Common Position (EC) No 37/2001 of 17 September 2001 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a European Parliament and Council Directive on the authorisation of electronic communications networks and services (Authorisation Directive)
Date: 2001-09-17
Institutions: Council of the European Union
Subjects: computer network, information network, market approval, provision of services, transmission network

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COMMON POSITION (EC) No 27/2001

adopted by the Council on 17 September 2001

with a view to adopting Directive 2001/.../EC of the European Parliament and of the Council of ...
on the authorisation of electronic communications networks and services (Authorisation
Directive)

(2001/C 337/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

(4)

Having regard to the Treaty establishing the European Com-
munity, and in particular Article 95 thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the Economic and Social
Committee (2),

(5)

Acting in accordance with the procedure laid down in
Article 251 of the Treaty (3),

Whereas:

(1)

(2)

(3)

The outcome of the public consultation on the 1999
review of the regulatory framework for electronic com-
munications, as reflected in the Commission communi-
cation of 26 April 2000, and the findings reported by
the Commission in its communications on the fifth and
sixth reports on the implementation of the telecom-
munications regulatory package, has confirmed the need
for a more harmonised and less onerous market access
regulation for electronic communications networks and
services throughout the Community.

Convergence between different electronic communi-
cations networks and services and their technologies
requires the establishment of an authorisation system
covering all comparable services in a similar way
regardless of the technologies used.

The objective of
this Directive is to create a legal
framework to ensure the freedom to provide electronic
communications networks and services, subject only to
the conditions laid down in this Directive and to any
restrictions in conformity with Article 46(1) of the
Treaty, in particular measures regarding public policy,
public security and public health.

(1) OJ C 365 E, 19.12.2000, p. 230.
(2) OJ C 123, 25.4.2001, p. 55.
(3) Opinion of the European Parliament of 1 March 2001 (not yet
published in the Official Journal), Council Common Position of
17 september 2001 and Decision of the European Parliament of
... (not yet published in the Official Journal).

This Directive covers authorisation of all electronic
communications networks and services whether they
are provided to the public or not. This is important to
ensure that both categories of providers may benefit
from objective,
transparent, non-discriminatory and
proportionate rights, conditions and procedures.

This Directive only applies to the granting of rights to
use radio frequencies where such use involves the
provision of an electronic communications network or
service, normally for remuneration. The self-use of radio
terminal equipment, based on the non-exclusive use of
specific radio frequencies by a user and not related to an
economic activity, such as use of a citizen’s band by
radio amateurs, does not consist of the provision of an
electronic communications network or service and is
therefore not covered by this Directive. Such use is
covered by the Directive 1999/5/EC of the European
Parliament and of the Council of 9 March 1999 on radio
equipment and telecommunications terminal equipment
and the mutual recognition of their conformity (4).

Provisions regarding the free movement of conditional
access systems and the free provision of protected
services based on such systems are laid down in Directive
98/84/EC of the European Parliament and of the Council
of 20 November 1998 on the legal protection of services
based on or consisting of conditional access (5). The
authorisation of such systems and services therefore
does not need to be covered by this Directive.

The least onerous authorisation system possible should
be used to allow the provision of electronic communi-
cations networks and services in order to stimulate the
development of new electronic communications services
and pan-European communications networks and ser-
vices and to allow service providers and consumers to
benefit from the economies of scale of the single market.

(6)

(7)

(4) OJ L 91, 7.4.1999, p. 10.
(5) OJ L 320, 28.11.1998, p. 54.

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(8)

Those aims can be best achieved by general authorisation
of all electronic communications networks and services
without requiring any explicit decision or administrative
act by the national regulatory authority and by limiting
any procedural requirements to notification only. Where
Member States require notification by providers of
electronic communication networks or services when
they start their activities, they may also require proof of
such notification having been made by means of any
legally recognised postal or electronic acknowledgement
of receipt of the notification. Such acknowledgement
should in any case not consist of or require an adminis-
trative act by the national regulatory authority to which
the notification must be made.

(9)

It is necessary to include the rights and obligations of
undertakings under general authorisations explicitly in
such authorisations in order to ensure a level playing
field throughout the Community and to facilitate cross
border negotiation of interconnection between public
communications networks.

(10) The general authorisation entitles undertakings provid-
ing electronic communications networks and services
to the public to negotiate interconnection under the
conditions of Directive 2001/.../EC of the European
Parliament and of the Council of ... on access to, and
interconnection of, electronic communication networks
and associated facilities (Access Directive) (1). Undertak-
ings providing electronic communications networks
and services other than to the public can negotiate
interconnection on commercial terms.

(11) 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, including for example 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.

(12) This Directive does not prejudice whether radio fre-
quencies are assigned directly to providers of electronic
communication networks or services or to entities that
use these networks or services. Such entities may be
radio or television broadcast content providers. Without

prejudice to specific criteria and procedures adopted by
Member States to grant rights of use for radio frequencies
to providers of radio or television broadcast content
services, to pursue general interest objectives in con-
formity with Community law, the procedure for assign-
ment of radio frequencies should in any event be
transparent, non-discriminatory and pro-
objective,
In accordance with the case-law of the
portionate.
Court of Justice, any national restrictions on the rights
guaranteed by Article 49 of
the Treaty should be
objectively justified, proportionate and not exceed what
is necessary to achieve general
interest objectives as
defined by Member States in conformity with Com-
munity law. The responsibility for compliance with the
conditions attached to the right to use a radio frequency
and the relevant conditions attached to the general
authorisation should in any case lie with the undertaking
to whom the right of use for the radio frequency has
been granted.

