Proposal for a Directive of the European Parliament and of the Council amending Directives 2002/21/EC on a common regulatory framework for electronic communications networks and services, 2002/19/EC on access to, and interconnection of, electronic communications networks and services, and 2002/20/EC on the authorisation of electronic communications networks and services {SEC(2007) 1472} {SEC(2007) 1473}
Date: 2007-11-13
Institutions: European Commission
Subjects: approximation of laws, competition law, electronic mail, regulation of telecommunications, single market, systems interconnection, telecommunications, transmission network

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 13.11.2007 
COM(2007) 697 final 

2007/0247 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  

amending Directives 2002/21/EC on a common regulatory framework for electronic 
communications networks and services, 2002/19/EC on access to, and interconnection of, 
electronic communications networks and services, and 2002/20/EC on the authorisation 
of electronic communications networks and services 

(presented by the Commission) 

{SEC(2007) 1472} 
{SEC(2007) 1473} 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

•  Grounds for and objectives of the proposal 

To  enhance  investment,  innovation  and  consumer  benefits  in  electronic  communications, 
Europe  needs  a  coherent  regulatory  framework  for  the  digital  economy  that  is  future-proof, 
market-oriented,  and  exploits  the  advantages  brought  by  the  completion  of  the  internal 
market. 

The  present  proposal  is  one  of  three  reform  proposals  to  amend  the  current  regulatory 
framework.  This  first  legislative  reform  proposal  covers  changes  to  the  Framework1, 
Authorisation2 and Access3 Directives. A separate legislative reform proposal4 covers changes 
to the other two directives. This is complemented by the proposal for a Regulation creating a 
new  European  Electronic  Communications  Market  Authority5.  The  three  legislative  reform 
proposals are accompanied by an Impact Assessment6 and a Communication setting out the 
main policy lines and reporting on the public consultation7. In addition, the Commission has 
adopted  a  second  version  of  its  Recommendation  on  relevant  product  and  service  markets, 
under which the number of markets susceptible to ex-ante regulation is reduced from 18 to 7. 

The  present  legislative  reform  proposal  aims  to  adjust  the  regulatory  framework  for 
e-communications  by  improving  its  effectiveness,  reducing  the  administrative  resources 
needed  for  implementing  economic  regulation  (the  market  analysis  procedure)  and  making 
access  to  radio  frequencies  simpler  and  more  efficient.  It  is  in  line  with  the  Commission’s 
Better  Regulation  Programme,  which  is  designed  to  ensure  that  legislative  interventions 
remain proportionate to the political objectives pursued, and forms part of the Commission’s 
overall strategy to strengthen and complete the internal market. 

More specifically, the objectives of the present proposal are three-fold: 

1. 

2. 

3. 

1 

2 

3 

4 
5 
6 
7 

Moving towards a more efficient management of spectrum so as to facilitate access 
to spectrum for operators and to foster innovation. 

Ensuring that, where regulation remains necessary, this is more efficient and simpler 
both for operators and for national regulatory authorities (NRAs). 

Making  a  decisive  step  towards  more  consistency  in  the  application  of  EU  rules  in 
order to complete the internal market for electronic communications. 

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 (OJ L 108, 24.4.2002). 
Directive  2002/20/EC  of  the  European  Parliament  and  of  the  Council  of  7  March  2002  on  the 
authorisation of electronic communications networks and services (OJ L 108, 24.4.2002). 
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 (OJ L 108, 24.4.2002). 
COM(2007) 698. 
COM(2007) 699. 
SEC(2007) 1472. 
COM(2007) 696. 

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•  General context 

As part of the renewed Lisbon strategy for growth and jobs, the Commission proposed in June 
2005 a new strategy — the i2010 Initiative: A European Information Society for growth and 
employment  —  laying  down  broad  policy  orientations  to  promote  an  open  and  competitive 
digital economy. The creation of a Single European Information Space, which is one of the 
main pillars of the i2010 Initiative, includes the reform of the regulatory framework as one of 
its  key  challenges.  The  i2010  Initiative  also  stresses  that  a  more  effective  management  of 
spectrum  would  boost  innovation  in  ICT  and  help  provide  affordable  services  to  European 
citizens.  

In line with the principles of better regulation, the framework provides for a periodic review 
to make sure that it keeps pace with technological and market developments. 

In June 2006 the Commission presented a report8 to the European Parliament and the Council 
on the functioning of the regulatory framework for electronic communications networks and 
services. The report noted that the framework had yielded considerable benefits, but that the 
internal  market  for  electronic  communications  was  still  not  complete,  as  many  aspects 
continue to be regulated at national level.  

This situation contrasts with technological and market developments, which are unconstrained 
by  national  borders  and  thus  demand  a  common  regulatory  approach  across  the  EU.  The 
current fragmentation hinders investment and is detrimental to consumers and operators. This 
calls for a substantial reform of the regulatory framework in order to strengthen and complete 
the internal market. 

•  Existing provisions in the area of the proposal 

The objective of this proposal is to amend three Directives: the Framework, the Authorisation 
and the Access Directives.  

•  Consistency with the other policies and objectives of the Union 

The  proposal  to  amend  the  Framework  Directive  in  the  area  of  security  and  integrity  is 
designed  to  strengthen  the  resilience  of  current  electronic  communications  networks  and 
systems. It complements Framework Decision 2005/222/JHA on attacks against information 
systems9,  which  criminalises  certain  activities.  The  proposal  to  amend  the  Authorisation 
Directive  to  establish  a  common  selection  procedure  will  facilitate  authorisation  of  certain 
pan-European  satellite  services,  in  line  with  one  of  the  objectives  of  the  European  Space 
Policy10. 

8 
9 
10 

COM(2006) 334. 
OJ L 69, 16.3.2005, p. 67. 
Communication from the Commission to the Council and the European Parliament – European Space 
Policy - COM(2007) 212, 26.4.2007. 

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2. 

CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

•  Consultation of interested parties 

Consultation methods, main sectors targeted and general profile of respondents 

The  Commission  services  launched  a  two-phase  consultation  at  the  end  of  2005.  The  first 
phase  included  a  call  for  input,  which  involved  a  public  hearing  with  over  440  participants 
(held in January 2006) and around 160 submissions from stakeholders. In the call for input, 
stakeholders  were  invited  to  give  their  views  on  general  topics  relating  to  the  regulation  of 
electronic  communications.  These  views  were  taken  into  account  in  the  preparation  of  the 
Commission Communication of 29 June 2006 on the Review11, and the accompanying Staff 
Working Document and the Impact Assessment. The publication of these documents launched 
the  second  phase  of  the  public  consultation,  which  lasted  until  October  2006.  A  public 
workshop was held in October 2006 to allow interested parties to express their views on the 
consultation documents. 224 responses were received from a wide range of interested parties, 
both inside and outside the EU. 52 industry associations, 12 trade associations and worker’s 
unions  and  15  user’s  associations  sent  written  comments,  as  did  18  Member  States  and  the 
European Regulators Group (ERG). The Commission followed up the ERG submission with a 
regulatory  dialogue  between  November  2006  and  February  2007  to  explore  options  for 
reducing  regulatory  inconsistencies  and  obstacles  to  the  single  market  in  a  spirit  of  better 
regulation. 

Summary of responses and how they have been taken into account  

Proposals in the areas of spectrum management and streamlining of market reviews received 
broad  support  from  the  Member  States  and  industry.  A  large  number  of  the  contributions 
submitted  by  industry  called  for  a  true  internal  market  in  electronic  communications.  Some 
concerns  were  expressed  about  specific  aspects  of  possible  Commission  oversight  over 
remedies without involvement of the NRAs, and with regard to changes to appeal procedures. 
In the area of security, the submissions showed wide support for the overall objectives, but the 
opinions  expressed  were  more  nuanced  with  respect  to  the  proposed  means  for  achieving 
these  objectives.  New  entrant  operators  as  well  as  the  ERG  called  for  the  possibility  to 
introduce functional separation. The proposal concerning the authorisation of services with a 
pan-European dimension received broad support. The results of the public consultation have 
been taken into account in the present proposal. 

•  Collection and use of expertise 

Scientific/expertise domains concerned 

–  Study  “Preparing  the  next  steps  in  regulation  of  electronic  communications  –  a 
contribution  to  the  review  of  the  electronic  communications  regulatory  framework” 
(Hogan & Hartson, Analysys), 2006. 

11 

See footnote 8. 

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Summary of advice received and used 

The study confirmed the soundness of the regulatory framework and its objectives. However, 
it indicated the need for some adjustments.  

–  The  study  took  a  broad  look  at  some  aspects  of  regulation,  which  included  a  survey  of 
market  players  on  obstacles  to  the  internal  market  and  an  assessment  of  the  ‘Article  7’ 
market  analysis  procedure.  It  made  a  number  of  recommendations  for  change,  including 
ways to streamline the market review procedure and improving appeals in national courts, 
though  none  of  the  recommendations  suggested  sweeping  changes  to  the  framework.  It 
proposed  a  Commission  veto  on  remedies  in  cases  justified  by  their  internal  market 
dimension  and  the  inclusion  of  functional  separation  in  the  list  of  remedies  available  to 
NRAs. 

Means used to make the expert advice publicly available 

The study is available at: 

http://ec.europa.eu/information_society/policy/ecomm/library/ext_studies/index_en.htm#2006 

•  Impact assessment 

The  impact  assessment  report  of  June  2006  provided  an  initial  analysis  of  a  set  of  broad 
policy  options.  This  analysis  was  refined  following  the  public  consultation.  The  second 
impact assessment, published together with the present proposal, focuses on a more specific 
set  of  options  for  those  proposals  with  the  most  far-reaching  effects.  This  assessment  has 
benefited  in  particular  from  an  expert  study  on  the  policy  option  for  efficient  spectrum 
management.  

The  groups  affected  most  by  the  proposed  changes  are  businesses  (incumbents  and  new 
entrants  in  the  electronic  communications  sector  as  well  as  business  users  of  electronic 
communications  services),  public  administrations,  citizens  and  European  society  at  large, 
which are all users of electronic communications. In particular, the key players affected by the 
present  proposal  are  NRAs,  providers  of  electronic  communications  and  also  broadcasters. 
This  is  not  a  homogeneous  group:  its  members  may  often  have  conflicting  interests.  The 
impact assessment is available at: 

http://ec.europa.eu/information_society/policy/ecomm/library/public_consult/index_en.htm#c
ommunication_review 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

•  Summary of the proposed action 

The  proposal  aims  to  modernise  and  amend  the  existing  Framework,  Authorisation  and 
Access Directives.  

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The main proposed amendments to the Framework Directive are the following:  

–  Reforming spectrum management, in application of the Commission’s policy approach on 
spectrum management set out in the Communication of September 200512. Technological 
development and convergence underline the importance of spectrum, but its management 
within  the  EU  has  not  kept  pace  with  this  evolution.  A  more  flexible  approach  is  thus 
needed  to  exploit  the  economic  potential  and  realise  the  societal  and  environmental 
benefits of improved spectrum usage. 

–  Improving 

the  consistency  of  regulation  of 

in  electronic 
communications. This will be achieved by a stronger role for the Commission in remedies 
imposed  by  NRAs,  which  will  be  combined  with  the  close  involvement  of  the  new 
Electronic  Communications  Market  Authority  in  the  ‘Article  7’  procedure  to  ensure  that 
the joint expertise of NRAs can be effectively harnessed and efficiently taken into account 
in the final Commission decision.  

internal  market 

the 

–  Strengthening security and integrity, for the benefit of users of e-communications. This is 
essential  in  order  to  reinforce  the  trust  and  confidence  of  business  and  citizens  using 
e-communications. 

As regards the Authorisation Directive, the main changes are as follows: 

–  Aligning the Directive to the new policy for spectrum; 

–  Creating an efficient procedure for firms needing rights of use to provide cross-European 

services; and  

–  Ensuring a smooth transition to the introduction of spectrum trading. 

As regards the Access Directive, the main change is the introduction of functional separation 
as a remedy that can be imposed by NRAs, subject to approval by the Commission, which has 
to seek the advice of the new Authority to this end. 

•  Legal basis 

Article 95 EC320 

•  Subsidiarity principle 

The  proposed  action  entails  amendment  of  the  existing  EU  regulatory  framework  and  thus 
concerns an area in which the Community has already exercised its competence. The proposal 
therefore  complies  with  the  subsidiarity  principle  as  set  out  in  Article  5  of  the  EC  Treaty. 
Moreover, the regulatory model for the framework is based on the principle of decentralised 
regulation in Member States, giving national authorities responsibility for overseeing markets 
according to a common set of principles and procedures. 

12 

COM(2005) 400. 

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•  Proportionality principle 

This proposal complies with the proportionality principle as it proposes a minimum level of 
harmonisation,  leaving  the  definition  of  the  implementing  measures  to  the  NRAs  or  to  the 
Member States, as in the following areas: 

–  the simplification of the ‘Article 7 procedure’ offers a way to streamline the administrative 
burden  for  operators  and  NRAs  —  in  line  with  the  better  regulation  policy  of  the 
Commission — while ensuring that an efficient Community mechanism is in place for key 
areas where there is a need for regulatory consistency in the Internal Market; 

–  the  measures  to  strengthen  security  and  integrity  do  not  prescribe  detailed  obligations  at 
EU level, but rather grant additional enforcement powers to NRAs, the effective regulation 
of these issues remaining the responsibility of the Member States.  

The proposed amendments do not go beyond what is necessary for achieving the aim of better 
regulation of the sector. They comply with the principle of proportionality set out in Article 5 
of the EC Treaty. 

•  Choice of instruments 

Proposed instruments: directive. 

Other means would not be adequate as the object of this proposal is to amend three existing 
directives.  

4. 

BUDGETARY IMPLICATION 

The proposal has no implication for the Community budget. 

5. 

ADDITIONAL INFORMATION 

•  Simplification and reduction of administrative costs 

Several changes aim to cut the administrative burden for NRAs and market players:  

–  Increased  flexibility 

in  spectrum  management 

tasks  will  facilitate  administrative 
procedures for NRAs and spectrum use for operators and consumers. Under the proposed 
mechanism,  regulatory  restrictions  (e.g.  licensing  conditions)  will  be  limited  to  the 
minimum.  

–  Provisions are introduced that would allow some relaxation of the obligation for NRAs to 
notify  draft  measures  to  the  Commission  under  Article  7  of  the  Framework  Directive. 
These  could  include  a  'short  form'  notification  procedure  for  certain  draft  measures  (e.g. 
those concerning stable markets, or minor changes to previously notified measures), where 
the  NRA  would  only  inform  the  Commission  about  its  intended  measure  and  provide  a 
limited  description  of  its  content;  and  a  'notification  exemption'  procedure  for  certain 
categories deemed unlikely to raise competition concerns, where the NRA would no longer 
be obliged to notify the draft measures to the Commission. 

