Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive)
Date: 2002-03-07
Institutions: Council of the European Union, European Parliament
Subjects: approximation of laws, electronic mail, regulation of telecommunications, transmission network

24.4.2002

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Official Journal of the European Communities

L 108/33

DIRECTIVE 2002/21/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 7 March 2002

on a common regulatory framework for electronic communications networks and services
(Framework Directive)

EUROPEAN PARLIAMENT AND THE

THE
COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Article 95 thereof,

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

Having regard to the opinion of
Committee (2),

the Economic and Social

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

Whereas:

(1)

(2)

current

regulatory

The
for
telecommunications has been successful in creating the
conditions
the
telecommunications sector during the transition from
monopoly to full competition.

competition

framework

effective

for

in

In that
the

European Parliament,

On 10 November 1999, the Commission presented a
communication to the
the
Council, the Economic and Social Committee and the
Committee of
the Regions entitled (cid:145)Towards a new
framework for electronic communications infrastructure
and associated services (cid:150) the 1999 communications
the Commission
communication,
review(cid:146).
reviewed
for
regulatory
telecommunications,
in accordance with its obligation
under Article 8 of Council Directive 90/387/EEC of 28
June 1990 on the establishment of the internal market
for
the
implementation of open network provision (4). It also
presented a series of policy proposals
for a new
regulatory framework for electronic communications
infrastructure
public
associated
consultation.

telecommunications

framework

through

existing

services

services

and

for

(3)

On 26 April 2000 the Commission presented a
communication to the
the
Council, the Economic and Social Committee and the
Committee of the Regions on the results of the public

European Parliament,

(1) OJ C 365 E, 19.12.2000, p. 198 and OJ C 270 E, 25.9.2001,

p. 199.

(2) OJ C 123, 25.4.2001, p. 56.
(3) Opinion of the European Parliament of 1 March 2001 (OJ C 277,
1.10.2001, p. 91), Council Common Position of 17 September
2001 (OJ C 337, 30.11.2001, p. 34) and Decision of the European
Parliament of 12 December 2001 (not yet published in the Official
Journal). Council Decision of 14 February 2002.

(4) OJ L 192, 24.7.1990, p. 1. Directive as amended by Directive
the Council

the European Parliament

and of

97/51/EC of
(OJ L 295, 29.10.1997, p. 23).

(4)

(5)

consultation on the 1999 communications review and
orientations for the new regulatory framework. The
communication summarised the public consultation and
set out certain key orientations for the preparation of a
new framework
communications
electronic
infrastructure and associated services.

for

the

potential

highlighted

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

for

and

and

networks

associated

regulatory

communications

communications

framework. That

The convergence of the telecommunications, media and
information technology sectors means all transmission
networks and services should be covered by a single
regulatory
framework
consists of this Directive and four specific Directives:
Directive 2002/20/EC of the European Parliament and
of the Council of 7 March 2002 on the authorisation of
electronic
services
(Authorisation Directive) (5), Directive 2002/19/EC of
the European Parliament and of the Council of 7 March
2002 on access to, and interconnection of, electronic
facilities
communications networks
(Access Directive) (6), Directive 2002/22/EC of
the
European Parliament and of the Council of 7 March
2002 on universal service and users’ rights relating to
electronic
services
(Universal Service Directive) (7), Directive 97/66/EC of
the European Parliament and of
the Council of 15
December 1997 concerning the processing of personal
data
the
telecommunications sector (8), (hereinafter referred to as
(cid:145)the Specific Directives(cid:146)). It is necessary to separate the
regulation of
regulation of
transmission from the
content. This framework does not therefore cover the
electronic
content
communications
electronic
communications services, such as broadcasting content,
financial
and certain information society
services, and is therefore without prejudice to measures
taken at Community or national level in respect of such
services, in compliance with Community law, in order
to promote cultural and linguistic diversity and to
ensure the defence of media pluralism. The content of

protection

networks

networks

delivered

services

services

privacy

using

over

and

and

the

of

of

in

(5) See page 21 of this Official Journal.
(6) See page 7 of this Official Journal.
(7) See page 51 of this Official Journal.
(8) OJ L 24, 30.1.1998, p. 1.

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Official Journal of the European Communities

24.4.2002

(10)

(11)

laid down by law,

television programmes is covered by Council Directive
89/552/EEC of 3 October 1989 on the coordination of
certain provisions
regulation or
administrative action in Member States concerning the
television broadcasting activities (1). The
pursuit of
separation between the regulation of transmission and
the regulation of content does not prejudice the taking
into account of
in
particular
to guarantee media pluralism,
cultural diversity and consumer protection.

the links existing between them,

in order

and

and

policy

content

diversity,

linguistic

regulation

Audiovisual
are
undertaken in pursuit of general interest objectives, such
as freedom of expression, media pluralism, impartiality,
cultural
inclusion,
consumer protection and the protection of minors. The
Commission communication (cid:145)Principles and guidelines
for the Community’s audio-visual policy in the digital
age(cid:146), and the Council conclusions of 6 June 2000
welcoming this communication, set out the key actions
to be taken by the Community to implement
its
audio-visual policy.

social

The provisions of
this Directive and the Specific
Directives are without prejudice to the possibility for
each Member State to take the necessary measures to
ensure the protection of its essential security interests,
to safeguard public policy and public security, and to
permit the investigation, detection and prosecution of
establishment by
criminal offences,
national
and
specific
of
authorities
proportional obligations applicable to providers of
electronic communications services.

