Common Position (EC) No 38/2001 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 a common regulatory framework for electronic communications networks and services (Framework Directive)
Date: 2001-09-17
Institutions: Council of the European Union
Subjects: approximation of laws, computer network, information network, provision of services, technical regulations, transmission network

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COMMON POSITION (EC) No 38/2001

adopted by the Council on 17 September 2001

with a view to the adopting 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)

(2001/C 337/03)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

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),

(3) On 26 April 2000 the Commission presented a Com-
munication to the European Parliament, the Council, the
Economic and Social Committee and the Committee of
the Regions on the results of the public consultation on
the 1999 Communications Review and orientations for
the new regulatory framework. The Communication
summarised the public consultation and set out certain
key orientations for the preparation of a new framework
for electronic communications infrastructure and associ-
ated services.

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

(4)

Whereas:

(1)

The current regulatory framework for telecommuni-
cations has been successful in creating the conditions
for effective competition in the telecommunications
sector during the transition from monopoly to full
competition.

(5)

In that Communication,

(2) On 10 November 1999, the Commission presented a
the
Communication to the European Parliament,
Council, the Economic and Social Committee and the
Committee of the Regions entitled ‘Towards a new
framework for electronic communications infrastructure
and associated services — The 1999 Communications
Review’.
the Commission
reviewed the existing regulatory framework for telecom-
munications, in accordance with its obligation under
Article 8 of Council Directive 90/387/EEC of 28 June
1990 on the establishment of the internal market for
telecommunications services through the implemen-
tation of open network provision (4). It also presented a
series of policy proposals for a new regulatory frame-
work for electronic communications infrastructure and
associated services for public consultation.

(1) OJ C 365 E, 19.12.2000, p. 198.
(2) OJ C 123, 25.4.2001, p. 56.
(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).

(4) OJ L 192, 24.7.1990, p. 1. Directive as last amended by Directive
97/51/EC of the European Parliament and of the Council (OJ
L 295, 29.10.1997, p. 23).

The Lisbon European Council of 23 and 24 March 2000
highlighted the potential for growth, competitiveness
and job creation of the shift to a digital, knowledge-based
economy. In particular, it emphasised the importance
for Europe’s businesses and citizens, of access to an
inexpensive, world-class communications infrastructure
and a wide range of services.

The convergence of the telecommunications, media and
information technology sectors means all transmission
networks and services should be covered by a single
regulatory framework. That regulatory framework con-
sists of
this Directive and four specific Directives:
Directive 2001/.../EC of the European Parliament and of
the Council of ... on the authorisation of electronic
communications networks and services (Authorisation
Directive) (5), Directive 2001/.../EC of
the European
Parliament and of the Council of ... on access to, and
interconnection of, electronic communications net-
works and associated facilities (Access Directive) (6),
Directive 2001/.../EC of the European Parliament and of
the Council of ... on universal service and users’ rights
relating to electronic communications networks and
(Universal Service Directive) (7), Directive
services
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) (8), (hereinafter referred

(5) See p. 18 of this Official Journal.
(6) See p. 1 of this Official Journal.
(7) See p. 55 of this Official Journal.
(8) JO C ...

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to as ‘the Specific Directives’). It is necessary to separate
the regulation of transmission from the regulation of
content. This framework does not therefore cover the
content of services delivered over electronic communi-
cations networks using electronic communications ser-
vices, such as broadcasting content, financial services
and certain information society services, and is therefore
without prejudice to measures taken at Community or
national level in respect of such services, in compliance
with Community law, in order to promote cultural and
linguistic diversity and to ensure the defence of media
pluralism. The content of television programmes is
covered by 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 (1). The separation between the
regulation of transmission and the regulation of content
does not prejudice the taking into account of
the
links existing between them,
in particular in order
to guarantee media pluralism, cultural diversity and
consumer protection.

Audiovisual policy and content regulation are under-
taken in pursuit of general interest objectives, such as
freedom of expression, media pluralism,
impartiality,
cultural and linguistic diversity, social inclusion, con-
sumer protection and the protection of minors. The
Commission Communication ‘Principles and Guidelines
for the Community’s Audiovisual Policy in the Digital
Age’, and the Council Conclusions of 6 June 2000
welcoming this Communication, set out the key actions
to be taken by the Community to implement
its
audiovisual policy.

its essential security interests,

The provisions of this Directive and the Specific Direc-
tives are without prejudice to the possibility for each
Member State to take the necessary measures to ensure
the protection of
to
safeguard public policy and public security, and to
permit the investigation, detection and prosecution of
criminal offences,
including the establishment by
national regulatory authorities of specific and pro-
portional obligations applicable to providers of elec-
tronic communications services.

This Directive does not cover equipment within the
scope of Directive 1999/5/EC of the European Parlia-
ment and of the Council of 9 March 1999 on radio
equipment and telecommunications terminal equipment
their conformity (2),
and the mutual recognition of
but does cover consumer equipment used for digital
television. It is important for regulators to encourage
network operators and terminal equipment manufac-
turers to cooperate in order to facilitate access by
disabled users to electronic communications services.

(6)

(7)

(8)

(9)

Information Society services are covered by 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 (Directive on Elec-
tronic Commerce) (3).

(10) The definition of

‘Information Society service’

in
Article 1 of Directive 98/34/EC of the European Parlia-
ment and of the Council of 22 June 1998 laying down a
procedure for the provision of information in the field
of technical standards and regulations and of rules of
Information Society services (4) spans a wide range of
economic activities which take place on-line. Most of
these activities are not covered by the scope of this
Directive because they do not consist wholly or mainly in
the conveyance of signals on electronic communications
networks. Voice telephony and electronic mail convey-
ance services are covered by this Directive. The same
undertaking, for example an Internet service provider,
can offer both an electronic communications service,
such as access to the Internet, and services not covered
under this Directive, such as the provision of web-based
content.

(11)

In accordance with the principle of the separation of
regulatory and operational functions, Member States
the national
should guarantee the independence of
regulatory authority or authorities with a view to
ensuring the impartiality of their decisions. This require-
ment of
independence is without prejudice to the
institutional autonomy and constitutional obligations of
the Member States or to the principle of neutrality with
regard to the rules in Member States governing the
system of property ownership laid down in Article 295
of the Treaty. National regulatory authorities should be
in possession of all the necessary resources, in terms
of staffing, expertise, and financial means,
for the
performance of their tasks.

(12) Any party who is the subject of a decision by a national
regulatory authority should have the right to appeal to a
body that is independent of the parties involved. This
appeal procedure is without prejudice to the rights of
legal entities or natural persons under national law.

(13) National regulatory authorities need to gather infor-
mation from market players in order to carry out their
tasks effectively. Such information may also need to be
gathered on behalf of the Commission, to allow it to
fulfil its obligations under Community law. Requests for
information should be proportionate and not impose an

(1) 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).
(2) OJ L 91, 7.4.1999, p. 10.

(3) OJ L 178, 17.7.2000, p. 1.
(4) OJ L 204, 21.7.1998, p. 37. Directive as amended by Directive

98/48/EC (OJ L 217, 5.8.1998, p. 18).

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(14)

(15)

undue burden on undertakings. Information gathered
by national regulatory authorities should be publicly
available, except insofar as it is confidential in accord-
ance with national rules on public access to information
and subject to Community and national law on business
confidentiality.

