Common Position (EC) No 36/2001 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 access to, and interconnection of, electronic communications networks and associated facilities (Access Directive)
Date: 2001-09-17
Institutions: Council of the European Union
Subjects: access to information, communications systems, information technology, systems interconnection, transmission network

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I

(Information)

COUNCIL

COMMON POSITION (EC) No 36/2001

adopted by the Council of 17 September 2001

with a view to adopting Directive 2001/.../EC of the European Parliament and of the Council of ...
on access to, and interconnection of, electronic communications networks and associated
facilities (Access Directive)

(2001/C 337/01)

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),

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

Whereas:

(1)

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) (4) lays down the objectives of a
regulatory framework to cover electronic communi-
cations networks and services in the Community, includ-
ing fixed and mobile telecommunications networks,
cable television networks, networks used for terrestrial
broadcasting, satellite networks and Internet networks,

(2)

(3)

(1) OJ C 365 E, 19.12.2000, p. 215.
(2) OJ C 123, 25.4.2001, p. 50.
(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) See page 34 of this Official Journal.

whether used for voice,
fax, data or images. Such
networks may have been authorised by Member States
under Directive 2001/.../EC of the European Parliament
and of the Council of ... on the authorisation of electronic
communications networks and services (Authorisation
Directive) (5) or have been authorised under previous
regulatory measures. The provisions of this Directive
apply to those networks that are used for the provision
of publicly available electronic communications services.
This Directive
covers access and interconnection
arrangements between service suppliers. Non-public
networks do not have obligations under this Directive
except where,
in benefiting from access to public
networks, they may be subject to conditions laid down
by Member States.

Services providing content such as the offer for sale of a
package of sound or television broadcasting content are
not covered by the common regulatory framework for
electronic communications networks and services.

The term ‘access’ has a wide range of meanings, and it is
therefore necessary to define precisely how that term is
used in this Directive, without prejudice to how it may
be used in other Community measures. An operator
may own the underlying network or facilities or may
rent some or all of them.

(5) See page 18 of this Official Journal.

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(4)

(5)

(6)

Directive 95/47/EC of the European Parliament and of
the Council of 24 October 1995 on the use of standards
for the transmission of television signals (1) did not
mandate any specific digital
television transmission
system or service requirement, and this opened up an
opportunity for the market actors to take the initiative
and develop suitable systems. Through the Digital
Video Broadcasting Group, European market actors have
developed a family of television transmission systems
that have been adopted by broadcasters throughout
the world. These transmissions systems have been
standardised by the European Telecommunications Stan-
dards Institute (ETSI) and have become International
Telecommunications Union Recommendations.
In
relation to wide screen digital television, the 16:9 aspect
ratio is the reference format for wide-format television
services and programmes, and is now established in
Member States’ markets as a result of Council Decision
93/424/EEC of 22 July 1993 on an action plan for
the introduction of advanced television services in
Europe (2).

In an open and competitive market, there should be no
restrictions that prevent undertakings from negotiating
access and interconnection arrangements between them-
selves, in particular on cross border agreements, subject
to the competition rules of the Treaty. In the context of
achieving a more efficient, truly pan-European market,
with effective competition, more choice and competitive
services to consumers, undertakings which receive
requests for access or interconnection should in principle
conclude such agreements on a commercial basis, and
negotiate in good faith.

In markets where there continue to be large differences
in negotiating power between undertakings, and where
some undertakings rely on infrastructure provided by
others for delivery of their services, it is appropriate to
establish a framework to ensure that the market func-
tions effectively. National regulatory authorities should
have the power to secure, where commercial negotiation
fails, adequate access and interconnection and interop-
erability of services in the interest of end-users.
In
particular they may ensure end-to-end connectivity by
imposing proportionate obligations on undertakings
that control access to end-users. Control of means of
access may entail ownership or control of the physical
link to the end-user (either fixed or mobile), and/or the
ability to change or withdraw the national number

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

(7)

(8)

(9)

or numbers needed to access an end-user’s network
termination point. This would be the case for example if
network operators were to restrict unreasonably end-
user choice for access to Internet portals and services.

National legal or administrative measures that link the
terms and conditions for access or interconnection to
the activities of the party seeking interconnection, and
specifically to the degree of its investment in network
infrastructure, and not to the interconnection or access
services provided, may cause market distortion and may
therefore not be compatible with competition rules.

Network operators who control access to their own
customers do so on the basis of unique numbers or
addresses from a published numbering or addressing
range. Other network operators need to be able to
deliver traffic to those customers, and so need to be able
to interconnect directly or indirectly to each other. The
existing rights and obligations to negotiate intercon-
nection should therefore be maintained.
is also
appropriate to maintain the obligations formerly laid
down in Directive 95/47/EC requiring fully digital
electronic communications networks used for the distri-
bution of television services and open to the public to
be capable of distributing wide-screen television services
and programmes, so that users are able to receive
such programmes in the format in which they were
transmitted.