(13) As part of the application procedure for granting rights
to use a radio frequency, Member States may verify
whether the applicant will be able to comply with the
conditions attached to such rights. For this purpose the
applicant may be requested to submit the necessary
information to prove his ability to comply with these
conditions. Where such information is not provided, the
application for the right to use a radio frequency may be
rejected.

(14) Member States are neither obliged to grant nor prevented
from granting rights to use numbers from the national
numbering plan or rights to install facilities to undertak-
ings other than providers of electronic communications
networks or services.

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

(1) See page 1 of this Official Journal.

(16)

In the case of electronic communications networks and
services not provided to the public it is appropriate to
impose fewer and lighter conditions than are justified
for electronic communications networks and services
provided to the public.

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(17)

Specific obligations which may be imposed on providers
of electronic communications networks and services in
accordance with Community law by virtue of their
significant market power as defined in Directive
2001/.../EC of the European Parliament and of the
Council of
... on a common regulatory framework
for electronic communications networks and services
(Framework Directive) (1) should be imposed separately
from the general rights and obligations under the general
authorisation.

(18) The general authorisation should only contain con-
ditions which are specific to the electronic communi-
cations sector. It should not be made subject to con-
ditions which are already applicable by virtue of other
law which is not specific to the
existing national
electronic communications sector. Nevertheless,
the
national regulatory authorities may inform network
operators and service providers about other legislation
concerning their business, for instance through refer-
ences on their websites.

(19) The requirement to publish decisions on the granting of
rights to use frequencies or numbers may be fulfilled by
making these decisions publicly accessible via a website.

(20) The same undertaking, for example a cable operator,
can offer both an electronic communications service,
such as the conveyance of television signals, and services
not covered under this Directive, such as the commer-
cialisation of an offer of sound or television broadcasting
content services, and therefore additional obligations
can be imposed on this undertaking in relation to its
activity as a content provider or distributor, according
to provisions other than those of this Directive, without
prejudice to the list of conditions laid down in the
Annex to this Directive.

(21) When granting rights of use for radio frequencies,
the relevant
numbers or rights to install
authorities may inform the undertakings to whom they
grant such rights of the relevant conditions in the general
authorisation.

facilities,

(22) 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.

(23) National regulatory authorities should ensure, in estab-
lishing criteria for competitive or comparative selection
procedures, that the objectives in Article 7 of Directive
2001/.../EC (Framework Directive) are met. It would
therefore not be contrary to this Directive if the appli-

(1) See page 34 of this Official Journal.

cation of objective, non-discriminatory and proportion-
ate selection criteria to promote the development of
competition, would have the effect of excluding certain
undertakings from a competitive or comparative selec-
tion procedure for a particular radio frequency.

(24) 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.

(25)

Providers of electronic communications networks and
services 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 service providers in other Member States. For
this purpose the national regulatory authorities should
provide declarations to undertakings either on request
or alternatively as an automatic response to a notifi-
cation under the general authorisation. Such declarations
should not by themselves constitute entitlements to
rights nor should any rights under the general authoris-
ation or rights of use or the exercise of such rights
depend on a declaration.

(26) Where undertakings find that their applications for
rights to install facilities have not been dealt with in
accordance with the principles set out
in Directive
2001/.../EC (Framework Directive) or where such
decisions are unduly delayed, they should have the right
to appeal against decisions or delays in such decisions in
accordance with that Directive.

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

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(28)

Subjecting service providers to reporting and infor-
mation obligations can be cumbersome, both for the
undertaking and for the national regulatory authority
concerned. Such obligations should therefore be pro-
portionate, 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 authorisation 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. For statistical purposes a notification
may be required from providers of electronic communi-
cation networks or services when they cease activities.

(29) 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. This Directive
should also be without prejudice to any reporting
obligations under legislation which is not specific to the
electronic communications sector such as competition
law.

(30) Administrative charges may be imposed on providers of
electronic communications services in order to finance
the activities of the national 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 auth-
orities by means of annual reporting about the total
sum of charges collected and the administrative costs
incurred. This will allow undertakings to verify that
administrative costs and charges are in balance.

(31)

Systems for administrative charges should not distort
competition or create barriers for entry into the market.
With a general authorisation system it will no longer be
possible to attribute administrative costs and hence
charges to individual undertakings except for the grant-
ing of rights to use numbers, radio frequencies and for
rights to install facilities. Any applicable administrative
charges should be in line with the principles of a general
authorisation system. An example of a fair, simple
and transparent alternative for these charge attribution
criteria could be a turnover-related distribution key.
Where administrative charges are very low, flat-rate
charges, or charges combining a flat-rate basis with a
turnover related element could also be appropriate.