Information that is considered confidential by a national
in accordance with Community
regulatory authority,
and national rules on business confidentiality, may only
be exchanged with the Commission and other national
regulatory authorities where such exchange is strictly
necessary for the application of the provisions of this
Directive or the Specific Directives. The information
exchanged should be limited to that which is relevant
and proportionate to the purpose of such an exchange.

is important

It
that national regulatory authorities
consult all interested parties on proposed decisions and
take account of their comments before adopting a final
decision. In order to ensure that decisions at national
level do not have an adverse effect on the single market
or other Treaty objectives, national regulatory authorities
should also notify certain draft decisions to the Com-
mission and other national regulatory authorities to give
them the opportunity to comment. It is appropriate for
national regulatory authorities to consult
interested
parties on all draft measures which have a significant
impact on the community of operators or users. In the
case of measures that have to be consulted with the
Commission and the other Member States, they should
principally take the form of general decisions. The cases
where Article 6 procedures apply are defined in this
Directive and in the Specific Directives. This procedure
is without prejudice to the notification procedure pro-
vided for in Directive 98/34/EC and the Commission’s
prerogatives under the Treaty in respect of infringements
of Community law.

(16) National regulatory authorities should have a harmon-
ised set of objectives and principles to underpin, and
should, where necessary, coordinate, their actions with
the regulatory authorities of other Member States in
carrying out their tasks under this regulatory framework.

that

(18) The requirement for Member States to ensure that
national regulatory authorities take the utmost account
of the desirability of making regulation technologically
neutral,
it neither imposes nor
discriminates in favour of the use of a particular type of
technology, does not preclude the taking of proportion-
ate steps to promote certain specific services where this
is justified, for example digital television as a means for
increasing spectrum efficiency.

is to say that

taking into account

(19) Radio frequencies are an essential input for radio-based
electronic communications services and, insofar as they
relate to such services, should therefore be allocated and
assigned by national regulatory authorities according to
a set of harmonised objectives and principles governing
their action as well as to objective, transparent and
non-discriminatory criteria,
the
democratic, social, linguistic and cultural interests related
to the use of frequency. It is important that the allocation
and assignment of radio frequencies is managed as
efficiently as possible. Transfer of radio frequencies can
be an effective means of increasing efficient use of
spectrum, as long as there are sufficient safeguards in
place to protect the public interest, in particular the need
to ensure transparency and regulatory supervision of
such transfers. Decision No .../2001/EC of the European
Parliament and of the Council of ... on a regulatory
framework for radio spectrum policy in the European
Community (Radio Spectrum Decision) (1) establishes a
framework for harmonisation of radio frequencies, and
action taken under this Directive should seek to facilitate
the work under that Decision.

(20) Access to numbering resources on the basis of trans-
parent, objective and non-discriminatory criteria is
essential for undertakings to compete in the electronic
communications sector. All elements of national num-
bering plans should be managed by national regulatory
authorities,
including point codes used in network
addressing. Where there is a need for harmonisation of
numbering resources in the Community to support the
development of pan-European services, the Commission
may take technical
implementing measures using its
executive powers. Where this is appropriate to ensure
full global interoperability of services, Member States
should coordinate their national positions in accordance
with the Treaty in international organisations and
forums where numbering decisions are taken. The
provisions of this Directive do not establish any new
areas of responsibility for the national regulatory auth-
orities in the field of Internet naming and addressing.

(17) The activities of national regulatory authorities estab-
lished under this Directive and the Specific Directives
contribute to the fulfilment of broader policies in the
areas of culture, employment, the environment, social
cohesion and town and country planning.

(1) OJ L ...

(22)

(23)

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(21) Member States may use,

inter alia, competitive or
comparative selection procedures for the assignment of
radio frequencies as well as numbers with exceptional
economic value. In administering such schemes, national
regulatory authorities should take into account
the
provisions of Article 7.

to be adapted to suit more complex and dynamic
markets. For this reason, the definition used in this
Directive is equivalent to the concept of dominance as
defined in the case-law of the Court of Justice and the
Court of First Instance of the European Communities.

It should be ensured that procedures exist
for the
granting of rights to install facilities that are timely, non-
discriminatory and transparent, in order to guarantee
the conditions for fair and effective competition. This
Directive is without prejudice to national provisions
governing the expropriation or use of property, the
normal exercise of property rights, the normal use of
the public domain, or to the principle of neutrality with
regard to the rules in Member States governing the
system of property ownership.

(26) Two or more undertakings can be found to enjoy a joint
dominant position not only where there exist structural
or other links between them but also where the structure
of the relevant market is conducive to coordinated
effects, that is, it encourages parallel or aligned anti-
competitive behaviour on the market.

(27)

Facility sharing can be of benefit for town planning,
public health or environmental reasons, and should be
encouraged by national regulatory authorities on the
basis of voluntary agreements. In cases where undertak-
ings are deprived of access to viable alternatives, compul-
sory facility or property sharing may be appropriate. It
covers, inter alia: physical co-location and duct, building,
mast, antenna or antenna system sharing. Compulsory
facility or property sharing should be imposed on
undertakings only after full public consultation.

(24) Where mobile operators are required to share towers or
masts for environmental reasons, such mandated sharing
may lead to a reduction in the maximum transmitted
power levels allowed for each operator for reasons of
public health, and this in turn may require operators
to install more transmission sites to ensure national
coverage.

(25) There is a need for ex-ante obligations in certain circum-
stances in order to ensure the development of a competi-
tive market. The definition of significant market power
in the Directive 97/33/EC of the European Parliament
and of the Council of 30 June 1997 on interconnection
in telecommunications with regard to ensuring universal
service and interoperability through application of the
principles of open network provision (ONP) (1) has
proved effective in the initial stages of market opening
as the threshold for ex-ante obligations, but now needs

It is essential that ex-ante regulatory obligations should
only be imposed where there is not effective competition
and where national and Community competition law
remedies are not sufficient to address the problem. It is
necessary therefore for the Commission to draw up
guidelines at Community level in accordance with the
principles of competition law for national regulatory
authorities to follow in assessing whether competition
is effective in a given market and in assessing significant
market power. National regulatory authorities should
analyse whether a given product or service market is
effectively competitive in a given geographical area,
which could be the whole or a part of the territory of
the Member State concerned or neighbouring parts of
territories of Member States considered together. An
analysis of effective competition should include an
analysis as to whether the market
is prospectively
competitive, and thus whether any lack of effective
competition is durable. Those guidelines will also address
the issue of newly emerging markets, where de facto the
market leader is likely to have a substantial market share
but should not be subjected to inappropriate obligations.
The Commission should review the Guidelines regularly
to ensure that they remain appropriate in a rapidly
developing market. National regulatory authorities will
need to cooperate with each other where the relevant
market is found to be pan-European. A pan-European
market means a transnational market covering the
Community or a substantial part thereof.

(1) OJ L 199, 26.7.1997, p. 32. Directive as amended by Directive

98/61/EC (OJ L 268, 3.10.1998, p. 37).

(28)

In determining whether an undertaking has significant
market power in a specific market, national regulatory
authorities should act in accordance with Community
law and take into the utmost account the Commission
guidelines.

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(29) The Community and the Member States have entered
into commitments in relation to standards and the
regulatory framework of telecommunications networks
and services in the World Trade Organisation.

(30)

Standardisation should remain primarily a market-driv-
en process. However there may still be situations where
it is appropriate to require compliance with specified
standards at Community level to ensure interoperability
in the single market. At national level, Member States
are subject to the provisions of Directive 98/34/EC.
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. Through the Digital
Video Broadcasting Group, European market players
have developed a family of
television transmission
systems that have been standardised by the European
Telecommunications Standards Institute (ETSI) and have
become International Telecommunications Union Rec-
ommendations. Any decision to make the implemen-
tation of such standards mandatory should follow a full
public consultation. Standardisation procedures under
this Directive are without prejudice to the provisions of
Directive 1999/5/EC, Council Directive 73/23/EEC of
19 February 1973 on the harmonisation of the laws of
Member States relating to electrical equipment designed
for use within certain voltage limits (2) and Council
Directive 89/336/EEC of 3 May 1989 on the approxi-
mation of the laws of the Member States relating to
electromagnetic compatibility (3).