It

Competition rules alone may not be sufficient to ensure
cultural diversity and media pluralism in the area of
digital television. Directive 95/47/EC provided an initial
regulatory framework for the nascent digital television
including in
industry which should be maintained,
particular the obligation to provide conditional access
on fair, reasonable and non-discriminatory terms,
in
order to make sure that a wide variety of programming
and services is available. Technological and market
developments make it necessary to review these obli-
gations on a regular basis, either by a Member State
for its national market or the Commission for the
Community, in particular to determine whether there is
justification for extending obligations to new gateways,
such as electronic programme guides (EPGs) and appli-
cation program interfaces (APIs), to the extent that is
necessary to ensure accessibility for end-users to speci-
fied digital broadcasting services. Member States may
specify the digital broadcasting services to which access
by end-users must be ensured by any legislative, regulat-
ory or administrative means that they deem necessary.

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(10) Member States may also permit their national regulatory
authority to review obligations in relation to conditional
access to digital broadcasting services in order to assess
through a market analysis whether to withdraw or
amend conditions for operators that do not have
significant market power on the relevant market. Such
withdrawal or amendment should not adversely affect
access for end-users to such services or the prospects for
effective competition.

(11)

In order to ensure continuity of existing agreements and
to avoid a legal vacuum, it is necessary to ensure that
obligations for access and interconnection imposed
under Articles 4, 6, 7, 8, 11, 12, and 14 of Directive
97/33/EC of the European Parliament and of the Council
of 30 June 1997 on interconnection in telecommuni-
cations with regard to ensuring universal service and
interoperability through application of the principles of
Open Network Provision (ONP) (1), obligations on spe-
cial access imposed under Article 16 of Directive
98/10/EC of the European Parliament and of the Council
of 26 February 1998 on the application of open network
provision (ONP) to voice telephony and on universal
service for telecommunications in a competitive environ-
ment (2), and obligations concerning the provision of
leased line transmission capacity under Council Directive
92/44/EEC of 5 June 1992 on the application of open
network provision to leased lines (3), are initially carried
over into the new regulatory framework, but are subject
to immediate review in the light of prevailing market
conditions. Such a review should also extend to those
organisations covered by Regulation (EC) No 2887/2000
of the European Parliament and of the Council of
18 December 2000 on unbundled access to the local
loop (4).

(12) The review should be carried out using an economic
market analysis based on competition law methodology.
The aim is to reduce ex ante sector specific rules
progressively as competition in the market develops.
However the procedure also takes account of
the
possibility of new bottlenecks arising as a result of
technological development, which may require ex ante
regulation, for example in the area of broadband access
networks. It may well be the case that competition
develops at different speeds in different market segments
and in different Member States, and national regulatory

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

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

(2) OJ L 101, 1.4.1998, p. 24.
(3) OJ L 165, 19.6.1992, p. 27. Directive as last amended by
Commission Decision No 98/80/EC. (OJ L 14, 20.1.1998, p. 27).

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

authorities should be able to relax regulatory obligations
in those markets where competition is delivering the
desired results. In order to ensure that market players in
similar circumstances are treated in similar ways in
different Member States, the Commission should be able
to ensure harmonised application of the provisions
of this Directive. National regulatory authorities and
national authorities entrusted with the implementation
of competition law should, where appropriate, coordi-
nate their actions to ensure that the most appropriate
remedy is applied. The Community and its Member
States have entered into commitments on intercon-
nection of telecommunications networks in the context
of the World Trade Organisation agreement on basic
telecommunications that need to be respected.

namely

transparency,

(13) Directive 97/33/EC laid down a range of obligations to
be imposed on undertakings with significant market
power,
non-discrimination,
accounting separation, access, and price control includ-
ing cost orientation. This range of possible obligations
should be maintained but, in addition, they should be
established as a set of maximum obligations that can be
applied to undertakings, in order to avoid over-regu-
lation. Exceptionally,
in order to comply with inter-
national commitments or Community law it may be
appropriate to impose obligations for access or intercon-
nection on all market players, as is currently the case for
conditional access systems for digital television services.

(14) The imposition of a specific obligation on an undertak-
ing with significant market power does not require an
additional market analysis but a justification that the
obligation in question is appropriate and proportionate
in relation to the nature of the problem identified.

(15) Transparency of terms and conditions for access and
including prices, serve to speed up
interconnection,
negotiation, avoid disputes and give confidence to
market players that a service is not being provided on
discriminatory terms. Openness and transparency of
technical
interfaces can be particularly important in
ensuring interoperability. Where a national regulatory
authority imposes obligations to make information
public, it may also specify the manner in which the
information is to be made available, covering for exam-
ple the type of publication (paper and/or electronic) and
whether or not it is free of charge, taking into account
the nature and purpose of the information concerned.

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

(19)

Price control may be necessary when market analysis in
a particular market reveals inefficient competition. The
regulatory intervention may be relatively light, such
as an obligation that prices for carrier selection are
reasonable as laid down in Directive 97/33/EC, or much
heavier such as an obligation that prices are cost oriented
to provide full
justification for those prices where
competition is not sufficiently strong to prevent excess-
ive pricing.
In particular, operators with significant
market power should avoid a price squeeze whereby the
difference between their retail prices and the intercon-
nection prices charged to competitors who provide
similar retail services is not adequate to ensure sustain-
able competition. When a national regulatory authority
calculates costs incurred in establishing a service man-
dated under this Directive, it is appropriate to allow a
reasonable return on the capital employed including
appropriate labour and building costs, with the value of
capital adjusted where necessary to reflect the current
valuation of assets and efficiency of operations. The
method of cost recovery should be appropriate to the
circumstances taking account of the need to promote
efficiency and sustainable competition and maximise
consumer benefits.