(32)

In addition to administrative charges, usage fees may be
levied for the use of radio frequencies and numbers as
to ensure the optimal use of such
an instrument
resources. Such fees should not hinder the development
of innovative services and competition in the market.
This Directive is without prejudice to the purpose for
which fees for rights of use are employed. Such fees may
for instance be used to finance activities of national
regulatory authorities that cannot be covered by admin-
istrative charges.

(33) 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.

(34) The objective of

facilities, national

transparency requires that service
providers, consumers and other interested parties have
easy access to any information regarding rights, con-
ditions, procedures, charges, fees and decisions concern-
ing the provision of electronic communications services,
rights of use of radio frequencies and numbers, rights to
install
frequency usage plans and
national numbering plans. The national regulatory auth-
orities have an important task in providing such infor-
mation and keeping it up to date. Where such rights are
administered by other levels of government, the national
regulatory authorities should endeavour to create a user
friendly instrument for access to information regarding
such rights.

(35) The proper functioning of the single market on the basis
of the national authorisation regimes under this Directive
should be monitored by the Commission.

(36)

In order to arrive at a single date of application of all
elements of
the new regulatory framework for the
electronic communications sector, it is important that
the process of national transposition of this Directive
and of alignment of the existing licences with the new
rules take place in parallel. However, in specific cases
where the replacement of authorisations existing on the
date of entry into force of this Directive by the general
authorisation and the individual rights of use in accord-
ance with this Directive would lead to an increase in the
obligations for service providers operating under an
existing authorisation or to a reduction of their rights,
Member States may avail themselves of an additional
12 months after the date of application of this Directive
for alignment of such licences, unless this would have a
negative effect on the rights and obligations of other
undertakings.

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(37) There may be circumstances under which the abolition
of an authorisation condition regarding access to elec-
tronic communications networks would create serious
hardship for one or more undertakings that have
benefited from the condition.
In such cases further
transitional arrangements may be granted by the Com-
mission, on request by a Member State,

(38)

Since the objectives of the proposed action, namely the
harmonisation and simplification of electronic com-
munications rules and conditions for the authorisation
of networks and services cannot be sufficiently achieved
by the Member States and can therefore, by reason of
the scale and effects of the action, be better achieved at
Community level, the Community may adopt measures
in accordance with the principle of subsidiarity as set
out in Article 5 of the Treaty. In accordance with the
principle of proportionality, as set out in that Article,
this Directive does not go beyond what is necessary for
those objectives,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Objective and scope

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

2.
This Directive shall apply to authorisations for the
provision of electronic communications networks and services.

Article 2

Definitions

1.
For the purposes of this Directive, the definitions set out
in Article 2 of Directive 2001/.../EC (Framework Directive)
shall apply.

2.

(a)

The following definitions shall also apply:

‘general authorisation’ means a legal framework estab-
lished by the Member State ensuring rights for the
provision of electronic communications networks or
services and laying down sector specific obligations that
may apply to all or to specific types of electronic
communications networks and services, in accordance
with this Directive;

(b)

interference’ means

interference which
‘harmful
endangers the functioning of a radionavigation service or
of other safety services or which otherwise seriously

degrades, obstructs or repeatedly interrupts a radiocom-
munications service operating in accordance with the
applicable Community or national regulations.

Article 3

General authorisation of electronic communications net-
works and services

1. Member States shall ensure the freedom to provide
electronic communications networks and services, subject to
the conditions set out in this Directive. To this end, Member
States shall not prevent an undertaking from providing
electronic communications networks or services, except where
this is necessary for the reasons set out in Article 46(1) of the
Treaty.

2.
The provision of electronic communications networks
or the provision of electronic communications services may,
without prejudice to the specific obligations referred to in
Article 6(2) or rights of use referred to in Article 5, only be
subject to a general authorisation. The undertaking concerned
may be required to submit a notification but may not
be required to obtain an explicit decision or any other
administrative act by the national regulatory authority before
exercising the rights stemming from the authorisation. On
notification, when required, an undertaking may begin 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 to
the national regulatory authority of the intention to commence
the provision of electronic communication networks or ser-
vices and the submission of the minimal information which is
required to allow the national regulatory authority to keep a
register or list of providers of electronic communications
networks and services. This information must be limited to
what is necessary for the identification of the provider, such as
company registration numbers, and the provider’s contact
persons, the provider’s address, a short description of the
network or service, and an estimated date for starting the
activity.

Article 4

Minimum list of rights derived from the general authoris-
ation

Undertakings authorised pursuant to Article 3, shall have

1.
the right:

(a)

(b)

to provide electronic communications networks and
services;

to have their application for the necessary rights to install
facilities considered in accordance with Article 10 of
Directive 2001/.../EC (Framework Directive).

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2. When such undertakings provide electronic communi-
cations networks or services to the public the general authoris-
ation shall also give them the right:

(a)

(b)

to negotiate interconnection with and where applicable
obtain access to or interconnection from other providers
of publicly available communications networks and ser-
vices covered by a general authorisation anywhere in the
Community under the conditions of and in accordance
with Directive 2001/.../EC (Access Directive);

to be given an opportunity to be designated to provide
different elements of a universal service and/or to cover
different parts of the national territory in accordance with
Directive 2001/.../EC of the European Parliament and of
the Council of ... on universal service and users’ rights
relating to electronic communications networks and
services (Universal Service Directive) (1).