regulatory

including

the

The definition of (cid:145)information society service(cid:146) in Article
1 of Directive 98/34/EC of the European Parliament and
of
the Council of 22 June 1998 laying down a
procedure for the provision of information in the field
of technical standards and regulations and of rules of
information society services (4) spans a wide range of
economic activities which take place on-line. Most of
these activities are not covered by the scope of this
Directive because they do not consist wholly or mainly
electronic
of
in
signals
and
networks. Voice
communications
electronic mail conveyance services are covered by this
Directive. The
an
Internet service provider, can offer both an electronic
communications service, such as access to the Internet,
and services not covered under this Directive, such as
the provision of web-based content.

on
telephony

same undertaking,

conveyance

example

the

for

impartiality of

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

financial means,

expertise,

for

the

and telecommunications

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

recognition of

the mutual

and

(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 division of
competences within national judicial systems and to the
rights of legal entities or natural persons under national
law.

the European Parliament and of

Information society services are covered by Directive
2000/31/EC of
the
Council of 8 June 2000 on certain legal aspects of
in particular electronic
information society services,
commerce,
(Directive on
electronic commerce) (3).

internal market

in the

(1) OJ L 298, 17.10.1989, p. 23. Directive as amended by Directive
the Council

the European Parliament

and of

97/36/EC of
(OJ L 202, 30.7.1997, p. 60).

(13) National

to

need

regulatory

authorities

gather
information from market players in order to carry out
their tasks effectively. Such information may also need
to be gathered on behalf of the Commission, to allow it
to fulfil its obligations under Community law. Requests
and not
for
impose an undue burden on undertakings. Information

information should be proportionate

(2) OJ L 91, 7.4.1999, p. 10.
(3) OJ L 178, 17.7.2000, p. 1.

(4) OJ L 204, 21.7.1998, p. 37. Directive as amended by Directive

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

(6)

(7)

(8)

(9)

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gathered by national regulatory authorities should be
publicly available, except in so far as it is confidential in
accordance with national rules on public access to
information and subject to Community and national law
on business confidentiality.

(18)

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

(19)

(14)

(15)

is

and

other

other

Treaty

national

national

important

Commission

that national

It
regulatory authorities
consult all interested parties on proposed decisions and
take account of their comments before adopting a final
decision. In order to ensure that decisions at national
level do not have an adverse effect on the single market
or
regulatory
objectives,
authorities should also notify certain draft decisions to
regulatory
the
authorities to give them the opportunity to comment. It
is appropriate for national
regulatory authorities to
consult interested parties on all draft measures which
have an effect on trade between Member States. The
cases where the procedures referred to in Articles 6 and
7 apply are defined in this Directive and in the Specific
Directives. The Commission should be able, after
consulting the Communications Committee, to require a
regulatory authority to withdraw a draft
national
relevant
concerns definition of
measure where
markets or the designation or not of undertakings with
significant market power, and where such decisions
would create a barrier to the single market or would be
incompatible with Community law and in particular the
regulatory authorities
policy objectives
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.

that national

it

(16) National

should

regulatory

authorities

a
harmonised set of objectives and principles to underpin,
and should, where necessary, coordinate their actions
with the regulatory authorities of other Member States
in carrying out
regulatory
framework.

tasks under

have

their

this

(17)

national

activities

regulatory

authorities
of
The
and the Specific
established under
fulfilment of broader
Directives
policies
the
environment, social cohesion and town and country
planning.

in the areas of culture, employment,

this Directive
to the

contribute

that

is to say that

The requirement
for Member States to ensure that
national regulatory authorities take the utmost account
of the desirability of making regulation technologically
neutral,
imposes nor
discriminates in favour of the use of a particular type of
of
technology,
proportionate steps to promote certain specific services
where this is justified, for example digital television as a
means for increasing spectrum efficiency.

it neither

preclude

taking

does

not

the

to such services,

Radio frequencies are an essential input for radio-based
in so far as
electronic communications services and,
they relate
should therefore be
allocated and assigned by national regulatory authorities
according to a set of harmonised objectives and
principles governing their action as well as to objective,
transparent and non-discriminatory criteria, taking into
account the democratic, social,
linguistic and cultural
interests related to the use of frequency. It is important
that the allocation and assignment of radio frequencies
is managed as efficiently as possible. Transfer of radio
frequencies can be an effective means of
increasing
efficient use of spectrum, as long as there are sufficient
in
safeguards in place to protect
particular
and
the need
regulatory supervision of such transfers. Decision No
676/2002/EC of the European Parliament and of the
Council of 7 March 2002 on a regulatory framework
for radio spectrum policy in the European Community
(Radio Spectrum Decision) (1) establishes a framework
for harmonisation of radio frequencies, and action taken
under this Directive should seek to facilitate the work
under that Decision.

the public interest,
transparency

to ensure

(20) Access

of

to

there

numbering

sector. All

to numbering resources on the basis of
transparent, objective and non-discriminatory criteria is
essential for undertakings to compete in the electronic
communications
elements of national
should be managed by national
numbering plans
including point codes used in
regulatory authorities,
a need for
is
network addressing. Where
the
harmonisation
in
resources
Community
of
development
pan-European services,
the Commission may take
technical
implementing measures using its executive
powers. Where this is appropriate to ensure full global
interoperability of
should
coordinate their national positions in accordance with
the Treaty in international organisations and fora where
numbering decisions are taken. The provisions of this
of
Directive
responsibility for the national regulatory authorities in
the field of Internet naming and addressing.

services, Member States

new areas

establish

support

any

not

the

do

(1) See page 1 of this Official Journal.

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24.4.2002

(21) Member States may use,

inter alia, competitive or
comparative selection procedures for the assignment of
radio frequencies as well as numbers with exceptional
economic
such schemes,
In administering
national regulatory authorities should take into account
the provisions of Article 8.

value.

this Directive is equivalent to the concept of dominance
as defined in the case law of the Court of Justice and
the Court
European
Communities.

