European Parliament legislative resolution on the Council common position for adopting a European Parliament and Council directive on a common regulatory framework for electronic communications networks and services (Framework Directive) (10420/1/2001 - C5-0415/2001 - 2000/0184(COD))
Date: 2001-12-12
Institutions: European Parliament
Subjects: approximation of laws, competition, information technology, single market, supervisory body, telecommunications, television, transmission network

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8. Electronic communications networks and services (framework directive) ***II

A5-0435/2001

European Parliament legislative resolution on the Council common position for adopting a Euro-
pean Parliament and Council directive on a common regulatory framework for electronic com-
(10420/1/2001 ( C5-0415/2001 (
munications networks and services (framework directive)

2000/0184(COD))

(Codecision procedure: second reading)

The European Parliament,

(cid:17) having regard to the Council common position (10420/1/2001 (cid:17) C5-0415/2001) (1),

(cid:17) having regard to its position at first reading (2) on the Commission proposal to Parliament and the

Council (COM(2000) 393) (3),

(cid:17) having regard to the amended Commission proposal (COM(2001) 380) (4),

(cid:17) having regard to Article 251(2) of the EC Treaty,

(cid:17) having regard to Rule 80 of its Rules of Procedure,

(cid:17) having regard to the recommendation for second reading of the Committee on Industry, External

Trade, Research and Energy (A5-0435/2001),

1.

Amends the common position as follows;

2.
Calls on the Commission to communicate to the European Parliament as soon as possible the con-
crete steps the Commission will take to ensure the rapid adoption of an open European market for inter-
active digital television services, in line with the remarks made by Commissioner Liikanen, on behalf of the
Commission, in the telecommunications debate held in the European Parliament in plenary session on
10 December 2001;

3.

Instructs its President to forward its position to the Council and Commission.

COUNCIL
COMMON POSITION

AMENDMENTS
BY PARLIAMENT

Amendment 45
Recital 12

(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 pro-
cedure is without prejudice to the rights of legal entities or
natural persons under national law.

(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 body may be a
court. Furthermore, any undertaking which considers that its
applications for the granting of rights to install facilities
have not been dealt with in accordance with the principles
set out in this Directive should be entitled to appeal against
such decisions. This appeal procedure is without prejudice to
the rights of legal entities or natural persons under national law
and to the division of competences within national judicial
systems.

(1) OJ C 337, 30.11.2001, p. 34.
(2) OJ C 277, 1.10.2001, p. 91.
(3) OJ C 365 E, 19.12.2000, p. 198.
(4) OJ C 270 E, 25.9.2001, p. 199.

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AMENDMENTS
BY PARLIAMENT

Amendment 49

Recital 15

It is important that national regulatory authorities con-
(15)
sult 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 Commission and other national regulatory
authorities to give them the opportunity to comment. It is
appropriate for national regulatory authorities to consult inter-
ested 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 pro-
cedures apply are defined in this Directive and in the Specific
Directives. This procedure is without prejudice to the notifica-
tion procedure provided for in Directive 98/34/EC and the
Commission’s prerogatives under
the Treaty in respect of
infringements of Community law.

It is important that national regulatory authorities con-
(15)
sult 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 internal market or other Treaty objectives,
national regulatory authorities should also notify certain draft
decisions to the Commission and other national regulatory
authorities to give them the opportunity to comment. It is
appropriate for national regulatory authorities to consult inter-
ested parties on all draft measures which have an effect on
trade between Member States. The cases where Article 6 pro-
cedures apply are defined in this Directive and in the Specific
Directives. The Commission should be able, after consulting
the Communications Committee, to require a national regu-
latory authority to withdraw a draft measure where it con-
cerns definition of relevant markets or the designation or not
of undertakings with significant market power, and where
such decisions would create a barrier to the single European
market or would be incompatible with Community law and in
particular the policy objectives that national regulatory auth-
orities should follow. This procedure is without prejudice to
the notification procedure provided for in Directive 98/34/EC
and the Commission’s prerogatives under the Treaty in respect
of infringements of Community law.