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Furthermore,  it  is  proposed  to  repeal  some  outdated  provisions,  including,  for  example,  the 
transitional measures to facilitate the transition between the ‘old’ framework of 1998 and the 
2002 framework.  

The  proposal  is  included  in  the  Commission’s  rolling  programme  for  updating  and 
simplification of the acquis communautaire and its Work and Legislative Programme under 
the reference 2007/INFSO/001. 

In a parallel exercise, the number of markets potentially susceptible to ex-ante regulation will 
be  reduced  from  18  to  7  through  changes  to  the  Commission  recommendation  on  relevant 
markets. 

•  Repeal of existing legislation 

The adoption of the proposal will lead to the repeal of Regulation (EC) No 2887/2000 of the 
European Parliament  and  of  the  Council  of  18 December 2000  on  unbundled  access  to  the 
local loop13. 

•  Review/revision/sunset clause 

The Directives to be amended already include a regular review clause.  

•  Correlation table 

Member States are required to communicate to the Commission the text of national provisions 
transposing  the  Directive  as  well  as  a  correlation  table  between  those  provisions  and  this 
Directive. 

•  European Economic Area 

The proposed act concerns an EEA matter and should therefore extend to the EEA.570 

•  Detailed explanation of the proposal 

Article 1 includes changes to the Framework Directive 

The aims of the proposed changes are as follows: 

New approach to spectrum management 

–  In  Article  6:  this  ensures  that  Member  States  also  consult  interested  parties  when 
considering a possible derogation to the principles of technology and service neutrality.  

–  In Article 8(1): this clarifies the existing wording. 

–  In Article 9: in order to allow more flexibility to take account of market needs, this makes 
technology  neutrality  (Article  9.3)  a  binding  principle,  and  introduces  the  principle  of 
service  neutrality  (Article  9.4),  with  the  possibility  for  exceptions  to  the  principle  in 
limited  cases  such  as  meeting  general  interest  objectives.  The  principle  of  spectrum 

13 

OJ L 336, 30.12.2000, p. 4. 

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tradability can be imposed in commonly defined bands (9b). The changes also introduce a 
transitional phase (Article 9.a) and allow the Commission to take implementing measures 
via the comitology procedure to coordinate the application of the new principles (9c) for 
internal market purposes. 

Consolidating the internal market and improving consistency  

–  In  Article  7,  paragraph  4:  this  extends  the  Commission's  power  to  oversee  the  remedies 

proposed by the NRA for undertakings with significant market power. 

–  In  Article  7,  paragraphs  5  and  7:  this  aims  to  reinforce  the  coordination  of  regulation 

within the internal market. The Authority is to assist the Commission with its advice. 

–  In  Articles  7(5),  7(6),  7a,  16(6),  16(7):  this  rationalises  some  procedural  elements  in  the 
market  review  process  so  as  to  reduce  the  uncertainty  for  market  players.  Article  16(7) 
allows  the  Commission,  assisted  by  the  Authority,  to  take  over  a  market  analysis  if  an 
NRA  is  significantly  late  in  performing  its  duties.  Article  7(8)  allows  the  Commission, 
assisted by the Authority, to impose specific obligations for draft measures that have been 
re-notified. 

–  Article 16(6): introduces a schedule for carrying out market analysis.  

–  Article 10(4): this clarifies the Commission’s powers in the field of numbering for certain 
services with  an  internal market dimension. The “116” case shows that it is necessary to 
grant the Commission some powers for tariffs linked to the use of specific numbers. The 
Authority  may  be  granted  responsibilities  in  the  implementation  in  the  application  of 
measures adopted by the Commission.  

–  In  Articles  15(4)  and  16(5):  for  trans-national  markets,  the  Commission  will  designate 
undertakings  with  significant  market  power  and  impose  specific  obligations,  taking 
account of the opinion of the Authority. 

–  In  Article  19:  the  existing  powers  of  the  Commission  are  clarified  so  as  to  ensure 
harmonisation or coordination at Community level in some areas. This will allow technical 
regulatory  issues,  and  issues  raised  by  changing  technology,  to  be  addressed  in  a  timely 
and coordinated way rather than in a fragmented manner. 

–  In the new Article 21a: this improves the enforcement powers available to NRAs. 

Improving security and network integrity 

–  A new chapter is added on the security and integrity of networks and services. Obligations 
in  this  field  are  reinforced  to  ensure  the  reliable  and  secure  use  of  e-communications 
(Article 13a(1)).  The  Authority  will  contribute  to  the  harmonisation  of  appropriate 
technical  and  organisational  security  measures  by  providing  expert  advice  to  the 
Commission. New provisions extend the scope of integrity requirements beyond telephone 
networks  to  cover  mobile  and  IP  networks  (Article  13a(2)).  Article  13b  gives 
implementing powers to the NRAs in this area. 

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Independence of regulators, right of appeal  

–  In Article 3, paragraph 3: this strengthens the NRA’s independence by setting standards for 
the dismissal of the head of the NRA, limiting the possible influence of other public bodies 
on the NRA’s day-to-day management, and ensuring that it has its own independent budget 
and sufficient human resources. 

–  In Article 4, paragraph 1: this sets out a minimum criterion (urgent need to prevent serious 
and irreparable harm to the party concerned) for the suspension of an NRA measure, in line 
with established case law of the European Court of Justice. 

–  In  Article  4,  paragraph  3:  this  requires  Member  States  to  provide  the  Authority  and  the 

Commission with information on appeals.  

–  In Article 5, paragraph 1: this allows NRAs to be informed about network developments 
(e.g. NGN architecture) that may have an impact on services provided at wholesale level to 
competitors. 

Technical adjustments to the wording of the Directive  

–  In  Article  1,  paragraph  1:  this  brings  terminal  equipment  within  the  scope  of  the 
framework.  This  is  in  line  with  the  changes  proposed  in  the  revised  Universal  Service 
Directive to improve eAccessibility for disabled end-users.  

–  In Article 2: several definitions are updated (points (d) and (e)), or clarified (points (b), (q), 

(r) and (s)). 

–  In Article 8: this updates the objectives of the NRAs, notably as regards elderly users and 
users  with  social  needs.  Point  (g)  concerns  the  freedom  of  end-users  in  the  information 
society. 

–  In Article 10(2): this corrects an inconsistency in the current wording. 

–  In  Article  11:  this  facilitates  the  sharing  of  facilities  or  property  and  the  coordination  of 

civil works. The deletion is to be seen in parallel with the deletion of Article 12(2).  

–  In  Article  12:  this  enables  NRAs  to  impose  duct  sharing  and  entry  to  buildings.  The 
purpose  of  this  amendment  is  to  facilitate  network  investment  in  fibre,  notably  outside 
urban areas.  

–  In Article 14(3): this is deleted as it has proved to be unnecessary. The extension of market 
power  from  one  market  to  another  should  be  addressed  in  the  market  where  the  market 
power exists. 

–  In Article 20: this clarifies that disputes between content providers (e.g. broadcasters) and 

providers of electronic communications services fall within the scope of Article 20. 

–  In  Article  21:  the  new  Authority  will  issue  opinions  to  the  NRAs  as  to  the  action  to  be 

taken; the latter will have to take these into account.  

–  Annexes I and II of the Directive are deleted as they are not necessary. 

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Removal of outdated or obsolete provisions  

–  In Article 18(3): this provision has become obsolete. 

–  In  Article  27:  this  concerned  transitional  measures  for  moving  from  the  old  regulatory 
framework of 1998 to the new 2002 framework. It is now obsolete and can be repealed. 

Article 2 includes changes to the Access Directive  

The aims of the proposed changes are as follows: 

–  In Article 5(4): this overlaps with several other provisions and is repealed. 

–  In Article 7: outdated provisions are repealed. 

–  In  Article  13a:  this  enables  an  NRA  to  impose  functional  separation  and  sets  out  the 
circumstances, in particular the governance arrangements. Imposing functional separation 
requires the prior agreement of the Commission. 

–  In Article 13b: this concerns the case of voluntary separation. 

–  In  Article  12(1)(f)  and  (j):  point  (f)  clarifies  the  provisions  for  facility  sharing;  point  (j) 

excludes discrimination at the level of IP network interconnection. 

Technical  adjustments  have  been  made  to  the  following  articles:  5(2)  (which  is  moved  to 
Article 12(3)), 2(a), and 4(1). These also include the updating of the reference to the Directive 
on privacy in electronic communications (Article 8(3)) and the alignment of the text with the 
new Comitology Decision (Articles 6(2), 5, 14). 

Article 3 includes changes to the Authorisation Directive 

The aims of the proposed changes are as follows: 

Implementation of spectrum reform 

–  In Article 5: this eases access to spectrum. Provisions governing spectrum assignments to 
broadcasters  are  clarified,  without  affecting  the  substance  of  the  existing  provisions.  A 
procedure is established to ensure a smooth transition (5 years) before spectrum trading is 
fully  implemented  (Article  5(2)).  Member  States  may  take  measures  to  stop  spectrum 
hoarding — 5(6). 

–  In Articles 5(2), 6, 7(3) and the Annex: this lays down provisions to ensure more flexible 
use of spectrum, i.e. the implementation of technology neutrality (the freedom to use any 
technology  in  a  spectrum  band),  service  neutrality  (the  freedom  to  use  spectrum  to  offer 
any service) and spectrum tradability. 

Frequencies and numbers for cross-European services 

–  In Articles 6a and 6b: to facilitate access to spectrum for firms needing rights of use in all 
Member  States  (e.g.  satellite  service  providers),  the  Commission,  assisted  by  the 
Communications  Committee,  can  coordinate  or  harmonise  the  conditions  applicable  to 
individual  rights  (Annex  II),  the  selection  procedures  and  the  selection  of  the 

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undertaking(s).  The  Authority  will  assist  the  Commission  by  issuing  opinions.  These 
Articles will replace Article 8, which has proved to be ineffective. 

Enforcement powers of the NRAs  

–  In Article 10: this strengthens the enforcement powers of the NRAs so as to improve the 

effective implementation of the framework. 

Improved eAccessibility for disabled end-users 

–  In  Point  A.8  of  the  Annex:  this  allows  NRAs  to  attach  specific  conditions  to  general 

authorisations to ensure accessibility for users with disabilities. 

Improved emergency communications to the public 

–  In  Point  A.11a  of  the  Annex:  this  allows  NRAs  to  attach  to  general  authorisations 
conditions concerning communications from public authorities to the public in the case of 
imminent threats. 

Other issues 

–  In  Point  A.19  of  the  Annex:  this  allows  NRAs  to  attach  to  general  authorisations 

conditions concerning copyright and intellectual property rights. 

Technical adjustments to the wording of the Directive  

–  Technical adjustments are made in Articles 7(1), 14 and 14a and in the Annex. References 
to  the  old  e-Privacy  Directive  97/66/EC  are  replaced  by  references  to  the  new  one 
(Directive 2002/58/EC14). 

Article 4 repeals Regulation (EC) No 2887/2000 on unbundled access to the local loop 

This Regulation proved to be effective in the initial phase of market opening. Under the 2002 
framework,  NRAs  had  a  duty  to  analyse  markets  before  imposing  regulatory  measures. 
However, this Regulation has become unnecessary and may be repealed. 

Articles 5, 6 and 7 

Articles  5,  6  and  7  are  standard  procedural  articles  (transposition,  review,  entry  into  force, 
etc.). 

Annexes I and II include amendments to the annex of the Authorisation Directive. 

14 

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  communications  sector 
(OJ L 201, 31.7.2002, p. 37). 

EN 

12 

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2007/0247 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  

amending Directives 2002/21/EC on a common regulatory framework for electronic 
communications networks and services, 2002/19/EC on access to, and interconnection of, 
electronic communications networks and services, and 2002/20/EC on the authorisation 
of electronic communications networks and services 

THE EUROPEAN PARLIAMENT AND 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 Commission15, 

Having regard to the opinion of the European Economic and Social Committee16, 

Having regard to the opinion of the Committee of the Regions17, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty18, 

Whereas: 

(1) 

The  functioning  of  the  five  directives  comprising  the  existing  regulatory  framework 
for  electronic  communications  networks  and  services  (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  services19  ('Framework 
Directive'), 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 facilities20 ('Access Directive'), Directive 2002/20/EC of the European 
Parliament and of the Council of 7 March 2002 on the authorisation of the electronic 
communications  networks  and  services21  ('Authorisation  Directive'),  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 communications networks and 
services22  ('Universal  Service  Directive'),  and Directive  2002/58/EC  of  the  European 
Parliament and of the Council of 12 July 2002 concerning the processing of personal 

15 
16 
17 
18 
19 
20 
21 
22 

OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ L 108, 24.4.2002, p. 33. 
OJ L 108, 24.4.2002, p. 7. 
OJ L 108, 24.4.2002, p. 21. 
OJ L 108, 24.4.2002, p. 51. 

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13 

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(2) 

(3) 

(4) 

(5) 

(6) 

data and the protection of privacy in the electronic communications sector23 ('Directive 
on  privacy  and  electronic  communications')  is  subject  to  periodic  review  by  the 
Commission, with a view in particular to determining the need for modification in the 
light of technological and market developments.  

In that regard, the Commission presented its initial findings in its Communication to 
the Council, the European Parliament, the European Economic and Social Committee 
and the Committee of the Regions of 29 June 2006 on the review of the EU regulatory 
framework for electronic communications networks and services. On the basis of these 
initial findings, a public consultation was held, which identified the continued lack of 
an internal market for electronic communications as the most important aspect needing 
to  be  addressed.  In  particular,  regulatory  fragmentation  and  inconsistencies  between 
the activities of the national regulatory  authorities  were found to jeopardise not only 
the  competitiveness  of  the  sector,  but  also  the  substantial  consumer  benefits  from 
cross-border competition. 

The  EU  regulatory  framework  for  electronic  communications  networks  and  services 
should  therefore  be  reformed  in  order  to  complete  the  internal  market  for  electronic 
communications by strengthening the Community mechanism for regulating operators 
with significant market power in the key markets. This is complemented through the 
establishment by Regulation […/…./EC] of [date] of the European Parliament and of 
the Council24 of a European Electronic Communications Market Authority (hereinafter 
referred to as "the Authority"). The reform also includes the definition of an efficient 
spectrum  management  strategy  in  order  to  achieve  a  Single  European  Information 
Space and the reinforcement of provisions for users with disabilities in order to obtain 
an inclusive information society.  