(31)

In the event of a dispute between undertakings in the
same Member State in an area covered by this Directive
or the Specific Directives,
for example relating to
obligations for access and interconnection or to the
means of transferring subscriber lists, an aggrieved party
that has negotiated in good faith but failed to reach
agreement should be able to call on the national
regulatory authority to resolve the dispute. National
regulatory authorities should be able to impose a
solution on the parties. The intervention of a national
regulatory authority in the resolution of a dispute
between undertakings providing electronic communi-
cations networks or services in a Member State should
seek to ensure compliance with the obligations arising
under this Directive or the Specific Directives.

(32)

In addition to the rights of recourse granted under
national or Community law, there is a need for a simple
procedure to be initiated at the request of either party in
a dispute, to resolve cross-border disputes which lie
outside the competence of a single national regulatory
authority.

(33) A single Committee should replace the ‘ONP Committee’
instituted by Article 9 of Directive 90/387/EEC and the
Licensing Committee instituted by Article 14 of Directive
97/13/EC of the European Parliament and of the Council
of 10 April 1997 on a common framework for general
authorisations and individual
licences in the field of
telecommunications services (4).

(34) National regulatory authorities and national competition
authorities should have the right to exchange infor-
mation,
in order to allow them to cooperate fully
together. National regulatory authorities should have the
same rights and duties of confidentiality in respect of
exchange of information as a ‘competent authority’ for
the purposes of Council Regulation No 17 of 6 February
1962, First Regulation implementing Articles 81 and 82
of the Treaty (5).

(35) The provisions of this Directive should be reviewed
periodically, in particular with a view to determining
the need for modification in the light of changing
technological or market conditions.

(36) The measures necessary for the implementation of this
Directive should be adopted in accordance with Council
Decision 1999/468/EC of 28 June 1999 laying down
the procedures for the exercise of implementing powers
conferred on the Commission (6).

(37)

Since the objectives of the proposed action, namely
achieving a harmonised framework for the regulation of
electronic communications services, electronic com-
munications networks, associated facilities and associ-
ated 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.

(38) Certain Directives and Decisions in this field should be

repealed.

(1) OJ L 281, 23.11.1995, p. 51.
(2) OJ L 77, 26.3.1973, p. 29.
(3) OJ L 139, 23.5.1989, p. 19.

(4) OJ L 117, 7.5.1997, p. 15.
(5) OJ 13, 21.2.1962, p. 204/62. Regulation as last amended by
Regulation (EC) No 1216/1999 (OJ L 148, 15.6.1999, p. 5).

(6) OJ L 184, 17.7.1999, p. 23.

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(39) The Commission should monitor the transition from
the existing framework to the new framework, and may
in particular, at an appropriate time, bring forward a
proposal
to repeal Regulation (EC) No 2887/2000
of the European Parliament and of the Council of
18 December 2000 on unbundled access to the local
loop (1),

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I

SCOPE, AIM AND DEFINITIONS

Article 1

Scope and aim

1.
This Directive establishes a harmonised framework for
the regulation of electronic communications services, elec-
tronic communications networks, associated facilities and
associated services. It lays down tasks of national regulatory
authorities and establishes a set of procedures to ensure
the harmonised application of
the regulatory framework
throughout the Community.

2.
This Directive as well as the Specific Directives are
without prejudice to obligations imposed by national law in
accordance with Community law or by Community law in
respect of services provided using electronic communications
networks and services.

This Directive as well as the Specific Directives are
3.
without prejudice to measures taken at Community or national
level, in compliance with Community law, to pursue general
interest objectives, in particular relating to content regulation
and audio-visual policy.

This Directive and the Specific Directives are without

4.
prejudice to the provisions of Directive 1999/5/EC.

Article 2

Definitions

For the purposes of this Directive:

(a)

‘electronic communications network’ means transmission
systems and, where applicable, switching or routing
equipment and other resources which permit the convey-
ance of signals by wire, by radio, by optical or by other
electromagnetic means, including satellite networks, fixed

(1) OJ L 336, 30.12.2000, p. 4.

(circuit- and packet-switched,
including Internet) and
mobile terrestrial networks, networks used for radio
and television broadcasting, and cable TV networks,
irrespective of the type of information conveyed;

‘electronic communications service’ means a service nor-
mally provided for remuneration which consists wholly
or mainly in the conveyance of signals on electronic
communications networks,
including telecommuni-
cations services and transmission services in networks
used for broadcasting, but exclude services providing, or
transmitted
exercising editorial control over, content
using electronic communications networks and services;
it does not
include Information Society services, as
defined in Article 1 of Directive 98/34/EC, which do not
consist wholly or mainly in the conveyance of signals on
electronic communications networks;

‘public communications network’ means an electronic
communications network used wholly or mainly for the
provision of publicly available electronic communi-
cations services;

‘associated facilities’ means those facilities associated
with an electronic communications network and/or an
electronic communications service which enable and/or
support
the provision of services via that network
and/or service. It includes conditional access systems and
electronic programme guides;

‘conditional access system’ means any technical measure
and/or arrangement whereby access to a protected radio
or television broadcasting service in intelligible form is
made conditional upon subscription or other form of
prior individual authorisation;

‘national regulatory authority’ means the body or bodies
charged by a Member State with any of the regulatory
tasks assigned in this Directive and the Specific Directives;

‘user’ means a legal entity or natural person using or
requesting a publicly available electronic communications
service;

‘consumer’ means any natural person who uses or
requests a publicly available electronic communications
service for purposes which are outside his or her trade,
business or profession;

‘universal service’ means the minimum set of services,
defined in Directive 2001/..../EC (Universal Service Direc-
tive), of specified quality which is available to all users
regardless of their geographical location and, in the light
of specific national conditions, at an affordable price;

‘subscriber’ means any natural person or legal entity who
or which is party to a contract with the provider of
publicly available electronic communications services for
the supply of such services;

(b)

(c)

(d)

(e)

(f)

(g)

(h)

(i)

(j)

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‘Specific Directives’ means Directive 2001/.../EC (Author-
isation Directive), Directive 2001/.../EC (Access Directive),
Directive 2001/.../EC (Universal Service Directive) and
Directive 2001/.../EC (Data Protection Directive);

6. Member States shall notify to the Commission all
national regulatory authorities assigned tasks under this Direc-
tive and the Specific Directives, and their respective responsi-
bilities.

(k)

(l)

‘provision of an electronic communications network’
means the establishment, operation, control or making
available of such a network;

(m)

‘end-user’ means a user not providing public communi-
cations networks or publicly available electronic com-
munications services.

CHAPTER II

NATIONAL REGULATORY AUTHORITIES

Article 3

National Regulatory Authorities

1. Member States shall ensure that each of the tasks assigned
to national regulatory authorities in this Directive and the
Specific Directives is undertaken by a competent body.

2. Member States shall guarantee the independence of
national regulatory authorities by ensuring that they are legally
distinct from and functionally independent of all organisations
providing electronic communications networks, equipment or
services. Member States that retain ownership or control of
undertakings providing electronic communications networks
and/or services shall ensure effective structural separation
of the regulatory function from activities associated with
ownership or control.

3. Member States shall ensure that national regulatory
authorities exercise their powers impartially and transparently.

4. Member States shall publish the tasks to be undertaken
by national regulatory authorities in an easily accessible form,
in particular where those tasks are assigned to more than
one body. Member States shall ensure, where appropriate,
consultation and cooperation between those authorities, and
between those authorities and national authorities entrusted
with the implementation of competition law and national
authorities entrusted with the implementation of consumer
law, on matters of common interest. Where more than one
authority has competence to address such matters, Member
States shall ensure that the respective tasks of each authority
are published in an easily accessible form.