Amendment 2

Recital 27

(27)
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 sig-
nificant 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 con-
sidered 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

(27)
It is essential that ex-ante regulatory obligations should
only be imposed where there is not effective competition, i.e.
in markets where there are one or more undertakings with
significant market power, 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 prin-
ciples 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 geo-
graphical area, which could be the whole or a part of the ter-
ritory 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

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COMMON POSITION

AMENDMENTS
BY PARLIAMENT

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 mar-
ket is found to be pan-European. A pan-European market
means a trans-national market covering the Community or a
substantial part thereof.

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
transnational.

Amendment 46

Recital 30a (new)

(30a)
Interoperability of digital interactive television ser-
vices and enhanced digital television equipment, at the level
of the consumer, should be encouraged in order to ensure the
free flow of information, media pluralism and cultural diver-
sity. It is desirable for consumers to have the capability of
receiving, regardless of the transmission mode, all digital
interactive television services having regard to technological
neutrality, future technological progress, the need to promote
the take-up of digital television, and the state of competition
in the markets for digital television services. Digital inter-
active television platform operators should strive to imple-
ment an open Application Program Interface (API) which
conforms to standards or specifications adopted by a Euro-
pean Standards Organisation. Migration from existing APIs
to new open APIs should be encouraged and organised, for
example by Memoranda of Understanding between all rel-
evant market players. Open APIs facilitate interoperability,
i.e. the portability of interactive content between delivery
mechanisms, and full
content on
enhanced digital television equipment. However, the need not
to hinder the functioning of the receiving equipment and to
protect it from malicious attacks, for example from viruses,
should be taken into account.

functionality of

this

Amendment 50

Recital 34

(34) National regulatory authorities and national competition
authorities should have the right to exchange information, in
order to allow them to cooperate fully together. National regu-
latory authorities should have the same rights and duties of
confidentiality in respect of exchange of information as a

(34) National regulatory authorities and national competition
authorities should provide each other with the information
necessary to apply the provisions of this Directive and the
Specific Directives, in order to allow them to cooperate fully
together. In respect of the information exchanged, the receiv-

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AMENDMENTS
BY PARLIAMENT

‘competent authority’ for the purposes of Council Regulation
No 17 of 6 February 1962: First Regulation implementing
Articles 81 and 82 of the Treaty (1).

ing authority should ensure the same level of confidentiality
as the originating authority.

(1) OJ 13, 21.2.1962, p. 204. Regulation as last amended by Regu-

lation (EC) No 1216/1999 (OJ L 148, 15.6.1999, p. 5).

Amendment 41

Recital 34a (new)

(34a) The Commission has indicated its intention to set up
a European Regulators Group for Electronic Communications
Networks and Services which would constitute a suitable
mechanism for encouraging cooperation and coordination of
national regulatory authorities, in order to promote the devel-
opment of the internal market for electronic communications
networks and services, and to seek to achieve consistent
application, in all Member States, of the provisions set out
in this Directive and the Specific Directives, in particular in
areas where national law implementing Community law gives
national
considerable discretionary
regulatory authorities
powers in application of the relevant rules.

Amendment 42

Recital 34b (new)

(34b) National regulatory authorities should be required to
cooperate with each other and with the Commission in a
transparent manner to ensure consistent application, in all
Member States, of the provisions of this Directive and the
Specific Directives. This cooperation could take place, inter
alia, in the Communications Committee or in a group com-
prising European regulators. Member States should decide
which bodies are national regulatory authorities for the pur-
poses of this Directive and the Specific Directives.

Amendment 43

Recital 34c (new)

(34c) Measures that could affect trade between Member
States are measures that may have an influence, direct or
indirect, actual or potential, on the pattern of trade between
Member States in a manner which might create a barrier to
the single European market. They comprise measures that
have a significant impact on operators or users in other
inter alia: measures which
Member States, which include,

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BY PARLIAMENT

affect prices for users in other Member States; measures
which affect the ability of an undertaking established in
another Member State to provide an electronic communi-
cations service, and in particular measures which affect the
ability to offer services on a pan-European basis; and
measures which affect market structure or access, leading to
repercussions for undertakings in other Member States.