In  order  to  allow  national  regulatory  authorities  to  meet  the  objectives  set  out  in  the 
Framework Directive and the Specific Directives, in particular concerning end-to-end 
interoperability,  the  scope  of  the  Framework  Directive  should  be  extended  to  cover 
in 
radio  equipment  and 
Directive 1999/5/EC of the European Parliament and of the Council of 9 March 1999 
on  radio  equipment  and  telecommunications  terminal  equipment  and  the  mutual 
recognition  of  their  conformity25  as  well  as  consumer  equipment  used  for  digital 
television. 

terminal  equipment  as  defined 

telecommunications 

Certain  definitions  should  be  clarified  or  changed  to  take  account  of  market  and 
technological  developments  and  to  eliminate  ambiguities  identified  in  implementing 
the regulatory framework. 

The  independence  of  the  national  regulatory  authorities  should  be  strengthened  in 
order to ensure a more effective application of the regulatory framework and increase 
their authority and the predictability of their decisions. To this end, express provision 
should be made in national law to ensure that, in the exercise of its tasks, a national 
regulatory  authority  is  protected  against  external  intervention  or  political  pressure 
liable  to  jeopardise  its  independent  assessment  of  matters  coming  before  it.  Such 

23 
24 
25 

OJ L 201, 31.7.2002, p. 37. 
OJ C […], […], p. […]. 
OJ L 91, 7.4.1999, p. 10. 

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14 

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outside  influence  makes  a  national  legislative  body  unsuited  to  act  as  a  national 
regulatory authority under the regulatory framework. For that purpose rules should be 
laid  down  in  advance  regarding  the  grounds  for  the  dismissal  of  the  head  of  the 
national  regulatory  authority  in  order  to  remove  any  reasonable  doubt  as  to  the 
neutrality of that body and its imperviousness to external factors. It is important that 
national  regulatory  authorities  should  have  their  own  budget  allowing  them,  in 
particular,  to  recruit  a  sufficient  number  of  qualified  staff.  In  order  to  ensure 
transparency, this should be published annually. 

There has been a wide divergence in the manner in which appeal bodies have applied 
interim  measures  to  suspend  the  decisions  of  the  national  regulatory  authorities.  In 
order to achieve greater consistency of approach common standard should be applied 
in line with Community jurisprudence Given the importance of appeals for the overall 
working  of  the  regulatory  framework,  a  mechanism  should  be  set  up  for  collecting 
information  on  appeals  and  decisions  to  suspend  decisions  taken  by  the  regulatory 
authorities  in  all  the  Member  States  and  for  the  reporting  of  that  information  to  the 
Commission. 

In order to carry out their regulatory tasks in an effective manner, the data that national 
regulatory  authorities  are  to  gather  should  include  accounting  data  on  the  retail 
markets that are associated with wholesale markets where an operator has significant 
market  power  and  as  such  are  regulated  by  the  national  regulatory  authority,  and 
should  also  include  data  to  enable  the  national  regulatory  authority  to  assess  the 
possible  impact  of  planned  upgrades  or  changes  to  network  topology  on  the 
development of competition or on wholesale products made available to other parties. 

The  national  consultation  provided  for  under  Article  6  of  the  Framework  Directive 
should be conducted prior to the Community consultation provided for under Article 7 
of that Directive, in order to allow the views of interested parties to be reflected in the 
Community  consultation.  This  would  also  avoid  the  need  for  a  second  Community 
consultation in the event of  changes to  a planned  measure  as  a  result  of  the  national 
consultation. 

(7) 

(8) 

(9) 

(10)  The  discretion  of  national  regulatory  authorities  needs  to  be  reconciled  with  the 
development  of  consistent  regulatory  practices  and  the  consistent  application  of  the 
regulatory  framework  in  order  to  contribute  effectively  to  the  development  and 
completion  of  the  internal  market.  National  regulatory  authorities  should  therefore 
support  the  internal  market  activities  of  the  Commission  and  those  of  the  Authority, 
which should serve as the exclusive forum for cooperation between national regulatory 
authorities in the exercise of their responsibilities under the regulatory framework. 

(11)  The  Community  mechanism  allowing  the  Commission  to  require  national  regulatory 
authorities  to  withdraw  planned  measures  concerning  market  definition  and  the 
designation of operators having significant market power has contributed significantly 
to a consistent approach in identifying the circumstances in which ex-ante regulation 
may be applied and the operators are subject to such regulation. However, there is no 
equivalent mechanism for the remedies to be applied. Monitoring of the market by the 
Commission  and,  in  particular,  the  experience  with  the  procedure  under  Article  7  of 
the  Framework  Directive,  has  shown  that  inconsistencies  in  the  national  regulatory 
authorities' application of remedies, even under similar market conditions, undermine 
the internal market in electronic communications, do not ensure a level playing field 

EN 

15 

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between operators established in different Member States, and prevent the realisation 
of  consumer  benefits  from  cross-border  competition  and  services.  The  Commission 
should  be  given  powers  to  require  national  regulatory  authorities  to  withdraw  draft 
measures on the remedies chosen by national regulatory authorities. In order to ensure 
the  consistent  application  of  the  regulatory  framework  in  the  Community,  the 
Commission should consult the Authority prior to its decision. 

(12) 

It  is  important  that  the  regulatory  framework  is  implemented  in  a  timely  manner. 
When the Commission has taken a decision requiring a national regulatory authority to 
withdraw  a  planned  measure,  national  regulatory  authorities  should  submit  a  revised 
measure to the Commission. A deadline should be laid down for the notification of the 
revised  measure  to  the  Commission  under  Article  7  of  the  Framework  Directive  in 
order that market players may know the duration of the market review and in order to 
increase legal certainty. 

(13)  Likewise, in view of the need to avoid a regulatory vacuum in a sector characterised 
by its fast-moving nature, if adoption of the re-notified draft measure would still create 
a  barrier  to  the  single  market  or  be  incompatible  with  Community  law,  the 
Commission,  after  having  consulted  the  Authority,  should  be  able  to  require  the 
national regulatory authority concerned to impose a specific remedy within a specified 
time. 

(14)  Having  regard  to  the  short  time  limits  in  the  Community  consultation  mechanism, 
powers  should  be  conferred  on  the  Commission  to  adopt  implementing  measures  to 
simplify  the  procedures  for  exchanging  information  between  the  Commission  and 
national  regulatory  authorities  -  for  example  in  cases  concerning  stable  markets,  or 
involving  only  minor  changes  to  previously  notified  measures  -  or  to  allow  for  the 
introduction  of  a  notification  exemption  in  order  to  streamline  procedures  in  certain 
cases. 

(15) 

In  line  with  the  objectives  of  the  European  Charter  on  fundamental  rights  and  the 
United  Nations  Convention  on  the  Rights  of  the  Persons  with  Disabilities,  the 
regulatory  framework  should  ensure  that  all  users,  including  disabled  end-users,  the 
elderly, and users with special social needs, have easy access to affordable high quality 
services.  Declaration  22  annexed  to  the  final  Act  of  Amsterdam  provides  that  the 
institutions  of  the  Community  shall  take  account  of  the  needs  of  persons  with  a 
disability in drawing up measures under Article 95 of the Treaty. 

(16)  Radio frequencies should be considered a scarce public resource that has an important 
public  and  market  value.  It  is  in  the  public  interest  that  spectrum  is  managed  as 
efficiently  and  effectively  as  possible  from  an  economic,  social  and  environmental 
perspective and that obstacles to its efficient use are gradually withdrawn. 

(17)  Radio  frequencies  should  be  managed  so  as  to  ensure  that  harmful  interference  is 
avoided.  This  basic  concept  of  harmful  interference  should  therefore  be  properly 
defined  to  ensure  that  regulatory  intervention  is  limited  to  the  extent  necessary  to 
prevent such interference.  

(18)  The  current  spectrum  management  and  distribution  system  is  generally  based  on 
administrative decisions that are insufficiently flexible to cope with technological and 
economic  evolution,  in  particular  with  the rapid  development  of  wireless  technology 

EN 

16 

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and the increasing demand for bandwidth. The undue fragmentation amongst national 
policies results in increased costs and lost market opportunities for spectrum users, and 
slows  down  innovation,  to  the  detriment  of  the  internal  market,  consumers  and  the 
economy  as  a  whole.  Moreover,  the  conditions  for  access  to,  and  use  of,  radio 
frequencies  may  vary  according  to  the  type  of  operator,  while  electronic  services 
provided  by  these  operators  increasingly  overlap,  thereby  creating  tensions  between 
rights holders, discrepancies in the cost of access to spectrum, and potential distortions 
in the functioning of the internal market. 

(19)  National borders are increasingly irrelevant in determining optimal radio spectrum use. 
Fragmentation of the management of access to spectrum rights limits investment and 
innovation  and  does  not  allow  operators  and  equipment  manufacturers  to  realise 
economies  of  scale,  thereby  hindering  the  development  of  an  internal  market  for 
electronic communications networks and services using radio spectrum. 

(20)  Flexibility  in  spectrum  management  and  access  to  spectrum  should  be  increased 
through  technology-  and  service-neutral  authorisations  to  let  spectrum  users,  choose 
the best technologies and services to apply in a frequency band (hereinafter referred to 
as  the 
'principles  of  technology  and  service  neutrality').  The  administrative 
determination of technologies and services should become the exception and should be 
clearly justified and subject to regular periodic review. 

(21)  Exceptions to the principle of technology neutrality should be limited and justified by 
the need to avoid harmful interference, for example by imposing emission masks and 
power levels, or to ensure the protection of public health by limiting public exposure 
to electromagnetic fields, or to ensure proper sharing of spectrum, in particular where 
its use is only subject to general authorisations, or where strictly necessary to comply 
with an exception to the principle of service neutrality. 

(22)  Spectrum  users  should  also  be  able  to  freely  choose  the  services  they  wish  to  offer 
over  the  spectrum  subject  to  transitional  measures  to  cope  with  previously  acquired 
rights. It should be possible for exceptions to the principle of service neutrality which 
require  the  provision  of  a  specific  service  to  meet  clearly  defined  general  interest 
objectives  such  as  safety  of  life,  the  need  to  promote  social,  regional  and  territorial 
cohesion,  or  the  avoidance  of  inefficient  use  of  spectrum  to  be  permitted  where 
necessary  and  proportionate.  Those  objectives  should  include  the  promotion  of 
cultural and linguistic diversity and media pluralism as defined in national legislation 
in conformity with Community law. Except where necessary to protect safety of life, 
exceptions  should  not  result  in  exclusive  use  for  certain  services,  but  rather  grant 
priority so that other services or technologies may coexist in the same band insofar as 
possible.  In  order  that  the  holder  of  the  authorisation  may  choose  freely  the  most 
efficient  means  to  carry  the  content  of  services  provided  over  radio  frequencies,  the 
content should not be regulated in the authorisation to use radio frequencies. 

(23) 

It lies within the competence of the Member States to define the scope and nature of 
any exception regarding  the promotion of cultural and linguistic diversity and media 
pluralism in accordance with their own national law. 

(24)  As the allocation of spectrum to specific technologies or services is an exception to the 
principles of technology and service neutrality and reduces the freedom to choose the 

EN 

17 

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service  provided  or  technology  used,  any  proposal  for  such  allocation  should  be 
transparent and subject to public consultation. 

(25) 

In the interests of flexibility and efficiency, national regulatory authorities should, in 
bands  which  will  be  identified  on  a  harmonised  basis,  also  allow  spectrum  users  to 
freely transfer or lease their usage rights to third parties, which would allow spectrum 
valuation  by  the  market.  In  view  of  their power  to  ensure  effective  use  of  spectrum, 
national regulatory authorities should take action so as to ensure that trading does not 
lead to a distortion of competition where spectrum is left unused.  

(26)  Given  the  effect  of  the  exceptions  on  the  development  of  the  internal  market  for 
electronic communications services, the Commission should be able to harmonise the 
scope  and  nature  of  any  exceptions  to  the  principles  of  technology  and  service 
neutrality other than those aimed at ensuring the promotion of cultural and linguistic 
diversity  and  media  pluralism,  having  regard  to  harmonised  technical  conditions  for 
the availability and efficient use of radio frequencies under 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”)26.  

(27)  For  internal  market  purposes  it  may  also  be  necessary  to  harmonise  at  Community 
level the identification of tradable frequency bands, the conditions for tradability or the 
transition  to  tradable  rights  in  specific  bands,  a  minimum  format  for  tradable  rights, 
requirements  to  ensure  the  central  availability,  accessibility,  and  reliability  of 
information  necessary  for  spectrum  trading,  and  requirements  to  protect  competition 
and to prevent spectrum hoarding. The Commission should therefore be given powers 
to adopt implementing measure for that harmonisation. Such implementing measures 
should  take  due  account  of  whether  individual  rights  of  use  have  been  granted  on  a 
commercial or non-commercial basis. 

(28)  The  introduction  of  technology  and  service  neutrality  and  trading  for  existing 
spectrum usage rights may require transitional rules, including measures to ensure fair 
competition, as the new system may entitle certain spectrum users to start competing 
with  spectrum  users  having  acquired  their  spectrum  rights  under  more  burdensome 
terms  and  conditions.  Conversely,  where  rights  have  been  granted  as  a  derogation 
from  the  general  rules  or  according  to  criteria  other  than  objective,  transparent, 
proportionate  and  non-discriminatory  ones  with  a  view  to  achieving  general  interest 
objectives,  the  situation  of  the  holders  of  such  rights  should  not  be  improved  to  the 
detriment of their new competitors beyond what is necessary to achieve such general 
interest objectives. Any spectrum that has become unnecessary for the achievement of 
public interest objectives should be recovered and re-assigned in accordance with the 
Authorisation Directive. 

(29) 

In  order  to  promote  the  functioning  of  the  internal  market,  and  to  support  the 
development of cross-border services, the Commission should be given the power to 
grant the Authority specific responsibilities in the area of numbering. Furthermore, to 
allow citizens of the Member States, including travellers and disabled users, to be able 
to reach certain services by using the same recognisable numbers at similar prices in 

26 

OJ L 108, 24.4.2002, p. 1. 

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18 

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all  Member  States,  the  powers  of  the  Commission  to  adopt  technical  implementing 
measures  should  also  cover,  where  necessary,  the  applicable  tariff  principle  or 
mechanism.  

(30)  Permits  issued  to  undertakings  providing  electronic  communications  networks  and 
services allowing them to gain access to public or private property are essential factors 
for  the  establishment  of  electronic  communications  networks  or  new  network 
elements. Unnecessary complexity and delay in the procedures for granting rights of 
way  may  therefore  represent  important  obstacles  to  the  development  of  competition. 
Consequently,  the  acquisition  of  rights  of  way  by  authorised  undertakings  should  be 
simplified. National regulatory authorities should be able to coordinate the acquisition 
of rights of way, making relevant information accessible on their websites. 