Instance

First

the

of

of

(22)

(23)

the

and
conditions

transparent,
fair

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

order

for

(26)

(27)

of

voluntary
are

agreements.
of

Facility sharing can be of benefit for town planning,
public health or environmental reasons, and should be
encouraged by national regulatory authorities on the
basis
cases where
viable
undertakings
alternatives, compulsory facility or property sharing
may be appropriate.
inter alia: physical
co-location and duct, building, mast, antenna or antenna
system sharing. Compulsory facility or property sharing
should be imposed on undertakings only after
full
public consultation.

In
access

deprived

covers

to

It

for

environmental

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

reasons,

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

that

be

i.e.

there

is not

imposed where

It is essential that ex ante regulatory obligations should
only
effective
competition,
in markets where there are one or
more undertakings with significant market power, and
where national
competition law
and Community
remedies are not sufficient to address the problem. It is
necessary therefore for the Commission to draw up
guidelines at Community level in accordance with the
principles of competition law for national regulatory
authorities to follow in assessing whether competition is
effective in a given market and in assessing significant
market power. National regulatory authorities should
analyse whether a given product or service market is
effectively competitive in a given geographical area,
which could be the whole or a part of the territory of
the Member State concerned or neighbouring parts of
territories of Member States considered together. An
analysis of effective competition should include an
analysis as
is prospectively
competitive, and thus whether any lack of effective
competition is durable. Those guidelines will also
address the issue of newly emerging markets, where de
facto the market leader is likely to have a substantial
market
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.

to whether

the market

subjected

should

share

not

but

be

(25)

ex ante obligations

in the Directive 97/33/EC of

in certain
There is a need for
circumstances in order to ensure the development of a
competitive market. The definition of significant market
power
the European
Parliament and of
the Council of 30 June 1997 on
interconnection in telecommunications with regard to
ensuring universal service and interoperability through
application of the principles of open network provision
(ONP) (1) has proved effective in the initial stages of
market opening as the threshold for ex ante obligations,
but now needs to be adapted to suit more complex and
dynamic markets. For this reason, the definition used in

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

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

(28)

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

(29)

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

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(30)

(31)

any

have

digital

specific

not mandate

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

consultation.

full public

developed

family

of

a

receiving,

interactive

regardless of

interactive television services
Interoperability of digital
and enhanced digital television equipment, at the level
the consumer, should be encouraged in order to
of
ensure the free flow of
information, media pluralism
and cultural diversity. It is desirable for consumers to
the
have the capability of
transmission mode, all digital
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 interactive
television platform operators should strive to implement
an open application program interface (API) which
conforms to standards or specifications adopted by a
from
European
existing APIs to new open APIs should be encouraged
by Memoranda
and
of
example
Understanding between all
relevant market players.
Open APIs facilitate interoperability, i.e. the portability
of interactive content between delivery mechanisms, and
full
functionality of this content on enhanced digital
television equipment. However, the need not to hinder
the receiving equipment and to
the functioning of
protect
for example from
it
viruses, should be taken into account.

organisation. Migration

from malicious attacks,

organised,

standards

for

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

(32)

the Specific Directives,

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

undertakings

providing

(33)

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

the

(34) A single Committee
instituted

replace

should
(cid:145)ONP
by Article 9 of Directive
Committee(cid:146)
90/387/EEC and the Licensing Committee instituted by
Article 14 of Directive 97/13/EC of
the European
Parliament and of the Council of 10 April 1997 on a
common framework for general authorisations and
individual
licences in the field of telecommunications
services (4).

should provide

(35) National regulatory authorities and national competition
authorities
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.
the
information exchanged, the receiving authority should
ensure
the
the
originating authority.

In respect of

confidentiality

level of

same

as

(36)

a

for

group

regulators

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

and to seek to achieve

(4) OJ L 117, 7.5.1997, p. 15.

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(37) 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 comprising European regulators. Member States
should decide which bodies are national
regulatory
authorities for the purposes of this Directive and the
Specific Directives.

(38) Measures that could affect trade between Member States
are measures that may have an influence, direct or
trade
indirect, actual or potential, on the pattern of
between Member States in a manner which might create
a barrier to the single market. They comprise measures
that have a significant impact on operators or users in
other Member States, which include, inter alia: measures
which 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 communications service, and in particular
measures which affect the ability to offer services on a
transnational basis; and measures which affect market
structure or
for
leading
access,
undertakings in other Member States.

to repercussions

(43)

The Commission should monitor the transition from the
existing framework to the new framework, and may in
particular, at an appropriate time, bring forward a
proposal to repeal Regulation (EC) No 2887/2000 of
the Council of 18
the European Parliament and of
to the local
December 2000 on unbundled access
loop (2),

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I

SCOPE, AIM AND DEFINITIONS

Article 1

Scope and aim

of

electronic

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

communications

application

regulatory

the

of

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

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

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).

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

(39)

(40)

(41)

services,

communications

associated facilities

Since the objectives of
the proposed action, namely
achieving a harmonised framework for the regulation of
electronic
electronic
communications networks,
and
associated services cannot be sufficiently achieved by the
Member States and can therefore, by reason of the scale
and effects of
achieved at
Community level, the Community may adopt measures
in accordance with the principle of subsidiarity as set
out in Article 5 of the Treaty. In accordance with the
principle of proportionality, as set out in that Article,
this Directive does not go beyond what is necessary for
those objectives.

the action, be better

This Directive and the Specific Directives are without

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

Article 2

Definitions

For the purposes of this Directive:

(a)

and

other

switching or

(cid:145)electronic communications network(cid:146) means transmission
routing
systems and, where applicable,
equipment
the
conveyance of signals by wire, by radio, by optical or by
other electromagnetic means, including satellite networks,
fixed (circuit- and packet-switched, including Internet) and
mobile terrestrial networks, electricity cable systems, to the
extent that they are used for the purpose of transmitting

resources which permit

(42)

Certain directives and decisions in this field should be
repealed.