Amendment 6

Article 2, point (a)

(a)

‘electronic communications network’ means transmission
systems and, where applicable, switching or routing equip-
ment and other resources which permit the conveyance of
signals by wire, by radio, by optical or by other electrom-
agnetic means, including satellite networks, fixed (circuit-
and packet-switched,
including Internet) and mobile ter-
restrial networks, networks used for radio and television
broadcasting, and cable television networks,
irrespective
of the type of information conveyed;

(a)

‘electronic communications network’ means transmission
systems and, where applicable, switching or routing equip-
ment and other resources which permit the conveyance of
signals by wire, by radio, by optical or by other electrom-
agnetic means, including satellite networks, fixed (circuit-
and packet-switched,
including Internet) and mobile ter-
restrial networks, electricity cable systems, to the extent
that they are used for the purpose of transmitting sig-
nals, networks used for radio and television broadcasting,
and cable television networks, irrespective of the type of
information conveyed;

Amendment 52

Article 2, point (la) (new)

(1a)

‘transnational markets’ means markets identified in
accordance with Article 14 covering the Community or a
substantial part thereof;

Amendment 47

Article 2, points (ma) and (mb) (new)

(ma)

‘enhanced digital television equipment’ means set-top
boxes intended for connection to television sets or inte-
grated digital television sets, able to receive digital inter-
active television services;

(mb)

‘API (Application Program Interface)’ means the soft-
ware interface between applications, made available by
broadcasters or service providers, and the resources in
the enhanced digital
television equipment for digital
television and radio services;

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AMENDMENTS
BY PARLIAMENT

Amendment 51

Article 3, paragraph 5

5.
National regulatory authorities and national competition
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
information as a ‘competent authority’ as
exchange of
defined in Regulation No 17.

5.
National regulatory authorities and national competition
authorities shall provide each other with the information
necessary for the application of the provisions of this Direc-
tive and the Specific Directives. In respect of the information
exchanged, the receiving authority shall ensure the same level
of confidentiality as the originating authority.

Amendment 44

Article 4, paragraph 1

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

1. Member States shall ensure that effective mechanisms
exist at national
level under which any user or undertaking
providing electronic communications networks and/or services
who is affected by a decision of a national regulatory authority
has the right of appeal against the decision to an appeal body
that is independent of the parties involved. This body, which
may be a court, shall have the appropriate expertise available
to it to enable it to carry out its functions. Member States
shall ensure that the merits of the case are duly taken into
account and that there is an effective appeal mechanism.
Pending the outcome of any such appeal, the decision of the
national regulatory authority shall stand, unless the appeal
body decides otherwise.

Amendment 39

Article 6

Except in cases falling within Article 18 or 19 Member
1.
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 com-
ment on the draft measure within a reasonable period. National
regulatory authorities shall publish their national consultation
procedures.

Except in cases falling within Articles 6a(6), 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
relevant market, they give interested parties the opportunity to
comment on the draft measure within a reasonable period.
National regulatory authorities shall publish their national con-
sultation procedures. Member States shall ensure the estab-
lishment of a single information point through which all cur-
rent consultations can be accessed. The results of
the
consultation procedure shall be made publicly available by
the national regulatory authority, except in the case of con-
fidential
information in accordance with Community and
national law on business confidentiality.

2.
In addition to the consultation referred to in para-
graph 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 Direc-
tive or Article 8(3) of Directive 2001/…/EC (Access Direc-

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COMMON POSITION

it shall at the same time make the draft measure
tive),
accessible to the Commission and the national regulatory
authorities in other Member States, together with the reason-
ing on which the measure is based, in accordance with Arti-
cle 5(3) of this Directive, and inform the Commission and
other national regulatory authorities thereof. National regu-
latory 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 pro-
longed.

The national regulatory authority concerned shall take
3.
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 Commis-
sion.