(31) 

It  is  necessary  to  strengthen  the  powers  of  the  Member  States  vis-à-vis  holders  of 
rights  of  way  to  ensure  the  entry  or  roll  out  of  new  network  in  an  environmentally 
responsible  way  and  independently  of  any  obligation  on  an  operator  with  significant 
market  power  to  grant  access  to  its  electronic  communications  network.  National 
regulatory authorities should be able to impose, on a case-by-case basis, the sharing of 
ducts, masts, and antennas, the entry into buildings and a better coordination of civil 
works. Improving facility sharing can significantly improve competition and lower the 
overall  financial  and  environmental  cost  of  deploying  electronic  communications 
infrastructure for undertakings  

(32)  Reliable  and  secure  communication  of  information  over  electronic  communications 
networks is increasingly central to the whole economy and society in general. System 
complexity,  technical  failure  or  human  mistake,  accidents  or  attacks  may  all  have 
consequences  for  the  functioning  and  availability  of  the  physical  infrastructures  that 
deliver important services to EU citizens, including e-Government services. National 
regulatory  authorities  should  therefore  ensure  the  integrity  and  security  of  public 
communications  networks  are  maintained.  The  Authority  should  contribute  to  the 
enhanced  level  of  security  of  electronic  communications  by,  among  other  things, 
providing expertise and advice, and promoting the exchange of best practices. Both the 
Authority and the national regulatory authorities should have the necessary means to 
perform  their  duties,  including  powers  to  obtain  sufficient  information  to  be  able  to 
assess  the  level  of  security  of  networks  or  services  as  well  as  comprehensive  and 
reliable data about actual security incidents that have had a significant impact on the 
operation of networks or services. Bearing in mind that the successful application of 
adequate security is not a one-off exercise but a continuous process of implementation, 
review  and  updating,  the  providers  of  electronic  communications  networks  and 
services should be required to take measures to safeguard their integrity and security in 
accordance  with  the  assessed  risks,  taking  into  account  the  state  of  the  art  of  such 
measures. 

(33)  Where  there  is  a  need  to  agree  on  a  common  set  of  security  requirements,  power 
should be conferred on the Commission to adopt technical implementing measures to 
achieve  an  adequate  level  of  security  of  electronic  communications  networks  and 
services in the internal market. The Authority should contribute to the harmonisation 
of  appropriate  technical  and  organisational  security  measures  by  providing  expert 
advice.  National  regulatory  authorities  should  have  the  power  to  issue  binding 
instructions  relating  to  the  technical  implementing  measures  adopted  pursuant  to  the 

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19 

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Framework Directive. In order to perform their duties, they should have the power to 
investigate and to impose penalties in cases of non-compliance. 

(34)  Experience  in  the  implementation  of  the  regulatory  framework  indicates  that  the 
market into which significant market power is being leveraged is not the source of the 
problem  but  rather  the  object  of  its  effect.  Therefore,  the  significant  market  power 
enjoyed on one market should be addressed by national regulatory authorities at source 
and not on adjacent markets where its effects are felt.  

(35) 

(36) 

In  the  case  of  markets  that  are  identified  as  trans-national,  the  market  review 
procedure  should  be  simplified  and  rendered  more  effective  by  enabling  the 
Commission,  taking  into  account  the  opinion  of  the  Authority,  to  designate  the 
undertaking(s)  with  significant  market  power  and  impose  one  or  more  specific 
obligations, thereby allowing regulatory issues with trans-national characteristics to be 
addressed directly at Community level.  

In  order  to  provide  market  players  with  certainty  as  to  regulatory  conditions,  a  time 
limit for market reviews is necessary. It is important to conduct a market analysis on a 
regular  basis  and  within  a  reasonable  and  appropriate  timeframe.  The  timeframe 
should  take  account  of  whether  the  particular  market  has  previously  been  subject  to 
market analysis and duly notified. Failure of a national regulatory authority to analyse 
a  market  within  the  time  limit  may  jeopardise  the  internal  market,  and  normal 
infringement  proceedings  may  not  produce  their  desired  effect  in  time.  The 
Commission should therefore be able to ask the Authority to assist in the tasks of the 
national  regulatory  authority  concerned,  in  particular  to  issue  an  opinion  including  a 
draft measure, the analysis of the relevant market and the appropriate obligations that 
the Commission could then impose. 

(37)  Due to the a high level of technological innovation and highly dynamic markets in the 
electronic communications sector there is a need to be able to adapt regulation rapidly 
in  a  coordinated  and  harmonised  way  at  European  level,  as  experience  shows  that 
divergence  among  the  national  regulatory  authorities  in  the  implementation  of  the 
regulatory framework may create a barrier to the development of the internal market.. 
Therefore,  power  should  be  conferred  on  the  Commission  to  adopt  implementing 
measures  in  areas  such  as  the  regulatory  treatment  of  new  services,  numbering, 
naming  and  addressing,  consumer  issues  including  eAccessibility,  and  regulatory 
accounting measures. 

(38)  One  important  task  assigned  to  the  Authority  is  to  issue  opinions  in  relation  to 
cross-border  disputes  where  appropriate.  National  regulatory  authorities  should 
therefore take account of any opinions of the Authority in such cases. 

(39)  Experience in the implementation of the regulatory framework indicates that existing 
provisions  empowering  national  regulatory  authorities  to  impose  fines  have  failed  to 
provide  an  adequate  incentive  to  comply  with  regulatory  requirements.  Adequate 
enforcement  powers  can  contribute  to  the  timely  implementation  of  the  regulatory 
framework and therefore foster regulatory certainty, which is an important driver for 
investment. The lack of effective powers in the event of non-compliance applies across 
the  regulatory  framework.  The  introduction  of  a  new  provision  in  the  Framework 
Directive  to  deal  with  breaches  of  obligations  under  the  Framework  and  Specific 

EN 

20 

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Directives should therefore ensure the application of consistent and coherent principles 
to enforcement and penalties for the whole regulatory framework. 

(40)  The  existing  regulatory  framework  included  certain  provisions  to  facilitate  the 
transition  from  the  old  regulatory  framework  of  1998  to  the  new  2002  framework. 
This transition has been completed in all Member States and these measures should be 
repealed as they are now redundant.  

(41)  Annex I to the Framework Directive identified the list of markets to be included in the 
Recommendation on relevant product and service markets which may warrant ex-ante 
regulation. This Annex should be repealed since its purpose of serving as a basis for 
drawing up the initial version of the Recommendation27 has been fulfilled.  

(42)  Annex  II  to  the  Framework  Directive  listed  the  criteria  to  be  used  by  the  national 
regulatory authorities when assessing joint dominance in accordance with the second 
subparagraph  of  Article  14(2)  of  that  Directive.  Since  the  list  in  Annex  II  is  neither 
necessary  nor  exhaustive,  it  may  be  misleading  for  national  regulatory  authorities 
conducting market analysis. Furthermore, the concept of joint dominance also depends 
on  the  case  law  of  the  European  Court  of  Justice.  Annex  II  is  therefore  unnecessary 
and can be repealed. 

(43)  The  purpose  of  functional  separation,  whereby  the  vertically  integrated  operator  is 
required to establish operationally separate business entities, is to ensure the provision 
of  fully  equivalent  access  products  to  all  downstream  operators,  including  the 
vertically  integrated  operator’s  own  downstream  divisions.  Functional  separation  has 
the  capacity  to  improve  competition  in  several  relevant  markets  by  significantly 
reducing the incentive for discrimination and by making it easier for compliance with 
non-discrimination  obligations  to  be  verified  and  enforced.  In  exceptional  cases,  it 
may  be  justified  as  a  remedy  where  there  has  been  persistent  failure  to  achieve 
effective  non-discrimination  in  several  of  the  markets  concerned,  and  where  there  is 
little or no prospect of infrastructure competition within a reasonable timeframe after 
recourse to one or more remedies previously considered to be appropriate. However, it 
is  very  important  to  ensure  that  its  imposition  preserves  the  incentives  of  the 
concerned undertaking to invest in its network and that it does not entail any potential 
negative effects on consumer welfare. Its imposition requires a coordinated analysis of 
different relevant markets related to the access network, in accordance with the market 
analysis procedure set out in Article 16 of the Framework Directive. When performing 
the  market  analysis  and  designing  the  details  of  this  remedy,  national  regulatory 
authorities  should  pay  particular  attention  to  the  products  to  be  managed  by  the 
separate  business  entities,  taking  into  account  the  extent  of  network  roll-out  and  the 
degree  of  technological  progress,  which  may  affect  the  substitutability  of  fixed  and 
wireless  services.  In  order  to  avoid  distortions  of  competition  in  the  internal  market, 
proposals for functional separation should be approved in advance by the Commission. 

(44)  The 

implementation  of  functional  separation  should  not  prevent  appropriate 
coordination  mechanisms  between  the  different  separate  business  entities  in  order  to 

27 

Commission  Recommendation  of  11  February  2003  on  Relevant  Product  and  Service  Markets  within 
the  electronic  communications  sector  susceptible  to  ex  ante  regulation  in  accordance  with  Directive 
2002/21/EC  of  the  European  Parliament  and  of  the  Council  on  a  common  regulatory  framework  for 
electronic communication networks and services - C(2003) 497. 

EN 

21 

   EN 

 
                                                 
ensure  that  the  economic  and  management  supervision  rights  of  the  parent  company 
are protected. 

(45)  Where a vertically integrated undertaking chooses to dispose a substantial part or all of 
its local access network assets to a separate legal entity under different ownership or 
by establishing a separate business entity for dealing with access products, the national 
regulatory authority should assess the effect of the intended transaction on all existing 
regulatory obligations imposed on the vertically integrated operator in order to ensure 
the  compatibility  of  any  new  arrangements  with  Directive  2002/19/EC  (Access 
Directive)  and  Directive  2002/22/EC  (Universal  Service  Directive).  The  national 
regulatory  authority  concerned  should  undertake  a  new  analysis  of  the  markets  in 
which  the  segregated  entity  operates,  and  impose,  maintain,  amend  or  withdraw 
obligations accordingly. To this end, the national regulatory authority should be able 
to request information from the undertaking. 

(46)  While  it  is  appropriate  in  some  circumstances  for  a  national  regulatory  authority  to 
impose obligations on operators that do not have significant market power in order to 
achieve  goals  such  as  end-to-end  connectivity  or  interoperability  of  services,  it  is 
however necessary to ensure that such obligations are imposed in conformity with the 
regulatory framework and in particular its notification procedures. 

(47)  The  Commission  has  the  power  to  adopt  implementing  measures  with  a  view  to 
adapting  the  conditions  for  access  to  digital  television  and  radio  services  set  out  in 
Annex  I  to  market  and  technological  developments.  This  is  also  the  case  for  the 
minimum list of items in Annex II that must be made public to meet the obligation of 
transparency.  

(48)  Facilitating access to radio frequencies resources for market players will contribute to 
removing  the  barriers  to  market  entry.  Moreover,  technological  progress  is  reducing 
the risk of harmful interference in certain frequency bands and therefore reducing the 
need for individual rights of use. Conditions for using spectrum to provide electronic 
communication  services  should  therefore  normally  be  laid  down  in  general 
authorisations  unless  individual  rights  are  necessary,  considering  the  use  of  the 
spectrum, to protect against harmful interference or to meet a specific general interest 
objective. Decisions on the need for individual rights should be made in a transparent 
and proportionate manner. 

(49)  The  introduction  of  the  requirements  of  service  and  technology  neutrality  in 
assignment and allocation decisions, together with the increased possibility to transfer 
rights  between  undertakings,  should  increase  the  freedom  and  means  to  deliver 
electronic communications and audiovisual media services to the public, thereby also 
facilitating  the  achievement  of  general  interest  objectives.  Therefore,  certain  general 
interest  obligations  imposed  on  broadcasters  for  the  delivery  of  audiovisual  media 
services  could  be  increasingly  met  without  the  need  to  grant  individual  rights  to  use 
spectrum.  The  use  of  specific  criteria  to  assign  spectrum  to  broadcasters  would  be 
justified only where this is essential to meet a particular general interest objective set 
out  in  national  law.  Procedures  associated  with  the  pursuit  of  general  interest 
objectives  should  in  all  circumstances  be  transparent,  objective,  proportionate  and 
non-discriminatory. 

EN 

22 

   EN 

 
(50) 

In  order  to  ensure  equal  treatment,  no  spectrum  users  should  be  exempted  from  the 
obligation to pay the normal fees or charges set for the use of the spectrum.  

(51)  Considering its restrictive impact on free access to radio frequencies, the validity of an 
individual right of use that is not tradable should be limited in time. Where rights of 
use contain provision for renewing their validity, Member States should first carry out 
a  review,  including  a  public  consultation,  taking  into  account  market,  coverage  and 
technological developments. In view of spectrum scarcity, individual rights granted to 
undertakings should be regularly reviewed. In carrying out this review, Member States 
should  balance  the  interests  of  the  rights  holders  with  the  need  to  foster  the 
introduction of spectrum trading as well as the more flexible use of spectrum through 
general authorisations where possible.  

(52)  National  regulatory  authorities  should  have  the  power  to  ensure  effective  use  of 
spectrum and numbers and, where spectrum or numbering resources are left unused, to 
take action to prevent anti-competitive hoarding, which can hinder new market entry.  

(53)  Removing legal and administrative barriers to a general authorisation or rights of use 
for  spectrum  or  numbers  with  European  implications  should  favour  technology  and 
service development and contribute to improving competition. While the coordination 
of  technical  conditions  for  the  availability  and  efficient  use  of  radio  frequencies  is 
organised  pursuant  to  the  Radio  Spectrum  Decision28,  it  may  also  be  necessary,  in 
order  to  achieve  internal  market  objectives,  to  coordinate  or  harmonise  the  selection 
procedures and conditions applicable to rights and authorisations in certain bands, to 
rights  of  use  for  numbers  and  to  general  authorisations.  This  applies  in  particular  to 
electronic  communications  services  that  by  their  nature  have  an  internal  market 
dimension  or  cross-border  potential,  such  as  satellite  services,  the  development  of 
which would be hampered by discrepancies in spectrum assignment between Member 
States.  The  Commission,  assisted  by  the  Communications  Committee  and  taking  the 
utmost  account  of  the  opinion  of  the  Authority,  should  therefore  be  able  to  adopt 
technical implementing measures to achieve such objectives. Implementing measures 
adopted  by  the  Commission  may  require  Member  States  to  make  available  rights  of 
use  for  spectrum  and/or  numbers  throughout  their  territory  and  where  necessary 
withdraw  any  other  existing  national  rights  of  use.  In  such  cases,  Member  States 
should not grant any new right of use for the relevant spectrum band or number range 
under national procedures. 

