Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services (Text with EEA relevance)
Date: 2002-09-16
Institutions: European Commission
Subjects: Internet, cable distribution, communications systems, competition law, electronic mail, provision of services, regulation of telecommunications, satellite communications, telecommunications, transmission network

17.9.2002

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Official Journal of the European Communities

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COMMISSION DIRECTIVE 2002/77/EC

of 16 September 2002

on competition in the markets for electronic communications networks and services

(Text with EEA relevance)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Commu-
nity, and in particular Article 86(3) thereof,

Whereas:

(1)

(2)

(3)

(4)

Commission Directive 90/388/EEC of 28 June 1990 on
competition in the markets
telecommunications
services (1), as last amended by Directive 1999/64/EC (2),
has been substantially amended several
times. Since
further amendments are to be made, it should be recast
in the interest of clarity.

for

Article 86 of the Treaty entrusts the Commission with
the task of ensuring that, in the case of public undertak-
ings and undertakings enjoying special or exclusive
rights, Member States comply with their obligations
under Community law. Pursuant to Article 86(3), the
Commission can specify and clarify the obligations
arising from that Article and, in that framework, set out
the conditions which are necessary to allow the Commis-
sion to perform effectively the duty of surveillance
imposed upon it by that paragraph.

Directive 90/388/EEC required Member States to abolish
special and exclusive rights for the provision of telecom-
initially for other services than
munications services,
voice telephony, satellite services and mobile radiocom-
munications, and then it gradually established full
competition in the telecommunications market.

A number of other Directives in this field have also been
adopted under Article 95 of the Treaty by the European
Parliament and the Council aiming, principally, at the
establishment of an internal market for telecommunica-
tions services
through the implementation of open
network provision and the provision of a universal
service in an environment of open and competitive
markets. Those Directives should be repealed with effect
from 25 July 2003 when the new regulatory framework
for electronic communications networks and services is
applied.

(5)

The new electronic communications regulatory frame-
work consists of one general Directive, Directive 2002/
21/EC of the European Parliament and of the Council of

(1) OJ L 192, 24.7.1990, p. 10.
(2) OJ L 175, 10.7.1999, p. 39.

and

and

networks

networks

communications

communications

7 March 2002 on a common regulatory framework for
services
electronic
(Framework Directive) (3) 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) (4), Directive 2002/19/EC of the
European Parliament and of the Council of 7 March
2002 on access to, and interconnection of, electronic
and associated facilities
communications networks
(Access Directive) (5), 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) (6), and Directive 2002/58/
EC of the European Parliament and of the Council of 12
July 2002 concerning the processing of personal data
and the protection of privacy in the electronic communi-
cations (Directive on privacy and electronic communica-
tions) sector (7).

communications

networks

and

(6)

(7)

In the light of the developments which have marked the
liberalisation process and the gradual opening of the tele-
communications markets in Europe since 1990, certain
definitions used in Directive 90/388/EEC and its
amending acts should be adjusted in order to reflect the
latest technological developments in the telecommunica-
tions field, or replaced in order to take account of the
convergence phenomenon which has shaped the infor-
mation technology, media
and telecommunications
industries over recent years. The wording of certain
provisions should, where possible, be clarified in order
to facilitate their application, taking into account, where
appropriate,
adopted under
relevant Directives
Article 95 of the Treaty, and the experience acquired
through the implementation of Directive 90/388/EEC as
amended.

the

This Directive makes reference to ‘electronic communica-
tions services’ and ‘electronic communications networks’
rather than the previously used terms ‘telecommunica-
tions services’ and ‘telecommunications networks’. These
new definitions are indispensable in order
to take
account of the convergence phenomenon by bringing
together under one single definition all electronic
communications services and/or networks which are
concerned with the conveyance of signals by wire, radio,
optical or other electromagnetic means (i.e. fixed, wire-
less, cable television, satellite networks). Thus, the trans-
radio and television
mission and broadcasting of

(3) OJ L 108, 24.4.2002, p. 33.
(4) OJ L 108, 24.4.2002, p. 21.
(5) OJ L 108, 24.4.2002, p. 7.
(6) OJ L 108, 24.4.2002, p. 51.
(7) OJ L 201, 31.7.2002, p. 37.

