertakings, and where some under-
takings rely on infrastructure provided by others for
delivery of their services, it is appropriate to establish a
framework to ensure that the market functions effectively.
National regulatory authorities should have the power to
secure, where commercial negotiation fails, adequate
access
interoperability of
services in the interest of end-users. This would be the
case for example if network operators were to unreas-
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 areas
remedies available
where
under competition law cannot achieve the same results
in the same time-scale.

ex-post application of

interconnection and

and

the

or

access

interconnection should

(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 to
In the context of
the competition rules of the Treaty.
achieving a more efficient, truly pan-European market,
with effective competition, more choice and competitive
to consumers, undertakings which receive
services
in
for
requests
principle conclude such agreements on a commercial
In markets where
basis and negotiate in good faith.
there continue to be large differences
in negotiating
power between undertakings, and where some under-
takings rely on infrastructure provided by others for
delivery of their services, it is appropriate to establish a
framework to ensure that the market functions effectively.
National regulatory authorities should have the power to
secure, where commercial negotiation fails, adequate
interoperability of
access
services in the interest of end-users. This would be the
case for example if network operators were to unreas-

interconnection and

and

___________
(1) OJ L 281, 23.11.1995, p. 51.
(2) OJ L 196, 5.8.1993, p. 48.

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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 areas
where
remedies available
under competition law cannot achieve the same results
in the same time-scale.

ex-post application of

the

Unchanged

(5) National

legal or administrative measures that link the
terms and conditions for access or interconnection to
the activities of the party seeking interconnection, and
specifically to the degree of its investment in network
infrastructure, and not to the interconnection or access
services provided, may cause market distortion and may
therefore not be compatible with competition rules.
In
any case national regulatory authorities should take into
account the case-law of the Court of Justice and Court of
First Instance of the European Communities and may not
confirm pricing practices or prices contrary to Article
81(1) or Article 82 of the Treaty.

(6) Network operators who control access

to their own
customers do so on the basis of unique numbers or
addresses from a published numbering or addressing
range. Other network operators need to be able to
deliver 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 in
Directive 95/47/EC requiring all electronic communi-
cations networks used for
the distribution of digital
television services to be capable of distributing wide-
screen television services and programmes, so that users
are able to receive such programmes in the format in
which they were transmitted.

(7) Directive

95/47/EC provided

an
the nascent digital

regulatory
initial
framework for
television industry
which should be maintained, including in particular the
obligation to provide conditional access on fair, reasonable
and non-discriminatory terms. Technological and market
developments make it necessary to review these obli-
gations on a regular basis,
in particular to determine
whether there is justification for extending obligations to
new gateways,
such as electronic programme guides
(EPGs) and applications program interfaces (APIs) for the
benefit of European citizens.

reasonable and non-discriminatory terms,

(7) Competition rules alone may not be sufficient to ensure
cultural diversity and media pluralism in the area of
digital television. Directive 95/47/EC provided an initial
television
regulatory framework for the nascent digital
industry which should be maintained,
including in
particular the obligation to provide conditional access
on fair,
in
order to make sure that a wide variety of programming
and services is available. Technological and market devel-
opments make it necessary to review these obligations on
a regular basis, in particular to determine whether there is
justification for extending obligations to new gateways,
such as
and
applications program interfaces (APIs) for the benefit of
European citizens.

electronic programme

(EPGs)

guides

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INITIAL PROPOSAL

AMENDED PROPOSAL

as

for

access

and of

(8) In order to ensure continuity of existing agreements and
it is necessary to ensure that
to avoid a legal vacuum,
and interconnection imposed
obligations
under Articles 4, 6, 7, 8, 11, 12, and 14 of Directive
97/33/EC of
the
the European Parliament
Council 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 the
European Parliament and of the Council of 26 February
1998 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 of
5 June 1992 on the application of open network
provision to leased lines (4),
amended by
last
Commission Decision No 98/80/EC (5),
initially
are
carried over into the new regulatory framework, but are
to immediate review in the light of prevailing
subject
market conditions. Such a review should also extend to
those organisations
the
European Parliament
the Council of on
unbundled access to the local
loop. The review should
be carried out using an economic market analysis based
on competition law methodology. 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 possibility of new bottlenecks arising as a
result of technological development, which may require
ex-ante regulation, for example in the area of broadband
access networks. It may well be the case that competition
develops at different speeds in different market segments
and in different Member States, and national regulatory
authorities should be able to relax regulatory obligations
in those markets where competition is delivering the
desired results. In order to ensure that market players in
similar circumstances are treated in similar ways
in
different Member States, the Commission should be able
to ensure harmonised application of the provisions of this
Directive. The Community and its Member States have
taken commitments on interconnection of telecommuni-
cations networks in the context of
the World Trade
Organisation agreement on basic telecommunications
that need to be respected.