(54)  Technological  and  market  developments  have  made  it  possible  to  deploy  electronic 
communications  services  extending  across  the  geographical  frontiers  of  Member 
States.  Article  16  of  the  Authorisation  Directive  required  the  Commission  to  review 
the  functioning  of  the  national  authorisation  systems  and  the  development  of  cross-
border  service  provision  within  the  Community.  The  provisions  of  Article  8  of  the 
Authorisation  Directive  concerning  the  harmonised  assignment  of  radio  frequencies 
have proved to be ineffective in coping with the  needs  of an undertaking wishing to 
provide services on a cross-Community basis and should therefore be amended. 

(55)  While  the  granting  of  authorisations  and  the  monitoring  of  compliance  with  usage 
conditions  should  remain  the  responsibility  of  each  Member  State,  Member  States 

28 

OJ L 108, 24.4.2002, p. 1. 

EN 

23 

   EN 

 
                                                 
should refrain from imposing any further conditions, criteria or procedures that would 
restrict,  alter  or  delay  the  correct  implementation  of  a  harmonised  or  coordinated 
selection or authorisation procedure. Where justified to facilitate their implementation, 
such coordination or harmonisation measures could include transitional derogations or, 
in the case of spectrum, transitional spectrum sharing mechanisms that would exempt 
a Member State from the application of such measures, provided that this would not 
create undue differences in the competitive or regulatory situations between Member 
States. 

(56)  National regulatory authorities should be able to take effective action to monitor and 
secure  compliance  with  the  terms  and  conditions  of  the  general  authorisation  or  of 
rights  of  use,  including  the  power  to  impose  effective  financial  penalties  and/or 
administrative sanctions in the event of breaches of those terms and conditions. 

(57)  The conditions that may be attached to authorisations should cover specific conditions 
governing accessibility for users with disabilities and the need of public authorities to 
communicate  with  the  general  public  before,  during  and  after  major  disasters.  Also, 
considering the importance of technical innovation, Member States should be able to 
issue  authorisations  to  use  spectrum  for  experimental  purposes,  subject  to  specific 
restrictions and conditions strictly justified by the experimental nature of such rights. 

(58)  Regulation  (EC)  No  2887/2000  of  the  European  Parliament  and  of  the  Council  of 
18 December 2000 on unbundled access to the local loop29 has proved to be effective 
in  the  initial  stage  of  market  opening.  The  Framework  Directive  calls  upon  the 
Commission  to  monitor  the  transition  from  the  regulatory  framework  of  1998  to  the 
2002  framework  and  to  bring  forward  proposals  to  repeal  that  Regulation  at  an 
appropriate  time.  Under  the  2002  framework,  national  regulatory  authorities  have  a 
duty to analyse the market for wholesale unbundled access to metallic loops and sub-
loops  for  the  purpose  of  providing  broadband  and  voice  services  as  defined  in  the 
Recommendation on Relevant Product and Service Markets. Since all Member States 
have  analysed  this  market  at  least  once  and  the  appropriate  obligations  based  on  the 
2002 framework are in place, Regulation (EC) No 2887/2000 has become unnecessary 
and should therefore be repealed. 

(59)  Measures  necessary  for 

the  Framework,  Access  and 
implementation  of 
Authorisation  Directives  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 Commission30.  

the 

(60) 

In  particular,  power  should  be  conferred  on  the  Commission  to  adopt  implementing 
measures in relation to the notifications under Article 7 of the Framework Directive; 
the harmonisation in the fields of spectrum and numbering as well as in matters related 
to  security  of  networks  and  services;  the  identification  of  trans-national  markets;  the 
implementation of the standards; the harmonised  application of the provisions of the 
regulatory  framework.  Power  should  also  be  conferred  to  adopt  implementing 
measures  to  update  Annexes  I  and  II  to  the  Access  Directive  to  market  and 

29 
30 

OJ L 336, 30.12.2000, p. 4. 
OJ L 184, 17.7.1999, p. 23. Decision as amended by Decision 2006/512/EC (OJ L 200, 22.7.2006, p. 
11). 

EN 

24 

   EN 

 
                                                 
technological developments and for adopting implementing measures to harmonise the 
authorisation  rules,  procedures  and  conditions  for  the  authorisation  of  electronic 
communications networks and services. Since those measures are of general scope and 
are  designed  to  supplement  these  Directives  by  the  addition  of  new  non-essential 
elements,  they  must  be  adopted  in  accordance  with  the  regulatory  procedure  with 
scrutiny  provided  for  in  Article  5a  of  Decision  1999/468/EC.  When,  on  imperative 
grounds  of  urgency,  the  normal  time  limits  for  this  procedure  cannot  be  complied 
with,  the  Commission  should  be  able  to  use  the  urgency  procedure  provided  for  in 
Article 5a(6) of the above Decision, 

HAVE ADOPTED THIS DIRECTIVE: 

Article 1 
Amendments to Directive 2002/21/EC (Framework Directive) 

Directive 2002/21/EC is amended as follows: 

(1) 

Article 1(1) is replaced by the following: 

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

(2) 

Article 2 is amended as follows: 

(a)  Point (b) is replaced by the following: 

‘(b)  “transnational  markets”  means  markets  covering  the  Community  or  a 

substantial part thereof located in more than one Member State.’ 

(b)  Point (d) is replaced by the following: 

‘(d)  “public  communications  network”  means  an  electronic  communications 
network  used  wholly  or  mainly  for  the  provision  of  electronic 
communications  services  available  to  the  public  which  support  the 
transfer  of  information  between  network  termination  points,  including 
network elements which are not active;’ 

(c)  Point (e) is replaced by the following: 

‘(e)  “associated facilities” means those facilities associated with an electronic 
communications  network  and/or  an  electronic  communications  service 
which  enable  and/or  support  the  provision  of  services  via  that  network 
and/or  service  or  have  the  potential  to  do  so,  and  include  number  or 
address  translation  systems,  conditional  access  systems  and  electronic 
programme  guides,  as  well  as  physical  infrastructure  such  as  ducts, 
masts, street cabinets, and buildings;’ 

EN 

25 

   EN 

 
(d)  Point (l) is replaced by the following: 

Directive 2002/19/EC 

‘(l)  “Specific  Directives”  means  Directive 2002/20/EC 
(Access 

(Authorisation 
Directive), 
Directive), 
and 
Directive 2002/22/EC 
Directive 2002/58/EC  of  the  European  Parliament  and  of  the  Council31 
(hereinafter  referred  to  as  "Directive  2002/58/EC  (Directive  on  privacy 
and electronic communications)";’ 

(Universal 

Directive) 

Service 

(e)  The following points (q), (r), and (s) are added: 

‘(q)  “allocation” means the designation of a given frequency band or number 
range for use by one or more types of services, where appropriate, under 
specified conditions; 

(r) 

(s) 

“assignment” means  the  authorisation  given  by  a  national  regulatory 
authority  to  a  legal  entity  or  natural  person  to  use  a  radio  frequency or 
radio frequency channel, or a number (or block(s) of numbers); 

interference”  means 

“harmful 
the 
functioning  of  a  radionavigation  service  or  of  other  safety  services  or 
which  otherwise  seriously  degrades,  obstructs  or  repeatedly  interrupts  a 
radiocommunications service operating in accordance with the applicable 
Community or national regulations.’ 

interference  which  endangers 

(3) 

Article 3(3) is replaced by the following: 

‘3.  Member  States  shall  ensure  that  national  regulatory  authorities  exercise  their 
powers  independently,  impartially  and  transparently.  National  regulatory 
authorities shall not seek or take instructions from any other body in relation to 
the  day-to-day  performance  of  the  tasks  assigned  to  them  under  national  law 
implementing Community law. Only appeal bodies set up in accordance with 
Article  4  or  national  courts  shall  have  the  power  to  suspend  or  overturn 
decisions by the national regulatory authorities.  

Member States shall ensure that the head of a national regulatory authority or 
his/her replacement may be dismissed only if he no longer fulfils the conditions 
required for the performance of his duties laid down in advance in national law, 
or if he has been guilty of serious misconduct. The decision to dismiss the head 
of the national regulatory authority shall contain a statement of reasons and be 
made public at the time of dismissal.  

Member  States  shall  ensure  that  national regulatory authorities have  adequate 
financial and human resources to carry out the tasks assigned to them and that 
they have separate annual budgets. The budgets shall be made public.’ 

31 

OJ L 201,31.7.2002, p. 37. Directive as last amended by Directive 2006/24/EC (OJ L 105, 13.4.2006, p. 
54). 

EN 

26 

   EN 

 
                                                 
(4) 

Article 4 is amended as follows: 

(a)  Paragraph 1 is replaced by the following: 

‘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 the appeal, the decision of the national regulatory 
authority  shall  stand,  unless  interim  measures  are  granted.  Interim  measures 
may be granted if there is an urgent need to suspend the effect of the decision 
in  order  to  prevent  serious  and  irreparable  damage  to  the  party  applying  for 
those measures and the balance of interests so requires.’ 

(b)  The following paragraph 3 is added: 

‘3.  Member States shall collect information on the subject of appeals, the number 
of  requests  for  appeal,  the  duration  of  the  appeal  proceedings,  the  number  of 
decisions to grant interim measures taken in accordance with paragraph 1 and 
the  reasons  for  such  decisions.  Member  States  shall  make  available  such 
information  to  the  Commission  and  the  European  Communications  Market 
Authority (hereinafter referred to as 'the Authority') on an annual basis.’ 

(5) 

Article 5(1) is replaced by the following:  

‘1.  Member  States  shall  ensure 

to  submit 

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.  Those  undertakings  shall  also  be 
required 
information  concerning  future  network  or  service 
developments  that  could  have  an  impact  on  the  wholesale  services  made 
available  to  competitors.  These  undertakings  shall  provide  such  information 
promptly  on  request  and  to  the  timescales  and  level  of  detail  required  by  the 
national  regulatory  authority.  The  information  requested  by  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.’ 

EN 

27 

   EN 

 
(6) 

Articles 6 and 7 are replaced by the following: 

‘Article 6 
Consultation and transparency mechanism 

 Except  in  cases  falling  within  Articles 7(10),  20,  or 21,  and  unless  otherwise 
provided  in  the  implementing  measures  adopted  pursuant  to  Article  9c, 
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, or where they intend to 
provide  for  restrictions  in  accordance  with  Article  9(3)  and  9(4),  they  give 
interested  parties  the  opportunity  to  comment  on  the  draft  measure  within  a 
reasonable period.  

National  regulatory  authorities  shall  publish  their  national  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  the  utmost  account  of  the  objectives 
set  out  in  Article 8,  including  insofar  as  they  relate  to  the  functioning  of  the 
Internal Market. 

2.  National  regulatory  authorities  shall  contribute  to  the  development  of  the 
Internal  Market  by  working  with  the  Commission  and  the  Authority  so  as  to 
ensure the consistent application, in all Member States, of the provisions of this 
Directive  and  the  Specific  Directives.  To  this  end,  they  shall,  in  particular, 
work  with  the  Commission  and  the  Authority  to  identify  the  types  of 
instruments and remedies best suited to address particular types of situations in 
the marketplace. 

3. 

Except where otherwise provided in implementing provisions adopted pursuant 
to  Article  7a,  upon  completion  of  the  consultation  referred  to  in  Article 6, 
where a national regulatory authority intends to take a 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), and 

(b)  would affect trade between Member States, 

EN 

28 

   EN 

 
it  shall  make  the  draft  measure  accessible  to  the  Commission,  the  Authority, 
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  inform  the  Commission  and  other  national  regulatory  authorities  thereof. 
National  regulatory  authorities  and  the  Commission  may  make  comments  to 
the  national  regulatory  authority  concerned  only  within  one  month.  The  one-
month period may not be extended. 

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

(a) 

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

(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); or 

(c) 

imposing,  amending  or  withdrawing  an  obligation  on  an  operator  in 
application  of  Article  16  in  conjunction  with  Articles  5  and  9  to  13  of 
Directive 2002/19/EC  (Access  Directive),  and  Article  17  of  Directive 
2002/22/EC (Universal Service Directive),  

and  would  affect  trade  between  Member  States,  and  the  Commission  has 
indicated  to  the  national  regulatory  authority  that  it  considers  that  the  draft 
measure would create a barrier to the single market or if it has serious doubts 
as  to  its  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. 

5.  Within the two month period referred to in paragraph 4, the Commission may 
take  a  decision  requiring  the  national  regulatory  authority  concerned  to 
withdraw the draft measure. The Commission shall take the utmost account of 
the  opinion  of  the  Authority  submitted  in  accordance  with  Article  5  of 
Regulation  [……/EC]  before  issuing  a  decision.  The  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. 

6.  Within three months of the Commission issuing a decision in accordance with 
paragraph  5  requiring  the  national  regulatory  authority  to  withdraw  a  draft 
measure,  the  national  regulatory  authority  shall  amend  or  withdraw  the  draft 
measure.  If  the  draft  measure  is  amended,  the  national  regulatory  authority 
shall  undertake  a  public  consultation  in  accordance  with  the  procedures 
referred  to  in  Article  6,  and  re-notify  the  amended  draft  measure  to  the 
Commission in accordance with the provisions of paragraph 3. 

7. 

The  national  regulatory  authority  concerned  shall  take  the  utmost  account  of 
comments  of  other  national  regulatory  authorities  and  the  Commission  and 
may, except in cases covered by paragraph 4, adopt the resulting draft measure 
and,  where  it  does  so,  shall  communicate  it  to  the  Commission.  Any  other 
national  body  exercising  functions  under  this  Directive  or  the  Specific 

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Directives  shall  also  take  the  utmost  account  of  the  comments  of  the 
Commission. 

8.  Where a draft measure has been amended in accordance with paragraph 6, the 
Commission may take a decision, requiring the national regulatory authority to 
impose  a  specific  obligation  under  Articles  9  to  13a  of  Directive 2002/19/EC 
(Access Directive), and Article 17 of Directive 2002/22/EC (Universal Service 
Directive) within a given time-limit.  

In so doing, the Commission shall pursue the same policy objectives as set out 
for national regulatory authorities in Article 8. The Commission shall take the 
utmost  account  of  the  opinion  of  the  Authority  submitted  in  accordance  with 
Article 6 of Regulation […./EC], in particular in elaborating the details of the 
obligation(s) to be imposed. 

9. 

10. 

The  national  regulatory  authority  shall  communicate  to  the  Commission  all 
final measures which fall under conditions a) and b) in Article 7(3). 

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  of  users,  it  may  immediately  adopt  proportionate  and  provisional 
measures.  It  shall,  without  delay,  communicate  those  measures,  with  full 
reasons,  to  the  Commission,  the  other  national  regulatory  authorities,  and  the 
Authority.  A  decision  by  the  national  regulatory  authority  to  render  such 
measures permanent or extend the time for which they are applicable shall be 
subject to the provisions of paragraphs 3 and 4.’ 