(20) Where a national regulatory authority imposes obli-
gations to implement a cost accounting system in order
to support price controls, it may itself undertake an
annual audit
to ensure compliance with that cost
accounting system, provided that it has the necessary
qualified staff, or it may require the audit to be carried
out by another qualified body,
the
operator concerned.

independent of

(21)

Publication of information by Member States will ensure
that market players and potential market entrants under-
stand their rights and obligations, and know where to
find the relevant detailed information. Publication in the
national gazette helps interested parties in other Member
States to find the relevant information.

(22)

In order to determine the correct application of Com-
munity law, the Commission needs to know which
undertakings have been designated as having significant
market power and what obligations have been placed
upon market players by national regulatory authorities.
In addition to national publication of this information,
it is therefore necessary for Member States to send this
information to the Commission. Where Member States
are required to send information to the Commission,
this may be in electronic form, subject to appropriate
authentication procedures being agreed.

(17) Accounting separation allows internal price transfers to
be rendered visible, and allows national regulatory
authorities to check compliance with obligations for
non-discrimination where applicable. In this regard the
Commission published recommendation 98/322/EC of
8 April 1998 on interconnection in a liberalised telecom-
munications market (Part 2 — accounting separation
and cost accounting) (1).

(18) Mandating access to network infrastructure can be
justified as a means of
increasing competition, but
national regulatory authorities need to balance the rights
of an infrastructure owner to exploit its infrastructure
for its own benefit, and the rights of other service
providers to access facilities that are essential for the
provision of competing services. Where obligations
are imposed on operators that require them to meet
reasonable requests for access to and use of networks
elements and associated facilities, such requests should
only be refused on the basis of objective criteria such as
technical feasibility or the need to maintain network
integrity. Where access is refused, the aggrieved party
may submit the case to the dispute resolutions procedure
referred to in Articles 18 and 19 of Directive 2001/.../EC
(Framework Directive). An operator with mandated
access obligations cannot be required to provide types
of access which are not within its powers to provide.
The imposition by national regulatory authorities of
mandated access that increases competition in the short
term should not reduce incentives for competitors to
invest
in alternative facilities that will secure more
competition in the long term. The Commission has
published a Notice on the application of the competition
rules to access agreements in the telecommunications
sector (2) which addresses these issues. National regulat-
ory authorities may impose technical and operational
conditions to the provider and/or beneficiaries of man-
dated access in accordance with Community law. In
particular the imposition of technical standards should
comply with 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 (3).

(1) OJ L 141, 13.5.1998, p. 6.
(2) OJ C 265, 22.8.1998, p. 2.
(3) 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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(23) Given the pace of technological and market develop-
ments, the implementation of this Directive should be
reviewed within three years of its date of application to
determine if it is meeting its objectives.

ensure that obligations imposed by national regulatory auth-
orities are reviewed and, where appropriate, withdrawn once
the desired objectives have been achieved. Access in this
Directive does not refer to access by end-users.

(24) 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 (1).

(25)

Since the objectives of the proposed action, namely
establishing a harmonised framework for the regulation
of access to and interconnection of electronic communi-
cations networks and associated facilities, 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 in order to achieve those objectives,

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I

SCOPE, AIM AND DEFINITIONS

Article 1

Scope and aim

1. Within the framework set out in Directive 2001/.../EC
(Framework Directive), this Directive harmonises the way in
which Member States regulate access to, and interconnection
of, electronic communications networks and associated facili-
in
ties. The aim is to establish a regulatory framework,
accordance with internal market principles, for the relation-
ships between suppliers of networks and services that will
result in sustainable competition, interoperability of electronic
communications services and consumer benefits.

2.
This Directive establishes rights and obligations for
operators and for undertakings seeking interconnection and/or
access to their networks or associated facilities. It sets out
objectives for national regulatory authorities with regard to
access and interconnection, and lays down procedures to

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

Article 2

Definitions

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

The following definitions shall also apply:

(a)

(b)

(c)

(d)

(e)

‘access’ means the making available of facilities and/or
services, to another undertaking, under defined con-
ditions, on either an exclusive or non-exclusive basis, for
the purpose of providing electronic communications
services. It covers, inter alia: access to network elements
and associated facilities, which may involve the connec-
tion of equipment, by fixed or non-fixed means (in
particular this includes access to the local loop and to
facilities and services necessary to provide services over
the local loop); access to physical infrastructure including
buildings, ducts and masts; access to relevant software
systems including operational support systems; access
to number translation or systems offering equivalent
functionality; access to fixed and mobile networks, in
particular for roaming; access to conditional access
systems for digital television services; access to virtual
network services.

‘interconnection’ means the physical and logical linking
of public communications networks used by the same or
a different undertaking in order to allow the users of one
undertaking to communicate with users of the same or
another undertaking, or to access services provided by
another undertaking. Services may be provided by the
parties involved or other parties who have access to the
network. Interconnection is a specific type of access
implemented between public network operators.