covered by Regulation of

and of

as

for

access

and of

(8) In order to ensure continuity of existing agreements and
it is necessary to ensure that
to avoid a legal vacuum,
and interconnection imposed
obligations
under Articles 4, 6, 7, 8, 11, 12, and 14 of Directive
97/33/EC of
the
the European Parliament
Council 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 the
European Parliament and of the Council of 26 February
1998 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 of
5 June 1992 on the application of open network
provision to leased lines (4),
amended by
last
Commission Decision No 98/80/EC (5),
initially
are
carried over into the new regulatory framework, but are
to immediate review in the light of prevailing
subject
market conditions. Such a review should also extend to
(EC)
those
covered
2887/2000 of
the
Council of 18 December 2000 on unbundled access to
the local loop (6). The review should be carried out using
an economic market analysis based on competition law
methodology. 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-
for example in the area of broadband access
lation,
networks.
It may well be the case that competition
develops at different speeds in different market segments
and in different Member States, and national regulatory
authorities should be able to relax regulatory obligations
in those markets where competition is delivering the
desired results. In order to ensure that market players in
in
similar circumstances are treated in similar ways
different Member States, the Commission should be able
to ensure harmonised application of the provisions of this
Directive. The Community and its Member States have
taken commitments on interconnection of telecommuni-
the World Trade
cations networks in the context of
Organisation agreement on basic telecommunications
that need to be respected.

by
the European Parliament and of

organisations

Regulation

___________
(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.

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INITIAL PROPOSAL

AMENDED PROPOSAL

Unchanged

transparency,

non-discrimination,

(9) Directive 97/33/EC laid down a range of obligations to be
imposed on undertakings with significant market power,
accounting
namely
separation, 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 set
of maximum obligations that can be applied to under-
takings, in order to avoid over-regulation. Exceptionally,
in order to comply with international commitments or
Community law it may be appropriate to impose obli-
gations
interconnection on all market
players, as is currently the case for conditional access
systems for digital television services. In all cases, ex-ante
regulation is only justified where the remedies available
under competition rules cannot achieve the desired results
as quickly.

for access or

prices,

including

(10) Transparency of terms and conditions for access and inter-
up
connection,
negotiation, avoid disputes, and give
to
market players that a service is not being provided on
discriminatory terms. Openness and transparency of
technical
in
ensuring interoperability.

interfaces can be particularly important

to
speed
confidence

serve

(11) The principle of non-discrimination ensures that under-
takings with market power do not distort competition, in
particular where they are vertically integrated under-
takings that supply services to competitors with whom
they compete on downstream markets.

(12) Accounting separation allows internal price transfers to be
rendered visible, and allows national regulatory authorities
to check compliance with obligations for non-discrimi-
nation where applicable. In this regard the Commission
published Recommendation 98/322/EC of 8 April 1998
on interconnection in a liberalised telecommunications
market
(Part 2 (cid:151) accounting separation and cost
accounting) (1).

(13) Mandating access

to network infrastructure

can be
justified as a means of
increasing competition, but
national regulatory authorities need to balance the rights
of an infrastructure owner to exploit its infrastructure for
its own benefit, and the rights of other service providers
to access facilities that are essential for the provision of
competing services. The imposition by national regulatory
authorities of mandated access that increases competition
for
in the short
in alternative facilities that will
competitors to invest
secure more
term. The
long
Commission has published a Notice on the application
of the competition rules to access agreements in the tele-
communications sector (2), which addresses these issues.