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

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

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networks

signals,
television
broadcasting, and cable television networks, irrespective of
the type of information conveyed;

radio

used

and

for

(b)

in
(cid:145)transnational markets(cid:146) means markets
accordance with Article 15(4) covering the Community or
a substantial part thereof;

identified

(c)

a

service(cid:146) means

communications

service
(cid:145)electronic
normally provided for remuneration which consists wholly
or mainly in the conveyance of signals on electronic
communications networks,
including telecommunications
services and transmission services in networks used for
broadcasting, but exclude services providing, or exercising
editorial control over, content transmitted using electronic
communications networks and services; it does not include
information society services, as defined in Article 1 of
Directive 98/34/EC, which do not consist wholly or mainly
in the conveyance of signals on electronic communications
networks;

(d)

(cid:145)public communications network(cid:146) means an electronic
communications network used wholly or mainly for the
provision of publicly available electronic communications
services;

(e)

electronic

communications

(cid:145)associated facilities(cid:146) means those facilities associated with
an
an
electronic communications service which enable and/or
support the provision of services via that network and/or
service.
and
conditional
electronic programme guides;

network

includes

systems

and/or

access

It

(f)

(cid:145)conditional access system(cid:146) means any technical measure
and/or arrangement whereby access to a protected radio or
television broadcasting service in intelligible form is made
conditional upon subscription or other
form of prior
individual authorisation;

(k)

(l)

(cid:145)subscriber(cid:146) means any natural person or legal entity who
or which is party to a contract with the provider of
publicly available electronic communications services for
the supply of such services;

Directives(cid:146) means

2002/20/EC
(cid:145)Specific
(Authorisation Directive), Directive 2002/19/EC (Access
Directive), Directive
Service
2002/22/EC
Directive) and Directive 97/66/EC;

(Universal

Directive

(m) (cid:145)provision of

an electronic

communications network(cid:146)
means the establishment, operation, control or making
available of such a network;

(n)

(o)

(p)

(cid:145)end-user(cid:146) means
public
user
communications networks or publicly available electronic
communications services.

providing

not

a

(cid:145)enhanced digital television equipment(cid:146) means set-top boxes
intended for connection to television sets or integrated
digital
interactive
television services;

television sets, able to receive digital

between

(cid:145)application program interface (API)(cid:146) means the software
interfaces
by
broadcasters or service providers, and the resources in the
enhanced digital television equipment for digital television
and radio services.

applications, made

available

CHAPTER II

NATIONAL REGULATORY AUTHORITIES

Article 3

National regulatory authorities

(g)

(cid:145)national regulatory authority(cid:146) means the body or bodies
charged by a Member State with any of the regulatory
tasks assigned in this Directive and the Specific Directives;

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

shall ensure that each of

(h) (cid:145)user(cid:146) means a legal entity or natural person using or
requesting a publicly available electronic communications
service;

(i)

(j)

(cid:145)consumer(cid:146) means any natural person who uses or requests
a publicly available electronic communications service for
purposes which are outside his or her trade, business or
profession;

(cid:145)universal service(cid:146) means the minimum set of services,
defined
Service
in Directive 2002/22/EC (Universal
Directive), of specified quality which is available to all
users regardless of their geographical location and, in the
light of specific national conditions, at an affordable price;

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

3. Member States
regulatory
authorities exercise their powers impartially and transparently.

shall ensure that national

4. Member States shall publish the tasks to be undertaken
by national regulatory authorities in an easily accessible form,
in particular where those tasks are assigned to more than one

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shall

States

ensure, where

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

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

In respect of

6. Member States
national
Directive and the Specific Directives, and their
responsibilities.

shall notify to the Commission all
this
respective

assigned tasks under

regulatory authorities

timescales and level of detail
required by the national
information requested by the
regulatory authority. The
national regulatory authority shall be proportionate to the
performance of that task. The national regulatory authority
shall give the reasons justifying its request for information.

tasks. Where

the Treaty. The

information requested

shall ensure that national

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

information provided refers

the

by

Article 4

Right of appeal

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 national
regulatory authority shall stand, unless the appeal body decides
otherwise.

the decision of

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

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

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

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

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

Article 5

Provision of information

Article 6

Consultation and transparency mechanism

1. Member States shall ensure that undertakings providing
electronic communications networks and services provide all
the information, including financial information, necessary for
national regulatory authorities to ensure conformity with the
provisions of, or decisions made in accordance with,
this
Directive and the Specific Directives. These undertakings shall
provide such information promptly on request and to the

Except in cases falling within Articles 7(6), 20 or 21 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.
regulatory authorities shall publish their national
National

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consultation procedures. Member States
shall ensure the
establishment of a single information point through which all
current 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 confidential
information in accordance with Community and national law
on business confidentiality.

Article 7

Consolidating the internal market for electronic
communications

1.
In carrying out their tasks under this Directive and the
Specific Directives, national regulatory authorities shall take
in Article 8,
the utmost account of
including in so far as they relate to the functioning of the
internal market.

the objectives set out

National regulatory authorities shall contribute to the
2.
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
in particular, seek to agree on the types of
end, they shall,
instruments and remedies best suited to address particular
types of situations in the market place.