Article 5

Rights of use for 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 of use for
radio frequencies and numbers, Member States shall grant such
rights, on request, to any undertaking providing or using
networks or services under the general authorisation, subject
to the provisions of Articles 6, 7 and 11(1)(c), and any other
rules ensuring the efficient use of those resources in accordance
with Directive 2001/.../EC (Framework Directive).

Without prejudice to specific criteria and procedures adopted
by Member States to grant rights of use of radio frequencies to
providers of radio or television-broadcast content services with
a view to pursuing general interest objectives in conformity
with Community law, such rights of use shall be granted
through open, transparent and non-discriminatory procedures.
When granting rights of use, Member States shall specify
whether those rights can be transferred at the initiative of the
right holder, and under which conditions,
in the case of
radio frequencies, in accordance with Article 8 of Directive
2001/.../EC (Framework Directive). Where Member States
grant rights of use for a limited period of time, the duration
shall be appropriate for the service concerned.

Decisions on rights of use shall be taken, communicated
3.
and made public as soon as possible after receipt of the
complete application by the national regulatory authority,
within three weeks in the case of numbers that have been

(1) See page 55 of this Official Journal.

allocated for specific purposes within the national numbering
plan and within six weeks in the case of radio frequencies that
have been allocated for specific purposes within the national
frequency plan. The latter time limit shall be without prejudice
to any applicable international agreements relating to the use
of radio frequencies or of orbital positions.

4. Where it has been decided, after consultation with
interested parties in accordance with Article 6(1) of Directive
2001/.../EC (Framework Directive),
that rights for use of
numbers of exceptional economic value are to be granted
through competitive or comparative selection procedures,
Member States may extend the maximum period of three
weeks by up to three weeks.

With regard to competitive or comparative selection pro-
cedures for radio frequencies Article 7 shall apply.

5. Member States shall not limit the number of rights of
use to be granted except where this is necessary to ensure the
efficient use of radio frequencies in accordance with Article 7.

Article 6

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

1.
The general authorisation for the provision of electronic
communications networks or services and the rights of use for
radio frequencies and rights of use for numbers may 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 to the network or service concerned, non-discriminat-
ory, proportionate and transparent.

2.
Specific obligations which may be imposed on providers
of electronic communications networks and services under
Articles 5(1) and (2), 6 and 8 of Directive 2001/.../EC
(Access Directive) and Articles 16, 17, 18 and 19 of Directive
2001/.../EC (Universal Service Directive) or on those designated
to provide universal service under the said Directive shall be
legally separate from the rights and obligations under the
general authorisation. In order to achieve transparency for
undertakings, the criteria and procedures for imposing such
specific obligations on individual undertakings, shall be
referred to in the general authorisation.

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

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

Article 8

Harmonised assignment of radio frequencies

Article 7

Procedure for limiting the number of rights of use to be
granted for radio frequencies

1. Where a Member State is considering whether to limit
the number of rights of use to be granted for radio frequencies,
it shall, inter alia:

(a)

(b)

(c)

(d)

(e)

give due weight to the need to maximise benefits for
users and to facilitate the development of competition;

give all interested parties, including users and consumers,
the opportunity to express their views on any limitation
in accordance with Article 6(1) of Directive 2001/.../EC
(Framework Directive);

publish any decision to limit the granting of rights of use,
stating the reasons therefor;

after having determined the procedure invite applications
for rights of use;

review the limitation at reasonable intervals or at the
reasonable request of affected undertakings.

2. Where a Member State concludes that further rights of
use for radio frequencies can be granted, it shall publish that
conclusion 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 the basis of selection criteria which must be objective,
transparent, non-discriminatory and proportionate. Any such
selection criteria must give due weight to the achievement of
the objectives of Article 7 of Directive 2001/.../EC (Framework
Directive).

4. Where competitive or comparative selection 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 eight months.

These time limits shall be without prejudice to any applicable
international agreements relating to the use of radio fre-
quencies and satellite coordination.

This Article is without prejudice to the transfer of rights
5.
of use for radio frequencies in accordance with Article 8 of
Directive 2001/.../EC (Framework Directive).

Where the usage of radio frequencies has been harmonised,
access conditions and procedures have been agreed, and
undertakings to which the radio frequencies shall be assigned
have been selected in accordance with international agreements
and Community rules, Member States shall grant the right of
use for such radio frequencies in accordance therewith.
Provided that all national conditions attached to the right to
use the radio frequencies concerned have been satisfied in the
case of a common selection procedure, Member States shall
not
impose any further conditions, additional criteria or
procedures which would restrict, alter or delay the correct
implementation of the common assignment of such radio
frequencies.