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(8)

(9)

should be recognised as an electronic
programmes
communication service and networks used for such
transmission and broadcasting should likewise be recog-
nised as electronic communications networks. Further-
more, it should be made clear that the new definition of
electronic communications networks also covers fibre
networks which enable third parties, using their own
switching or routing equipment, to convey signals.

the use of

In this context,
it should be made clear that Member
States must remove (if they have not already done so)
exclusive and special rights for the provision of all elec-
tronic communications networks, not just those for the
provision of electronic communications services and
should ensure that undertakings are entitled to provide
such services without prejudice to the provisions of
Directives 2002/19/EC, 2002/20/EC, 2002/21/EC and
2002/22/EC. The definition of electronic communica-
tions networks should also mean that Member States are
not permitted to restrict the right of an operator to
establish, extend and/or provide a cable network on the
ground that such network could also be used for the
transmission of radio and television programming.
In
particular, special or exclusive rights which amount to
restricting
communications
networks for the transmission and distribution of televi-
sion signals are contrary to Article 86(1),
read in
conjunction with Article 43 (right of establishment) and/
or Article 82(b) of the EC Treaty insofar as they have the
effect of permitting a dominant undertaking to limit
‘production, markets or technical development to the
prejudice of consumers’. This is, however, without preju-
dice to the specific rules adopted by the Member States
in accordance with Community law, and, in particular,
in accordance with Council Directive 89/552/EEC of 3
October 1989 (1), on the coordination of certain provi-
sions laid down by law, regulation or administrative
action in Member States concerning the pursuit of televi-
sion broadcasting activities, as amended by Directive 97/
36/EC of the European Parliament and of the Council (2),
governing the distribution of audiovisual programmes
intended for the general public.

electronic

Pursuant to the principle of proportionality, Member
States should no longer make the provision of electronic
communications services and the establishment and
provision of electronic communications networks subject
to a licensing regime but to a general authorisation
regime. This is also required by Directive 2002/20/EC,
according to which electronic communications services
or networks should be provided on the basis of a general
authorisation and not on the basis of a license. An
aggrieved party should have the right to challenge a deci-
sion preventing him from providing electronic commu-
nications services or networks before an independent
body and, ultimately, before a court or a tribunal. It is a
fundamental principle of Community law that an indivi-
dual is entitled to effective judicial protection whenever a

State measure violates rights conferred upon him by the
provisions of a Directive.

(10)

(11)

Public authorities may exercise a dominant influence on
the behaviour of public undertakings, as a result either
of the rules governing the undertaking or of the manner
in which the shareholdings are distributed. Therefore,
where Member States
control vertically integrated
network operators which operate networks which have
been established under special or exclusive rights, those
Member States should ensure that,
in order to avoid
potential breaches of the Treaty competition rules, such
operators, when they enjoy a dominant position in the
relevant market, do not discriminate in favour of their
own activities. It follows that Member States should take
all measures necessary to prevent any discrimination
between such vertically integrated operators and their
competitors.

This Directive should also clarify the principle derived
from Commission Directive 96/2/EC of 16 January 1996
amending Directive 90/388/EC with regard to mobile
and personal communications (3), by providing that
Member States should not grant exclusive or special
rights of use of radio frequencies and that the rights of
use of those frequencies should be assigned according to
objective, non-discriminatory and transparent proce-
dures. This should be without prejudice to specific
criteria and procedures adopted by Member States to
grant such rights to providers of radio or television
broadcast content services with a view to pursuing
general interest objectives in conformity with Commu-
nity law.

(12) Any national scheme pursuant to Directive 2002/22/EC,
serving to share the net cost of the provision of universal
service obligations shall be based on objective, trans-
parent and non-discriminatory criteria and shall be
consistent with the principles of proportionality and of
least market distortion. Least market distortion means
that contributions should be recovered in a way that as
far as possible minimises the impact of the financial
burden falling on end-users, for example by spreading
contributions as widely as possible.

(13) Where rights and obligations arising from international
conventions setting up international satellite organisa-
tions are not compatible with the competition rules of
the Treaty, Member States should take,
in accordance
with Article 307 of the EC Treaty, all appropriate steps
to eliminate such incompatibilities. This Directive should
clarify this obligation because Article 3 of Directive 94/
46/EC (4), merely required Member States to ‘communi-
cate to the Commission’ the information they possessed
on such incompatibilities. Article 11 of this Directive
to
should clarify the obligation on Member States
remove any restrictions which could still be in force
because of those international conventions.

(1) OJ L 298, 17.10.1989, p. 23.
(2) OJ L 202, 30.7.1997, p. 60.

(3) OJ L 20, 26.1.1996, p. 59.
(4) OJ L 268, 19.10.1994, p. 15.

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(14)

This Directive should maintain the obligation imposed
on Member States by Directive 1999/64/EC, so as to
ensure that dominant providers of electronic communi-
cations networks
telephone
services operate their public electronic communication
network and cable television network as separate legal
entities.

and publicly available

4.

5.

(15)

This Directive should be without prejudice to obligations
of the Member States concerning the time limits set out
in Annex I, Part B, within which the Member States are
to comply with the preceding Directives.