(7) 

The following Article 7a is inserted: 

Article 7a 
Implementing provisions 

‘1.  The Commission may lay down implementing provisions in relation to Article 
7  that  define  the  form,  content  and  level  of  details  to  be  given  in  the 
notifications  required  in  accordance  with  Article  7(3),  the  circumstances  in 
which  notifications  would  not  be  required,  and  the  calculation  of  the  time 
limits. 

2. 

The  measures  referred  to  in  paragraph  1,  designed  to  amend  non-essential 
elements of this Directive by supplementing it, shall be adopted in accordance 
with  the  regulatory  procedure  with  scrutiny  referred  to  in  Article  22(3).  On 
imperative  grounds  of  urgency,  the  Commission  may  use  the  urgency 
procedure referred to in Article 22(4).’ 

(8) 

Article 8 is amended as follows: 

(a) 

In paragraph 1, the second subparagraph is replaced by the following: 

‘Unless  otherwise  provided  in  Article  9  regarding  radio  frequencies,  Member 
States  shall  take  the  utmost  account  of  the  desirability  of  making  regulations 

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technologically  neutral  and  shall  ensure  that,  in  carrying  out  the  regulatory 
tasks specified in this Directive and the Specific Directives, in particular those 
designed  to  ensure  effective  competition,  national  regulatory  authorities  do 
likewise.’ 

(b) 

In paragraph 2, points (a) and (b) are replaced by the following:  

‘(a)  ensuring that users, including disabled users, elderly users, and users with 
special  social  needs  derive  maximum  benefit  in  terms  of  choice,  price, 
and quality; 

(b) 

ensuring  that  there  is  no  distortion  or  restriction  of  competition  in  the 
electronic  communications  sector,  in  particular  for  the  delivery  of 
content;’ 

(c) 

In paragraph 3, point (d) is replaced by the following:  

‘(d)  working  with  the  Commission  and  the  Authority  so  as  to  ensure  the 
development  of  consistent  regulatory  practice  and  the  consistent 
application of this Directive and the Specific Directives.’ 

(d) 

In paragraph 4, point (e) is replaced by the following: 

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

users, elderly users and users with special social needs;’ 

(e) 

In paragraph 4, point (g) is added:  

‘(g)  applying  the  principle  that  end-users  should  be  able  to  access  and 
distribute  any  lawful  content  and  use  any  lawful  applications  and/or 
services of their choice.’ 

(9) 

Article 9 is replaced by the following: 

‘Article 9 
Management of radio frequencies for electronic communications services 

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  regulatory  authorities  are  based  on  objective, 
transparent, non-discriminatory and proportionate criteria.  

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 Decision No 676/2002/EC (Radio 
Spectrum Decision). 

3.  Unless  otherwise  provided  in  the  second  subparagraph  or  in  the  measures 
adopted  pursuant  to  Article  9c,  Member  States  shall  ensure  that  all  types  of 

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radio  network  or  wireless  access  technology  may  be  used  in  the  radio 
frequency bands open to electronic communications services.  

Member  States  may, 
and 
non-discriminatory restrictions to the types of radio network or wireless access 
technology used where this is necessary to:  

proportionate 

however, 

provide 

for 

(a) 

avoid harmful interference,  

(b)  protect public health against electromagnetic fields, 

(c) 

ensure  maximisation  of  radio  frequencies  sharing  where  the  use  of 
frequencies is subject to a general authorisation, or 

(d) 

comply with a restriction in accordance with paragraph 4 below. 

4.  Unless  otherwise  provided  in  the  second  subparagraph  or  in  the  measures 
adopted  pursuant  to  Article  9c,  Member  States  shall  ensure  that  all  types  of 
electronic  communications  services  may  be  provided  in  the  radio  frequency 
bands open to electronic communications. The Member States may, however, 
provide  for  proportionate  and  non-discriminatory  restrictions  to  the  types  of 
electronic communications services to be provided. 

Restrictions  that  require  a  service  to  be  provided  in  a  specific  band  shall  be 
justified  in  order  to  ensure  the  fulfilment  of  a  general  interest  objective  in 
conformity  with  Community  law,  such  as  safety  of  life,  the  promotion  of 
social, regional or territorial cohesion, the avoidance of inefficient use of radio 
frequencies,  or,  as  defined  in  national  legislation  in  conformity  with 
Community  law,  the  promotion  of  cultural  and  linguistic  diversity  and  media 
pluralism.  

A  restriction  which  prohibits  the  provision  of  any  other  service  in  a  specific 
band may only be provided for where justified by the need to protect safety of 
life services.  

5.  Member States shall regularly review the necessity of the restrictions referred 

to in paragraphs 3 and 4. 

6. 

Paragraphs  3  and  4  shall  apply  to  allocation  and  assignment  of  radio 
frequencies after 31 December 2009.’ 

(10) 

The following Articles 9a, 9b, and 9c are inserted: 

‘Article 9a 
Review of restrictions to existing rights 

1. 

For  a  period  of  five  years  starting  on  [1  January  2010],  Member  States  shall 
ensure that holders of rights to use radio frequencies which were granted before 
that  date  may  submit  an  application  to  the  competent  national  regulatory 
authority for a reassessment of the restrictions to their rights in accordance with 
Article 9(3) and (4).  

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Before  adopting  its  decision  the  competent  national  regulatory  authority  shall 
notify  the  right  holder  of  its  reassessment  of  the  restrictions,  indicating  the 
extent of the right after reassessment, and allow him a reasonable time limit to 
withdraw his application.  

If the right holder withdraws his application, the right shall remain unchanged 
until its expiry or till the end of the 5 year period, whichever is the earlier date. 

2.  Where  the  right  holder  mentioned  in  paragraph  1  is  a  provider  of  radio  or 
television broadcast content services, and the right to use radio frequencies has 
been  granted  for  the  fulfilment  of  a  specific  general  interest  objective,  an 
application  for  reassessment  can  only  be  made  in  respect  of  the  part  of  the 
radio frequencies which is necessary for the fulfilment of such objective. The 
part of the radio frequencies which becomes unnecessary for the fulfilment of 
that objective as a result of application of Article 9(3) and (4) shall be subject 
to  a  new  assignment  procedure  in  conformity  with  Article  7(2)  of  the 
Authorisation Directive. 

3.  After the five-year period referred to in paragraph 1, Member States shall take 
all  appropriate  measures  to  ensure  that  Article  9(3)  and  (4)  apply  to  all 
remaining  assignments  and  allocations  of  radio  frequencies  which  existed  at 
the date of entry into force of this Directive.  

4. 

In  applying  this  Article,  Member  States  shall  take  appropriate  measures  to 
guarantee fair competition. 

Article 9b 
Transfer of Individual Rights to Use radio frequencies 

1.  Member  States  shall  ensure  that  undertakings  may  transfer  or  lease  to  other 
undertakings individual rights to use radio frequencies in the bands for which 
this  is provided in the  implementing  measures adopted pursuant to Article 9c 
without the prior consent of the national regulatory authority.  

In  other  bands,  Member  States  may  also  make  provision  for  undertakings  to 
transfer  or 
individual  rights  to  use  radio  frequencies  to  other 
undertakings.  

lease 

2.  Member States shall ensure that an undertaking’s intention to transfer rights to 
use radio frequencies is notified to the national regulatory authority responsible 
for  spectrum  assignment  and  is  made  public.  Where  radio  frequency  use  has 
been  harmonised  through  the  application  of  the  Radio  Spectrum  Decision  or 
other  Community  measures,  any  such  transfer  shall  comply  with  such 
harmonised use. 

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Article 9c  
Radio Frequency Management Harmonisation Measures 

In order to contribute to the development of the internal market, for the achievement 
the  Commission  may  adopt  appropriate 
the  principles  of 
of 
implementing measures to:  

this  Article, 

(a) 

harmonise  the  identification  of  the  bands  for  which  usage  rights  may  be 
transferred or leased between undertakings;  

(b)  harmonise  the  conditions  attached  to  such  rights  and  the  conditions, 
procedures, limits, restrictions, withdrawals and transitional rules applicable to 
such transfers or leases; 

(c) 

(d) 

harmonise  the  specific  measures  to  ensure  fair  competition  where  individual 
rights are transferred; 

create an exception to the principle of services or technology neutrality, as well 
as to harmonise the scope and nature  of any exceptions to these principles in 
accordance  with  Article  9(3)  and  (4)  other  than  those  aimed  at  ensuring  the 
promotion of cultural and linguistic diversity and media pluralism. 

These  measures  designed  to  amend  non-essential  elements  of  this  Directive  by 
supplementing it, shall be adopted in accordance with the regulatory procedure with 
scrutiny  referred  to  in  Article  22(3).  On  imperative  grounds  of  urgency,  the 
Commission  may  use  the  urgency  procedure  referred  to  in  Article  22(4).  In  the 
implementation of the provisions of this paragraph, the Commission may be assisted 
by the Authority in accordance with Article 10 Regulation […/EC].’ 

(11) 

Article 10 is amended as follows: 

(a)  Paragraph 2 is replaced by the following: 

‘2.  National  regulatory  authorities  shall  ensure  that  numbering  plans  and 
procedures are applied in a manner that gives equal treatment to all providers 
of  publicly  available  electronic  communications  services.  In  particular, 
Member  States  shall  ensure  that  an  undertaking  assigned  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.’ 

(b)  Paragraph 4 is replaced by the following: 

‘4.  Member  States  shall  support  harmonisation 

in  numbering  within 

the 
Community  where  that  promotes  the  functioning  of  the  internal  market  or 
supports  the  development  of  pan-European  services.  The  Commission  may 
take  appropriate  technical  implementing  measures  on  this  matter,  which  may 
include  establishing  tariff  principles  for  specific  numbers  or  number  ranges. 
The  implementing  measures  may  grant  the  Authority  specific  responsibilities 
in the application of those measures. 

The  measures  designed  to  amend  non-essential  elements  of  this  Directive  by 
supplementing it, shall be adopted in accordance with the regulatory procedure 

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with  scrutiny  referred  to  in  Article  22(3).  On  imperative  grounds  of  urgency, 
the Commission may use the urgency procedure referred to in Article 22(4).’ 

(12) 

In  Article  11(1),  the  words  ‘acts  on  the  basis  of  transparent  and  publicly  available 
procedures,  applied  without  discrimination  and  without  delay,  and’  are  replaced  by 
the following: 

‘acts  on  the  basis  of  simple,  transparent  and  publicly  available  procedures, 
applied  without  discrimination  and  without  delay,  and  in  any  event  makes  its 
decision within four months of the application, and’ 

(13) 

Article 12 is replaced by the following: 

‘Article 12 
Co-location and facility sharing for providers of electronic communications networks 

1.  Where  an  undertaking  providing  electronic  communications  networks  has  the 
right under national legislation  to install  facilities  on, over or under public or 
private property, or may take advantage of a procedure for the expropriation or 
use  of  property,  national  regulatory  authorities  shall  be  able  to  impose  the 
sharing  of  such  facilities  or  property,  including  entries  to  buildings,  masts, 
antennae, ducts, manholes and street cabinets.  

2.  Member  States  may  require  that  the  holders  of  the  rights  referred  to  in 
paragraph 1 share facilities or property (including physical co-location) or take 
measures  to  facilitate the  coordination of  public  works in  order to protect the 
environment,  public  health,  public  security  or  to  meet  town  and  country 
planning  objectives  only  after  an  appropriate  period  of  public  consultation, 
during which all interested parties shall be given an opportunity to express their 
views.  Such  sharing  or  coordination  arrangements  may  include  rules  for 
apportioning the costs of facility or property sharing. 

3.  Measures  taken  by  a  national  regulatory  authority  in  accordance  with 

paragraph 1 shall be objective, transparent, and proportionate.’ 

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(14) 

The following Chapter IIIa is inserted:  

‘Chapter IIIa 

SECURITY AND INTEGRITY OF NETWORKS 
AND SERVICES 

Article 13a 
Security and integrity  

1.  Member  States 

shall 

ensure 

that  undertakings  providing  public 
communications  networks  or  publicly  available  electronic  communications 
services  take  appropriate  technical  and  organisational  measures  to  safeguard 
the security of their networks or services. Having regard to the state of the art, 
these measures shall ensure a level of security appropriate to the risk presented. 
In  particular,  measures  shall  be  taken  to  prevent  or  minimise  the  impact  of 
security incidents on users and on interconnected networks.  

2.  Member  States 

shall 

that  undertakings  providing  public 
communications  networks  take  all  necessary  steps  to  ensure  the  integrity  of 
their  networks  so  as  to  ensure  the  continuity  of  supply  of  services  provided 
over those networks.  

ensure 

3.  Member  States 

shall 

that  undertakings  providing  public 
communications  networks  or  publicly  available  electronic  communications 
services  notify  the  national  regulatory  authority  of  any  breach  of  security  or 
integrity that had a significant impact on the operation of networks or services. 

ensure 

Where appropriate, the national regulatory authority concerned shall inform the 
national  regulatory  authorities  in  other  Member  States  and  the  Authority. 
Where disclosure of the breach is in the public interest, the national regulatory 
authority may inform the public.  

Every three months, the national regulatory authority shall submit a summary 
report to the Commission on the notifications received and the action taken in 
accordance with this paragraph. 

4. 

The  Commission,  taking  the  utmost  account  of  the  opinion  of  the  Authority 
issued  in  accordance  with  Article  4(3)(b)  of  Regulation  […./EC],  may  adopt 
appropriate  technical  implementing  measures  with  a  view  to  harmonising  the 
measures referred to in paragraphs 1, 2, and 3, including measures defining the 
circumstances, format and procedures applicable to notification requirements. 

These  implementing  measures,  designed  to  amend  non-essential  elements  of 
this  Directive  by  supplementing  it,  shall  be  adopted  in  accordance  with  the 
procedure referred to in Article 22(3). On imperative grounds of urgency, the 
Commission may use the urgency procedure referred to in Article 22(4). 

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Article 13b 
Implementation and enforcement 

1.  Member States shall ensure that national regulatory authorities have the power 
to issue binding instructions to undertakings providing public communications 
networks or publicly available electronic communications services in order to 
implement Article 13a.  

2.  Member States shall ensure that national regulatory authorities have the power 
to require undertakings providing public communications networks or publicly 
available electronic communications services to: 

(a) 

(b) 

provide  information  needed  to  assess  the  security  of  their  services  and 
networks, including documented security policies; and 

instruct  a  qualified  independent  body  to  carry  out  a  security  audit  and 
make the results thereof available to the national regulatory authority. 

3.  Member  States  shall  ensure  that  national  regulatory  authorities  have  all  the 

powers necessary to investigate cases of non-compliance. 

4. 

These provisions shall be without prejudice to Article 3 of this Directive.’ 

(15) 

Article 14 is amended as follows: 

(a) 

In the second sub-paragraph of paragraph 2, the second sentence is deleted. 

(b)  Paragraph (3) is deleted. 