competition in the

term should not

reduce incentives

___________
(1) OJ L 141, 13.5.1998, p. 6.
(2) OJ C 265, 22.8.1998, p. 2.

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INITIAL PROPOSAL

AMENDED PROPOSAL

for

carrier

reveals

(14) Price control may be necessary when market analysis in a
particular market
inefficient competition. The
regulatory intervention may be relatively light, such as
an obligation that prices
selection are
reasonable as laid down in Directive 97/33/EC, or much
heavier such as an obligation that prices are cost oriented
those prices where
justification for
to provide full
to prevent
strong
sufficiently
competition is not
excessive pricing. In particular operators with significant
market power should avoid a price squeeze whereby the
difference between their retail prices and the intercon-
nection prices charged to competitors who provide
similar retail services is not adequate to ensure sustainable
competition.
In its Recommendation 98/195/EC of
8 January 1998 on interconnection in a liberalised tele-
communications market
(Part 1 (cid:151) interconnection
pricing) (1),
the Commission recommended the use of
long-run average incremental costs, as the basis for inter-
connection prices
to
promote efficiency and sustainable competition.

in the Community that

serves

(15) Publication of information by Member States will ensure
that market players
entrants
understand their rights and obligations, and know where
to find the relevant detailed information. Publication in
the National Gazette helps interested parties in other
Member States to find the relevant information.

and potential market

(16) In order

correct

to determine

application of
the
Community law, the Commission needs to know which
undertakings have been designated as having significant
market power and what obligations have been placed
upon market players by national regulatory authorities.
In addition to national publication of this information,
it is therefore necessary for Member States to send this
information to the Commission.

(17) Given the pace of technological and market developments,
the implementation of this Directive should be reviewed
within three years of its entry into force to determine if it
is meeting its objectives.

(18) Since the measures necessary for the implementation of
this Directive are measures of general scope within the
meaning of Article 2 of Council Decision 1999/468/EC of
28 June 1999 laying down the procedures for the exercise
of implementing powers conferred on the Commission (2),
they should be adopted by use of
regulatory
procedure provided for in Article 5 of that Decision,

the

___________
(1) OJ L 73, 12.3.1998, p. 42.
(2) OJ L 184, 17.7.1999, p. 23.

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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 networks
this Directive harmonises the way in which
and services],
Member 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 of
in sustainable
that will
networks
competition, interoperability of services and consumer benefits.

services

result

and

2.
The Directive establishes rights and obligations for under-
takings owning or operating public communications networks
and 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 national
regulatory authorities are reviewed and where appropriate
withdrawn once the desired objectives have been achieved.

Article 2

Definitions

The definitions
framework for
services] shall apply, where relevant.

in Directive
electronic

[on a

communications networks

common regulatory
and

The following definitions shall also apply:

(a) (cid:145)access(cid:146) means the making available of

for

inter alia: access

facilities and/or
services, to another undertaking, under defined conditions,
on either an exclusive or non-exclusive basis,
the
purpose of providing electronic communications services.
It covers
to network elements and
associated facilities and services, which may involve the
connection of equipment, by wire or wireless means;
access to physical infrastructure including buildings, ducts
and masts; access to software systems including operational
support systems; access to number translation or systems
offering equivalent functionality; access to mobile networks,
in particular for
roaming; access to conditional access
systems for digital television services. Interconnection is a

(a) (cid:145)access(cid:146) means the making available of

for

inter alia: access

facilities and/or
services, to another undertaking, under defined conditions,
on either an exclusive or non-exclusive basis,
the
purpose of providing electronic communications services.
It covers
to network elements and
associated facilities and services, which may involve the
connection of equipment, by fixed or non-fixed means,
loop and to
including in particular access to the local
facilities and services necessary to provide services over
the local
loop; access to physical infrastructure including
buildings, ducts and masts; access to software systems
including operational support systems; access to number
functionality;
translation or systems offering equivalent

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INITIAL PROPOSAL

AMENDED PROPOSAL

type of

specific
implemented between public
network operators. Access in this Directive does not refer
to access by end-users.

access

access to fixed and mobile networks,
in particular for
national and international roaming; access to conditional
access systems for digital television services and to elec-
tronic programme guides.
Interconnection is a specific
implemented between public network
type of access
operators. Access
to
access by end-users.

in this Directive does not

refer

(b) (cid:145)interconnection(cid:146) means the physical and logical linking of
public electronic communications networks used by the
same or a different undertaking in order to allow the
users of by one undertaking to communicate with users
of the same or another undertaking, or to access services
provided by another undertaking. Services may be provided
by the parties involved or other parties who have access to
the network.

