Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive)
Date: 2002-03-07
Institutions: Council of the European Union, European Parliament
Subjects: access to information, electronic mail, regulation of telecommunications, systems interconnection, transmission network

24.4.2002

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Official Journal of the European Communities

L 108/7

DIRECTIVE 2002/19/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 7 March 2002

on access to, and interconnection of, electronic communications networks and associated facilities
(Access Directive)

(2)

(3)

(4)

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)

and

fixed

including

terrestrial broadcasting,

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) (4)
lays
down the objectives of a regulatory framework to cover
electronic communications networks and services in the
Community,
mobile
telecommunications networks, cable television networks,
satellite
networks used for
networks and Internet networks, whether used for voice,
fax, data or images. Such networks may have been
under Directive
authorised
2002/20/EC of
the
Council of 7 March 2002 on the authorisation of
electronic
services
(Authorisation Directive) (5) or have been authorised
under previous regulatory measures. The provisions of
this Directive apply to those networks that are used for
the
electronic
publicly
communications services. This Directive covers access
and interconnection arrangements between service
suppliers. Non-public networks do not have obligations

the European Parliament and of

communications

by Member

provision

networks

available

States

and

of

under this Directive except where,
access to public networks,
conditions laid down by Member States.

in benefiting from
to

they may be subject

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

The term (cid:145)access(cid:146) has a wide range of meanings, and it is
therefore necessary to define precisely how that term is
used in this Directive, without prejudice to how it may
be used in other Community measures. An operator
may own the underlying network or facilities or may
rent some or all of them.

a

any

digital

family

specific

developed

not mandate

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 (6)
television
did
transmission system or service requirement, and this
opened up an opportunity for the market actors to take
the initiative and develop suitable systems. Through the
Digital Video Broadcasting Group, European market
television
have
actors
transmission systems
that have been adopted by
broadcasters throughout the world. These transmissions
systems have been standardised by the European
Telecommunications Standards Institute (ETSI) and have
Union
Telecommunication
become
recommendations.
In relation to wide-screen digital
television, the 16:9 aspect ratio is the reference format
for wide-format television services and programmes, and
is now established in Member States’ markets as a result
of Council Decision 93/424/EEC of 22 July 1993 on an
action plan for the introduction of advanced television
services in Europe (7).

International

of

(1) OJ C 365 E, 19.12.2000, p. 215 and OJ C 270 E, 25.9.2001,

p. 161.

(2) OJ C 123, 25.4.2001, p. 50.
(3) Opinion of the European Parliament of 1 March 2001 (OJ C 277,
1.10.2001, p. 72), Council Common Position of 17 September
2001 (OJ C 337, 30.11.2001, p. 1) and Decision of the European
Parliament of 12 December 2001 (not yet published in the Official
Journal). Council Decision of 14 February 2002.

(4) See page 33 of this Official Journal.
(5) See page 21 of this Official Journal.

(5)

In an open and competitive market, there should be no
restrictions that prevent undertakings from negotiating
between
and
access
in particular on cross-border agreements,
themselves,

interconnection arrangements

(6) OJ L 281, 23.11.1995, p. 51.
(7) OJ L 196, 5.8.1993, p. 48.

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(9)

(10)

of

efficient,

achieving

a more

subject to the competition rules of the Treaty. In the
truly
context
pan-European market, with effective competition, more
to
choice
consumers,
for access or
undertakings which receive requests
such
conclude
interconnection should in principle
agreements on a commercial basis, and negotiate in
good faith.

competitive

services

and

In markets where there continue to be large differences
in negotiating power between undertakings, and where
some undertakings rely on infrastructure provided by
others for delivery of their services, it is appropriate to
the market
establish a framework to ensure that
functions
regulatory authorities
effectively. National
should have the power to secure, where commercial
negotiation fails, adequate access and interconnection
services
and interoperability of
in the interest of
end-users.
they may ensure end-to-end
In particular,
connectivity by imposing proportionate obligations on
undertakings that control access to end-users. Control of
means of access may entail ownership or control of the
physical
link to the end-user (either fixed or mobile),
and/or the ability to change or withdraw the national
number or numbers needed to access an end-user’s
network termination point. This would be the case for
example
restrict
unreasonably end-user choice for access to Internet
portals and services.