‘operator’ means an undertaking providing or authorised
to provide a public communications network or an
associated facility.

‘wide-screen television service’ means a television service
that consists wholly or partially of programmes produced
and edited to be displayed in a full height wide-screen
format. The 16:9 format is the reference format for wide-
screen television services.

‘local
loop’ means the physical circuit connecting the
network termination point at the subscriber’s premises to
the main distribution frame or equivalent facility in the
fixed public telephone network.

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CHAPTER II

GENERAL PROVISIONS

Article 3

General framework for access and interconnection

1. Member States shall ensure that there are no restrictions
which prevent undertakings in the same Member State or in
different Member States from negotiating between themselves
agreements on technical and commercial arrangements for
access and/or interconnection, in accordance with Community
law. The undertaking requesting access or interconnection
does not need to be authorised to operate in the Member State
where access or interconnection is requested,
if it is not
providing services and does not operate a network in that
Member State.

2. Without prejudice to Article 31 of Directive 2001/.../EC
of the European Parliament and of the Council of ... on
universal service and users’ rights relating to electronic com-
munications networks and services (Universal Service Direc-
tive) (1), Member States shall not maintain legal or administrat-
ive measures which oblige operators, when granting access or
interconnection, to offer different terms and conditions to
different undertakings for equivalent services and/or imposing
obligations that are not related to the actual access and
interconnection services provided without prejudice to the
conditions fixed in the Annex of Directive 2001/.../EC (Author-
isation Directive).

Article 4

Rights and obligations for undertakings

Operators of public communications networks shall
1.
have a right and, when requested by other undertakings so
authorised, an obligation to negotiate interconnection with
each other for the purpose of providing publicly available
electronic communications services, in order to ensure pro-
vision and interoperability of services throughout the Com-
munity. Operators shall offer access and interconnection to
other undertakings on terms and conditions consistent with
obligations imposed by the national regulatory authority
pursuant to Articles 5, 6, 7 and 8.

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

(1) See page 55 of this Official Journal.

3. Without prejudice to Article 11 of Directive 2001/.../EC
(Authorisation Directive), Member States shall require that
undertakings which acquire information from another under-
taking before, during or after the process of negotiating access
or interconnection arrangements use that information solely
for the purpose for which it was supplied and respect at all
times the confidentiality of information transmitted or stored.
The received information shall not be passed on to any other
party, in particular other departments, subsidiaries or partners,
for whom such information could provide a competitive
advantage.

Article 5

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

1.
National regulatory authorities shall, acting in pursuit of
the objectives set out in Article 7 of Directive 2001/.../EC
(Framework Directive), encourage and where appropriate
ensure, in accordance with the provisions of this Directive,
adequate access and interconnection, and interoperability of
services, exercising their responsibility in a way that promotes
efficiency, sustainable competition, and gives the maximum
benefit to end-users.

In particular, without prejudice to measures that may be taken
regarding undertakings with significant market power in
accordance with Article 8, national regulatory authorities shall
be able to impose:

(a)

(b)

to the extent that is necessary to ensure end-to-end
connectivity, obligations on undertakings that control
access to end-users,
including in justified cases the
obligation to interconnect their networks where this is
not already the case.

to the extent that is necessary to ensure accessibility for
end-users to digital radio and television broadcasting
services specified by the Member State, obligations on
operators to provide access to the other facilities referred
to in Annex I, Part II on fair, reasonable and non-
discriminatory terms.

2. When imposing obligations on an operator to provide
access in accordance with Article 12, national regulatory
authorities may lay down technical or operational conditions
to be met by the provider and/or beneficiaries of such access,
in accordance with Community law, where necessary to ensure
normal operation of the network. Conditions that refer to
implementation of specific technical standards or specifi-
cations shall respect Article 16 of Directive 2001/.../EC
(Framework Directive).

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3.
Obligations and conditions imposed in accordance with
paragraphs 1 and 2 shall be objective, transparent, proportion-
ate and non-discriminatory, and shall be implemented in
accordance with the procedure in Article 6 of Directive
2001/.../EC (Framework Directive).

4. With regard to access and interconnection, Member
States shall ensure that the national regulatory authority is
empowered to intervene at its own initiative where justified
or, in the absence of agreement between undertakings, at the
request of either of the parties involved, in order to secure
the policy objectives of Article 7 of Directive 2001/.../EC
(Framework Directive), in accordance with the provisions of
this Directive and the procedures referred to in Articles 6, 18
and 19 of Directive 2001/.../EC (Framework Directive).

CHAPTER III

(b)

the prospects for effective competition in the markets for:

(i)

(ii)

retail digital television and radio broadcasting ser-
vices, and

conditional access systems and other associated
facilities

would not be adversely affected by such amendment or
withdrawal.

An appropriate period of notice shall be given to parties
affected by such amendment or withdrawal of conditions.

4.
Conditions applied in accordance with this Article are
without prejudice to the ability of Member States to impose
obligations in relation to the presentational aspect of electronic
programme guides and similar listing and navigation facilities.