In addition to the consultation referred to in Article 6,
to take a
regulatory authority intends

3.
where a national
measure which:

(a)

falls within the scope of Articles 15 or 16 of this Directive,
Articles 5 or 8 of Directive 2002/19/EC (Access Directive)
or Article 16 of Directive 2002/22/EC (Universal Service
Directive), and

(b) deciding whether or not to designate an undertaking as
having, either individually or jointly with others, significant
market power, under Article 16(3), (4) or (5),

trade between Member States and the
and would affect
Commission has indicated to the national regulatory authority
that it considers that the draft measure would create a barrier
it has serious doubts as to its
to the single market or if
compatibility with Community law and in particular
the
objectives referred to in Article 8, 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 referred to in Article 22(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
the Commission 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
in cases
authorities and the Commission and may, except
covered by paragraph 4, adopt the resulting draft measure and,
where it does so, shall communicate it to the Commission.

it may immediately adopt proportionate

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

regulatory

authority

(b) would affect trade between Member States,

CHAPTER III

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
regulatory
inform the Commission and other national
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 extended.

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

TASKS OF NATIONAL REGULATORY AUTHORITIES

Article 8

Policy objectives and regulatory principles

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

in carrying out

the national

authorities

regulatory

take

(a) defining a relevant market which differs from those defined
in the recommendation in accordance with Article 15(1),
or

Member States shall ensure that in carrying out the regulatory
tasks specified in this Directive and the Specific Directives, in

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24.4.2002

particular
those designed to ensure effective competition,
national regulatory authorities take the utmost account of the
desirability of making regulations technologically neutral.

availability of simple and inexpensive dispute resolution
procedures carried out by a body that is independent of
the parties involved;

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

regulatory

The national

2.
shall promote
competition in the provision of electronic communications
networks, electronic communications services and associated
facilities and services by inter alia:

authorities

(c) contributing to ensuring a high level of protection of

personal data and privacy;

(d) promoting the provision of clear information, in particular
requiring transparency of tariffs and conditions for using
publicly available electronic communications services;

(e) addressing the needs of specific social groups, in particular

disabled users; and

(a) ensuring that users,

including disabled users, derive

maximum benefit in terms of choice, price, and quality;

(f) ensuring

that

the

integrity

and security of public

communications networks are maintained.

(b) ensuring that

there is no distortion or

restriction of

competition in the electronic communications sector;

Article 9

(c) encouraging efficient

investment

in infrastructure, and

promoting innovation; and

Management of radio frequencies for electronic
communications services

(d) encouraging efficient use

and ensuring the

management
resources.

of

radio

frequencies

and

effective
numbering

The national regulatory authorities shall contribute to the

3.
development of the internal market by inter alia:

(a) removing

remaining obstacles

to the provision of
electronic communications networks, associated facilities
and services and electronic communications services at
European level;

(b) encouraging

the

establishment

and

trans-European networks
pan-European services, and end-to-end connectivity;

and the

development of
interoperability of

1. Member States shall ensure the effective management of
radio frequencies for electronic communication services in
their territory in accordance with Article 8. They shall ensure
that the allocation and assignment of such radio frequencies by
national
are based on objective,
authorities
transparent, non-discriminatory and proportionate criteria.

regulatory

2. Member States shall promote the harmonisation of use of
radio frequencies across the Community, consistent with the
need to ensure effective and efficient use thereof and in
accordance with the Decision No 676/2002/EC (Radio
Spectrum Decision).

3. Member States may make provision for undertakings to
other
radio
transfer
undertakings.

frequencies with

rights

use

to

(c) ensuring that,

is no
discrimination in the treatment of undertakings providing
electronic communications networks and services;

circumstances,

in similar

there

(d) cooperating with each other and with the Commission in a
the development of
to ensure
consistent
and
practice

transparent manner
consistent
application of this Directive and the Specific Directives.

regulatory

the

The national regulatory authorities shall promote the

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

that

shall

ensure

4. Member States
an undertaking’s
intention to transfer rights to use radio frequencies is notified
to the national regulatory authority responsible for spectrum
assignment and that any transfer takes place in accordance
with procedures laid down by the national regulatory authority
and is made public. National regulatory authorities shall ensure
that competition is not distorted as a result of any such
transaction. Where radio frequency use has been harmonised
through the application of Decision No 676/2002/EC (Radio
Spectrum Decision) or other Community measures, any such
transfer
radio
frequency.

in change of use of

shall not

result

that

(a) ensuring all citizens have access to a universal service
specified in Directive 2002/22/EC (Universal Service
Directive);

Article 10

Numbering, naming and addressing

(b) ensuring a high level of protection for consumers in their
in particular by ensuring the

dealings with suppliers,

1. Member States
regulatory
authorities control the assignment of all national numbering

shall ensure that national

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resources and the management of
the national numbering
plans. Member States shall ensure that adequate numbers and
numbering ranges are provided for all publicly available
regulatory
electronic
authorities
and
shall
national
non-discriminatory
numbering resources.

communications
establish
assigning

transparent
for

services. National

procedures

objective,

shall

ensure

National

treatment

regulatory

authorities

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

services.

(cid:151) follows

the

and
non-discrimination in attaching conditions to any such
rights.

transparency

principles

of

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

retain ownership or

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

separation of

structural

effective

the

is

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

3. Member States shall ensure that effective mechanisms
exist to allow undertakings to appeal against decisions on the
granting of
is
rights
independent of the parties involved.

to a body that

to install

facilities

shall

support

the harmonisation of
4. Member States
is
numbering resources within the Community where that
the development of pan European
necessary to support
services. The Commission may,
in accordance with the
procedure referred to in Article 22(3), take the appropriate
technical implementing measures on this matter.