operators were

network

to

if

as

set out

aim of

regulatory authorities

Interoperability is of benefit
to end-users and is an
framework.
this
important
regulatory
Encouraging interoperability is one of the objectives for
national
in this
framework, which also provides for the Commission to
publish a list of standards and/or specifications covering
interfaces and/or
the provision of services,
network functions,
encouraging
for
harmonisation in electronic communications. Member
States should encourage the use of published standards
and/or specifications to the extent strictly necessary to
ensure interoperability of
services and to improve
freedom of choice for users.

technical
the basis

as

it necessary

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

electronic programme guides

(EPGs)

that

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

and

rights

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

communications networks used for

obligations

to

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

(12)

In order to ensure continuity of existing agreements and
to avoid a legal vacuum, it is necessary to ensure that
for access and interconnection imposed
obligations
under Articles 4, 6, 7, 8, 11, 12, and 14 of Directive
97/33/EC of
the
Council of 30 June 1997 on interconnection in
telecommunications with regard to ensuring universal
service and interoperability through application of the

the European Parliament and of

(6)

(7)

(8)

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of

open

provision

(ONP) (1),
principles
network
obligations on special access imposed under Article 16
of Directive 98/10/EC of the European Parliament and
of the Council of 26 February 1998 on the application
of open network provision (ONP) to voice telephony
and on universal service for telecommunications in a
competitive environment (2), and obligations concerning
the provision of leased line transmission capacity under
Council Directive 92/44/EEC of 5 June 1992 on the
application of open network provision to leased
lines (3),
into the new
initially
regulatory framework, but are subject
to immediate
review in the light of prevailing market conditions. Such
a review should also extend to those organisations
covered by Regulation (EC) No 2887/2000 of
the
the Council of 18
European Parliament
December 2000 on unbundled access
to the local
loop (4).

carried over

and of

are

(13)

the

takes

States,

account

such as

procedure

and national

also
in the market

The review should be carried out using an economic
market analysis based on competition law methodology.
The aim is to reduce ex ante sector
specific rules
progressively as competition in the market develops.
of
However
transitional problems
those
related to international roaming and of the possibility of
new bottlenecks arising as a result of
technological
development, which may require ex ante regulation, for
example in the area of broadband access networks. It
may well be the case that competition develops at
different speeds in different market segments and in
different Member
regulatory
authorities should be able to relax regulatory obligations
in those markets where competition is delivering the
desired results. In order to ensure that market players in
similar circumstances are treated in similar ways in
different Member States, the Commission should be able
to ensure harmonised application of the provisions of
this Directive. National
and
national authorities entrusted with the implementation
appropriate,
of
coordinate
the most
appropriate remedy is applied. The Community and its
Member States have entered into commitments on
interconnection of telecommunications networks in the
context of the World Trade Organisation agreement on
basic telecommunications and these commitments need
to be respected.

law should, where

their actions

competition

to ensure

authorities

regulatory

that

(14) Directive 97/33/EC laid down a range of obligations to
be imposed on undertakings with significant market
non-discrimination,
transparency,
power,
and
accounting
control
access,
range of possible
including cost orientation. This

separation,

namely

price

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

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

(2) OJ L 101, 1.4.1998, p. 24.
(3) OJ L 165, 19.6.1992, p. 27. Directive as

last amended by

Commission Decision No 98/80/EC (OJ L 14, 20.1.1998, p. 27).

obligations should be maintained but, in addition, they
should be established as a set of maximum obligations
that can be applied to undertakings, in order to avoid
over-regulation. Exceptionally, in order to comply with
international commitments or Community law, it may
be appropriate to impose obligations for access or
interconnection on all market players, as is currently the
case for conditional access systems for digital television
services.

a

imposition of

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

including prices,

interfaces can be particularly important

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

of publication (paper
it

the nature and purpose of

the

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

undertakings

services

supply

that

(15)

(16)

(17)

(18) Accounting separation allows internal price transfers to
be rendered visible, and allows national
regulatory
authorities to check compliance with obligations for
non-discrimination where applicable. In this regard the
Commission published Recommendation 98/322/EC of
8 April 1998 on interconnection in a liberalised
telecommunications market
(Part 2 (cid:151) accounting
separation and cost accounting) (5).