If the resulting draft measure referred to in para-

4.
graph 3:

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

(b) if the Commission has indicated to the national regula-
tory authority that it has serious doubts as to the com-
patibility of the draft measure made available according
to paragraph 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 communi-
cate to the national regulatory authority concerned stat-
ing why it considers that the draft measure is not com-
patible with Community law, and in particular the
objectives referred to in Article 7. The national regula-
tory authority may adopt the envisaged measures after
the publication of the detailed opinion of the Commis-
sion, or after the one-month period has expired, and
shall communicate them to the Commission. In any case
the
the one-month period cannot be prolonged.
national regulatory authority chooses not to follow the
detailed opinion of the Commission, it shall communicate
its reasoning to the Commission.

If

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

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AMENDMENTS
BY PARLIAMENT

Amendment 40

Article 6a (new)

Article 6a

Consolidating the internal market for electronic communi-
cations

In carrying out their tasks under this Directive and the
1.
Specific Directives, national regulatory authorities shall take
the utmost account of the objectives set out in Article 7,
including insofar as they relate to the functioning of the
internal market.

2.
National regulatory authorities shall contribute to the
development of the internal market by cooperating with each
other and with the Commission in a transparent manner to
ensure the consistent application, in all Member States, of
the provisions of this Directive and the Specific Directives.
To this end, they shall, in particular, seek to agree on the
types of instruments and remedies best suited to address par-
ticular types of situations in the marketplace.

3.
In addition to the consultation referred to in Article 6,
where a national regulatory authority intends to take a
measure which:

(a) falls within the scope of Article 14 or 15 of this Direc-
tive, Article 5 or 8 of Directive 2001/…/EC (Access
Directive) or Article 16 of Directive 2001/…/EC (Univer-
sal Service Directive), and

(b) would affect trade between Member States,

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 measure is based, in accordance with Article 5(3), and
shall 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 Article 6 if that period is longer. The
one-month period may not be exended.

4. Where an intended measure covered by paragraph 3
aims at:

(a) defining a relevant market which differs from those
defined in the Recommendation in accordance with Arti-
cle 14(1), or

(b) deciding whether or not to designate an undertaking as
having, either individually or jointly with others, signifi-
cant market power, under Article 15(3), (4) or (5),

and would affect trade between Member States and the Com-
mission has indicated to the national regulatory authority
that it considers that the draft measure would create a bar-
rier to the single European market or if it has serious doubts

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BY PARLIAMENT

as to its compatibility with Community law and in particular
the objectives referred to in Article 7, then the draft measure
shall not be adopted for a further two months. This period
may not be extended. Within this period the Commission
may,
in accordance with the procedure set out in Arti-
cle 20(2), take a decision requiring the national regulatory
authority concerned to withdraw the draft measure. This
decision shall be accompanied by a detailed and objective
analysis of why it considers that the draft measure should
not be adopted together with specific proposals for amending
the draft measure.

5.
The national regulatory authority concerned shall take
the utmost account of comments of other national regulatory
authorities and the Commission and may, except in cases
covered by paragraph 4, adopt the resulting draft measure
and, where it does so, shall communicate it to the Commis-
sion.

6.
In exceptional circumstances, where a national regula-
tory authority considers that there is an urgent need to act,
by way of derogation from the procedure set out in para-
graphs 3 and 4, in order to safeguard competition and protect
the interests of users, it may adopt immediately proportionate
and provisional measures. It shall, without delay, communi-
cate those measures, with full reasons, to the Commission
and the other national regulatory authorities. A decision by
the national regulatory authority to render such measures
permanent or extend the time for which they are applicable
shall be subject to the provisions of paragraphs 3 and 4.

Amendment 53

Article 7, paragraph 3, point (b)

(b) encouraging the establishment and development of pan-
European networks and the interoperability of pan-Euro-
pean services,

(b) encouraging the establishment and development of pan-
European networks and the interoperability of pan-Euro-
pean services and end-to-end connectivity,

Amendment 23

Article 7, paragraph 3, point (d)

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

(d) cooperating with each other and with the Commission in a
transparent manner to ensure the development of consist-
ent regulatory practice and the consistent application of
this Directive and the Specific Directives.