(16) 

Article 15 is amended as follows: 

(a)  The heading is replaced by the following: 

‘Procedure for identification and definition of markets’ 

(b) 

In paragraph 1, the first subparagraph is replaced by the following: 

‘1.  After public consultation and consultation with the Authority, the Commission 
shall  adopt  a  Recommendation  on  Relevant  Product  and  Service  Markets 
(hereinafter “the Recommendation”). The Recommendation shall identify those 
product  and  service  markets  within  the  electronic  communications  sector  the 
characteristics of which may be such as to justify the imposition of regulatory 
obligations set out in the Specific Directives, without prejudice to markets that 
may be defined in specific cases under competition law. The Commission shall 
define markets in accordance with the principles of competition law.’ 

(c)  Paragraph 3 is replaced by the following: 

‘3.  National  regulatory  authorities  shall,  taking  the  utmost  account  of  the 
Recommendation  and  the Guidelines,  define  relevant  markets  appropriate  to 
national  circumstances,  in particular  relevant  geographic  markets  within  their 
territory,  in  accordance  with  the  principles  of  competition law.  National 

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regulatory authorities shall follow the procedures referred to in Articles 6 and 7 
before  defining  the  markets  that  differ  from  those  identified  in  the 
Recommendation.’ 

(d)  Paragraph 4 is replaced by the following: 

‘4.  The  Commission  may,  taking  the  utmost  account  of  the  opinion  of  the 
Authority submitted in accordance with Article 7 of Regulation […/EC], adopt 
a Decision identifying transnational markets.  

This Decision,  designed to amend non-essential elements  of  this Directive by 
supplementing it, shall be adopted in accordance with the regulatory procedure 
with  scrutiny  referred  to  in  Article  22(3).  On  imperative  grounds  of  urgency, 
the Commission may use the urgency procedure referred to in Article 22(4).’ 

(17) 

Article 16 is amended as follows: 

(a)  Paragraphs 1 and 2 are replaced by the following: 

‘1.  National  regulatory  authorities  shall  carry  out  an  analysis  of  the  relevant 
markets  listed  in  the  Recommendation,  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  paragraphs  3  or  4, 
Article 17 of Directive 2002/22/EC (Universal Service Directive), or Article 8 
of  Directive 2002/19/EC  (Access Directive)  to  determine  whether  to  impose, 
maintain, amend or withdraw obligations on undertakings, it shall determine on 
the  basis  of  its  market  analysis  referred  to  in  paragraph 1  of  this  Article 
whether a relevant market is effectively competitive.’ 

(b)  Paragraphs 5 and 6 are replaced by the following: 

‘5. 

In  the  case  of  transnational  markets  identified  in  the  Decision  referred  to  in 
Article 15(4),  the  Commission  shall  request  the  Authority  to  conduct  the 
market  analysis  taking  the  utmost  account  of  the  Guidelines  and  deliver  an 
opinion  on  any  imposition,  maintenance,  amendment  or  withdrawal  of 
regulatory obligations as referred to in paragraph 2 of this Article. 

The  Commission,  taking  the  utmost  account  of  the  opinion  of  the  Authority, 
may  issue  a  decision  designating  one  or  more  undertakings  as  having 
significant  market  power  on  that  market,  and  imposing  one  or  more  specific 
obligations under Articles 9 to 13a of Directive 2002/19/EC (Access Directive) 
and  Article  17  of  Directive  2002/22/EC  (Universal  Service  Directive).  In  so 
doing, the Commission shall pursue the policy objectives set out in Article 8. 

6.  Measures  taken  according  to  the  provisions  of  paragraphs 3  and  4  of  this 
Article  shall  be  subject  to  the  procedures  referred to  in  Articles 6  and 7. 
National  regulatory  authorities  shall  carry  out  an  analysis  of  the  relevant 
market:  

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(a)  within two years from a previous notification of a draft measure relating 

to that market;  

(b) 

(c) 

for  markets  not  previously  notified  to  the  Commission,  within  one  year 
from the adoption of a revised Recommendation on relevant markets, or; 

for  Member  States  that  have  newly  joined  the  Union,  within  one  year 
from their accession.’ 

(c)  The following paragraph 7 is inserted: 

‘7.  Where  a  national  regulatory  authority  has  not  completed  its  analysis  of  a 
relevant  market  identified  in  the  Recommendation  within  the  time  limit  laid 
down in Article 16(6), the Commission may request the Authority to issue an 
opinion, including a draft measure, on the analysis of the specific market and 
the specific obligations to be imposed. The Authority shall carry out a public 
consultation on the draft measure concerned. 

The  Commission,  taking  the  utmost  account  of  the  opinion  of  the  Authority 
issued  in  accordance  with  Article  6  of  Regulation  […./EC],  may  adopt  a 
decision  requiring  the  national  regulatory  authority  to  designate  certain 
undertakings  as  having  significant  market  power  and  to  impose  specific 
obligations  under  Articles  8,  9  to  13a  of  Directive  2002/19/EC  (Access 
Directive)  and  Article  17  of  Directive  2002/22/EC  (Universal  Service 
Directive)  on  those  undertakings  so  designated.  In  so  doing,  the  Commission 
shall  pursue  the  same  policy  objectives  as  set  out  for  national  regulatory 
authorities in Article 8.’ 

(18) 

Article 17 is amended as follows: 

(a) 

(b) 

In paragraph 1, in the second sentence, the words 'acting in accordance with the 
procedure  referred  to  in  Article  22(2)'  are  replaced  by  'may  take  appropriate 
implementing measures and'. 

In paragraph 6, the words 'acting in 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' are replaced by 'take the appropriate implementing 
measures  and  remove  those  standards  and/or  specifications  from  the  list  of 
standards and/or specifications referred to in paragraph 1'. 

(c)  The following paragraph 6a is inserted: 

'6a.  The implementing measures designed to amend non-essential elements of this 
Directive  by  supplementing  it  referred  to  in  paragraphs  4  and  6  shall  be 
adopted in accordance with the regulatory procedure with scrutiny referred to 
in Article 22(3). On imperative grounds of urgency, the Commission may use 
the urgency procedure referred to in Article 22(4).' 

(19) 

Article 18 is amended as follows: 

(a) 

In paragraph 1, the following point (c) is added: 

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‘(c)  providers  of  digital  TV  services  and  equipment  to  cooperate  in  the 

provision of interoperable TV services for disabled end-users.’ 

(b)  Paragraph 3 is deleted. 

(20) 

Article 19 is replaced by the following: 

‘Article 19 
Harmonisation procedures 

1.  Without  prejudice  to  Article  9  of  this  Directive  and  to  Articles  6  and  8  of 
Directive  2002/20/EC  (Authorisation  Directive),  where  the  Commission  finds 
that divergences in the implementation by national regulatory authorities of the 
regulatory  tasks  specified  in  this  Directive  and  the  Specific  Directives  may 
create a barrier to the internal market, the Commission may, taking the utmost 
account  of  the  opinion  of  the  Authority,  if  any,  issue  a  recommendation  or  a 
decision 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. 

2.  Where  the  Commission  issues  a  recommendation  pursuant  to  paragraph  1,  it 

shall act in accordance with the procedure referred to in Article 22(2).  

Member States shall ensure that national regulatory authorities take the utmost 
account of those recommendations in carrying out their tasks. Where a national 
regulatory  authority  chooses  not  to  follow  a  recommendation,  it  shall  inform 
the Commission, giving the reasoning for its position. 

3. 

The  decision  mentioned  in  paragraph  1  designed  to  amend  non-essential 
elements of this Directive by supplementing it, shall be adopted in accordance 
with  the  regulatory  procedure  with  scrutiny  referred  to  in  Article  22(3).  On 
imperative  grounds  of  urgency,  the  Commission  may  use  the  urgency 
procedure referred to in Article 22(4). 

4.  Measures adopted pursuant to paragraph 1 may include the identification of a 
harmonised or coordinated approach for dealing with the following issues: 

(a)  Consistent 

implementation  of 

regulatory  approaches, 

including 

regulatory treatment of new services; 

(b)  Numbering,  naming  and  addressing  issues,  including  number  ranges, 
portability  of  numbers  and  identifiers,  number  and  address  translation 
systems, and access to 112 emergency services; 

(c)  Consumer  issues,  including  accessibility  to  electronic  communications 

services and equipment by disabled end-users; 

(d)  Regulatory accounting. 

5. 

The Authority may on its own initiative advise the Commission on whether a 
measure should be adopted pursuant to paragraph 1.’ 

EN 

40 

   EN 

 
(21) 

Article 20(1) is replaced by the following: 

‘1. 

the  parties 

In the event of a dispute between service providers arising in connection with 
existing  obligations  imposed  under  this  Directive  or  the  Specific  Directives 
is  an  undertaking  providing  electronic 
where  one  of 
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  timeframe  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.’ 

(22) 

Article 21 is replaced by the following: 

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

2.  Any  party  may  refer  the  dispute  to  the  national  regulatory  authorities 
concerned. The competent national regulatory authorities shall coordinate their 
efforts  in  order  to  bring  about  a  resolution  of  the  dispute,  in  accordance  with 
the objectives set out in Article 8.  

Any national regulatory authority which has competence in such a dispute may 
request  the  Authority  to  issue  a  recommendation  pursuant  to  Article  18  of 
Regulation  […./EC]  as  to  the  action  to  be  taken  in  accordance  with  the 
provisions of the Framework Directive and/or the specific Directives to resolve 
the dispute.  

Where such a request has been made to the Authority, any national regulatory 
authority  with  competence  in  any  aspect  of  the  dispute  shall  await  the 
Authority’s recommendation pursuant to Article 18 of Regulation [ /EC] before 
taking  action  to  resolve  the  dispute,  without  prejudice  to  the  possibility  for 
national regulatory authorities to take urgent measures where necessary.  

Any  obligations  imposed  on  an  undertaking  by  the  national  regulatory 
authority in resolving a dispute shall respect the provisions of this Directive or 
the  Specific  Directives  and  take  the  utmost  account  of  the  recommendation 
issued by the Authority in accordance with Article 18 of Regulation […/EC]. 

3.  Member  States  may  make  provision  for  the  competent  national  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.  

EN 

41 

   EN 

 
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 it, the national regulatory authorities 
shall coordinate their efforts in order to bring about a resolution of the dispute, 
in  accordance  with  the  provisions  set  out  in  Article  8  and  taking  the  utmost 
account  of  any  recommendation  issued  by  the  Authority  in  accordance  with 
Article 18 of Regulation […/EC]. 

4. 

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

(23) 

The following Article 21a is inserted: 

‘Article 21a 
Penalties 

‘Member  States  shall  lay  down  the  rules  on  penalties  applicable  to 
infringements of the national provisions adopted pursuant to this Directive and 
the Specific Directives and shall take all measures necessary to ensure that they 
are  implemented.  The  penalties  provided  for  must  be  effective,  proportionate 
and  dissuasive.  The  Member  States  shall  notify  those  provisions  to  the 
Commission by the [time-limit for implementation of the amending act] at the 
latest and shall notify it without delay of any subsequent amendment affecting 
them.’ 

(24) 

Article 22 is amended as follows: 

(a)  Paragraph 3 is replaced by the following: 

‘3.  Where reference is made to this paragraph, Article 5a(1) to (4), and Article 7 of 
Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 
thereof.’ 

(b)  Paragraph 4 is replaced by the following: 

‘4.  Where reference is made to this paragraph, Article 5a(1), (2), (4) and (6), and 
Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions 
of Article 8 thereof.’ 

(25) 

Article 27 is deleted. 

(26) 

Annexes I and II are deleted. 

EN 

42 

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Article 2 
Amendments to Directive 2002/19/EC (Access Directive) 

Directive 2002/19/EC is amended as follows: 

(1) 

Article 2, point (a), is replaced by the following: 

“access”  means  the  making  available  of  facilities  and/or  services  to 
‘(a) 
another undertaking, under  defined conditions,  on  either  an exclusive or non-
exclusive  basis,  for  the  purpose  of  providing  electronic  communications 
services  or  delivering  information  society  services  or  broadcast  content 
services.  It  covers  inter  alia:  access  to  network  elements  and  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.’ 

(2) 

Article 4(1) is replaced by the following: 

‘1.  Operators  of  public  communications  networks  shall  have  a  right  and,  when 
requested by other undertakings so authorised in accordance with Article 4 of 
Directive  2002/20/EC  (Authorisation  Directive),  an  obligation  to  negotiate 
interconnection with each other for the purpose of providing publicly available 
electronic  communications  services,  in  order  to  ensure  provision  and 
interoperability  of  services  throughout  the  Community.  Operators  shall  offer 
access  and  interconnection  to  other  undertakings  on  terms  and  conditions 
consistent  with  obligations  imposed  by  the  national  regulatory  authority 
pursuant to Articles 5, 6, 7 and 8.’ 

(3) 

Article 5 is amended as follows:  

(a)  Paragraph 2 is replaced by the following: 

‘2.  Obligations  and  conditions  imposed  in  accordance  with  paragraph  1  shall  be 
objective,  transparent,  proportionate  and  non-discriminatory,  and  shall  be 
implemented in accordance with the procedures referred to in Articles 6 and 7 
of Directive 2002/21/EC (Framework Directive).’ 

(b)  Paragraphs 3 and 4 are deleted. 

(4) 

Article 6(2) is replaced by the following: 

‘2. 

In  the  light  of  market  and  technological  developments,  the  Commission  may 
adopt  implementing  measures  to  amend  Annex  I.  The  measures,  designed  to 
amend non-essential elements of this Directive, shall be adopted in accordance 
with  the  regulatory  procedure  with  scrutiny  referred  to  in  Article  14(3).  On 

EN 

43 

   EN 

 
imperative  grounds  of  urgency,  the  Commission  may  use  the  urgency 
procedure referred to in Article 14(4). 

In preparing the provisions referred to in this paragraph, the Commission may 
be  assisted  by  the  European  Electronic  Communications  Market  Authority 
(hereinafter referred to as 'the Authority').’ 

(5) 

(6) 

Article 7 is deleted. 

Article 8 is amended as follows: 

(a) 

In paragraph 1, "Articles 9 to 13" is replaced by "Articles 9 to 13a" 

(b)  Paragraph 3 is amended as follows:  

(i)  The first subparagraph is amended as follows:  

- 

- 

In  the  first  indent,  "Articles  5(1),  5(2)  and  6"  is  replaced  by 
"Articles 5(1) and 6". 

in  the  second  indent,  "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 sector32" is replaced by "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  communications  sector  (Directive  on 
privacy and electronic communications33)". 

(ii)  The following sentence is included as the second sentence of the second 

subparagraph : 

‘The Commission shall take the utmost account of the opinion of the Authority 
submitted in accordance with Article 4(3)(m) of Regulation [ /EC].’ 