(19) Mandating access

to network infrastructure can be
justified as a means of
increasing competition, but
national regulatory authorities need to balance the rights
of an infrastructure owner to exploit its infrastructure
forits own benefit, and the rights of other service

(4) OJ L 366, 30.12.2000, p. 4.

(5) OJ L 141, 13.5.1998, p. 6.

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the

case

of mandated

to the dispute

providers to access facilities that are essential for the
provision of competing services. Where obligations are
imposed on operators
require them to meet
that
reasonable requests for access to and use of networks
elements and associated facilities, such requests should
only be refused on the basis of objective criteria such as
technical
feasibility or the need to maintain network
integrity. Where access is refused, the aggrieved party
may submit
resolutions
procedure referred to in Articles 20 and 21 of Directive
2002/21/EC (Framework Directive). An operator with
mandated access obligations cannot be required to
provide types of access which are not within its powers
regulatory
to provide. The imposition by national
increases
authorities
that
reduce
competition in the
incentives
in alternative
facilities
secure more competition in the
long-term. The Commission has published a Notice on
to access
the application of
agreements in the telecommunications sector (1) which
addresses these issues. National regulatory authorities
may impose technical and operational conditions on the
provider and/or beneficiaries of mandated access in
the
accordance with Community law.
imposition of technical standards should comply with
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 (2).

access
short-term should not
to invest

the competition rules

for
that will

In particular

competitors

(20)

In

pricing.

particular,

for carrier

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

current valuation of

assets

(21) Where

a

national

authority

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

independent of

(22)

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

to find the

(23)

the pan-European electronic
In order to ensure that
communications market
the
is effective and efficient,
Commission should monitor and publish information
on charges which contribute to determining prices to
end-users.

(24)

(25)

The development of
the electronic communications
market, with its associated infrastructure, could have
adverse effects on the environment and the landscape.
Member States should therefore monitor this process
and,
take action to minimise any such
effects by means of appropriate agreements and other
arrangements with the relevant authorities.

if necessary,

to determine

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

(1) OJ C 265, 22.8.1998, p. 2.
(2) OJ L 204, 21.7.1998, p. 37. Directive as amended by Directive

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

(26) Given

the

developments,

of

pace
technological
the implementation of

and market
this Directive

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should be reviewed within three years of its date of
application to determine if it is meeting its objectives.

once the desired objectives have been achieved. Access in this
Directive does not refer to access by end-users.

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).

Article 2

Definitions

(27)

(28)

and

access

interconnection

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

accordance with

principle

the

In

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I

SCOPE, AIM AND DEFINITIONS

Article 1

Scope and aim

electronic

1. Within the framework set out in Directive 2002/21/EC
(Framework Directive), this Directive harmonises the way in
which Member States regulate access to, and interconnection
associated
of,
communications networks
in
facilities. The aim is to establish a regulatory framework,
the
internal market
accordance with
relationships between suppliers of networks and services that
will
interoperability of
electronic communications services and consumer benefits.

in sustainable competition,

principles,

result

and

for

rights and obligations

This Directive establishes

2.
for
operators and for undertakings seeking interconnection and/or
access to their networks or associated facilities.
It sets out
objectives for national regulatory authorities with regard to
access and interconnection, and lays down procedures to
ensure
regulatory
authorities are reviewed and, where appropriate, withdrawn

imposed by national

that obligations

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

For the purposes of this Directive the definitions set out in
Article 2 of Directive 2002/21/EC (Framework Directive) shall
apply.