(b) (cid:145)interconnection(cid:146) means the physical and logical linking of
public electronic communications networks used by the
same or a different undertaking in order to allow the
users of a network provided by one undertaking to
communicate with users of a network provided by the
to access
same or another undertaking, or
services
provided by
Services may be
another undertaking.
provided by the parties involved or other parties who
have access to the network.

(c) (cid:145)operator(cid:146) means an undertaking providing, operating or
controlling a publicly available electronic communications
network 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’s
choice of services.

Unchanged

(d) (cid:145)wide-screen digital television service(cid:146) means a television
service that consists wholly or partially of programmes
produced and edited to be displayed in a full height wide-
screen format using anamorphic expansion. The 16:9
format is the reference format for wide-screen television
services.

(e) (cid:145)end-user(cid:146) means a user not providing publicly available

electronic communications networks or services.

(f)

(cid:145)local loop(cid:146) means the circuit connecting the network termi-
the subscriber’s premises to the main
nation point at
distribution frame or equivalent facility in a fixed public
communications network.

CHAPTER II

Unchanged

GENERAL FRAMEWORK FOR REGULATING ACCESS
AND INTERCONNECTION

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 in

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INITIAL PROPOSAL

AMENDED PROPOSAL

and/or

different Member States from negotiating between themselves
agreements on technical and commercial arrangements for
with
access
Community law. The undertaking requesting access or inter-
connection does not need to be authorised to operate in the
Member State where access or interconnection is requested,
where it is not providing services in that Member State.

interconnection,

accordance

in

2. Without prejudice to Article 26 of Directive [on universal
service and users’ rights relating to electronic communications
networks and services], Member States shall not maintain legal
or other administrative measures obliging operators, when
granting network access or interconnection, to offer different
terms and conditions to different undertakings for the same
services, and/or imposing obligations that are not related to
the actual access and interconnection services provided.

Article 4

Rights and obligations for undertakings

to

All

operate

undertakings

authorised
for

electronic
1.
the provision of publicly
communications networks
available electronic communications
shall have a
right and, when requested by other undertakings so authorised,
an obligation to negotiate interconnection with each other for
the purpose of providing the services in question, in order to
ensure provision and interoperability of services throughout
the Community.

services

electronic

1.
All undertakings authorised by virtue of a general auth-
orisation pursuant to Directive EC . . ./. . . [on the authorisation
of electronic communications networks and services] and
the
communications
operating
provision of publicly available electronic communications
services shall have a right and, when requested by other under-
takings authorised in any Member State, an obligation to
negotiate interconnection with each other for the purpose of
providing the services in question, in order to ensure provision
and interoperability of services throughout the Community.

networks

for

Operators shall offer access and interconnection on terms
consistent with the relevant decisions of national regulatory
authorities pursuant to Article 5 to 8.

Unchanged

Electronic

communications networks used for

the
2.
distribution of digital television services shall be capable of
distributing wide-screen television services and programmes.
Network operators that receive and re-distribute wide-screen
television services or programmes shall maintain that wide
screen format.

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3. Without prejudice to Article 11 of Directive on [author-
isation of electronic communications networks and services],
national regulatory authorities shall ensure that undertakings
that acquire information from another undertaking during the
process of negotiating access or interconnection arrangements
use that information solely for the purpose for which it was
supplied and respect at all
the confidentiality of
information transmitted or stored. The information shall not
in particular other
be passed on to any other party,
departments,
for whom such
information could provide a competitive advantage.

subsidiaries or partners,

times

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

Unchanged

Powers and responsibilities of the national regulatory
authorities with regard to access and interconnection

1.
National regulatory authorities shall, acting in pursuit of
the objectives set out in Article 7 of Directive [on a common
regulatory framework for electronic communications networks
and services], encourage and secure adequate network access
and interconnection, and interoperability of services, exercising
their
efficiency,
sustainable competition, and gives the maximum benefit to
end-users.

responsibility in a way that promotes

1.
National regulatory authorities shall, acting in pursuit of
the objectives set out in Article 7 of Directive [on a common
regulatory framework for electronic communications networks
and services], take all reasonable measures to ensure where
appropriate the integrity of
the networks, encourage and
secure adequate network access and interconnection, interoper-
ability of services and end-to-end connectivity of services
designated as universal services, exercising their responsibility
in a way that promotes efficiency, sustainable competition, and
gives the maximum benefit to end-users.