OBLIGATIONS ON OPERATORS AND MARKET REVIEW
PROCEDURES

Article 7

Article 6

Conditional access systems and other facilities

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

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

3.
Notwithstanding the provisions of paragraph 1, Member
States may permit their national regulatory authority, on entry
into force of this Directive and periodically thereafter, to
review the conditions applied in accordance with this Article,
by undertaking a market analysis in accordance with the first
paragraph of Article 15 of Directive 2001/.../EC (Framework
Directive)
to determine whether to maintain, amend or
withdraw the conditions applied.

Where, as a result of this market analysis, a national regulatory
authority finds that one or more operators do not have
significant market power on the relevant market, it may amend
or withdraw the conditions with respect to those operators, in
accordance with the procedure in Article 6 of Directive
2001/.../EC (Framework Directive), only to the extent that:

(a)

accessibility for end-users to radio and TV broadcasts
and broadcasting channels and services specified in
accordance with Article 31 of Directive 2001/.../EC
(Universal Service Directive) would not be adversely
affected by such amendment or withdrawal; and

Review of former obligations for access and intercon-
nection

1. Member States shall maintain all obligations on under-
takings providing public communications networks and/or
services concerning access and interconnection that were in
force prior to the date of entry into force of this Directive
under Articles 4, 6, 7, 8, 11, 12 and 14 of Directive 97/33/EC,
Article 16 of Directive 98/10/EC, and Articles 7 and 8 of
Directive 92/44/EC, until such time as these obligations have
been reviewed and a determination made in accordance with
paragraph 3.

The Commission will

2.
indicate relevant markets for
the obligations referred to in paragraph 1 in the initial
recommendation on relevant product and service markets and
the Decision identifying pan-European markets to be adopted
in accordance with Article 14 of Directive 2001/.../EC (Frame-
work Directive).

3. Member States shall ensure that, immediately following
the date of application referred to in Article 18(1), second
subparagraph, and periodically thereafter, national regulatory
authorities undertake a market analysis, in accordance with
Article 15 of Directive 2001/.../EC (Framework Directive) to
determine whether to maintain, amend or withdraw these
obligations. An appropriate period of notice shall be given
to parties affected by such amendment or withdrawal of
obligations.

Article 8

Imposition, amendment or withdrawal of obligations

1. Member States shall ensure that national regulatory
authorities are empowered to impose the obligations identified
in Articles 9 to 13.

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2. Where an operator is designated as having significant
market power on a specific market as a result of a market
analysis carried out in accordance with Article 15 of Directive
2001/.../EC (Framework Directive), national regulatory auth-
orities shall impose the obligations set out in Articles 9 to 13
of this Directive as appropriate.

3. Without prejudice to:

— the provisions of Articles 5(1), 5(2) and 6,

— the provisions of Articles 11 and 12 of Directive
2001/.../EC (Framework Directive), Condition 7 in Part B
of the Annex to Directive 2001/.../EC (Authorisation
Directive) as applied by virtue of Article 6(1) of that
Directive, Articles 27, 28 and 30 of Directive 2001/.../EC
(Universal Service Directive) and the relevant provisions
of Directive 2001/.../EC of the European Parliament and
... on the processing of personal
of the Council of
data and the protection of privacy in the electronic
communications sector (Data Protection Directive) (1)
containing obligations on undertakings other than those
designated as having significant market power, or

— the need to comply with international commitments,

national regulatory authorities shall not impose the obligations
set out in Article 9 to 13 on operators that have not been
designated in accordance with paragraph 2.

In exceptional circumstances, when a national regulatory
authority intends to impose on operators with significant
market power obligations for access or interconnection that
go beyond those set out in Article 9 to 13 in this Directive it
shall submit this request to the Commission. The Commission,
acting in accordance with Article 14(2) shall take a decision
authorising or preventing the national regulatory authority
from taking such measures.

4.
Obligations imposed in accordance with this Article shall
be based on the nature of the problem identified, proportionate
and justified in the light of the objectives laid down in
Article 7 of Directive 2001/.../EC (Framework Directive). Such
obligations shall only be imposed following consultation in
accordance with Article 6 of that Directive.

5.
In relation to the third indent of the first subparagraph
of paragraph 3, national regulatory authorities shall notify
decisions to impose, amend or withdraw obligations on market
players to the Commission, in accordance with the procedures
in Article 6(2), (3) and (4) of Directive 2001/.../EC (Framework
Directive).

(1) OJ C ...

Article 9

Obligation of transparency

1.
National regulatory authorities may, in accordance with
the provisions of Article 8, impose obligations for transparency
in relation to interconnection and/or access, requiring oper-
ators to make public specified information, such as accounting
information, technical specifications, network characteristics,
terms and conditions for supply and use, and prices.

2.
In particular where an operator has obligations of non-
discrimination, national regulatory authorities may require
that operator to publish a reference offer, which shall be
sufficiently unbundled to ensure that undertakings are not
required to pay for facilities which are not necessary for the
service requested, giving a description of the relevant offerings
broken down into components according to market needs,
and the associated terms and conditions including prices. The
national regulatory authority shall, inter alia, be able to impose
changes to reference offers to give effect
to obligations
imposed under this Directive.