Article 9

Declarations to facilitate the exercise of rights to install
facilities and rights of interconnection

At the request of an undertaking, national regulatory auth-
orities shall, within one week, issue standardised declarations,
confirming, where applicable, that the undertaking has submit-
ted a notification under Article 3(2) and detailing under
what circumstances any undertaking providing electronic
communications networks or services under the general
authorisation has the right to apply for rights to install
facilities, negotiate interconnection, and/or obtain access or
interconnection in order to facilitate the exercise of those
rights for instance at other levels of government or in relation
to other undertakings. Where appropriate such declarations
may also be issued as an automatic reply following the
notification referred to in Article 3(2).

Article 10

Compliance with the conditions of the general authoris-
ation or of rights of use and with specific obligations

National regulatory authorities may require undertakings
1.
providing electronic communications networks or services
covered by the general authorisation or enjoying rights of use
for radio frequencies or numbers to provide information
necessary to verify compliance with the conditions of the
general authorisation or of rights of use or with the specific
obligations referred to in Article 6(2),
in accordance with
Article 11.

2. Where a national regulatory authority finds that an
undertaking does not comply with one or more of
the
conditions of the general authorisation, or of rights of use or
with the specific obligations referred to in Article 6(2),
it
shall notify the undertaking of those findings and give the
undertaking a reasonable opportunity to state its views or
remedy any breaches within:

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— one month after notification, or

— a shorter period agreed by the undertaking or stipulated
by the national regulatory authority in case of repeated
breaches, or

7.
Undertakings shall have the right to appeal against
measures taken under this Article in accordance with the
procedure referred to in Article 4 of Directive 2001/.../EC
(Framework Directive).

Article 11

— a longer period decided by the national regulatory

authority.

Information required under the general authorisation, for
rights of use and for the specific obligations

If

3.
the undertaking concerned does not remedy the
breaches within the period as referred to in paragraph 2, the
relevant authority shall take appropriate and proportionate
measures aimed at ensuring compliance.
In this regard,
Member States may empower the relevant authorities to
impose financial penalties where appropriate. The measures
and the reasons on which they are based shall be communi-
cated to the undertaking concerned within one week of their
adoption and shall stipulate a reasonable period for the
undertaking to comply with the measure.

4.
Notwithstanding the provisions of paragraphs 2 and 3,
Member States may empower the relevant authority to impose
financial penalties where appropriate on undertakings for
failure to provide information in accordance with obligations
imposed under Article 11(1)(a) or (b) of this Directive or
Article 9 of Directive 2001/.../EC (Access Directive) within
a reasonable period stipulated by the national regulatory
authority.

5.
In cases of serious and repeated breaches of the con-
ditions of the general authorisation, the rights of use or specific
obligations referred to in Article 6(2), where measures aimed
at ensuring compliance as referred to in paragraph 3 of this
Article have failed, national regulatory authorities may prevent
an undertaking from continuing to provide electronic com-
munications networks or services or suspend or withdraw
rights of use.

6.
Irrespective of the provisions of paragraphs 2, 3 and 5,
where the relevant authority has evidence of a breach of the
conditions of the general authorisation, rights of use or specific
obligations referred to in Article 6(2) that represents an
immediate and serious threat to public safety, public security
or public health or will create serious economic or operational
problems for other providers or users of electronic communi-
cations networks or services,
it may take urgent interim
measures to remedy the situation in advance of reaching a
final decision. The undertaking concerned shall thereafter be
given a reasonable opportunity to state its view and propose
any remedies. Where appropriate, the relevant authority may
confirm the interim measures.

1. Without prejudice to information and reporting obli-
gations under national
legislation other than the general
authorisation, national regulatory authorities may only require
undertakings to provide information under the general author-
isation, for rights of use or the specific obligations referred to
in Article 6(2) that is proportionate and objectively justified
for:

(a)

(b)

systematic or case-by-case verification of compliance
with conditions 1 and 2 of Part A, condition 6 of Part B
and condition 7 of Part C of the Annex and of compliance
with obligations as referred to in Article 6(2);

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 or in case of an investigation by the national
regulatory authority on its own initiative;

(c)

procedures for and assessment of requests for granting
rights of use;

(d) publication of comparative overviews of quality and price

of services for the benefit of consumers;

(e)

clearly defined statistical purposes;

(f) market analysis for the purposes of Directive 2001/.../EC
(Access Directive) or Directive 2001/.../EC (Universal
Service Directive).

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 national regulatory authorities require undertak-
ings to provide information as referred to in paragraph 1, they
inform them of the specific purpose for which this
shall
information is to be used.

Article 12

Administrative charges

Any administrative charges imposed on undertakings
1.
providing a service or a network under the general authoris-
ation or to whom a right of use has been granted, shall:

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(a)

in total, cover only the administrative costs which will be
incurred in the management, control and enforcement of
the general authorisation scheme and of rights of use and
of specific obligations as referred to in Article 6(2),
which may include costs for international cooperation,
harmonisation and standardisation, market analysis,
monitoring compliance and other market control, as well
as regulatory work involving preparation and enforce-
ment of
legislation and administrative
decisions, such as decisions on access and intercon-
nection, and

secondary

(b) be imposed on the individual undertakings in an objec-
tive, transparent and proportionate manner which mini-
mises additional administrative costs and attendant
charges.