Amendment 25

Article 10, paragraph 2a (new)

2a. Member States shall ensure that effective mechanisms
exist to allow undertakings to appeal against decisions on the
granting of rights to install facilities to a body that is inde-
pendent of the parties involved.

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AMENDMENTS
BY PARLIAMENT

Amendment 26

Article 14, paragraph 1, subparagraph 1

1.
After consultation with national regulatory authorities the
Commission shall adopt a Recommendation on Relevant Pro-
duct and Service Markets (hereinafter ‘the Recommendation’).
The Recommendation shall identify in accordance with Annex
I hereto those product and service markets within the elec-
tronic communications sector,
the characteristics of which
may be such as to justify the imposition of regulatory obli-
gations set out in the Specific Directives, without prejudice to
markets that may be defined in specific cases under competi-
tion law. The Commission shall define markets in accordance
with the principles of competition law.

1.
After public consultation and consultation with national
regulatory authorities the Commission shall adopt a Recom-
mendation on Relevant Product and Service Markets (herein-
after ‘the Recommendation’). The Recommendation shall iden-
tify 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 competi-
tion law.

Amendment 27

Article 14, paragraph 4

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

After consultation with national regulatory authorities the
4.
Commission may, acting in accordance with the procedure ref-
erred to in Article 20(3), adopt a Decision identifying trans-
national markets.

Amendment 29

Article 15, paragraph 5

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 regula-
tory obligations referred to in paragraph 2 of this Article in a
concerted fashion.

5.
In the case of transnational 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 regula-
tory obligations referred to in paragraph 2 of this Article in a
concerted fashion.

Amendment 48

Article 16a (new)

Article 16a

Interoperability of digital interactive television services

1.
In order to promote the free flow of information, media
pluralism and cultural diversity, Member States shall encour-
age, in accordance with the provisions of Article 16(2):

(a) providers of digital interactive television services for dis-
tribution to the public in the Community on digital
interactive television platforms, regardless of the trans-
mission mode, to use an open API;

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(b) providers of all enhanced digital television equipment
deployed for the reception of digital interactive television
services on interactive digital
television platforms to
comply with an open API in accordance with the mini-
mum requirements of the relevant standards or specifi-
cations.

2. Without prejudice to Article 5(1)(b) of Directive 2001/
…/EC (Access Directive) Member States shall encourage pro-
prietors of APIs to make available on fair, reasonable and
non-discriminatory terms, and against appropriate remuner-
ation, all such information as is necessary to enable providers
of digital interactive television services to provide all services
supported by the API in a fully functional form.

3. Within one year after the date of application referred to
in Article 26(1), second subparagraph, the Commission shall
examine the effects of this Article. If interoperability and
freedom of choice for users have not been adequately achieved
in one or more Member States, the Commission may take
action in accordance with the procedure laid down in Arti-
cle 16(3) and (4).

Amendment 37
Annex I, point 3a (new)

3a. Additional markets

The national market for international roaming services on
public mobile telephone networks.

9. Access to electronic communications networks and associated facilities

(access directive) ***II

A5-0434/2001

European Parliament legislative resolution on the Council common position for adopting a Euro-
pean Parliament and Council directive on access to, and interconnection of, electronic communi-
cations networks and associated facilities (access directive) (10418/1/2001 ( C5-0416/2001 (
2000/0186(COD))

(Codecision procedure: second reading)

The European Parliament,

(cid:17) having regard to the Council common position (10418/1/2001 (cid:17) C5-0416/2001) (1),

(cid:17) having regard to its position at first reading (2) on the Commission proposal to Parliament and the

Council (COM(2000) 384) (3),

(1) OJ C 337, 30.11.2001, p. 1.
(2) OJ C 277, 1.10.2001, p. 72.
(3) OJ C 365 E, 19.12.2000, p. 215.