National regulatory authorities and national competition
5.
authorities shall have the right to exchange information. In
order to facilitate cooperation and the mutual exchange of
information, national regulatory authorities shall have the
same rights and duties of confidentiality in respect of exchange
of
information as a ‘competent authority’ as defined in
Regulation No 17.

Article 4

Right of appeal

1. Member States shall ensure that effective mechanisms
exist at national
level under which a user or undertaking
providing electronic communications networks and/or services
has, where affected by a decision of a national regulatory
authority, the right of appeal against the decision to an appeal
body that is independent of the parties involved.

2. Where the appeal body referred to in paragraph 1 is not
judicial
in character, written reasons for its decision shall
always be given. Furthermore, in such a case, its decision shall
be subject to review by a court or tribunal within the meaning
of Article 234 of the Treaty.

Article 5

Provision of information

1. Member States shall ensure that undertakings providing
electronic communications networks and services provide all
the information, including financial information, necessary for
national regulatory authorities to ensure conformity with the
provisions of, or decisions made in accordance with, this
Directive and the Specific Directives. These undertakings shall
provide such information promptly on request and to the
timescales and level of detail required by the national regulat-
ory authority. The information requested by the national
regulatory authority shall be proportionate to the performance
of that task. The national regulatory authority shall give the
reasons justifying its request for information.

2. Member States shall ensure that national regulatory
authorities provide the Commission, after a reasoned request,
with the information necessary for it to carry out its tasks under
the Treaty. The information requested by the Commission shall
be proportionate to the performance of those tasks. Where
the information provided refers to information previously
the national
provided by undertakings at
regulatory authority, such undertakings shall be informed
thereof. To the extent necessary, and unless the authority that
provides the information has made an explicit and reasoned
to the contrary, the Commission shall make the
request
information provided available to another such authority in
another Member State.

the request of

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Subject to the requirements of paragraph 3, Member States
shall ensure that the information submitted to one national
regulatory authority can be made available to another such
authority in the same or different Member State, after a
substantiated request, where necessary to allow either authority
to fulfil its responsibilities under Community law.

3.
The national regulatory authority concerned shall take
the utmost account of comments of other national regulatory
authorities and the Commission, and, except in cases referred
to in paragraph 4, may adopt the resulting draft measure and,
where it does so, shall communicate it to the Commission.

4.

If the resulting draft measure referred to in paragraph 3:

3. Where information is considered confidential by a
national regulatory authority in accordance with Community
and national rules on business confidentiality, the Commission
and the national regulatory authorities concerned shall ensure
such confidentiality.

(a)

(b)

4. Member States shall ensure that, acting in accordance
with national rules on public access to information and subject
to Community and national rules on business confidentiality,
national regulatory authorities publish such information as
would contribute to an open and competitive market.

National regulatory authorities shall publish the terms of
5.
public access to information as referred to in paragraph 4,
including procedures for obtaining such access.

Article 6

Consultation and transparency mechanism

1.
Except in cases falling within Article 18 or 19 Member
States shall ensure that, where national regulatory authorities
intend to take measures in accordance with this Directive or
the Specific Directives which have a significant impact on
the market, they give interested parties the opportunity to
comment on the draft measure within a reasonable period.
National regulatory authorities shall publish their national
consultation procedures.

2.
In addition to the consultation referred to in paragraph 1,
where a national regulatory authority intends to take measures
which have a significant
impact on the market under
Article 14(3) or Article 15(3), (4) and (5) of this Directive or
Article 8(3) of Directive 2001/.../EC (Access Directive), it shall
at the same time make the draft measure accessible to the
Commission and the national regulatory authorities in other
Member States, together with the reasoning on which the
in accordance with Article 5(3) of this
measure is based,
Directive, and inform the Commission and other national
regulatory authorities thereof. National regulatory authorities
and the Commission may make comments to the national
regulatory authority concerned only within one month or
within the period referred to in paragraph 1 if that period is
longer. The one-month period cannot be prolonged.

is significantly different in substance from the draft
measure made available according to paragraph 2; or

if the Commission has indicated to the national regulatory
authority that it has serious doubts as to the compatibility
of the draft measure made available according to para-
graph 2 with Community law and in particular the
objectives referred to in Article 7,

then the measure shall not be adopted for a further one month.
Within that period the Commission may, where appropriate,
make public a detailed opinion which it shall communicate to
the national regulatory authority concerned stating why it
considers that
the draft measure is not compatible with
Community law, and in particular the objectives referred to in
Article 7. The national regulatory authority may adopt the
envisaged measures after the publication of
the detailed
opinion of the Commission, or after the one-month period
has expired, and shall communicate them to the Commission.
In any case the one-month period cannot be prolonged. If the
national regulatory authority chooses not to follow the detailed
opinion of the Commission, it shall communicate its reasoning
to the Commission.

5.
In exceptional circumstances, where a national regulat-
ory authority considers that there is an urgent need to act, by
way of derogation from the procedure set out in paragraphs 1,
2, 3 and 4, in order to safeguard competition and protect the
interests of users, it may adopt measures immediately. It shall,
without delay, communicate those measures, with full reasons,
to the Commission and the other national regulatory auth-
orities.

CHAPTER III

TASKS OF NATIONAL REGULATORY AUTHORITIES

Article 7

Policy Objectives and Regulatory Principles

1. Member States shall ensure that in carrying out the
regulatory tasks specified in this Directive and the Specific
Directives, the national regulatory authorities take all reason-
able measures which are aimed at achieving the objectives set
out
in paragraphs 2, 3 and 4. Such measures shall be
proportionate to those objectives.

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Member States shall ensure that in carrying out the regulatory
tasks specified in this Directive and the Specific Directives, in
particular those designed to ensure effective competition,
national regulatory authorities take the utmost account of the
desirability of making regulations technologically neutral.

(b)

ensuring a high level of protection for consumers in their
dealings with suppliers,
in particular by ensuring the
availability of simple and inexpensive dispute resolution
procedures carried out by a body that is independent of
the parties involved;

National regulatory authorities may contribute within their
competencies to ensuring the implementation of policies
aimed at the promotion of cultural and linguistic diversity, as
well as media pluralism.

2.
The national regulatory authorities shall promote compe-
tition in the provision of electronic communications networks,
electronic communications services and associated facilities
and services facilities by, inter alia:

(a)

(b)

(c)

(d)

ensuring that users,
maximum benefit in terms of choice, price, and quality;

including disabled users, derive

ensuring that there is no distortion or restriction of
competition in the electronic communications sector;

encouraging efficient investment in infrastructure, and
promoting innovation; and

encouraging efficient use and ensuring the effective
radio frequencies and numbering
management of
resources.

The national regulatory authorities shall contribute to

3.
the development of the internal market by, inter alia:

(a)

(b)

(c)

(d)

removing remaining obstacles to the provision of elec-
tronic communications networks, associated facilities
and services and electronic communications services at
European level;

encouraging the establishment and development of trans-
European networks and the interoperability of pan-
European services;

there is no
in similar circumstances,
ensuring that,
discrimination in the treatment of undertakings providing
electronic communications networks and services;

cooperating with each other and with the Commission in
a transparent manner to ensure the consistent application
of this Directive and the Specific Directives.