(16) Member States should supply to the Commission any
information which is necessary to demonstrate that
existing national
implementing legislation reflects the
clarifications provided for in this Directive as compared
with Directives 90/388/EC, 94/46/EC, 95/51/EC (1), 96/
2/EC, 96/19/EC (2) and 1999/64/EC.

(17)

In the light of the above, Directive 90/388/EC should be
repealed,

HAS ADOPTED THIS DIRECTIVE:

Article 1

Definitions

For the purposes of this Directive the following definitions shall
apply:

1.

2.

3.

‘electronic communications network’ shall mean transmis-
sion systems and, where applicable, switching or routing
equipment and other resources which permit the convey-
ance of signals by wire, by radio, by optical or by other elec-
tromagnetic means,
fixed
(circuit — and packet — switched, including Internet) and
mobile terrestrial networks, and electricity cable systems, to
the extent that they are used for the purpose of transmitting
signals, networks used for radio and television broadcasting,
and cable television networks,
irrespective of the type of
information conveyed;

including satellite networks,

‘public communications network’ shall mean an electronic
communications network used wholly or mainly for the
provision of public electronic communications services;

‘electronic communications services’ shall mean a service
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 Direc-
tive 98/34/EC which do not consist wholly or mainly in the
conveyance of
communications
signals on electronic
networks;

(1) OJ L 256, 26.10.1995, p. 49.
(2) OJ L 74, 22.3.1996, p. 13.

‘publicly available electronic communications services’ shall
mean electronic communications services available to the
public;

‘exclusive rights’ shall mean the rights that are granted by a
Member State to one undertaking through any legislative,
regulatory or administrative instrument, reserving it
the
right to provide an electronic communications service or to
undertake an electronic communications activity within a
given geographical area;

6.

‘special rights’ shall mean the rights that are granted by a
Member State to a limited number of undertakings through
any legislative,
regulatory or administrative instrument
which, within a given geographical area:

(a) designates or limits to two or more the number of such
an electronic
authorised to provide
undertakings
communications
service or undertake an electronic
communications activity, otherwise than according to
objective, proportional and non-discriminatory criteria,
or

legal or

(b) confers on undertakings, otherwise than according to
regulatory advantages which
such criteria,
substantially affect the ability of any other undertaking
to provide the same electronic communications service
or to undertake the same electronic communications
activity in the same geographical area under substan-
tially equivalent conditions;

7.

8.

‘satellite earth station network’ shall mean a configuration of
two or more earth stations which interwork by means of a
satellite;

‘cable television networks’ shall mean any mainly wire-based
infrastructure established primarily for the delivery or distri-
bution of radio or television broadcast to the public.

Article 2

Exclusive and special rights for electronic communications
networks and electronic communications services

1. Member States shall not grant or maintain in force exclu-
sive or special rights for the establishment and/or the provision
of electronic communications networks, or for the provision of
publicly available electronic communications services.

2. Member States shall take all measures necessary to ensure
that any undertaking is entitled to provide electronic communi-
cations services or to establish, extend or provide electronic
communications networks.

3. Member States
shall ensure that no restrictions are
imposed or maintained on the provision of electronic commu-
nications services over electronic communications networks
established by the providers of electronic communications
services, over infrastructures provided by third parties, or by
means of sharing networks, other facilities or sites without
prejudice to the provisions of Directives 2002/19/EC, 2002/20/
EC, 2002/21/EC and 2002/22/EC.

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4. Member States shall ensure that a general authorisation
granted to an undertaking to provide electronic communica-
tions services or to establish and/or provide electronic commu-
nications networks, as well as the conditions attached thereto,
shall be based on objective, non-discriminatory, proportionate
and transparent criteria.

Reasons shall be given for any decision taken on the
5.
grounds set out
in Article 3(1) of Directive 2002/20/EC
preventing an undertaking from providing electronic communi-
cations services or networks.

Any aggrieved party should have the possibility to challenge
such a decision before a body that is independent of the parties
involved and ultimately before a court or a tribunal.

Article 3

Vertically integrated public undertakings

In addition to the requirements set out in Article 2(2), and
without prejudice to Article 14 of Directive 2002/21/EC,
Member States, shall ensure that vertically integrated public
undertakings which
communications
networks and which are in a dominant position do not discri-
minate in favour of their own activities.

electronic

provide

Article 4

Rights of use of frequencies

Without prejudice to specific criteria and procedures adopted
by Member States to grant rights of use of radio frequencies to
providers of radio or television broadcast content services with
a view to pursuing general
interest objectives in conformity
with Community law:

1. Member States shall not grant exclusive or special rights of
use of radio frequencies for the provision of electronic
communications services.

2. The assignment of radio frequencies for electronic commu-
nication services shall be based on objective, transparent,
non-discriminatory and proportionate criteria.