2. Member States shall ensure that national regulatory auth-
orities are empowered to impose the obligations identified in
Article 6, to 13 of this Directive on operators that have been
designated as having significant market power in a relevant
market.
In the absence of agreement between undertakings
on access and interconnection arrangements, Member States
is
shall
empowered to intervene at
the
parties involved or at its own initiative, taking account of the
policy objectives and procedures included in Articles 6, 7, and
13 to 18 of Directive [on a common regulatory framework for
electronic communications networks and services].

authority
the request of either of

the national

regulatory

ensure

that

In a competitive market,

2. Member States shall ensure that national regulatory auth-
orities are empowered to impose the obligations identified in
Article 6, on operators of conditional access systems, and in
Articles 7 to 13 of this Directive on operators that have been
designated as having significant market power in a relevant
market.
interconnection of and
access to networks should in principle be agreed on the basis
of commercial negotiation between the companies concerned.
In the absence of agreement between undertakings on access
and interconnection arrangements, Member States shall ensure
regulatory authority is empowered to
that
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, and 13 to 18 of
Directive [on a common regulatory framework for electronic
communications networks and services].

the national

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AMENDED PROPOSAL

2a. Member States shall ensure that, where an analysis
carried out in accordance with Article 14 of Directive [on a
common regulatory framework for electronic communications
networks and services] establishes
there is effective
competition in a specific market, national regulatory authorities
withdraw any ex ante obligations imposed upon operators in
respect of that market pursuant to Articles 7 to 13.

that

CHAPTER III

Unchanged

OBLIGATIONS ON OPERATORS AND MARKET REVIEW
PROCEDURES

Conditional access systems and other associated facilities

Article 6

1. Member States shall ensure that, in relation to conditional
access to digital television services broadcast to viewers in the
Community,
the
conditions laid down in Part I of the Annex apply.

irrespective of

the means of

transmission,

1. Member States shall ensure that, in relation to conditional
access to digital television services broadcast to viewers in the
Community,
the
conditions laid down in Part I of the Annex I apply.

irrespective of

the means of

transmission,

Conditions relating to access to other associated facilities
the Annex may be adopted in

2.
referred to in Part
accordance with the procedure referred to in Article 14(2).

II of

2. Where required by market and technological devel-
opments, action will be taken by the Commission to extend
the contents of part I of Annex I,
in consultation with the
Communications Committee, acting in accordance with the
procedure referred to in Article 14(2),
in particular to take
account of other associated facilities such as those listed in
part II of Annex I and new and emerging associated facilities.

In the light of market and technological developments,
3.
the Annex may be amended in accordance with the procedure
referred to in Article 14(2).

In the light of market and technological developments,
3.
Annex I may be amended in accordance with the procedure
referred to in Article 14(2).

Article 7

Unchanged

Review of former obligations for access and
interconnection

1. Member States shall maintain all obligations on under-
takings providing publicly available electronic communications
networks 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 Directive
97/33/EC, Article 16 of Directive 98/10/EC, Articles 7 and 8
of Directive 92/44/EC and Article 3 of Regulation referring to
unbundled access to the local
loop until such time as these
obligations have been reviewed and a determination made in
accordance with paragraph 3.

1. Member States shall maintain all obligations on under-
takings providing publicly available electronic communications
networks 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 Directive
97/33/EC, Article 16 of Directive 98/10/EC, Articles 7 and 8
of Directive 92/44/EC and deriving from Article 3 of Regu-
lation (EC) 2887/2000 referring to unbundled access to local
loops made of twisted metallic pairs, until such time as these
obligations have been reviewed and a determination made in
accordance with paragraph 3.

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2.
The relevant markets for the obligations referred to in
paragraph 1 will be included in the initial Decision on
Relevant Product and Service Markets to be published by the
Commission in accordance with the procedure laid down in
Article 14 of Directive [on a common regulatory framework
for electronic communications networks and services].