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

Article 11

Rights of way

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

(cid:151) an application for the granting of rights to install facilities
on, over or under public or private property to an
undertaking authorised to provide public communications
networks, or

(cid:151) an application for the granting of rights to install facilities
on, over or under public property to an undertaking
authorised to provide electronic communications networks
other than to the public,

the competent authority:

(cid:151) acts on the basis of

transparent and publicly available
procedures, applied without discrimination and without
delay, and

Article 12

Co-location and facility sharing

an

undertaking

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

of property,

national

use

the

or

sharing of

the need to protect

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

arrangements may

coordination

include

rules

Article 13

Accounting separation and financial reports

shall

communications

require undertakings providing
1. Member States
available
public
electronic communications
services which have special or
exclusive rights for the provision of services in other sectors in
the same or another Member State to:

networks

publicly

or

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Official Journal of the European Communities

24.4.2002

carried

electronic

to the extent

that would be required if

(a) keep separate accounts for the activities associated with the
communications networks or
provision of
these
services,
activities were
independent
out
companies, so as to identify all elements of cost and
revenue, with the basis of their calculation and the detailed
attribution methods used,
activities
associated with the provision of electronic communications
networks or services including an itemised breakdown of
fixed asset and structural costs, or

related to their

legally

by

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

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

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

Article 15. Criteria to be used in making such an assessment
are set out in Annex II.

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

thereby strengthening the market power of

Article 15

Market definition procedure

shall

adopt

authorities

After public consultation and consultation with national
1.
regulatory
a
the Commission
recommendation on relevant product and service markets
(hereinafter (cid:145)the recommendation(cid:146)). The recommendation shall
identify in accordance with Annex I hereto those product and
service markets within the electronic communications sector,
the characteristics of which may be such as to justify the
imposition of regulatory obligations set out in the Specific
Directives, without prejudice to markets that may be defined in
specific cases under competition law. The Commission shall
in accordance with the principles of
define markets
competition law.

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

The Commission shall regularly review the recommendation.

CHAPTER IV

GENERAL PROVISIONS

Article 14

Undertakings with significant market power

1. Where the Specific Directives require national regulatory
authorities to determine whether operators have significant
market power in accordance with the procedure referred to in
Article 16, paragraphs 2 and 3 of this Article shall apply.

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

independently of

extent

regulatory authorities

shall, when
In particular, national
assessing whether two or more undertakings are in a joint
in accordance with
dominant position in a market, act
Community law and take into the utmost account
the
guidelines on market analysis and the assessment of significant
to
market power published by the Commission pursuant

The Commission shall publish, at the latest on the date
2.
this Directive, guidelines for market
of entry into force of
significant market power
analysis and the assessment of
(hereinafter (cid:145)the guidelines(cid:146)) which shall be in accordance with
the principles of competition law.

National regulatory authorities shall, taking the utmost
3.
the recommendation and the guidelines, define
account of
relevant markets appropriate to national circumstances,
in
particular relevant geographic markets within their territory, in
accordance with the principles of competition law. National
regulatory authorities shall follow the procedures referred to in
Articles 6 and 7 before defining the markets that differ from
those defined in the recommendation.

After consultation with national regulatory authorities
4.
the Commission may, acting in accordance with the procedure
referred to in Article 22(3), adopt a Decision identifying
transnational markets.

Article 16

Market analysis procedure

As

soon as possible

1.
the
recommendation or any updating thereof, national regulatory
authorities shall carry out an analysis of the relevant markets,

adoption of

after

the

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taking the utmost account of the guidelines. Member States
shall ensure that this analysis is carried out, where appropriate,
in collaboration with the national competition authorities.

2. Where a national regulatory authority is required under
Articles 16, 17, 18 or 19 of Directive 2002/22/EC (Universal
Service Directive), or Articles 7 or 8 of Directive 2002/19/EC
(Access Directive) to determine whether to impose, maintain,
amend or withdraw obligations on undertakings,
shall
determine on the basis of its market analysis referred to in
paragraph 1 of
is
effectively competitive.

this Article whether a relevant market

it

it

shall not

is effectively competitive,

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

4. Where a national regulatory authority determines that a
relevant market is not effectively competitive, it shall identify
undertakings with significant market power on that market in
accordance with Article 14 and the national
regulatory
authority shall on such undertakings
impose appropriate
specific regulatory obligations referred to in paragraph 2 of
this Article or maintain or amend such obligations where they
already exist.

In the case of

transnational markets identified in the
5.
Decision referred to in Article 15(4), the national regulatory
authorities concerned shall jointly conduct the market analysis
taking the utmost account of the guidelines and decide on any
imposition, maintenance,
amendment or withdrawal of
regulatory obligations referred to in paragraph 2 of this Article
in a concerted fashion.

6. Measures taken according to the provisions of paragraphs
3, 4 and 5 of this Article shall be subject to the procedures
referred to in Articles 6 and 7.

Article 17

Standardisation

of

the

acting

provision

harmonised

The Commission,

in accordance with the
1.
procedure referred to in Article 22(2), shall draw up and
publish in the Official Journal of the European Communities a list
of standards and/or specifications to serve as a basis for
electronic
encouraging
communications networks, electronic communications services
and associated facilities and services. Where necessary,
the
Commission may, acting in accordance with the procedure
referred to in Article 22(2) and following consultation of the
that
Committee established by Directive 98/34/EC, request
standards
standards
by
organisations (European Committee for Standardisation (CEN),
European Committee
Standardisation
(CENELEC),
and European Telecommunications Standards
Institute (ETSI)).

for Electrotechnical

European

drawn

the

up

be

specifications

referred to in paragraph 1,

2. Member States shall encourage the use of the standards
the
and/or
interfaces and/or network
provision of
functions,
ensure
to
interoperability of services and to improve freedom of choice
for users.

services,
the

necessary

technical

strictly

extent

for

to

As long as standards and/or specifications have not been
published in accordance with paragraph 1, Member States shall
and/or
encourage
specifications
standards
organisations.

implementation

European

standards

adopted

the

the

by

of

In the absence of such standards and/or specifications, Member
States shall encourage the implementation of
international
standards or recommendations adopted by the International
Telecommunication
International
Organisation for Standardisation (ISO) or the International
Electrotechnical Commission (IEC).