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

4.
Notwithstanding paragraph 3, where an operator has
obligations under Article 12 concerning unbundled access
to the twisted metallic pair local
loop, national regulatory
authorities shall ensure the publication of a reference offer
containing at least the elements set out in Annex II.

5.
In the light of market and technological developments,
Annex II may be amended in accordance with the procedure
referred to in Article 14(3).

Article 10

Obligation of non-discrimination

A national regulatory authority may, in accordance with
impose obligations of non-

1.
the provisions of Article 8,
discrimination, in relation to interconnection and/or access.

Obligations of non-discrimination shall ensure, in par-
2.
ticular, that the operator applies equivalent conditions in
equivalent circumstances to other undertakings providing
equivalent services, and provides services and information to
others under the same conditions and of the same quality as it
provides for its own services, or those of it subsidiaries or
partners.

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Article 11

(c)

not to withdraw access to facilities already granted;

Obligation of accounting separation

(d)

to provide specified services on a wholesale basis for
resale by third parties;

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

(e)

to grant open access to technical interfaces, protocols or
other key technologies that are indispensable for the
interoperability of services or virtual network services;

In particular, a national regulatory authority may require a
vertically integrated company to make transparent its whole-
sale prices and its internal transfer prices inter alia to ensure
compliance where there is a requirement for non-discrimi-
nation under Article 10 or, where necessary, to prevent unfair
cross-subsidy. National regulatory authorities may specify the
format and accounting methodology to be used.

2. Without prejudice to Article 5 of Directive 2001/.../EC
(Framework Directive), to facilitate the verification of com-
pliance with obligations of transparency and non-discrimi-
nation, national regulatory authorities shall have the power to
require that accounting records, including data on revenues
received from third parties, are provided on request. National
regulatory authorities may publish such information as would
contribute to an open and competitive market, while respect-
ing national and Community rules on commercial confiden-
tiality.

Article 12

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

A national regulatory authority may, in accordance with
1.
the provisions of Article 8, impose obligations on operators to
meet reasonable requests for access to, and use of, specific
network elements and associated facilities, inter alia, in situ-
ations where the national regulatory authority considers that
denial of access or unreasonable terms and conditions having
a similar effect would hinder the emergence of a sustainable
competitive market at the retail level, or would not be in the
end-user’s interest.

Operators may be required, inter alia:

(a)

to give third parties access to specified network elements
and/or facilities, including unbundled access to the local
loop;

(f)

to provide collocation or other forms of facility sharing,
including duct, building or mast sharing;

(g)

to provide specified services needed to ensure interop-
erability of end-to-end services to users, including facili-
ties for intelligent network services or roaming on mobile
networks;

(h)

to provide access to operational support systems or
similar software systems necessary to ensure fair compe-
tition in the provision of services;

(i)

to interconnect networks or network facilities.

National regulatory authorities may attach to those obligations
conditions covering fairness, reasonableness and timeliness.

2. When national regulatory authorities are considering
whether to impose the obligations referred in paragraph 1,
and in particular when assessing whether such obligations
would be proportionate to the objectives set out in Article 7
of Directive 2001/.../EC (Framework Directive), they shall take
account in particular of the following factors:

(a)

the technical and economic viability of using or installing
competing facilities, in the light of the rate of market
development, taking into account the nature and type of
interconnection and access involved;

(b)

the feasibility of providing the access proposed, in relation
to the capacity available;

(c)

the initial investment by the facility owner, bearing in
mind the risks involved in making the investment;

(d)

the need to safeguard competition in the long term;

(e) where appropriate, any relevant intellectual property

rights;

(b)

to negotiate in good faith with undertakings requesting
access;

(f)

the provision of pan-European services.

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Article 13

CHAPTER IV

Price control and cost accounting obligations

A national regulatory authority may, in accordance with
1.
the provisions of Article 8, impose obligations relating to cost
recovery and price controls, including obligations for cost
orientation of prices and obligations concerning cost account-
ing systems, for the provision of specific types of intercon-
nection and/or access, in situations where a market analysis
indicates that a lack of effective competition means that the
operator concerned might sustain prices at an excessively high
level, or apply a price squeeze, to the detriment of end-users.
National regulatory authorities shall take into account the
investment made by the operator and allow him a reasonable
rate of return on adequate capital employed, taking into
account the risks involved.

National regulatory authorities shall ensure that any cost
2.
recovery mechanism or pricing methodology that is mandated
serves to promote efficiency and sustainable competition and
maximise consumer benefits. In this regard national regulatory
authorities may also take account of prices available in
comparable competitive markets.

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

PROCEDURAL PROVISIONS

Article 14

Committee

1.
The Commission shall be assisted by the Communi-
cations Committee set up by Article 20 of Directive 2001/.../EC
(Framework Directive).

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 set at three months.

4.

The Committee shall adopt its rules of procedure.

Article 15

Publication of, and access to, information

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

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

4.
National regulatory authorities shall ensure that, where
implementation of a cost accounting system is mandated in
order to support price controls, a description of the cost
accounting system is made publicly available, showing at least
the main categories under which costs are grouped and the
rules used for the allocation of costs. Compliance with the cost
accounting system shall be verified by a qualified independent
body. A statement concerning compliance shall be published
annually.