Unchanged

3. Member States shall ensure that, immediately following
the entry into force of
this Directive, and periodically
thereafter, national regulatory authorities undertake a market
analysis, in accordance with the procedure laid down in Article
14 of Directive [on a common regulatory framework for elec-
tronic communications networks and services] to determine
whether to maintain, amend or withdraw these obligations.
An appropriate period of notice shall be given to parties
affected 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 analysis
carried out in accordance with Article 14 of Directive [on a
common regulatory framework for electronic communications
networks and services], national regulatory authorities shall
impose one or more of the obligations set out in Articles 9
to 13 of
in order to avoid
distortions of competition. The specific obligation(s) imposed
shall be based on the nature of problem identified.

this Directive as appropriate,

National regulatory authorities may, without prejudice to
2.
the provisions of Article 6,
including
operators other than those with significant market power, the
obligations set out in Article 9 to 13 in relation to intercon-
nection, in order to comply with international commitments.

impose on operators,

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 of
this Directive, provided that all such obligations are justified in
the light of
this
Directive and in Article 7 of Directive [on a common regu-
latory framework for electronic communications networks and
services], and are proportionate to the aim pursued.

the objectives laid down in Article 1 of

this Article where they are satisfied that

National regulatory authorities shall not
impose obligations
there is
under
effective competition. To this end, market analysis should be
carried out regularly. Without prejudice to the provisions of
paragraph 2, the obligations set out in Articles 9 to 13 of this
Directive shall only be imposed on undertakings designated as
having significant market power in a relevant market.

Unchanged

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2a.
Obligations imposed in accordance with this article shall
be based on the nature of the problem identified, and shall be
proportionate and justified in the light of the objectives laid
down in article 7 of Directive [on a common regulatory
framework for
and
services]. Such obligations shall only be imposed following
consultation in accordance with Article 6 of that Directive.

communications networks

electronic

National regulatory authorities shall consider the decision’s
impact on all the undertakings present on the market,
inter
alia on the basis of quantitative market data analysis, with a
view to ensuring that
investment and
destabilise new operators and market entry, which would
make
competitive
environment.

it will not deter

to preserve

it difficult

sustainable

a

3.
In relation to the first subparagraph of paragraph 2,
national regulatory authorities shall notify draft decisions to
impose, modify or withdraw obligations on market players to
the Commission, in accordance with the procedures in Article
(3) and (4) of Directive on [a common regulatory
6(2),
framework for
and
services].

communications networks

electronic

regulatory

authorities

In relation to the first subparagraph of paragraph 2,
3.
national
to
impose, modify or withdraw obligations on market players to
the Commission, in accordance with the procedures in Article
(3) and (4) of Directive on [a common regulatory
6(2),
framework for
and
services].

communications networks

shall notify decisions

electronic

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 service
providers or to re-negotiate a commercial agreement under
the new basis.

Article 9

Unchanged

Obligation of transparency

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, requiring
operators to make publicly available specified information, such
as technical specifications, network characteristics, terms and
conditions 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, requiring
operators to make publicly available specified information, such
as technical specifications, network characteristics (including
specific information on possible changes that might be made
to the networks), terms and conditions for supply and use, and
prices, provided that the information is not confidential.

national

In particular where an operator has obligations of
2.
authorities may
non-discrimination,
require that operator to publish a reference offer, sufficiently
unbundled, giving a description of
the relevant offerings
broken down into components according to market needs,
and the associated terms and conditions including prices.

regulatory

Unchanged

3.
National regulatory authorities may specify the precise
information to be made available, the level of detail required
and the manner of publication.

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3a.
Notwithstanding paragraph 3, where an operator has
obligations under Article 12 concerning unbundled access to
local loops made of twisted metallic pairs, national regulatory
authorities shall ensure the publication of a reference offer
containing at least the elements set out in Annex II. In the
light of market and technological developments, Annex II
may be amended in accordance with the procedures referred
to in Article 14(2).