The national regulatory authorities shall promote the

4.
interests of the citizens of the European Union by, inter alia:

(a)

ensuring all citizens have access to a universal service
specified in Directive 2001/.../EC (Universal Service Direc-
tive);

(c)

contributing to ensuring a high level of protection of
personal data and privacy;

(d) promoting the provision of clear information, in particu-
lar requiring transparency of tariffs and conditions for
using publicly available electronic communications ser-
vices;

(e)

(f)

addressing the needs of specific social groups, in particu-
lar disabled users; and

ensuring that the integrity and security of public com-
munications networks are maintained.

Article 8

Management of radio frequencies for electronic com-
munications services

1. Member States shall ensure the effective management of
radio frequencies for electronic communication services in
their territory in accordance with Article 7. They shall ensure
that the allocation and assignment of such radio frequencies
by national regulatory authorities are based on objective,
transparent, non-discriminatory and proportionate criteria.

2. Member States shall promote the harmonisation of use
of radio frequencies across the Community, consistent with
the need to ensure effective and efficient use thereof and in
accordance with the Decision No .../2001/EC (Radio Spectrum
Decision).

3. Member States may make provision for undertakings to
transfer rights to use radio frequencies with other undertakings.

4. Member States shall ensure that an undertaking’s inten-
tion to transfer rights to use radio frequencies is notified to
the national regulatory authority responsible for spectrum
assignment and that any transfer takes place in accordance
with procedures laid down by the national regulatory authority
and is made public. National regulatory authorities shall ensure
that competition is not distorted as a result of any such
transaction. Where radio frequency use has been harmonised
through the application of Decision No .../2001/EC (Radio
Spectrum Decision) or other Community measures, any such
transfer shall not result
that radio
frequency.

in change of use of

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Article 9

the competent authority:

Numbering, naming and addressing

1. Member States shall ensure that national regulatory
authorities control the assignment of all national numbering
resources and the management of the national numbering
plans. Member States shall ensure that adequate numbers and
numbering ranges are provided for all publicly available
electronic communications services. National regulatory auth-
orities shall establish objective, transparent and non-discrimi-
natory assigning procedures for national numbering resources.

2.
National regulatory authorities shall ensure that num-
bering plans and procedures are applied in a manner that gives
equal treatment to all providers of publicly available electronic
communications services. In particular, Member States shall
ensure that an undertaking allocated a range of numbers
does not discriminate against other providers of electronic
communications services as regards the number sequences
used to give access to their services.

3. Member States shall ensure that the national numbering
plans, and all subsequent additions or amendments thereto,
are published, subject only to limitations imposed on the
grounds of national security.

— acts on the basis of transparent and publicly available
procedures, applied without discrimination and without
delay, and

— follows the principles of transparency and non-discrimi-

nation in attaching conditions to any such rights.

The abovementioned procedures can differ depending on
whether the applicant is providing public communications
networks or not.

2. Member States shall ensure that where public or local
authorities retain ownership or control of undertakings
operating electronic communications networks and/or ser-
vices, there is effective structural separation of the function
responsible for granting the rights referred to in paragraph 1
from activities associated with ownership or control.

Article 11

Co-location and facility sharing

4. Member States shall support
the harmonisation of
numbering resources within the Community where that is
necessary to support the development of pan-European ser-
vices. The Commission may, in accordance with the procedure
set out
take the appropriate technical
in Article 20(3),
implementing measures on this matter.

1. Where an undertaking providing electronic communi-
cations networks has the right under national legislation to
install facilities on, over or under public or private property,
or may take advantage of a procedure for the expropriation or
use of property, national regulatory authorities shall encourage
the sharing of such facilities or property.

5. Where this is appropriate in order to ensure full global
interoperability of services, Member States shall coordinate
their positions in international organisations and forums in
which decisions are taken on issues relating to the numbering,
naming and addressing of electronic communications net-
works and services.

Article 10

Rights of way

In particular where undertakings are deprived of access
2.
to viable alternatives because of the need to protect the
environment, public health, public security or to meet town
and country planning objectives, Member States may impose
the sharing of facilities or property (including physical co-
location) on an undertaking operating an electronic communi-
cations network or take measures to facilitate the coordination
of public works, only after an appropriate period of public
consultation during which all interested parties must be given
an opportunity to express their views. Such sharing or
coordination arrangements may include rules for apportioning
the costs of facility or property sharing.

1. Member States shall ensure that when a competent
authority considers:

— an application for the granting of rights to install facilities
on, over or under public or private property to an
undertaking authorised to provide public communi-
cations networks, or

— an application for the granting of rights to install facilities
on, over or under public property to an undertaking
authorised to provide electronic communications net-
works other than to the public,

Article 12

Accounting separation and financial reports

1. Member States shall require undertakings providing
public communications networks or publicly available elec-
tronic communications services which have special or exclus-
ive rights for the provision of services in other sectors in the
same or another Member State to:

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(a)

keep separate accounts for the activities associated with
the provision of electronic communications networks or
services, to the extent that would be required if these
activities were carried out by legally independent com-
panies, so as to identify all elements of cost and revenue,
with the basis of
their calculation and the detailed
attribution methods used, related to their activities associ-
ated with the provision of electronic communications
networks or services including an itemised breakdown of
fixed asset and structural costs, or

(b) have structural separation for the activities associated
with the provision of electronic communications net-
works or services.

Member States may choose not to apply the requirements
referred to in the first subparagraph to undertakings the annual
turnover of which in activities associated with electronic
communications networks or services in the Member States is
less than EUR 50 million.

2. Where undertakings providing public communications
networks or publicly available electronic communications
services are not subject to the requirements of company law
and do not satisfy the small and medium-sized enterprise
criteria of Community law accounting rules, their financial
reports shall be drawn up and submitted to independent audit
and published. The audit shall be carried out in accordance
with the relevant Community and national rules.

This requirement shall also apply to the separate accounts
required under paragraph 1(a).

CHAPTER IV

GENERAL PROVISIONS

Article 13

Undertakings with significant market power

1. Where the Specific Directives require national regulatory
authorities to determine whether operators have significant
market power in accordance with the procedure referred to in
Article 15, paragraphs 2 and 3 of this Article shall apply.

2.
An undertaking shall be deemed to have significant
market power if, either individually or jointly with others, it
enjoys a position equivalent to dominance, that is to say a
position of economic strength affording it the power to
behave to an appreciable extent independently of competitors,
customers and ultimately consumers.

In particular, national regulatory authorities shall, when
assessing whether two or more undertakings are in a joint
in accordance with
dominant position in a market, act
Community law and take into the utmost account
the
Guidelines on market analysis and the assessment of significant
market power published by the Commission pursuant to
Article 14. Criteria to be used in making such an assessment
are set out in Annex II.

3. Where an undertaking has significant market power on
a specific market, it may also be deemed to have significant
market power on a closely related market, where the links
between the two markets are such as to allow the market
power held in one market to be leveraged into the other
market,
the
undertaking.

thereby strengthening the market power of

Article 14

Market definition procedure

1.
After consultation with national regulatory authorities
the Commission shall adopt a recommendation on relevant
product and service markets (hereinafter ‘the recommen-
dation’). The recommendation shall
identify in accordance
with Annex I hereto those product and service markets within
the electronic communications sector, the characteristics of
which may be such as to justify the imposition of regulatory
obligations set out in the Specific Directives, without prejudice
to markets that may be defined in specific cases under
competition law. The Commission shall define markets in
accordance with the principles of competition law.

The Commission shall regularly review the recommendation.

2.
The Commission shall publish, at the latest on the date
of entry into force of this Directive, Guidelines for market
analysis and the assessment of significant market power
(hereinafter ‘the Guidelines’) which shall be in accordance with
the principles of competition law.

3.
National regulatory authorities shall, taking the utmost
account of the Recommendation and the Guidelines, define
relevant markets appropriate to national circumstances,
in
particular relevant geographic markets within their territory,
in accordance with the principles of competition law. National
regulatory authorities shall follow the procedure set out in
Article 6 before defining the markets that differ from those
defined in the recommendation.

