Opinion of the Commission pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty, on the European Parliament's amendments to the Council's common position regarding the proposal for a Directive of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services amending the proposal of the Commission pursuant to Article 250 (2) of the EC Treaty
Date: 2002-02-07
Institutions: European Commission
Subjects: regulation (EU), services contract, telecommunications, transmission network

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 07.02.2002
COM(2002) 78 final

2000/184 (COD)

OPINION OF THE COMMISSION

pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty,
on the European Parliament's amendments
to the Council's common position regarding the
proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL

on a common regulatory framework for electronic communications networks and
services

AMENDING THE PROPOSAL OF THE COMMISSION
pursuant to Article 250 (2) of the EC Treaty

2000/184 (COD)

OPINION OF THE COMMISSION

pursuant to Article 251 (2), third subparagraph, point (c) of the EC Treaty,
on the European Parliament's amendments
to the Council's common position regarding the
proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL

on a common regulatory framework for electronic communications networks and
services

1.

INTRODUCTION

Article 251(2), third subparagraph, point (c) of the EC Treaty provides that the Commission is
to  deliver  an  opinion  on  the  amendments  proposed  by  the  European  Parliament  at  second
reading.  The  Commission  sets  out  its  opinion  below  on  the  23  amendments  proposed  by
Parliament.

2.

BACKGROUND

In response to the conclusions of the special European Council of  Lisbon of 23 – 24 March
2000,  and  building  on  the  Communication  on  the  results  of  the  public  consultation  on  the
1999 Review of the Electronic Communications Sector and the principles and orientations for
the  new  Regulatory  Framework  (COM(2000)239),  the  Commission  proposed  this  Directive
on a common regulatory framework for electronic communications  networks and  services –
the  central  measure  in  a  package  of  five  directives  that  would  make  up  the  new  regulatory
framework.  The  new  framework  seeks  to  take  account  of  the  convergence  between
telecommunications,  broadcasting  and  IT  sectors.  It  seeks  to  reinforce  competition  in  all
market segments, while ensuring that the basic rights of consumers continue to be protected.
It is designed to cater for new, dynamic  and largely  unpredictable  markets with  many more
players than today.

The  European  Parliament  adopted  its  first  reading  on  1  March  2001  and  the  Commission
adopted its modified proposal on 4 July 2001. The Council adopted its common position on
17  September  2001  unanimously.  The  Commission  considered  that  the  common  position
would  have  significantly  weakened  the  content  of  its  proposal  and  would  have  reduced  the
likelihood of consistency of regulation across the EU. For these reasons, the Commission was
not able to support the common position.

The  amendments  voted  by  the  European  Parliament  are  part  of  a  compromise  package  of
amendments on four directives, including the present directive, and one decision on spectrum
that was put as an ensemble to the EP by the Council Presidency. The package was accepted
in  its  totality  in  the  plenary  vote  by  the  EP  on  12  December.  Since  the  amendments  are

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acceptable to the Council, the conciliation procedure will not be invoked. Final adoption by
the Council is foreseen in the beginning of 2002 following verification of the texts by jurist-
linguists.

3.

PURPOSE OF THE PROPOSAL

This proposed Directive aims to establish a harmonised regulatory framework for  electronic
communications networks and services across the EU. It seeks to respond to the convergence
phenomenon  by  covering  all  electronic  communications  networks  and  services  within  its
scope. It sets out a number of principles and objectives for regulators to follow, as well as a
series  of  tasks  in  respect  of  management  of  scarce  resources  such  as  radio  spectrum  and
numbering. Finally, it contains a number of horizontal provisions common to more than one
measure in the package.

OPINION  OF  THE  COMMISSION  ON  THE  AMENDMENTS  BY  THE  EUROPEAN

4.
PARLIAMENT

The Parliament adopted 23  amendments to the  Framework  directive  on  12  December  2001.
The Commission can accept all of them in full.

4.1. 