Article 10

Unchanged

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.

that

Obligations of non-discrimination shall
the operator applies

in
2.
particular,
in
similar circumstances to other undertakings providing similar
services, and provides services and information to others under
the same conditions and of the same quality as they provide for
their own services, or those of their subsidiaries or partners.

ensure,
similar conditions

Article 11

Obligation of accounting separation

1.
A national regulatory authority may, in accordance with
the provisions of Article 8, impose obligations for accounting
separation in relation to specified activities related to intercon-
nection and/or network access.

company

integrated

In particular, a national regulatory authority may require a
its
vertically
wholesale prices and its internal transfer prices, in situations
where a market analysis indicates that the operator concerned
provides input
to other service
facilities that are essential
providers, while competing itself on the same downstream
market.

transparent

to make

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 on
request.

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 on
request. National regulatory authorities shall have the power to
determine the accounting format in which this data are to be
kept and to require auditing of these data in accordance with
the standard laid down by the national regulatory authority
itself.

National regulatory authorities may publish such information
as would contribute to an open and competitive market, while
respecting national and Community rules on commercial confi-
dentiality.

Unchanged

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Article 12

Obligations of access to, and use of, specific network
facilities

AMENDED PROPOSAL

1.
A national regulatory authority may, in accordance with
the provisions of Article 8, impose obligations on operators to
grant access to, and use of, specific facilities and/or associated
services, inter alia in situations where the national regulatory
authority considers that denial of access would hinder the
emergence of a sustainable competitive market at the retail
level, 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 to
grant access to, and use of, specific facilities and/or associated
services, 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:

Unchanged

(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-
including facilities
ability of end-to-end services to users,
for intelligent network services or roaming on mobile
networks;

(g) to provide access to operational support systems or similar
software systems necessary to ensure fair competition in
the provision of services;

(h) to interconnect networks or network facilities.

National regulatory authorities may attach to those obligations
conditions covering fairness, reasonableness, timeliness, trans-
parency and/or non-discrimination.

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2. When imposing the obligations referred in paragraph 1,
national regulatory authorities shall take account in particular
of:

2. When national
regulatory authorities are considering
whether to impose the obligations referred in paragraph 1,
and in particular when assessing whether such obligations
would be proportionate to the objectives set out in Article 7
of the Directive [on a common regulatory framework for elec-
tronic communications networks and services], 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 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

Unchanged

to the capacity available;

(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 give
interested parties an opportunity to state their views on the
factors listed before. When publishing a decision national regu-
latory authorities must state how the views of interested parties
have been heard and taken into account.

Article 13

Unchanged

Price control and cost accounting obligations

A national regulatory authority may, in accordance with
1.
including
the provisions of Article 8, impose price controls,
for cost orientation of prices and obligations
obligations
the provision of
concerning cost accounting systems,
in
specific types of
situations where a market analysis indicates that a potential
lack of
the operator
competition means
sustaining prices at an
concerned might be capable of
excessively high level, or applying a price squeeze,
to the
detriment of end users.

interconnection and/or network access,

effective

that

for

1.
A national regulatory authority may, in accordance with
the provisions of Article 8, impose price controls, including
for cost orientation of prices and obligations
obligations
the provision of
concerning cost accounting systems,
in
specific types of
situations where a market analysis indicates an existing and
durable market
the operator
concerned is capable of sustaining prices at an excessively
high level for a non-transient period, or applying a lasting
to the
squeeze,
price
detriment of end users.

interconnection and/or network access,

failure which means

thereby preventing

competition,

that

for

National regulatory authorities shall
take into account
investment made by the operator and the risks involved.

the

National

regulatory authorities

2.
shall ensure that any
pricing methodology that is mandated serves to promote effi-
ciency and sustainable competition and maximise consumer
benefits.

The imposition of price controls by the national regulatory
authority shall not negatively affect competition in the long
term nor discourage investments in alternative infrastructures.
National regulatory authorities shall
the
take into account
investment made by the operator and the risks involved.

Unchanged

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3. Where an operator has an obligation regarding the cost
orientation of its prices, the burden of proof that charges are
derived from costs including a reasonable rate of return on
investment shall
lie with the operator concerned. National
regulatory authorities may require an operator to provide full
justification for its prices, and may, where appropriate, require
prices to be adjusted.