2. Where national regulatory authorities impose adminis-
trative charges, they shall publish a yearly overview of their
administrative costs and of the total sum of the charges
collected. In the light of the difference between the total sum
of
the charges and the administrative costs, appropriate
adjustments shall be made.

Article 13

Fees for rights of use and rights to install facilities

Member States may allow the relevant authority to impose
fees for the rights of use for radio frequencies or numbers or
rights to install facilities on, over or under public or private
property which reflect the need to ensure the optimal use of
these resources. Member States shall ensure that such fees shall
be objectively justified, transparent, non-discriminatory and
proportionate in relation to their intended purpose and shall
take into account the objectives in Article 7 of Directive
2001/.../EC (Framework Directive).

Article 15

Publication of information

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

2. Where information as referred to in paragraph 1 is held
at different levels of government, in particular information
regarding procedures and conditions on rights to install
facilities,
the national regulatory authority shall make all
reasonable efforts to create a user-friendly overview of all such
information, where the relevant authority deems this possible
at proportionate costs, in order to facilitate applications for
rights to install facilities.

Article 16

Review procedures

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 on the
first occasion not later than three years after the date of
application of this Directive referred to in Article 18(1), second
subparagraph. For this purpose, the Commission may request
from the Member States information, which shall be supplied
without undue delay.

Article 17

Existing authorisations

Article 14

Amendment of rights and obligations

1. Member States shall bring authorisations already in
existence on the date of entry into force of this Directive into
line with the provisions of this Directive by at the latest the
date of application referred to in Article 18(1), second
subparagraph.

Member States shall ensure that the rights, conditions and
procedures concerning general authorisations and rights of
use or rights to install facilities may only be amended in
objectively justified cases and in a proportionate manner.
Notice shall be given in an appropriate manner of the intention
to make such amendments and interested parties, including
users and consumers, shall be allowed a sufficient period of
time to express their views on the proposed amendments,
which shall be no less than four weeks except in exceptional
circumstances.

the rights or an extension of

2. Where application of paragraph 1 results in a reduction
of
the obligations under
authorisations already in existence, Member States may extend
the validity of those rights and obligations until at the latest
12 months after the date of application referred to in
Article 18(1), second subparagraph, provided that the rights
of other undertakings under Community law are not affected
thereby. Member States shall notify such extensions to the
Commission and state the reasons therefor.

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3. Where the Member State concerned can prove that the
abolition of an authorisation condition regarding access to
electronic communications networks, which was in force
before the date of entry into force of this Directive, creates
excessive difficulties for undertakings that have benefited from
mandated access to another network, and where it is not
possible for these undertakings to negotiate new agreements
on reasonable commercial terms before the date of application
referred to in Article 18(1), second subparagraph, Member
States may request a temporary prolongation of the relevant
condition(s). Such requests shall be submitted by the date of
application referred to in Article 18(1), second subparagraph,
at the latest, and shall specify the condition(s) and period for
which the temporary prolongation is requested.

The Member State shall inform the Commission of the reasons
for requesting a prolongation. The Commission shall consider
such a request, taking into account the particular situation in
that Member State and of the undertaking(s) concerned, and
the need to ensure a coherent regulatory environment at a
Community level. It shall take a decision on whether to grant
or reject the request, and where it decides to grant the request,
on the scope and duration of the prolongation to be granted.
The Commission shall communicate its decision to the
Member State concerned within six months of receipt of
the application for a prolongation. Such decisions shall be
published in the Official Journal of the European Communities.

Article 18

Transposition

1. Member States shall adopt and publish the laws, regu-
lations and administrative provisions necessary to comply with
this Directive by ... (*) at the latest. They shall forthwith inform
the Commission thereof.

They shall apply those measures from ... (**).

When Member States adopt these measures, they shall contain
a reference to this Directive or be accompanied by such
reference on the occasion of their official publication. The
methods of making such reference shall be laid down by
Member States.

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 day of its publication
in the Official Journal of the European Communities.

Article 20

Addressees

This Directive is addressed to the Member States.

Done at ...

For the European Parliament

The President

For the Council

The President

(*) Fifteen months after the date of entry into force.
(**) The first day after the expiry of this 15-month period.

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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(1)(a).

A.

CONDITIONS WHICH MAY BE ATTACHED TO A GENERAL AUTHORISATION

1.

2.

3.

4.

5.

6.

7.

8.

9.

Financial contributions to the funding of universal service in conformity with Directive 2001/.../EC
(Universal Service Directive).

Administrative charges in accordance with Article 12 of this Directive.

Interoperability of services and interconnection of networks in conformity with Directive 2001/.../EC
(Access Directive).

Accessibility of numbers from the national numbering plan to end-users including conditions in
conformity with Directive 2001/../EC (Universal Service Directive).

Environmental and town and country planning requirements, as well as requirements and conditions
linked to the granting of access to or use of public or private land and conditions linked to co-location
and facility sharing in conformity with Directive 2001/.../EC (Framework Directive) and including, where
applicable, any financial or technical guarantees necessary to ensure the proper execution of infrastructure
works.

‘Must carry’ obligations in conformity with Directive 2001/.../EC (Universal Service Directive).