The following definitions shall also apply:

(a)

inter alia: access

(cid:145)access(cid:146) means the making available of
facilities and/or
services, to another undertaking, under defined conditions,
on either an exclusive or non-exclusive basis,
for the
purpose of providing electronic communications services.
to network elements and
It covers
associated facilities, which may involve the connection of
equipment, by fixed or non-fixed means (in particular this
includes access to the local
loop and to facilities and
services necessary to provide services over the local loop),
access to physical infrastructure including buildings, ducts
and masts; access to relevant software systems including
operational support systems, access to number translation
or systems offering equivalent functionality, access to fixed
and mobile networks, in particular for roaming, access to
conditional access systems for digital
television services;
access to virtual network services;

(b)

(cid:145)interconnection(cid:146) means the physical and logical linking of
public communications networks used by the same or a
different undertaking in order to allow the users of one
undertaking to communicate with users of the same or
another undertaking, or to access services provided by
another undertaking. Services may be provided by the
parties involved or other parties who have access to the
network.
Interconnection is a specific type of access
implemented between public network operators;

(c)

(cid:145)operator(cid:146) means an undertaking providing or authorised to
provide a public communications network or an associated
facility;

(d)

(cid:145)wide-screen television service(cid:146) means a television service
that consists wholly or partially of programmes produced
and edited to be displayed in a full height wide-screen
format. The 16:9 format
for
is
wide-screen television services;

the reference format

(e)

(cid:145)local
loop(cid:146) means the physical circuit connecting the
network termination point at the subscriber’s premises to
the main distribution frame or equivalent facility in the
fixed public telephone network.

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CHAPTER II

GENERAL PROVISIONS

Article 3

General framework for access and interconnection

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

it

if

rights

2. Without prejudice to Article 31 of Directive 2002/22/EC
of the European Parliament and of the Council of 7 March
relating to
service and users’
2002 on universal
electronic communications networks and services (Universal
Service Directive) (1), Member States shall not maintain legal or
administrative measures which oblige operators, when granting
and
access or
conditions to different undertakings for equivalent services
and/or imposing obligations that are not related to the actual
access and interconnection services provided without prejudice
to the conditions fixed in the Annex of Directive 2002/20/EC
(Authorisation Directive).

to offer different

interconnection,

terms

times the confidentiality of

access or interconnection arrangements use that information
solely for the purpose for which it was supplied and respect at
all
information transmitted or
stored. The received information shall not be passed on to any
in particular other departments, subsidiaries or
other party,
a
partners,
competitive advantage.

for whom such information could provide

Article 5

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

1.
National regulatory authorities shall, acting in pursuit of
the objectives set out in Article 8 of Directive 2002/21/EC
encourage and where appropriate
(Framework Directive),
ensure,
in accordance with the provisions of this Directive,
adequate access and interconnection, and interoperability of
services, exercising their responsibility in a way that promotes
efficiency, sustainable competition, and gives the maximum
benefit to end-users.

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

Article 4

Rights and obligations for undertakings

(a)

that

is necessary to ensure end-to-end
to the extent
that control
connectivity, obligations on undertakings
access
the
obligation to interconnect their networks where this is not
already the case;

including in justified cases

to end-users,

Operators of public communications networks shall have
1.
so
a right and, when requested by other undertakings
authorised, an obligation to negotiate interconnection with
each other for the purpose of providing publicly available
to ensure
electronic
provision and interoperability of
the
Community. Operators shall offer access and interconnection
to other undertakings on terms and conditions consistent with
obligations
regulatory authority
pursuant to Articles 5, 6, 7 and 8.

imposed by the national

communications

throughout

in order

services,

services

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

television services

3. Without prejudice to Article 11 of Directive 2002/20/EC
(Authorisation Directive), Member States shall require that
undertakings which
from another
undertaking before, during or after the process of negotiating

information

acquire

(1) See page 51 of this Official Journal.

to digital

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

II on fair,

reasonable

I,

2. When imposing obligations on an operator to provide
access in accordance with Article 12, national
regulatory
authorities may lay down technical or operational conditions
to be met by the provider and/or beneficiaries of such access,
in accordance with Community law, where necessary to ensure
normal operation of
the network. Conditions that refer to
implementation of specific technical standards or specifications
shall respect Article 17 of Directive 2002/21/EC (Framework
Directive).