Union

(ITU),

the

standards exist, Member States

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

If

specifications

the standards and/or

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

the

intends

to make

Commission

the
4. Where
implementation of certain standards and/or
specifications
compulsory, it shall publish a notice in the Official Journal of
the European Communities and invite public comment by all
parties concerned. The Commission, acting in accordance with
the procedure
shall make
implementation of
standards compulsory by
making reference to them as compulsory standards in the list
of standards and/or specifications published in the Official
Journal of the European Communities.

referred to in Article 22(3),

the relevant

5. Where the Commission considers that standards and/or
specifications referred to in paragraph 1 no longer contribute
to the provision of harmonised electronic communications
services, or that they no longer meet consumers’ needs or are
shall, acting in
hampering technological development,
accordance with the procedure referred to in Article 22(2),
remove them from the list of standards and/or specifications
referred to in paragraph 1.

it

6. Where the Commission considers that standards and/or
specifications referred to in paragraph 4 no longer contribute
to the provision of harmonised electronic communications
services, or that they no longer meet consumers’ needs or are
shall, acting in
hampering technological development,

it

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accordance with the procedure referred to in Article 22(3),
remove them from this list of standards and/or specifications
referred to in paragraph 1.

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

Article 18

Interoperability of digital interactive television services

In order to promote the free flow of information, media
shall

1.
pluralism and
encourage, in accordance with the provisions of Article 17(2):

diversity, Member

cultural

States

(a) providers of digital

for
interactive
distribution to the public in the Community on digital
interactive
the
platforms,
transmission mode, to use an open API;

television services

regardless

television

of

(b) providers of all enhanced digital

television equipment
deployed for the reception of digital interactive television
to
television platforms
services on interactive digital
in accordance with the
comply with an open API
minimum requirements of
standards or
specifications.

relevant

the

2. Without prejudice
to Article 5(1)(b) of Directive
2002/19/ EC (Access Directive), Member States shall encourage
proprietors of APIs to make available on fair, reasonable and
appropriate
non-discriminatory
remuneration, 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.

against

terms,

and

3. Within one year after the date of application referred to
in Article 28(1), second subparagraph, the Commission shall
examine the effects of
interoperability and
this Article.
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 Article
17(3) and (4).

If

Article 19

Harmonisation procedures

1. Where the Commission, acting in accordance with the
procedure referred to in Article 22(2), issues recommendations
to Member States on the harmonised application of
the
provisions in this Directive and the Specific Directives in order
to further the achievement of the objectives set out in Article
8, Member States
regulatory
ensure
authorities take the utmost account of those recommendations
regulatory
in carrying out
authority chooses not to follow a recommendation,
it shall
inform the Commission giving the reasoning for its position.

tasks. Where a national

that national

their

shall

in regulations aimed at

2. Where the Commission finds that divergence at national
implementing Article 10(4)
level
creates a barrier to the single market, the Commission may,
acting in accordance with the procedure referred to in Article
22(3), take the appropriate technical implementing measures.

Article 20

Dispute resolution between undertakings

providing

this Directive or

arising under
between

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

decision where

other mechanisms,

2. Member
States may make provision for national
regulatory authorities to decline to resolve a dispute through a
binding
including
mediation, exist and would better contribute to resolution of
the dispute in a timely manner
in accordance with the
provisions of Article 8. The national regulatory authority shall
If after four months the
inform the parties without delay.
the dispute has not been
dispute is not resolved, and if
brought before the courts by the party seeking redress, the
national regulatory authority shall
the request of
either party, a binding decision to resolve the dispute in the
shortest possible time frame and in any case within four
months.

issue, at

3.
In resolving a dispute, the national regulatory authority
shall take decisions aimed at achieving the objectives set out in
Article 8. Any obligations imposed on an undertaking by the
regulatory authority in resolving a dispute shall
national
respect
the Specific
the provisions of
Directives.

this Directive or

available

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

regard

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

Article 21

Resolution of cross-border disputes

1.
In the event of a cross-border dispute arising under this
Directive or the Specific Directives between parties in different

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Member States, where the dispute lies within the competence
of national regulatory authorities from more than one Member
State, the procedure set out in paragraphs 2, 3 and 4 shall be
applicable.

Any party may refer

the dispute
concerned. The national

to the national
2.
regulatory authorities
regulatory
authorities shall coordinate their efforts in order to bring about
a resolution of the dispute, in accordance with the objectives
set out
imposed on an
undertaking by the national regulatory authority in resolving a
dispute shall respect the provisions of this Directive or the
Specific Directives.

in Article 8. Any obligations

States may make provision for national
3. Member
regulatory authorities jointly to decline to resolve a dispute
where other mechanisms, including mediation, exist and would
better contribute to resolution of
the dispute in a timely
manner in accordance with the provisions of Article 8. They
shall inform the parties without delay. If after four months the
dispute is not resolved, if the dispute has not been brought
before the courts by the party seeking redress, and if either
party requests
shall
coordinate their efforts in order to bring about a resolution of
the dispute,
in
Article 8.

in accordance with the provisions set out

regulatory authorities

the national

it,

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

Article 22

Committee

The Commission shall be assisted by a Committee ((cid:145)the

1.
Communications Committee(cid:146)).

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

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

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

4.