Harmonisation (amendments 23, 39, 40, 41, 42, 43 and 49)

The  main  issue  dividing  Council  and  Parliament  during  negotiations  has  been  the  so-called
‘transparency mechanism’ in Article 6. The Commission proposed that the Commission should
have  powers  to  require  a  national  regulatory  authority  to  withdraw  draft  measures  in  certain
areas  where  those  measures  were  contrary  to  Community  law  and  the  objectives  set  out  in
Article 7. Parliament strongly supported the Commission proposal  in  its first reading, sharing
the Commission’s analysis that there was a need for a balancing harmonisation power, given the
increased  discretion  delegated  to  national  authorities  under  the  new  framework.  The  Council
rejected this binding intervention power in its common position.

The  compromise  solution,  set  out  in  amendments  39-43  and  49,  represents  a  good  balance
between  these  two  positions,  concentrating  the  Commission’s  power  to  intervene  on  the  two
issues  central  to  maintaining  consistency  of  regulatory  action.  It  covers  decisions  to  analyse
markets not listed in the Commission’s Recommendation under Article 14, and the designation
or not of undertakings as having Significant Market Power (SMP).

Amendment 23 will reinforce consistency of regulatory decision-making.

4.2. 

Interoperability (amendments 46, 47, 48 and 53)

In  its  first  reading,  and  in  committee,  the  Parliament  adopted  several  amendments
strengthening  provisions  on  interoperability,  in  particular  an  amendment  mandating
implementation  of  the  so-called  Multimedia  Home  Platform  (MHP)  standard  for  interactive
services on digital TV on all new market players (and entirely replacing the existing Article
16 on standardisation).

Council  argued  that  to  impose  the  MHP  standard  would  contradict  the  new  approach  on
standardisation  and  the  directive’s  own  Article  16  whereby  standardisation  should  be
industry-led and voluntary, and to require NRAs to have objectives related to content was not
appropriate.The compromise (in amendments 46-48) strikes a good balance between the two

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positions.It requires Member States to encourage digital television platform operators to use
open  application  program  interfaces  (APIs),  and  requires  the  Commission  to  review  the
application of the provision one year after the package is transposed, with a view to holding a
public consultation upon the desirability of making a standard mandatory.

Amendment 53 usefully strengthens the regulatory objective on interoperability.

4.3. 

Right of appeal (amendments 25, 44 and 45)

Article 4 ensures that 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. Amendment 44 (and amendment 45 to the associated recital)
clarify  that  the  appeal  body  may  be  a  court,  and  require  Member  States  to  ensure  that  the
merits of the case are duly taken into account. This is in line with the Commission’s original
proposal and the Commission can therefore support it.

Amendment 25 (and amendment 45 to the associated recital) introduce a new requirement for
appeal  against  decisions  on  rights  of  way.  This  is  a  useful  strengthening  of  the  package  on
rights of way which the Commission fully supports.

4.4. 

Roaming (amendment 37)

This  amendment  adds  the  national  market  for  international  roaming  to  the  list  of  markets
which  the  Commission  must  include  in  its  first  Recommendation  on  Relevant  Markets,
thereby  ensuring  that  this  market  is  analysed  by  national  regulatory  authorities.  The
Commission recognises that there are legitimate concerns about the degree of competition in
international roaming, and considers this amendment a useful strengthening of the text on this
point.

4.5. 

Other amendments clarifying and strengthening the text (amendments 2, 6, 26,
27, 29, 50, 51 and 52)

Amendment 2 clarifies that a market which is effectively competitive within the meaning of
Article 15 is in effect a market on which there is no undertaking with a dominant position.

Amendment 6 clarifies that systems that use electricity cables for transmission of signals (i.e.
‘powerline’ systems) are a further example of an electronic communications network.

Amendment 52 adds a definition of ‘trans-national market’,  a list of which the  Commission
must  identify  according  to  Article  14,  and  amendments  27  and  29  amend  references
accordingly.

Amendments  50  and  51  clarify  that  there  is  an  obligation  on  NRAs  and  competition
authorities to provide each other with the information necessary to carry out their tasks under
this directive, but that confidentiality of this information must be ensured.

Amendment  26  adds  an  obligation  for  the  Commission  to  consult  publicly  on  its
Recommendation on Relevant Markets before adoption.

All  these  amendments  clarify  or  strengthen  the  text  and  the  Commission  can  fully  support
them.

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5.

CONCLUSION

Pursuant to Article 250(2) of the EC Treaty, the Commission amends its proposal as set out
above.

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