3. Where an operator has an obligation regarding the cost
orientation of its prices, the burden of proof that charges are
derived from costs including a reasonable rate of return on
lie with the operator concerned. For the
investment shall
efficient provision of
purpose of determining the
services, national
the
implementation of cost accounting methods independent of
those used by the undertaking. National regulatory authorities
justification for its
may require an operator to provide full
prices, and may, where appropriate,
require prices to be
adjusted.

regulatory authorities may require

cost

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 cost
accounting system is made publicly available, showing at
least the main categories under which costs are grouped and
the rules used for the allocation of costs. Compliance with the
cost accounting system shall be verified by a qualified inde-
pendent body. A statement concerning compliance shall be
published 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 common
regulatory framework for electronic communications networks
and services].

2. Where reference is made to this paragraph, the regulatory
procedure laid down in Article 5 of Decision 1999/468/EC
shall apply, in compliance with Article 7 and 8 thereof.

The period provided for in Article 5(6) of Decision

3.
1999/468/EC shall be three months.

Article 15

Publication of, and access to, information

the

1. Member States shall ensure that the specific obligations
imposed on undertakings under this Directive are published
and geographical
and that
markets are identified. They shall ensure that up-to-date
information, and particularly does not comprise business
secrets, is made publicly available in a manner that guarantees
all interested parties easy access to that information.

specific product/service

the

specific product/service

1. Member States shall ensure that the specific obligations
imposed on undertakings under this Directive are published
and geographical
and that
markets are identified. They shall ensure that up-to-date
information, provided that the information is not confidential,
and particularly does not comprise business secrets, is made
publicly available in a manner that guarantees all
interested
parties easy access to that information.

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2. Member States shall send to the Commission a copy of all
such information published. The Commission shall make this
information available in a readily accessible form, and shall
distribute the information to the Communications Committee
and 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.

National

regulatory authorities

2.
shall notify to the
Commission the names of operators deemed to have significant
market power for the purposes of this Directive, and the obli-
gations imposed upon them under this Directive. Any changes
affecting 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 the
Council, on the first occasion not later than three years after
the 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 this
the latest. They shall
Directive by 31 December 2001 at
forthwith inform the Commission thereof.

When Member States adopt those provisions, they shall contain
a reference to this Directive or be accompanied by such a
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.

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INITIAL 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

Unchanged

CONDITIONS FOR ACCESS TO DIGITAL TELEVISION
SERVICES BROADCAST TO VIEWERS IN THE COMMUNITY

Part I (cid:151) 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,
trans-
mission, Member States must ensure in accordance with Article 6
that the following conditions apply:

irrespective of

the means of

(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 using
such conditional access systems;

(b) all operators of conditional access services,

the
means of transmission, who produce and market access services
to digital television services shall:

irrespective of

(cid:151) offer to all broadcasters, on a fair, reasonable and non-discrimi-
natory basis compatible with Community competition law,
technical services enabling the broadcasters’ digitally-transmitted
services to be received by viewers authorised by means of
decoders administered by the service operators, and comply
with Community competition law,

(cid:151) 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 products
and systems shall ensure that this is done on fair, reasonable and
technical and
non-discriminatory terms. Taking into account
the
commercial
granting of
to conditions prohibiting, deterring or
discouraging the inclusion in the same product of:

factors, holders of
licences

shall not

subject

rights

(cid:151) a common interface allowing connection with several other

access systems, or

(cid:151) means specific to another access system, provided that

the
licensee complies with the relevant and reasonable conditions
ensuring, as far as he is concerned, the security of transactions
of conditional access system operators.

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Part II (cid:151) Other associated facilities to be considered under the
review procedure in Article 6(2)

(cid:151) Access to application program interfaces (APIs);

(cid:151) Access to electronic programme guides (EPGs);

(cid:151) Access to navigation systems, eg, electronic programme guides

(EPGs);

(cid:151) 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 metallic
pair;

4. Ordering and provisioning procedures, usage restrictions.

B. Collocation services

1. Information on the operator’s relevant sites (1)

2. Collocation options at

indicated under point 1
(including physical collocation and, as appropriate, distant collo-
cation and virtual collocation);

the sites

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.

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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 to
return to a normal level of service and quality of service parameters;

2. Standard contract

terms,
sation provided for failure to meet lead times;

including, where appropriate, compen-

3. Prices or pricing formulae for each feature, function and facility

listed above.