1 and 2 shall

Obligations and conditions imposed in accordance with
3.
transparent,
paragraphs
proportionate
be
implemented in accordance with the procedures referred to in
Articles 6 and 7 of Directive 2002/21/EC (Framework
Directive).

objective,
and

non-discriminatory,

shall

and

be

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4. With regard to access and interconnection, Member
States shall ensure that the national regulatory authority is
empowered to intervene at its own initiative where justified or,
in the absence of agreement between undertakings, at
the
request of either of the parties involved, in order to secure the
policy objectives of Article 8 of Directive 2002/21/EC
(Framework Directive),
in accordance with the provisions of
this Directive and the procedures referred to in Articles 6 and
7, 20 and 21 of Directive 2002/21/EC (Framework Directive).

CHAPTER III

OBLIGATIONS ON OPERATORS AND MARKET REVIEW
PROCEDURES

Article 6

Conditional access systems and other facilities

States

shall
to digital

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

to viewers

that,

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

3.
Notwithstanding the provisions of paragraph 1, Member
States may permit their national regulatory authority, as soon
as possible after the entry into force of this Directive and
periodically thereafter,
to review the conditions applied in
accordance with this Article, by undertaking a market analysis
in accordance with the first paragraph of Article 16 of
to determine
Directive 2002/21/EC (Framework Directive)
whether
to maintain, amend or withdraw the conditions
applied.

Where, as a result of this market analysis, a national regulatory
authority finds that one or more operators do not have
it may
significant market power on the relevant market,
amend or withdraw the conditions with respect
to those
operators,
in accordance with the procedures referred to in
Articles 6 and 7 of Directive 2002/21/EC (Framework
Directive), only to the extent that:

(a) accessibility

to

for

end-users

television
broadcasts and broadcasting channels and services specified
in accordance with Article 31 of Directive 2002/22/EC
(Universal Service Directive) would not be adversely
affected by such amendment or withdrawal, and

radio

and

(ii) conditional
facilities,

access

systems

and other

associated

would not be adversely affected by such amendment or
withdrawal.

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

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

Article 7

Review of former obligations for access and
interconnection

States

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

The Commission will

referred to in paragraph 1 in the

indicate relevant markets for the
2.
obligations
initial
recommendation on relevant product and service markets and
the Decision identifying transnational markets to be adopted in
accordance with Article 15 of Directive 2002/21/EC
(Framework Directive).

3. Member States shall ensure that, as soon as possible after
the entry into force of
this Directive, and periodically
thereafter, national regulatory authorities undertake a market
analysis,
in accordance with Article 16 of Directive
2002/21/EC (Framework Directive) to determine whether to
obligations. An
or withdraw these
maintain,
appropriate period of notice shall be given to parties affected
by such amendment or withdrawal of obligations.

amend

Article 8

Imposition, amendment or withdrawal of obligations

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

shall ensure that national

(b) the prospects for effective competition in the markets for:

(i)

retail digital television and radio broadcasting services,
and

2. Where an operator is designated as having significant
market power on a specific market as a result of a market
analysis carried out in accordance with Article 16 of Directive
regulatory
2002/21/EC (Framework Directive),

national

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24.4.2002

authorities shall impose the obligations set out in Articles 9 to
13 of this Directive as appropriate.