4.
After consultation with national regulatory authorities
the Commission may, acting in accordance with the procedure
referred to in Article 20(3), adopt a decision identifying pan-
European markets.

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Article 15

Market analysis procedure

1.
As soon as possible after the adoption of the Recommen-
dation or any updating thereof, national regulatory authorities
shall carry out an analysis of the relevant markets, taking the
utmost account of the Guidelines. Member States shall ensure
that this analysis is carried out, where appropriate, in collabor-
ation with the national competition authorities.

2. Where a national regulatory authority is required under
Articles 16, 17, 18 or 19 of Directive 2001/.../EC (Universal
Service Directive), or Articles 7 or 8 of Directive 2001/.../EC
(Access Directive) to determine whether to impose, maintain,
it shall
amend or withdraw obligations on undertakings,
determine on the basis of its market analysis referred to in
paragraph 1 of this Article whether a relevant market is
effectively competitive.

it shall not

is effectively competitive,

3. Where a national regulatory authority concludes that the
market
impose or
maintain any of the specific regulatory obligations referred to
in paragraph 2 of this Article. In cases where sector specific
regulatory obligations already exist, it shall withdraw such
obligations placed on undertakings in that relevant market. An
appropriate period of notice shall be given to parties affected
by such a withdrawal of obligations.

4. Where a national regulatory authority determines that a
relevant market is not effectively competitive, it shall identify
undertakings with significant market power on that market in
accordance with Article 13 and the national regulatory auth-
ority shall on such undertakings impose appropriate specific
regulatory obligations referred to in paragraph 2 of this
Article or maintain or amend such obligations where they
already exist.

5.
In the case of pan-European markets identified in the
Decision referred to in Article 14(4), the national regulatory
authorities concerned shall jointly conduct the market analysis
taking the utmost account of the Guidelines and decide on
any imposition, maintenance, amendment or withdrawal of
regulatory obligations referred to in paragraph 2 of this
Article in a concerted fashion.

6. Measures taken according to the provisions of para-
graphs 3, 4 and 5 of this Article shall be subject to the
procedure set out in Article 6.

Article 16

Standardisation

The Commission, acting in accordance with the pro-
1.
cedure referred to in Article 20(2), shall draw up and publish
in the Official Journal of the European Communities a List of
standards and/or specifications to serve as a basis for encourag-
ing the harmonised provision of electronic communications
networks, electronic communications services and associated
facilities and services. Where necessary, the Commission may,

acting in accordance with the procedure referred to in
Article 20(2) and following consultation of the Committee
established by Directive 98/34/EC, request that standards be
drawn up by the European Standards Organisations [European
Committee for Standardisation (CEN), European Committee
for Electrotechnical Standardisation (Cenelec), and European
Telecommunications Standards Institute (ETSI)].

2. Member States shall encourage the use of the standards
and/or specifications referred to in paragraph 1,
for the
provision of services, technical
interfaces and/or network
functions, to the extent strictly necessary to ensure interop-
erability of services and to improve freedom of choice for
users.

As long as standards and/or specifications have not been
published in accordance with paragraph 1, Member States
shall encourage the implementation of standards and/or
specifications adopted by the European Standards Organis-
ations.

In the absence of such standards and/or specifications, Member
States shall encourage the implementation of international
standards or recommendations adopted by the International
Telecommunications Union (ITU), the International Organis-
ation for Standardisation (ISO) or the International Electrotech-
nical Committee (IEC).

Where international standards exist, Member States shall
encourage the European Standards Organisations to use them,
or the relevant parts of them, as a basis for the standards they
develop, except where such international standards or relevant
parts would be ineffective.

3.
If the standards and/or specifications referred to in
paragraph 1 have not been adequately implemented so that
interoperability of services in one or more Member States
cannot be ensured, the implementation of such standards
and/or specifications may be made compulsory under the
procedure laid down in paragraph 4, to the extent strictly
necessary to ensure such interoperability and to improve
freedom of choice for users.

4. Where the Commission intends to make the implemen-
tation of certain standards and/or specifications compulsory,
it shall publish a notice in the Official Journal of the European
Communities and invite public comment by all parties con-
cerned. The Commission, acting in accordance with the
procedure in Article 20(3), shall make implementation of the
relevant standards compulsory by making reference to them
as compulsory standards in the List of standards and/or
specifications published in the Official Journal of the European
Communities.

5. Where the Commission considers that standards and/or
specifications referred to in paragraph 1 no longer contribute
to the provision of harmonised electronic communications
services, or that they no longer meet consumers’ needs or are
hampering technological development,
it shall, acting in
accordance with the procedure in Article 20(2), remove them
from the List of standards and/or specifications referred to in
paragraph 1.

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6. Where the Commission considers that standards and/or
specifications referred to in paragraph 4 no longer contribute
to the provision of harmonised electronic communications
services, or that they no longer meet consumers’ needs or are
hampering technological development,
it shall, acting in
accordance with the procedure in Article 20(3), remove them
from this List of standards and/or specifications referred to in
paragraph 1.

7.
This Article does not apply in respect of any of the
essential requirements, interface specifications or harmonised
standards to which the provisions of Directive 1999/5/EC
apply.

Article 17

Harmonisation procedures

1. Where the Commission, acting in accordance with the
issues Recommen-
procedure referred to in Article 20(2),
dations to Member States on the harmonised application of
the provisions in this Directive and the Specific Directives in
order to further the achievement of the objectives set out in
Article 7, Member States shall ensure that national regulatory
authorities take the utmost account of those Recommen-
dations in carrying out their tasks. Where a national regulatory
authority chooses not to follow a Recommendation, it shall
inform the Commission giving the reasoning for its position.

2. Where the Commission finds that divergence at national
level in regulations aimed at implementing Article 9(4) creates
a barrier to the single European market, the Commission may,
acting in accordance with the procedure in Article 20(3), take
the appropriate technical implementing measures.

Article 18

Dispute resolution between undertakings

1.
In the event of a dispute arising in connection with
obligations arising under this Directive or the Specific Direc-
tives between undertakings providing electronic communi-
cations networks or services in a Member State, the national
regulatory authority concerned shall, at the request of either
party, and without prejudice to the provisions of paragraph 2,
issue a binding decision to resolve the dispute in the shortest
possible time-frame and in any case within four months except
in exceptional circumstances. The Member State concerned
shall require that all parties cooperate fully with the national
regulatory authority.

2. Member States may make provision for national regulat-
ory authorities to decline to resolve a dispute through a binding
decision where other mechanisms, including mediation, exist
and would better contribute to resolution of the dispute in a
timely manner in accordance with the provisions of Article 7.
The national regulatory authority shall
inform the parties
without delay. If after four months the dispute is not resolved,
and if the dispute has not been brought before the courts by
the party seeking redress, the national regulatory authority
shall issue, at the request of either party, a binding decision to

resolve the dispute in the shortest possible time-frame and in
any case within four months.

3.
In resolving a dispute, the national regulatory authority
shall take decisions aimed at achieving the objectives set out
in Article 7. Any obligations imposed on an undertaking by
the national regulatory authority in resolving a dispute shall
respect the provisions of this Directive or the Specific Direc-
tives.

4.
The decision of the national regulatory authority shall be
made available to the public, having regard to the requirements
of business confidentiality. The parties concerned shall be
given a full statement of the reasons on which it is based.

5.
The procedure referred to in paragraphs 1, 3 and 4 shall
not preclude either party from bringing an action before the
courts.