The Committee shall adopt its rules of procedure.

Article 23

Exchange of information

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

countries

as well

third

and

as

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

Article 24

Publication of information

is made publicly available in a manner

1. Member States shall ensure that up-to-date information
pertaining to the application of this Directive and the Specific
Directives
that
guarantees all interested parties easy access to that information.
They shall publish a notice in their national official gazette
describing how and where the information is published. The
first
such notice shall be published before the date of
application referred to in Article 28(1), second subparagraph,
and thereafter a notice shall be published whenever there is
any change in the information contained therein.

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

the

Article 25

Review procedures

1.
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 28(1), second
subparagraph. For this purpose, the Commission may request
information from the Member States, which shall be supplied
without undue delay.

CHAPTER V

FINAL PROVISIONS

Article 26

Repeal

The following Directives and Decisions are hereby repealed
with effect from the date of application referred to in Article
28(1), second subparagraph:

(cid:151) Directive 90/387/EEC,

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Article 28

Transposition

shall

1. Member States
laws,
regulations and administrative provisions necessary to comply
with this Directive not later than 24 July 2003. They shall
forthwith inform the Commission thereof.

and publish the

adopt

They shall apply those measures from 25 July 2003.

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

3. Member States shall communicate to the Commission the
text of the provisions of national law which they adopt in the
field governed by this Directive and of any subsequent
amendments to those provisions.

Article 29

Entry into force

This Directive shall enter
publication in the Official Journal of the European Communities.

into force on the day of

its

Article 30

Addressees

This Directive is addressed to the Member States.

Done at Brussels, 7 March 2002.

For the European Parliament

The President

P. COX

For the Council

The President

J. C. APARICIO

(cid:151) Council Decision 91/396/EEC of 29 July 1991 on the
call

European emergency

single

a

introduction of
number (1),

(cid:151) Council Directive 92/44/EEC of 5 June 1992 on the
application of open network provision to leased lines (2),

(cid:151) Council Decision 92/264/EEC of 11 May 1992 on the
introduction of a standard international telephone access
code in the Community (3),

(cid:151) Directive 95/47/EC,

(cid:151) Directive 97/13/EC,

(cid:151) Directive 97/33/EC,

(cid:151) Directive 98/10/EC of the European Parliament and of the
Council of 26 February 1998 on the application of open
to voice telephony and on
network provision (ONP)
universal service for telecommunications in a competitive
environment (4).

Article 27

Transitional measures

Member States shall maintain all obligations under national
law referred to in Article 7 of Directive 2002/19/EC (Access
Directive) and Article 16 of Directive 2002/22/EC (Universal
Service Directive) until such time as a determination is made
in respect of
regulatory
authority in accordance with Article 16 of this Directive.

those obligations by a national

fixed public telephone networks

Operators of
that were
designated by their national regulatory authority as having
significant market power in the provision of
fixed public
telephone networks and services under Annex I, Part 1 of
Directive 97/33/EC or Directive 98/10/EC shall continue to be
considered (cid:145)notified operators(cid:146) for the purposes of Regulation
(EC) No 2887/2000 until such a time as the market analysis
procedure referred to in Article 16 has been completed.
Thereafter they shall cease to be considered (cid:145)notified operators(cid:146)
for the purposes of the Regulation.

(1) OJ L 217, 6.8.1991, p. 31.
(2) OJ L 165, 19.6.1992, p. 27. Directive as

last amended by

Commission Decision 98/80/EC (OJ L 14, 20.1.1998, p. 27).

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

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List of markets to be included in the initial Commission recommendation on relevant product and service
markets referred to in Article 15

ANNEX I

1. Markets referred to in Directive 2002/22/EC (Universal Service Directive)

Article 16 (cid:151) Markets defined under the former regulatory framework, where obligations should be reviewed.

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

The provision of leased lines to end users.

2. Markets referred to in Directive 2002/19/EC (Access Directive)

Article 7 (cid:151) Markets defined under the former regulatory framework, where obligations should be reviewed.

Interconnection (Directive 97/33/EC)

call origination in the fixed public telephone network

call termination in the fixed public telephone network

transit services in the fixed public telephone network

call origination on public mobile telephone networks

call termination on public mobile telephone networks

leased line interconnection (interconnection of part circuits)

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

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

access to public mobile telephone networks, including carrier selection

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

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

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

Services provided over unbundled (twisted metallic pair) loops.

4. Additional markets

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

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ANNEX II

Criteria to be used by national regulatory authorities in making an assessment of

joint dominance in

accordance with Article 14(2), second subparagraph

Two or more undertakings can be found to be in a joint dominant position within the meaning of Article 14 if, even
in the absence of structural or other links between them, they operate in a market the structure of which is considered
to be conducive to coordinated effects. Without prejudice to the case law of the Court of Justice on joint dominance,
this is likely to be the case where the market satisfies a number of appropriate characteristics, in particular in terms of
market concentration, transparency and other characteristics mentioned below:

(cid:151) mature market,

(cid:151) stagnant or moderate growth on the demand side,

(cid:151) low elasticity of demand,

(cid:151) homogeneous product,

(cid:151) similar cost structures,

(cid:151) similar market shares,

(cid:151) lack of technical innovation, mature technology,

(cid:151) absence of excess capacity,

(cid:151) high barriers to entry,

(cid:151) lack of countervailing buying power,

(cid:151) lack of potential competition,

(cid:151) various kinds of informal or other links between the undertakings concerned,

(cid:151) retaliatory mechanisms,

(cid:151) lack or reduced scope for price competition.

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