3. Without prejudice to:

(cid:151) the provisions of Articles 5(1), 5(2) and 6,

(cid:151) the provisions of Articles 12 and 13 of Directive
2002/21/EC (Framework Directive), Condition 7 in Part B
the Annex to Directive 2002/20/EC (Authorisation
of
Directive) as applied by virtue of Article 6(1) of
that
Directive, Articles 27, 28 and 30 of Directive 2002/22/EC
(Universal Service Directive) and the relevant provisions of
Directive 97/66/EC of the European Parliament and of the
Council of 15 December 1997 concerning the processing
of personal data and the protection of privacy in the
telecommunications sector (1) containing obligations on
than those designated as having
undertakings other
significant market power, or

(cid:151) the need to comply with international commitments,

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

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

this request

on the nature

Obligations imposed in accordance with this Article shall
4.
be
the problem identified,
of
based
proportionate and justified in the light of the objectives laid
down in Article 8 of Directive 2002/21/EC (Framework
Directive). Such obligations shall only be imposed following
consultation in accordance with Articles 6 and 7 of
that
Directive.

5.
In relation to the third indent of the first subparagraph
of paragraph 3, national regulatory authorities shall notify
decisions to impose, amend or withdraw obligations on market
players to the Commission, in accordance with the procedure
referred to in Article 7 of Directive 2002/21/EC (Framework
Directive).

transparency in relation to interconnection and/or access,
requiring operators to make public specified information, such
as accounting information,
technical specifications, network
characteristics, terms and conditions for supply and use, and
prices.

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

to give effect

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

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

loop, national

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

Article 10

Obligation of non-discrimination

A national regulatory authority may, in accordance with
of
8,
provisions
impose
in relation to interconnection and/or

of Article

obligations

1.
the
non-discrimination,
access.

Obligations of non-discrimination shall

2.
in
particular, that the operator applies equivalent conditions in
equivalent circumstances
to other undertakings providing
equivalent services, and provides services and information to
others under the same conditions and of the same quality as it
provides for its own services, or those of it subsidiaries or
partners.

ensure,

Article 9

Obligation of transparency

Article 11

Obligation of accounting separation

1.
the

National regulatory authorities may, in accordance with
for
8,
provisions

of Article

obligations

impose

(1) OJ L 24, 30.1.1998, p. 1.

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

24.4.2002

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Official Journal of the European Communities

L 108/15

company

to make

integrated

In particular, a national regulatory authority may require a
its
vertically
wholesale prices and its internal transfer prices inter alia to
ensure
for
non-discrimination under Article 10 or, where necessary, to
prevent unfair cross-subsidy. National regulatory authorities
may specify the format and accounting methodology to be
used.

compliance where

requirement

transparent

there

is

a

with

obligations

to facilitate
of

the
transparency

2. Without prejudice to Article 5 of Directive 2002/21/EC
verification of
(Framework Directive),
compliance
and
non-discrimination, national regulatory authorities shall have
the power to require that accounting records, including data
on revenues received from third parties, are provided on
request. National
regulatory authorities may publish such
information as would contribute to an open and competitive
market, while respecting national and Community rules on
commercial confidentiality.

Article 12

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

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

and associated facilities,

inter

alia

Operators may be required inter alia:

(a)

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

(b) to negotiate in good faith with undertakings requesting

access;

(c) not to withdraw access to facilities already granted;

(d) to provide specified services on a wholesale basis for resale

by third parties;

(e)

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

(f)

to provide co-location or other forms of facility sharing,
including duct, building or mast sharing;

(g) to

provide

specified

ensure
to
including
interoperability of end-to-end services to users,
facilities for intelligent network services or roaming on
mobile networks;

services

needed

(h) to provide access to operational support systems or similar
software systems necessary to ensure fair competition in
the provision of services;

(i)

to interconnect networks or network facilities.

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

2. When national
regulatory authorities are considering
whether to impose the obligations referred in paragraph 1, and
in particular when assessing whether such obligations would
be proportionate to the objectives set out
in Article 8 of
Directive 2002/21/EC (Framework Directive), they shall take
account in particular of the following factors:

(a)

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

(b) the feasibility of providing the access proposed, in relation

to the capacity available;

(c)

the initial
mind the risks involved in making the investment;

investment by the facility owner, bearing in

(d) the need to safeguard competition in the long term;

(e) where appropriate, any relevant intellectual property rights;

(f)

the provision of pan-European services.