Article 16

Notification

1. Member States shall notify to the Commission by at the
latest the date of application referred to in Article 18(1) second
subparagraph the national regulatory authorities responsible
for the tasks set out in this Directive.

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2.
National regulatory authorities shall notify to the Com-
mission the names of operators deemed to have significant
market power for the purposes of this Directive, and the
obligations imposed upon them under this Directive. Any
changes affecting the obligations imposed upon undertakings
or of the undertakings affected under the provisions of this
Directive shall be notified to the Commission without delay.

Article 17

Review procedures

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 18(1), second
subparagraph. For this purpose, the Commission may request
from the Member States information, which shall be supplied
without undue delay.

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 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 18

Transposition

Article 20

Addressees

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

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

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

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ANNEX I

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

Part I — Conditions for conditional access systems to be applied in accordance with Article 6(1).

In relation to conditional access to digital television and radio services broadcast to viewers and listeners in the
Community, irrespective of the means of transmission, Member States must ensure in accordance with Article 6 that
the following conditions apply:

(a)

(b)

conditional access systems operated on the market in the Community are to have the necessary technical
capability for cost effective transcontrol allowing the possibility for full control by network operators at local
or regional level of the services using such conditional access systems;

all operators of conditional access services, irrespective of the means of transmission, who provide access
services to digital television and radio services and whose access services broadcasters depend on to reach any
group of potential viewers or listeners are to:

— offer to all broadcasters, on a fair, reasonable and non-discriminatory basis compatible with Community
competition law, technical services enabling the broadcasters’ digitally-transmitted services to be received
by viewers or listeners authorised by means of decoders administered by the service operators, and
comply with Community competition law,

— keep separate financial accounts regarding their activity as conditional access providers.

(c) when granting licences to manufacturers of consumer equipment, holders of industrial property rights to
conditional access products and systems are to ensure that this is done on fair, reasonable and non-
discriminatory terms. Taking into account technical and commercial factors, holders of rights are not to subject
the granting of licences to conditions prohibiting, deterring or discouraging the inclusion in the same product
of:

— a common interface allowing connection with several other access systems, or

— means specific to another access system, provided that the licensee complies with the relevant and
reasonable conditions ensuring, as far as he is concerned, the security of transactions of conditional access
system operators.

Part II — Other facilities to which conditions may be applied under Article 5(1)(b).

(a) Access to application program interfaces (APIs).

(b) Access to electronic programme guides (EPGs).

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ANNEX II

MINIMUM LIST OF ITEMS TO BE INCLUDED IN A REFERENCE OFFER FOR UNBUNDLED ACCESS TO
THE TWISTED METALLIC PAIR LOCAL LOOP TO BE PUBLISHED BY NOTIFIED OPERATORS

For the purposes of this Annex the following definitions apply:

(a)

(b)

(c)

(d)

‘local sub-loop’ means a partial local loop connecting the network termination point at the subscriber’s premises
to a concentration point or a specified intermediate access point in the fixed public telephone network;

‘unbundled access to the local loop’ means full unbundled access to the local loop and shared access to the
local loop; it does not entail a change in ownership of the local loop;

‘full unbundled access to the local loop’ means the provision to a beneficiary of access to the local loop or local
sub loop of the notified operator authorising the use of the full frequency spectrum of the twisted metallic pair;

‘shared access to the local loop’ means the provision to a beneficiary of access to the local loop or local sub
loop of the notified operator, authorising the use of the non-voice band frequency spectrum of the twisted
metallic pair; the local loop continues to be used by the notified operator to provide the telephone service to
the public;

A.

Conditions for unbundled access to the local loop

1.

Network elements to which access is offered covering in particular the following elements:

(a)

access to local loops;

(b)

access to non-voice band frequency spectrum of a local loop, in the case of shared access to the
local loop;

Information concerning the locations of physical access sites (1), availability of local loops in specific parts
of the access network;

Technical conditions related to access and use of local loops, including the technical characteristics of the
twisted metallic pair in the local loop;

2.

3.

4.

Ordering and provisioning procedures, usage restrictions.

B.

Co-location services

1.

2.

3.

4.

5.

6.

7.

Information on the notified operator’s relevant sites (1);

Co-location options at the sites indicated under point 1 (including physical co-location and, as appropriate,
distant co-location and virtual co-location);

Equipment characteristics: restrictions, if any, on equipment that can be co-located;

Security issues: measures put in place by notified operators to ensure the security of their locations;

Access conditions for staff of competitive operators;

Safety standards;

Rules for the allocation of space where co-location space is limited;

(1) Availability of this information may be restricted to interested parties only, in order to avoid public security concerns.

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8.

Conditions for beneficiaries to inspect the locations at which physical co-location is available, or sites
where co-location has been refused on grounds of lack of capacity.

C.

Information systems

Conditions for access to notified operator’s operational support systems, information systems or databases for
pre-ordering, provisioning, ordering, maintenance and repair requests and billing.

D.

Supply conditions

1.

2.

Lead time for responding to requests for supply of services and facilities; service level agreements, fault
resolution, procedures to return to a normal level of service and quality of service parameters;

Standard contract terms, including, where appropriate, compensation provided for failure to meet lead
times;

3.