Article 19

Resolution of cross-border disputes

In the event of a cross-border dispute arising under this
1.
Directive or the Specific Directives between parties in different
Member States, where the dispute lies within the competence
of national regulatory authorities from more than one Member
State, the procedure set out in paragraphs 2, 3 and 4 shall be
applicable.

2.
Any party may refer the dispute to the national regulatory
authorities concerned. The national regulatory authorities shall
coordinate their efforts in order to bring about a resolution of
the dispute,
in accordance with the objectives set out in
Article 7. Any obligations imposed on an undertaking by the
national regulatory authority in resolving a dispute shall
respect the provisions of this Directive or the Specific Direc-
tives.

3. Member States may make provision for national regulat-
ory authorities jointly to decline to resolve a dispute where
other mechanisms, including mediation, exist and would better
contribute to resolution of the dispute in a timely manner in
accordance with the provisions of Article 7. They shall inform
the parties without delay. If after four months the dispute is
not resolved, if the dispute has not been brought before the
courts by the party seeking redress, and if either party requests
it, the national regulatory authorities shall coordinate their
efforts in order to bring about a resolution of the dispute, in
accordance with the provisions set out in Article 7.

The procedure referred to in paragraph 2 shall not
4.
preclude either party from bringing an action before the
courts.

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Article 20

Committee

Article 23

Review procedures

The Commission shall be assisted by a Committee (‘the

1.
Communications Committee’).

2. Where reference is made to this paragraph, Articles 3
and 7 of Decision 1999/468/EC shall apply, having regard to
the provisions of Article 8 thereof.

3. Where reference is made to this paragraph, Articles 5
and 7 of Decision 1999/468/EC shall apply, having regard to
the provisions of Article 8 thereof.

The period laid down in Article 5(6) of Decision 1999/468/EC
shall be three months.

4.

The Committee shall adopt its rules of procedure.

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 application referred to in Article 26(1), second
subparagraph. For this purpose, the Commission may request
information from the Member States, which shall be supplied
without undue delay.

CHAPTER V

FINAL PROVISIONS

Article 24

Repeal

Article 21

Exchange of information

The following Directives and Decisions are hereby repealed
from the date of application referred to in
with effect
Article 26(1), second subparagraph:

1.
The Commission shall provide all relevant information
to the Communications Committee on the outcome of regular
consultations with the representatives of network operators,
service providers, users, consumers, manufacturers and trade
unions, as well as third countries and international organis-
ations.

2.
The Communications Committee shall, taking account
of the Community’s electronic communications policy, foster
the exchange of information between the Member States and
between the Member States and the Commission on the
situation and the development of regulatory activities regarding
electronic communications networks and services.

Article 22

Publication of information

1. Member States shall ensure that up-to-date information
pertaining to the application of this Directive and the Specific
Directives is made publicly available in a manner that guaran-
tees all interested parties easy access to that information. They
shall publish a notice in their national Official Gazette
describing how and where the information is published. The
first such notice shall be published before the date of appli-
cation referred to in Article 26(1), second subparagraph, and
thereafter a notice shall be published whenever there is any
change in the information contained therein.

2. Member States shall send to the Commission a copy of
all such notices at the time of publication. The Commission
shall distribute the information to the Communications Com-
mittee as appropriate.

— Directive 90/387/EEC,

— Council Decision 91/396/EEC of 29 July 1991 on
the introduction of a single European emergency call
number (1),

— Council Directive 92/44/EEC of 5 June 1992 on the
application of open network provision to leased lines (2),

— Council Decision 92/264/EEC of 11 May 1992 on the
introduction of a standard international telephone access
code in the Community (3),

— Directive 95/47/EC,

— Directive 97/13/EC,

— Directive 97/33/EC,

— Directive 97/66/EC of the European Parliament and of
the Council of 15 December 1997 concerning the
processing of personal data and the protection of privacy
in the telecommunications sector (4),

— 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 telecommunications in a competitive
environment (5).

(1) OJ L 217, 6.8.1991, p. 31.
(2) OJ L 165, 19.6.1992, p. 27. Directive as last amended by
Commission Decision 98/80/EC (OJ L 14, 20.1.1998, p. 27).

(3) OJ L 137, 20.5.1992, p. 21.
(4) OJ L 24, 30.1.1998, p. 1.
(5) OJ L 101, 1.4.1998, p. 24.

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Article 25

Transitional measures

Member States shall maintain all obligations under national
law referred to in Article 7 of Directive 2001/.../EC (Access
Directive) and Article 16 of Directive 2001/.../EC (Universal
Service Directive) until such time as a determination is made
in respect of
those obligations by a national regulatory
authority in accordance with Article 15 of this Directive.

Operators of
fixed public telephone networks that were
designated by their national regulatory authority as having
significant market power in the provision of fixed public
telephone networks and services under Annex I, Part 1 of
Directive 97/33/EC or Directive 98/10/EC shall continue to be
for the purposes of Regu-
considered ‘notified operators’
lation (EC) No 2887/2000 until such a time as the market
analysis procedure referred to in Article 15 has been com-
pleted. Thereafter they shall cease to be considered ‘notified
operators’ for the purposes of the Regulation.

Article 26

Transposition

1. Member States shall adopt and publish the laws, regu-
lations and administrative provisions necessary to comply with
this Directive not later than ... (*). They shall forthwith inform
the Commission thereof.

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

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

3. 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 27

Entry into force

This Directive shall enter into force on the day of its publication
in the Official Journal of the European Communities.

Article 28

Addressees

This Directive is addressed to the Member States.

Done at Brussels, ...

For the European Parliament

The President

For the Council

The President

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

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ANNEX I

List of markets to be included in the initial Commission Recommendation on Relevant Product and Service
Markets referred to in Article 14

1. Markets referred to in Directive 2001/.../EC (Universal Service Directive)

Article 16 — Markets defined under the former regulatory framework, where obligations should be reviewed,

The provision of connection to and use of the public telephone network at fixed locations,

The provision of leased lines to end-users.

2. Markets referred to in Directive 2001/.../EC (Access Directive)

Article 7 — Markets defined under the former regulatory framework, where obligations should be reviewed.

Interconnection (Directive 97/33/EC)

— call origination in the fixed public telephone network,

— call termination in the fixed public telephone network,

— transit services in the fixed public telephone network,

— call origination on public mobile telephone networks,

— call termination on public mobile telephone networks,

— leased line interconnection (interconnection of part circuits).

Network access and special network access (Directive 97/33/EC, Directive 98/10/EC)

— access to the fixed public telephone network, including unbundled access to the local loop,

— access to public mobile telephone networks, including carrier selection.

Wholesale leased line capacity (Directive 92/44/EEC)

— wholesale provision of leased line capacity to other suppliers of electronic communications networks or

services.

3. Markets referred to in Regulation (EC) No 2887/2000

Services provided over unbundled (twisted metallic pair) loops.

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ANNEX II

Criteria to be used by national regulatory authorities in making an assessment of joint dominance in
accordance with Article 13(2), second subparagraph

Two or more undertakings can be found to be in a joint dominant position within the meaning of Article 13 if, even
in the absence of structural or other links between them, they operate in a market the structure of which is considered
to be conducive to coordinated effects. Without prejudice to the case-law of the Court of Justice on joint dominance,
this is likely to be the case where the market satisfies a number of appropriate characteristics, in particular in terms
of market concentration, transparency and other characteristics mentioned below:

— mature market,

— stagnant or moderate growth on the demand side,

— low elasticity of demand,

— homogeneous product,

— similar cost structures,

— similar market shares,

— lack of technical innovation, mature technology,

— absence of excess capacity,

— high barriers to entry,

— lack of countervailing buying power,

— lack of potential competition,

— various kind of informal or other links between the undertakings concerned,

— retaliatory mechanisms,

— lack or reduced scope for price competition.