Article 13

Price control and cost accounting obligations

1.
A national regulatory authority may, in accordance with
the provisions of Article 8, impose obligations relating to cost
including obligations for cost
recovery and price controls,
orientation
cost
obligations
and
for the provision of specific types of
accounting systems,
interconnection and/or access,
in situations where a market
analysis indicates that a lack of effective competition means

concerning

of prices

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24.4.2002

the operator concerned might

that
sustain prices at an
to the
excessively high level, or apply a price squeeze,
detriment of end-users. National regulatory authorities shall
take into account the investment made by the operator and
allow him a reasonable rate of return on adequate capital
employed, taking into account the risks involved.

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

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

authorities may

regulatory

national

use

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

CHAPTER IV

PROCEDURAL PROVISIONS

Article 14

Committee

The

Commission

1.
the
shall
Communications Committee set up by Article 22 of Directive
2002/21/EC (Framework Directive).

assisted

by

be

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

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

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

Article 15

Publication of, and access to, information

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

the information is not confidential and,

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

the

Article 16

Notification

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

National

regulatory

authorities

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

the undertakings affected under

this Directive

obligations

affecting

imposed

the

Article 17

Review procedures

The Commission shall periodically review the functioning of
this Directive and report to the European Parliament and to
the Council, on the first occasion not later than three years
after the date of application referred to in Article 18(1), second
subparagraph. For this purpose, the Commission may request
from the Member States information, which shall be supplied
without undue delay.

Article 18

Transposition

shall

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

and publish the

adopt

4.

The Committee shall adopt its rules of procedure.

They shall apply those measures from 25 July 2003.

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L 108/17

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

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

Article 19

Entry into force

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

into force on the day of

its

Article 20

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

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

ANNEX I

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

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

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

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

(cid:151) offer to all broadcasters, on a fair, reasonable and non-discriminatory basis compatible with Community
competition law, technical services enabling the broadcasters’ digitally-transmitted services to be received by
viewers or listeners authorised by means of decoders administered by the service operators, and comply with
Community competition law,

(cid:151) keep separate financial accounts regarding their activity as conditional access providers.

(c) when granting licences to manufacturers of consumer equipment, holders of

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

(cid:151) a common interface allowing connection with several other access systems, or

(cid:151) means specific to another access system, provided that the licensee complies with the relevant and reasonable
conditions ensuring, as far as he is concerned, the security of transactions of conditional access system
operators.

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

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

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

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

ANNEX II

For the purposes of this Annex the following definitions apply:

(a)

(cid:145)local sub-loop(cid:146) means a partial local loop connecting the network termination point at the subscriber’s premises to
a concentration point or a specified intermediate access point in the fixed public telephone network;

(b)

(cid:145)unbundled access to the local loop(cid:146) means full unbundled access to the local loop and shared access to the local
loop; it does not entail a change in ownership of the local loop;

(c)

(cid:145)full unbundled access to the local loop(cid:146) means the provision to a beneficiary of access to the local loop or local
sub-loop of the notified operator authorising the use of the full frequency spectrum of the twisted metallic pair;

(d)

(cid:145)shared access to the local loop(cid:146) means the provision to a beneficiary of access to the local loop or local sub-loop
of the notified operator, authorising the use of the non-voice band frequency spectrum of the twisted metallic pair;
the local loop continues to be used by the notified operator to provide the telephone service to the public;

A. Conditions for unbundled access to the local loop

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

(a) access to local loops;

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

loop;

2.

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

3. Technical conditions related to access and use of local

loops, including the technical characteristics of the

twisted metallic pair in the local loop;

4. Ordering and provisioning procedures, usage restrictions.

B. Co-location services

1.

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

2. Co-location options at the sites indicated under point 1 (including physical co-location and, as appropriate,

distant co-location and virtual co-location).

3.

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

4.

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

5. Access conditions for staff of competitive operators.

6.

Safety standards.

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

8. Conditions for beneficiaries to inspect the locations at which physical co-location is available, or sites where

co-location has been refused on grounds of lack of capacity.

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

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C.

Information systems

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

information systems or databases for

D. Supply conditions

1.

2.

3.

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

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

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