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

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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 one key element of this package, which is a proposal for a Directive of the
European Parliament and of the Council on access to, and interconnection of, electronic
communications networks and associated facilities, known as the ‘Access 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 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 Directive on access to, and interconnection of, electronic communications
networks and associated facilities aims to give priority to commercial negotiations between
the parties for access and interconnection agreements by setting a clear framework for
whenever intervention by the national regulatory authority (NRA) is necessary, for instance to
correct any distortion of the market.

III. ANALYSIS OF THE COMMON POSITION

A.

GENERAL COMMENTS

The Council supports the approach and aims proposed by the Commission. When drawing up
its common position it nevertheless made 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 the opinion of the
European Parliament, was particularly concerned to:

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

text;

— provide greater guarantees to users regarding end-to-end connectivity;

— create more flexibility regarding the future development of obligations regarding access to

digital television.

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B.

SPECIFIC COMMENTS

1.

Principal changes made to the Commission proposal

(a) Obligations to interconnect (Article 5(1)(a))

The common position text grants a specific power to NRAs in the new Article 5(1)(a)
to impose an obligation to interconnect on undertakings controlling access to end-
users. This is in addition to the possibility of imposing such obligations on operators
with significant market power under Article 12. The intention of this change is to
provide a more sure guarantee of the end-to-end connectivity of networks.

(b) Conditional access obligations (Article 5(1)(b), Article 6, and Annex I)

The Commission’s proposal stipulated that the basic obligations of the Television
Standards Directive 95/47/EC applicable to all operators be simply carried over into
Article 6 and Annex I of this Directive. An added element was the future possibility
to extend these requirements in the light of technical developments via a comitology
procedure to include other facitilties (Application Program Interfaces and Electronic
Program Guides — APIs and EPGs).

In general the Council considered the Commission’s proposed approach in this area
overly rigid. A new subparagraph Article 5(1)(b) has therefore been added to allow
Member States the freedom to include requirements for other facilities (APIs and
EPGs) from the outset.

In addition, Article 6(4) in the common position text gives the possibility of ‘rolling
back’
the regulation of conditional access systems as markets became more
competitive, provided that the accessibility of specified ‘must carry’ broadcasts can
be maintained.

(c) Certain limitations to public networks (Article 1(1), Article 4)

The Council has chosen to maintain the broad scope of this Directive (covering
public and private networks) proposed by the Commission, whilst nevertheless
amending certain specific provisions, such as Article 4(1) and (2), to clarify that they
only apply to public networks.

(d) Carry over of specific obligations regarding local loop unbundling(Article 9,

Article 12 and Annex II)

Taking account of the opinion of the European Parliament, the Council has added a
number of detailed provisions with the objective of carrying over into the new
framework the obligations laid down in the recently adopted regulation on local
loop unbundling.

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, 6, 7, 9, 12, 16,
19, 23, 24, 26, 29, 33, 34, 37, 38, 41, 42-43, 44, 45, 47 and 48. For certain of these
amendments the complete or near-complete wording has been taken on board,
whilst others have been incorporated in a different form which nevertheless maintains
the aim underlying the amendment or parts of the amendment.

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(b) Amendments not incorporated into the common position

In not incorporating amendments 2, 3, 4, 5, 10, 11, 13, 14, 22, 25, 27, 35, 39, 40,
50 and 51, the Council followed the Commission’s opinion.

In not incorporating amendments 8, 15, 17, 18, 21, 28, 30, 31 and 32, the Council
based its decisions on the following considerations:

— amendment 8 (Article 2(b) — ‘Interconnection’ definition)

The wording of the Commission proposal seemed to provide greater legal
clarity;

— amendment 15 (Article 4, penalties for breaches of confidentiality)

The Council had a preference to give some discretion to Member States on this
question;

— amendment 17 (priority given to commercial negotiation)

Whilst agreeing on the principle, for formal reasons such ‘explanatory’ text is
better placed in the recitals (see recital 4);

— amendment 18 (requirement to withdraw obligations where markets are competitive)

The substance is already covered in Article 14a (now 15) of the Framework
Directive, and repetition here could create legal insecurity regarding the general
interest exemptions (where obligations are imposed in all operators) cited in
Article 8(2) of the Council text;

— Amendment 21 (Conditional access and other facilities)

The Council has deleted paragraph 2 of Article 6, given that the more broadly-
worded paragraph 3 in any case allows changes to Annex I through comitology;

— Amendment 28 (Article 8(2))

There is a preference for the more systematic and exhaustive text of Article 8(2)
included in the common position;

— Amendment 30 (Article 8(3))

The amendment was considered unnecessary, given that Article 6 of the
Framework Directive (to which the text refers) included already part of the
changes suggested;

— Amendment 31 (Notice prior to withdrawal of obligations)

It was considered that Article 7(3) of this Directive and Article 14a (now 15) of
the Framework Directive already cover the question of notice;

— Amendment 32 (Additional paragraph in Article 8)

It was considered harmful to legal security to introduce additional criteria for
judging NRA intervention here, the question being better dealt with in Articles 7,
13, 14 and 14a (now 15) of the Framework Directive.