The above is not an exhaustive list, nor are the criteria cumulative. Rather, the list is intended to illustrate only the
sorts of evidence that could be used to support assertions concerning the existence of joint dominance.

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STATEMENT OF THE COUNCIL’S REASONS

I.

INTRODUCTION

1. On 29 to 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 the centre piece of this package which is a proposal for a Directive of the
European Parliament and of the Council on a common regulatory framework for electronic
communications networks and services, known as the ‘Framework 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 by unanimity 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 proposed new regulatory framework has been designed as an intermediate phase between
the current framework and an anticipated future situation where the Telecommunications
market will be sufficiently mature to allow it to be governed solely by general competition law.

The proposal for a framework Directive establishes the basic structure of the future regulatory
framework, under which those operators with significant market power will continue to be
subject to certain ex ante regulatory obligations. It sets out the objectives and principles for
national regulatory authorities, together with the role of the Commission under the new
framework.
It also contains provisions on the management of scarce resources (radio
frequencies and numbers) as well as drawing together all the horizontal provisions common to
more than one Directive in the proposed package.

III. ANALYSIS OF THE COMMON POSITION

A.

GENERAL COMMENTS

Although the Council adopted the approach and aims proposed by the Commission,
it
considered it necessary, when drawing up its common position, to make a number of changes
to both the substance and the wording of the proposed Directive.

When making these changes the Council, in addition to taking account of the opinion of the
European Parliament, was concerned to:

— render the wording of the Directive more precise and thus improve the legal clarity of the

text;

— seek a better balance between the need for flexibility for national regulatory authorities
(NRAs) on the one hand, and the need for a coherent Community approach on the other;

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— create more clarity regarding the relationship of this regulatory framework with audio-

visual policy and content regulation;

— take greater account of the diversity of national situations and the existing constitutional
and judicial arrangements in Member States, for example with regard to the provisions
regarding rights to appeal and rights of way;

— create greater legal security for NRAs dealing with situations where more than one

undertaking is exercising collective dominance in the market place;

— ensure the compatibility of the text with Community law in particular as regards the

provisions establishing a committee and a high level group.

B.

SPECIFIC COMMENTS

1.

Principal changes made to the Commission proposal

(a) Significant market power (Article 13 and the new Annex II)

As well as introducing a number of technical improvements to the clarity of the text,
the Council has considered it necessary to increase the legal certainty for NRAs
dealing with markets where two undertakings with no economic links are exercising
joint dominance. To this end the common position adds a specific requirement to
take utmost account of the Commission guidelines as well as a set of clear criteria to
be used in the assessment of joint dominance which are set out in Annex II.

(b) The balance between flexibility and harmonisation (Articles 6 and 14)

Whilst supporting the idea of a mechanism to ensure a coherent Community
approach, the Council nevertheless considered that the Article 6 procedure proposed
by the Commission, according to which the Commission would have the power to
intervene a priori to prevent NRAs form taking certain measures, ran counter to the
institutional balance established in the Treaty.

However, noting the European Parliament’s support for the Commission on this
point, the Council has sought a compromise solution which maintains a power for
the Commission to delay implementation of an NRA measure whilst it issues a
detailed opinion. If an NRA chooses not to follow a Commission opinion, it must
explain its reasoning.

The Council also preferred not to subject radio spectrum matters (Article 8) to the
Article 6 mechanism, noting that, in any case, the Commission’s proposals for radio
spectrum management explicitly give such flexibility for Member States as to
procedural arrangements, that the effect of applying Article 6 would be minimal.

A further important change to the text concerns the market definition procedure in
Article 14. With many markets still primarily of a national or regional nature, the
Council considered it important to reinforce the role of the NRA in the process of
defining relevant markets within its territory. Under the common position text, a
coherent Community approach is therefore ensured by virtue of a Commission
recommendation on Relevant Product and Service Markets, and a requirement for
NRAs to follow the Article 6 procedure if they define markets that differ from those
in the Recommendation.

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(c) The relationship to audio-visual policy

The Council has made a number of changes to the Commission proposal with the
aim of more clearly outlining the relationship of this regulatory package with the
separate question of audio-visual policy and, in particular content regulation. This
issue, which also arises under the proposed Authorisations Directive, is particularly
relevant given the scope of the regulatory Framework in the new ‘converged’
environment, which extends to all transmission networks, and is also a key concern
of the European Parliament.

The principle changes are a new ‘without prejudice’ clause in Article 1, and an
additional subparagraph in Article 7 giving NRAs the possibility of contributing to
the promotion of cultural and linguistic diversity as well as media pluralism.

(d) Deletion of the High-Level Communications Group

After taking advice from its Legal Service, the Council has deleted the High Level
Advisory group of NRA representatives established under Article 21 of
the
Commission proposal. It was not considered necessary or appropriate to establish
such a group, which falls outside of the types of committees envisaged by the new
Comitology decision (1), in a Community act.

(e) Article 4 — Right of Appeal

The Council has streamlined this Article, retaining the essential elements and taking
on board the concerns of the European Parliament, but in a form which is consistent
with the legal constitutions and judicial traditions of the Member States.

(f) Article 8 — Management of Radio Frequencies

In particular in the light of the opinion of the European Parliament (Amendment 46),
the Council has chosen to delete from the substantive body of the text the provisions
specifically legitimising the use of auctions as well as administrative pricing for the
assignment of frequencies.

(g) Article 10 — Rights of Way

The Council has broadened the text of this Article to also cover private network
operators, whilst also redrafting it to clarify that different types of procedures could
nevertheless apply depending on whether the network is public or private.

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, 3, 4, 6, 9, 10, 11,
13, 15, 19, 21, 25, 27, 28, 31, 35, 36, 37, 38, 40, 45, 46, 47, 48, 53, 55, 57, 58,
59, 60, 61, 66, 67, 68, 69 and 70. For certain of these amendments the complete, or
near-complete wording has been taken on board, whilst others have been incorpor-
ated 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 5, 8, 16, 18, 20, 23, 24, 26, 39, 41, 42, 43, 44,
49, 50, 51, 52, 56, 62, 63, 64, 71, 72, 73, 74, 76 and 77, the Council followed the
Commission’s opinion.

(1) Council Decision 1999/468/EC (OJ L 184, 17.7.1999, p. 23).

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In not incorporating amendments 2, 7, 17, 22, 29, 30, 32, 33, 34, 54, 65 and 75,
the Council based its decisions on the following considerations:

— Amendments 2 and 29 (right of appeal)

The amendments seemed inconsistent with constitutional and judicial arrange-
ments in the Member States;

— Amendments 7 and 17

The content of the amendments appeared to be largely covered by the text
already;

— Amendment 22 (Independence of the NRA)

The text of the Commission proposal was considered more appropriate;

— Amendment 30 (Penalties for non-provision of information)

This concern was taken into account in Article 10 of the common position on
the Authorisations Directive;

— Amendment 32 (Motivating refusals of access to information)

General administrative laws in Member States already cover such aspects;

— Amendment 33 (Article 6)

See the explanation of the Council’s approach to this Article in Section III B 1(a)
above;

— Amendment 34 [Article 7(1)]

A preference for the positive formulation proposed by the Commission;

— Amendment 54 (arbitration role for NRA in rights of way disputes)

Granting rights of way is a competence for local authorities in many Member
States, and centralised dispute settlement would be difficult to impose;

— Amendment 65 (criteria for evaluating whether to impose obligatory standards)

A preference for the formulation in the Commission proposal which provides a
period of time to evaluate whether the voluntary approach has been effective;

— Amendment 75 (High Level Advisory Group)

See Section III B 1(d) above.