Article 5

Directory services

Member States shall ensure that all exclusive and/or special
rights with regard to the establishment and provision of direc-
tory services on their territory, including both the publication
of directories and directory enquiry services, are abolished.

Article 6

Universal service obligations

particular, where universal service obligations are imposed in
whole or in part on public undertakings providing electronic
communications services, this shall be taken into consideration
in calculating any contribution to the net cost of universal
service obligations.

2. Member States shall communicate any scheme of the kind
referred to in paragraph 1 to the Commission.

Article 7

Satellites

1. Member States shall ensure that any regulatory prohibi-
tion or restriction on the offer of space segment capacity to any
authorised satellite earth station network operator are abol-
ished, and shall authorise within their territory any space-
segment supplier
the satellite earth station
network for use in connection with the space segment of the
supplier in question is in conformity with the published condi-
tions for access to such person's space segment capacity.

to verify that

2. Member States which are party to international conven-
tions setting up international satellite organisations shall, where
such conventions are not compatible with the competition rules
of the EC Treaty, take all appropriate steps to eliminate such
incompatibilities.

Article 8

Cable television networks

1.
Each Member State shall ensure that no undertaking
providing public electronic communications networks operates
its cable television network using the same legal entity as it uses
for its other public electronic communications network, when
such undertaking:

(a) is controlled by that Member State or benefits from special

rights; and

(b) is dominant in a substantial part of the common market in
communications

the
networks and publicly available telephone services; and

provision of public

electronic

(c) operates a cable television network which has been estab-
in the same

special or exclusive right

lished under
geographic area.

2.
The term ‘publicly available telephone services’ shall be
considered synonymous with the term ‘public voice telephony
services’ referred to in Article 1 of Directive 1999/64/EC.

3. Member States which consider that
there is sufficient
competition in the provision of local loop infrastructure and
services in their territory shall inform the Commission accord-
ingly.

1.
Any national scheme pursuant to Directive 2002/22/EC,
serving to share the net cost of the provision of universal
service obligations shall be based on objective, transparent and
non-discriminatory criteria and shall be consistent with the
principle of proportionality and of least market distortion. In

Such information shall
include a detailed description of the
market structure. The information provided shall be made avail-
able to any interested party on demand, regard being had to the
legitimate interest of undertakings in the protection of their
business secrets.

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The Commission shall decide within a reasonable period,
4.
after having heard the comments of these parties, whether the
obligation of legal separation may be ended in the Member
State concerned.

The Commission shall review the application of

5.
Article not later than 31 December 2004.

this

Article 9

Member States shall supply to the Commission not later than
24 July 2003 such information as will allow the Commission
to confirm that the provisions of this Directive have been
complied with.

References to the repealed Directives shall be construed as refer-
ences to this Directive and shall be read in accordance with the
correlation table in Annex II.

Article 11

This Directive shall enter into force on the 20th day following
that of its publication in the Official Journal of the European
Communities.

Article 12

This Directive is addressed to the Member States.

Article 10

Repeal

Directive 90/388/EC, as amended by the Directives listed in
Annex I, Part A, is repealed with effect from 25 July 2003,
without prejudice to the obligations of the Member States in
respect of the time limits for transposition laid down in Annex
I, Part B.

Done at Brussels, 16 September 2002.

For the Commission

Mario MONTI

Member of the Commission

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ANNEX I

PART A

List of Directives to be repealed

Directive 90/388/EEC (OJ L 192, 24.7.1990, p. 10)

Articles 2 and 3 of Directive 94/46/EC (OJ L 268, 19.1.1994, p. 15)

Directive 95/51/EC (OJ L 256, 26.10.1995, p. 49)

Directive 96/2/EC (OJ L 20, 26.1.1996, p. 59)

Directive 96/19/EC (OJ L 74, 22.3.1996, p. 13)

Directive 1999/64/EC (OJ L 175, 10.7.1999, p. 39)

PART B

Transposition dates for the above Directives

Directive 90/388/EEC: transposition date:
Directive 94/46/EC: transposition date:
Directive 95/51/EC: transposition date:
Directive 96/2/EC: transposition date:
Directive 96/19/EC: transposition date:
Directive 1999/64/EC: transposition date:

31 December 1990
8 August 1995
1 October 1996
15 November 1996
11 January 1997
30 April 2000

ANNEX II

Correlation table

This Directive

Directive 90/388/EEC

Article 1 (Definitions)

Article 2 (withdrawal of exclusive/special rights)

Article 1

Article 2

Article 3 (vertically integrated public undertakings)

Article 3(a)(ii)

Article 4 (rights of use of radio frequencies)

Article 5 (directory services)

Article 6 (universal service obligations)

Article 3(b)

Article 4(b)

Article 4(c)

Article 7 (satellites)

Article 8 (cable networks)

Article 3 of Directive 94/46/EC

Article 9