Personal data and privacy protection specific to the electronic communications sector in conformity with
Directive 2001/.../EC of the European Parliament and of the Council of ... on the processing of personal
data and the protection of privacy in the electronic communications sector (Data Protection Directive) (1).

Consumer protection rules specific to the electronic communications sector including conditions in
conformity with Directive 2001/.../EC (Universal Service Directive).

Restrictions in relation to the transmission of illegal content, in accordance with Directive 2000/31/EC of
the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society
services, in particular electronic commerce, in the internal market (2) and restrictions in relation to the
transmission of harmful content in accordance with Article 2a(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 (3).

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 2001/.../EC
(Data Protection Directive) and Directive 95/46/EC of the European Parliament and of the Council of
24 October 1995 on the protection of individuals with regard to the processing of personal data and on
the free movement of such data (4).

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

electronic communications networks in accordance with Community law.

(1) OJ C ...
(2) OJ L 178, 17.7.2000, p. 1.
(3) OJ L 298, 17.10.1989, p. 23. Directive as amended by Directive 97/36/EC of the European Parliament and of the Council (OJ L

202, 30.7.1997, p. 60).
(4) OJ L 281, 23.11.1995, p. 31.

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14. Access obligations other than those provided for in Article 6(2) of this Directive applying to undertakings
providing electronic communications networks or services, in conformity with Directive 2001/.../EC
(Access Directive).

15. Maintenance of the integrity of public communications networks in accordance with Directive 2001/.../EC
(Access Directive) and Directive 2001/.../EC (Universal Service Directive) including by conditions to
prevent electromagnetic interference between electronic communications networks and/or services in
accordance with Council Directive 89/336/EEC of 3 May 1989 on the approximation of laws of Member
States relating to electromagnetic compatibility (1).

16.

Security of public networks against unauthorised access according to Directive 2001/.../EC (Data
Protection Directive).

17. Conditions for the use of radio frequencies, in conformity with Article 7(2) of Directive 1999/5/EC, where
such use is not made subject to the granting of individual rights of use in accordance with Article 5(1) of
this Directive.

18. Measures designed to ensure compliance with the standards and/or specifications referred to in Article 16

of Directive 2001/.../EC (Framework Directive).

B.

CONDITIONS WHICH MAY BE ATTACHED TO RIGHTS OF USE FOR RADIO FREQUENCIES

1.

2.

3.

Designation of service or type of network or technology for which the rights of use for the frequency has
been granted, including, where applicable, the exclusive use of a frequency for the transmission of specific
content or specific audiovisual services.

Effective and efficient use of frequencies in conformity with Directive 2001/.../EC (Framework Directive),
including, where appropriate, coverage requirements.

Technical and operational conditions necessary for the avoidance of harmful interference and for the
limitation of exposure of the general public to electromagnetic fields, where such conditions are different
from those included in the general authorisation.

4. Maximum duration in conformity with Article 5 of this Directive, subject to any changes in the national

frequency plan.

5.

6.

7.

Transfer of rights at the initiative of the right holder and conditions for such transfer in conformity with
Directive 2001/.../EC (Framework Directive).

Usage fees in accordance with Article 13 of this Directive.

Any commitments which the undertaking obtaining the usage right has made in the course of a
competitive or comparative selection procedure.

8.

Obligations under relevant international agreements relating to the use of frequencies.

C.

CONDITIONS WHICH MAY BE ATTACHED TO RIGHTS OF USE FOR NUMBERS

1.

2.

3.

4.

Designation of service for which the number shall be used, including any requirements linked to the
provision of that service.

Effective and efficient use of numbers in conformity with Directive 2001/.../EC (Framework Directive).

Number portability requirements in conformity with Directive 2001/.../EC (Universal Service Directive).

Obligation to provide public directory subscriber information for the purposes of Articles 5 and 25 of
Directive 2001/.../EC (Universal Service Directive).

5. Maximum duration in conformity with Article 5 of this Directive, subject to any changes in the national

numbering plan.

(1) OJ L 139, 23.5.1989, p. 19. Directive as last amended by Directive 93/68/EEC (OJ L 220, 30.8.1993, p. 1).

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6.

7.

8.

Transfer of rights at the initiative of the right holder and conditions for such transfer in conformity with
Directive 2001/.../EC (Framework Directive).

Usage fees in accordance with Article 13 of this Directive.

Any commitments which the undertaking obtaining the usage right has made in the course of a
competitive or comparative selection procedure.

9.

Obligations under relevant international agreements relating to the use of numbers.

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STATEMENT OF THE COUNCIL’S REASONS

I.

INTRODUCTION

1. On 29, 30 and 31 August 2000 the Commission submitted a package of proposals for a
regulatory framework applicable to electronic communications infrastructure and associated
services. This document refers to one important element of this package: a proposal for a
Directive of the European Parliament and of the Council on the authorisation of electronic
communications networks and services, known as the ‘Authorisation Directive’.

2.

The European Parliament delivered its opinion at first reading on 1 March 2001 and the
Economic and Social Committee delivered its opinion on 21 January 2001. The Committee of
the Regions informed the Council that it did not intend to deliver an opinion on this file.

3. On 17 September 2001 the Council adopted its Common Position in accordance with

Article 251 of the Treaty.

II. OBJECTIVE

1.

2.

The purpose of the regulatory package proposed is to bring current Community legislation on
telecommunications into line with the far-reaching changes which have taken place in the
telecommunications, media and information technologies sectors. The convergence of these
sectors underlies the approach in the Commission’s proposals which seek to bring all
transmission networks and associated services together under a single regulatory framework.

The proposal for a Directive on the authorisation of electronic communications networks and
services, which is the subject of this document, is intended to replace Directive 97/13/EC on
authorisations and licences. It obliges recourse to be had to general authorisations, except for
the granting of radio spectrum and numbering, and sets new limits on the conditions that can
be imposed on service suppliers. The intention is to simplify procedures for seeking
authorisations by doing away with information requirements and by curtailing the scope of
conformity controls.

III. ANALYSIS OF THE COMMON POSITION

A.

GENERAL COMMENTS

In adopting its Common Position the Council has endorsed the approach and aims proposed
by the Commission. A number of changes to both the substance and the wording of the
proposed Directive have nevertheless been made principally with a view to:

— taking account of the opinion of the European Parliament,

— addressing a small number of specific issues which created difficulties,

— rendering the wording of the Directive more precise and thus improving the legal clarity

of the text.

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B.

SPECIFIC COMMENTS

1.

Principal changes made to the Commission proposal

(a) Administrative charges (Article 12)

Mindful of the importance of maintaining the financial independence of national
regulatory authorities (NRAs), the Council has extended the scope of administrative
costs which may be recovered through charges.

The Council also shared the opinion of the European Parliament that the explicit
requirement to link charges proportionately to an undertaking’s turnover should be
deleted. A logical consequence of this approach was to also delete the specific
exemption for undertakings with low turnover.

(b) Deadlines for decisions on rights of use for numbers and radio frequencies

[Article 5(3) and (3a), Article 7(4)]

The Council shares the approach proposed by the Commission, and supported by
the European Parliament, that strict deadlines should be in place for decisions on
rights to use frequencies and numbers. However, it has been considered necessary to
slightly extend the basic deadlines for numbers (now three weeks, instead of two)
and the maximum deadlines for frequencies allocated by competitive or comparative
selection (now eight months, instead of six).

(c) Review procedures — comitology (Article 16)

The Council did not consider it appropriate to include the possibility of further
harmonisation of national provisions on the basis of a comitology procedure. Any
such future harmonisation should, it considers, be based on a co-decision procedure,
thus ensuring the full involvement of the European Parliament.

(d) Article 17 (existing authorisations)

Given the difficulties likely to be experienced in some Member States when bringing
existing licences into line with this Directive, the additional period granted for cases
where alignment would reduce rights or extend obligations has been extended from
six to twelve months. In addition a new possibility for Member States to request a
temporary prolongation in cases causing excessive difficulties for undertakings has
been included.

2.

The Council’s position on the European Parliament amendments

(a) Amendments incorporated fully or in part into the Common Position

The Council accepted in full, in part or in principle amendments 1, 2, 3, 5, 12, 13,
14, 18, 25, and 26. For certain of these amendments the near-complete wording has
been taken on board, while others have been incorporated in a different form
which nevertheless maintains the aim underlying the amendment or parts of the
amendment.

(b) Amendments not incorporated into the Common Position

In not incorporating amendments 4, 7, 9, 15, 19 and 27, the Council followed the
Commission’s opinion.

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In not incorporating amendments 8, 11, 21, 23, 24 and 28, the Council based its
decisions on the following considerations:

— amendment 8 (maintaining free rights of way)

while understanding the reasons behind the request to add a guarantee that
where no fees exist now, none shall be levied in the future, the Council was
unable to include such a commitment, given that competences in this area are
often decentralised to local level,

— amendment 11 (territorial coverage of authorisation)

the clarification regarding validity of general authorisations throughout a
Member State’s territory raised specific difficulties for certain Member States in
respect of their overseas territories and islands,

— amendment 21 (fees for rights of use and rights to install facilities)

the Council found the requirement to provide for payment in annual instalments
to be very detailed and prescriptive for a Community-level
instrument.
The requirement to submit decisions on fees to the Framework Directive’s
transparency mechanism (Article 6) seemed inconsistent with the fact that if
will not always be the NRA that takes such measures,

— amendment 23 (Information regarding rights of way)

the Council considered the Commission proposal for a register of information
to be disproportionate and burdensome. However noting the contents of the
European Parliament amendment, the Council has sought to reach a compro-
mise which maintains Article 15(2) in a ‘softer’ form, while including in the
revised recital 18 (now 34) a formulation addressing Parliament’s concern about
identifying the authority responsible,

— amendment 24 (deduction of charges already paid before the Directive’s entry into force)

the Council considered this to be a matter best left to national legal systems,

— amendment 28 (Article 14 — amendment of rights and obligations)

this amendment limiting the situations where Member States can amend rights
of use or rights of way, seemed unnecessary given the general requirement for
such changes to be ‘objectively justified’ and ‘proportionate’.