(7) 

Article 9(5) is replaced by the following: 

‘5.  The Commission may adopt the necessary amendments to Annex II in order to 
adapt it to technological and market developments. The measures, designed to 
amend non-essential elements of this Directive, shall be adopted in accordance 
with  the  regulatory  procedure  with  scrutiny  referred  to  in  Article  14(3).  On 
imperative  grounds  of  urgency,  the  Commission  may  use  the  urgency 
procedure  referred  to  in  Article  14(4).  In  implementing  the  provisions  of  this 
paragraph, the Commission may be assisted by the Authority.’ 

32 
33 

OJ L 24, 30.1.1998, p. 1. 
OJ L 201, 31.7.2002, p. 37. Directive as last amended by Directive 2006/24/EC (OJ L 105, 13.4.2006, 
p. 54). 

EN 

44 

   EN 

 
                                                 
(8) 

Article 12 is amended as follows: 

(a) 

In paragraph 1, point (f) is replaced by the following:  

‘(f) 

to  provide  co-location  or  other  forms  of  facility  sharing,  including  the 
sharing  of  ducts,  buildings  or  entry  to  buildings,  antennae  or  masts, 
manholes and street cabinets;’ 

(b) 

In paragraph 1, the following point (j) is added: 

‘(j) 

to  provide  access  to  associated  services  such  as  identity,  location  and 
presence capability.’ 

(c)  The following paragraph 3 is added:  

‘3.  When  imposing  obligations  on  an  operator  to  provide  access  in  accordance 
with  the  provisions  of  this  Article,  national  regulatory  authorities  may  lay 
down  technical  or  operational  conditions  to  be  met  by  the  provider  and/or 
beneficiaries of such access where necessary to ensure normal operation of the 
network.  Obligations  to  follow  specific  technical  standards  or  specifications 
shall  be  in  compliance  with  the  standards  and  specifications  laid  down  in 
accordance  with  Article  17(1)  of  Directive  2002/21/EC  (Framework 
Directive).’ 

(9) 

The following Articles 13a and 13b are inserted: 

‘Article 13a 
Functional separation 

1.  A  national  regulatory  authority  may,  in  accordance  with  the  provisions  of 
Article 8, and in particular the second subparagraph of Article 8(3), impose an 
obligation on vertically integrated undertakings to place activities related to the 
wholesale provision of access products in an independently operating business 
unit.  

That  business  unit  shall  supply  access  products  and  services 
to  all 
undertakings, including other business units within the parent company, on the 
same  timescales,  terms  and  conditions,  including  with  regard  to  price  and 
service levels, and by means of the same systems and processes.  

2.  When  a  national  regulatory  authority  intends  to  impose  an  obligation  for 
functional separation, it shall submit a request to the Commission that includes. 

(a) 

evidence  that  the  imposition  of  appropriate  obligations  amongst  those 
identified  in  Articles 9-13  to  achieve  effective  competition  following  a 
co-ordinated  analysis  of  the  relevant  markets  in  accordance  with  the 
market analysis procedure set out in Article 16 of Directive 2002/21/EC 
(Framework Directive) has failed and would fail on a persistent basis to 
achieve effective competition and that there are important and persisting 

EN 

45 

   EN 

 
competition  problems/market  failures  identified  in  several  of  these 
product markets. 

(b) 

an  analysis  of  the  expected  impact  on  the  regulatory  authority,  on  the 
undertaking, and on its incentives to invest in its network, and on other 
stakeholders including in particular the expected impact on infrastructure 
competition and any potential entailing effects on consumers;  

(c) 

a draft of the measure being proposed. 

3. 

The draft measure shall include the following elements: 

(a) 

(b) 

(c) 

the  precise  nature  and  level  of  separation,  specifying  in  particular  the 
legal status of the separate business entity; 

identification  of  the  assets  of  the  separate  business  entity,  and  the 
products or services to be supplied by this entity; 

the  governance  arrangements  to  ensure  the  independence  of  the  staff 
employed  by  the  separate  business  entity,  and  the  corresponding 
incentive structure; 

(d) 

rules for ensuring compliance with the obligations; 

(e) 

(f) 

rules  for  ensuring  transparency  of  operational  procedures,  in  particular 
towards other stakeholders; 

a monitoring programme to ensure compliance, including publication of 
an annual report. 

4. 

Following the Commission's decision on the draft measure taken in accordance 
with Article 8(3), the national regulatory authority shall conduct a coordinated 
analysis  of  the  different  markets  related  to  the  access  network  in  accordance 
with the procedure set out in Article 16 of Directive 2002/21/EC (Framework 
Directive).  On  the  basis  of  its  assessment,  the  national  regulatory  authority 
shall  impose,  maintain,  amend  or  withdraw  obligations,  in  accordance  with 
Articles 6 and 7 of Directive 2002/21/EC (Framework Directive). 

5.  An  undertaking  on  which  functional  separation  has  been  imposed  may  be 
subject  to  any  of  the  obligations  identified  in  Articles  9–13  in  any  specific 
market  where  it  has  been  designated  as  having  significant  market  power  in 
accordance with Article 16 of Directive 2002/21/EC (Framework Directive), or 
any other obligations authorised by the Commission pursuant to paragraph 3 of 
Article 8. 

Article 13b 
Voluntary separation by a vertically integrated undertaking 

1.  Undertakings which have been designated as having significant market power 
in  one  or  several  relevant  markets  in  accordance  with  Article  16  of  Directive 
2002/21/EC  (Framework  Directive)  shall  inform  the  national  regulatory 

EN 

46 

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authority in advance if they intend to transfer their local access network assets 
or  a  substantial  part  of  them  to  a  separate  legal  entity  under  different 
ownership, or to establish a separate business entity in order to provide to all 
retail  providers,  including  its  own  retail  divisions,  fully  equivalent  access 
products. 

2. 

The  national  regulatory  authority  shall  assess  the  effect  of  the  intended 
transaction  on  existing  regulatory  obligations  under  Directive  2002/21/EC 
(Framework Directive). 

For that purpose, the national regulatory authority shall conduct a coordinated 
analysis  of  the  different  markets  related  to  the  access  network  in  accordance 
with the procedure set out in Article 16 of Directive 2002/21/EC (Framework 
Directive).  

On the basis of its assessment, the national regulatory authority shall impose, 
maintain, amend or withdraw obligations, in accordance with Articles 6 and 7 
of Directive 2002/21/EC (Framework Directive). 

3. 

The legally and/or operationally separate business entity may be subject to any 
of the obligations identified in Articles 9-13 in any specific market where it has 
been  designated  as  having  significant  market  power  in  accordance  with 
Article 16  of  Directive  2002/21/EC  (Framework  Directive),  or  any  other 
obligations  authorised  by  the  Commission  pursuant  to  paragraph  3  of  Article 
8.’ 

(10) 

Article 14 is amended as follows:  

(a)  Paragraph 3 is replaced by the following: 

‘3.  Where reference is made to this paragraph, Article 5a(1) to (4) and Article 7 of 
Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 
thereof.’ 

(b)  Paragraph 4 is replaced by the following: 

‘4.  Where reference is made to this paragraph, Article 5a(1), (2), (4) and (6), and 
Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions 
of Article 8 thereof.’ 

Article 3 
Amendments to Directive 2002/20/EC (Authorisation Directive) 

Directive 2002/20/EC is amended as follows: 

(1) 

Article 2(2) is replaced by the following: 

‘2.  The following definition shall also apply: 

"general  authorisation"  means  a  legal  framework  established  by  the  Member 
State ensuring rights for the provision of electronic communications networks 

EN 

47 

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or services and laying down sector specific obligations that may apply to all or 
to  specific  types  of  electronic  communications  networks  and  services,  in 
accordance with this Directive.’ 

(2) 

In Article 3(2) ‘Articles 5, 6 and 7’ is replaced by  

‘Articles 5, 6, 6a and 7.’ 

(3) 

Article 5 is replaced by the following: 

‘Article 5 
Rights of use for radio frequencies and numbers 

1.  Member  States  shall  not  make  the  use  of  radio  frequencies  subject  to  the 
granting of individual rights of use but shall include the conditions for usage of 
such radio frequencies in the general authorisation, unless it is justified to grant 
individual rights in order to: 

(a) 

avoid a serious risk of harmful interference; or 

(b) 

fulfil other objectives of general interest. 

2.  Where it is necessary to grant individual rights of use for radio frequencies and 
numbers,  Member  States  shall  grant  such  rights,  upon  request,  to  any 
undertaking  providing  or  using  networks  or  services  under  the  general 
authorisation, subject to the provisions of Articles 6, 6a, 7 and 11(1)(c) of this 
Directive  and  any  other  rules  ensuring  the  efficient  use  of  those  resources  in 
accordance with Directive 2002/21/EC (Framework Directive). 

Without prejudice to specific criteria defined in advance 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, such rights of use shall be granted through 
objective,  transparent,  non-discriminatory  and  proportionate  procedures,  and, 
in the case of radio frequencies, in accordance with the provisions of Article 9 
of Directive 2002/21/EC (Framework Directive). The procedures shall also be 
open,  except  in  cases  where  the  granting  of  individual  rights  of  use  for  radio 
frequencies  to  the  providers  of  radio  or  television  broadcast  content  services 
can be shown to be essential to meet a particular obligation defined in advance 
by the Member State which is necessary to achieve a general interest objective 
in conformity with Community law. 

When granting rights of use, Member States shall specify whether those rights 
can be transferred by the holder of the rights, and under which conditions. In 
the  case  of  radio  frequencies,  such  provisions  shall  be  in  accordance  with 
Article 9b of Directive 2002/21/EC (Framework Directive). 

Where  Member  States  grant  rights  of  use  for  a  limited  period  of  time,  the 
duration shall be appropriate for the service concerned in view of the objective 
pursued and defined in advance. 

EN 

48 

   EN 

 
Any  individual  right  to  use  radio  frequencies  that  is  granted  for  ten  years  or 
more  and  that  may  not  be  transferred  or  leased  between  undertakings  as  a 
allowed by Article 9b of the Framework Directive shall, every five years and 
for the first time five years after its issuance, be subject to a review in the light 
of the criteria in paragraph 1. If the criteria to grant individual rights of use are 
no longer applicable, the individual right of use shall be changed into a general 
authorisation  for  the  use  of  radio  frequencies,  subject  to  prior  notice  of  not 
more than five years from the conclusion of the review, or shall be made freely 
transferable or leaseable between undertakings. 

3.  Decisions  on  rights  of  use  shall  be  taken,  communicated  and  made  public  as 
soon  as  possible  after  receipt  of  the  complete  application  by  the  national 
regulatory authority, within three weeks in the case of numbers that have been 
allocated for specific purposes within the national numbering plan and within 
six  weeks  in  the  case  of  radio  frequencies  that  have  been  allocated  for 
electronic communications within the national frequency plan. The latter time 
limit  shall  be  without  prejudice  to  any  applicable  international  agreements 
relating to the use of radio frequencies or of orbital positions. 

4.  Where  it  has  been  decided,  after  consultation  with  interested  parties  in 
accordance  with  Article 6  of  Directive 2002/21/EC  (Framework  Directive), 
that rights for use of numbers of exceptional economic value are to be granted 
through competitive or comparative selection procedures, Member States may 
extend the maximum period of three weeks by up to three weeks. 

With  regard 
radiofrequencies, Article 7 shall apply. 

to  competitive  or  comparative  selection  procedures  for 

5.  Member States shall not limit the number of rights of use to be granted except 
where  this  is  necessary  to  ensure  the  efficient  use  of  radio  frequencies  in 
accordance with Article 7. 

6.  National  regulatory  authorities  shall  ensure  that  radio  frequencies  are 
efficiently  and  effectively  used  in  accordance  with  Article  9(2)  of  Directive 
2002/21/EC (Framework Directive). They shall also ensure competition is not 
distorted as a result of any transfer or accumulation of radio frequencies usage 
rights. For such purposes, Member States may take appropriate measures such 
as  reducing,  withdrawing  or  forcing  the  sale  of  a  right  to  use  radio 
frequencies.’ 

(4) 

Article 6 is amended as follows: 

(a)  Paragraph 1 is replaced by the following: 

‘1.  The  general  authorisation  for  the  provision  of  electronic  communications 
networks  or  services  and  the  rights  of  use  for  radio  frequencies  and  rights  of 
use for numbers may be subject only to the conditions listed in Annex I. Such 
conditions  shall  be  non-discriminatory,  proportionate  and  transparent  and,  in 
the  case  of  rights  of  use  for  radio  frequencies,  shall  be  in  accordance  with 
Article 9 of Directive 2002/21/EC (Framework Directive).’ 

EN 

49 

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(b) 

In paragraph 2, ‘Articles 16, 17, 18 and 19 of Directive 2002/22/EC (Universal 
Service  Directive)’  is  replaced  by  ‘Article  17  of  Directive  2002/22/EC 
(Universal Service Directive)’. 

(c) 

In paragraph 3, the word ‘Annex’ is replaced by ‘Annex I’.  

(5) 

The following Articles 6a and 6b are inserted: 

‘Article 6a 
Harmonisation measures 

1. 

In order to achieve the objectives set out in Article 1, and without prejudice to 
Article  5(2)  of  this  Directive,  the  Commission  may  adopt  implementing 
measures: 

(a) 

to identify radio frequency bands the use of which is to be made subject 
to general authorisations or individual rights of use for radio frequencies; 

(b) 

to identify the numbering ranges to be harmonised at Community level; 

(c) 

(d) 

(e) 

(f) 

to  harmonise  procedures  for  the  granting  of  general  authorisations  or 
individual rights of use for radio frequencies or numbers;  

to  harmonise  the  conditions  specified  in  Annex  II  relating  to  general 
authorisations  or  individual  rights  of  use  for  radio  frequencies  or 
numbers; 

to provide for the amendment or withdrawal of authorisations or rights of 
use and the procedures relating to point (d); 

to  lay  down  procedures  for  the  selection  of  undertakings  to  which 
individual rights of use for radio frequencies or numbers shall be granted 
by  the  national  regulatory  authorities,  where  appropriate  in  accordance 
with the provisions of Article 6b.  

The  measures  listed  in  points  (a)  to  (d)  and  (f),  designed  to  amend  non-
essential  elements  of  this  Directive  by  supplementing  it,  shall  be  adopted  in 
accordance  with  the  regulatory  procedure  with  scrutiny  referred  to  in  Article 
14a(3).  On  imperative  grounds  of  urgency,  the  Commission  may  use  the 
urgency procedure referred to in Article 14a(4). 

2. 

The  measures  referred  to  in  paragraph  1  may,  where  appropriate,  provide  for 
the possibility for the Member States to make a reasoned request for a partial 
exemption and/or a temporary derogation from those measures.  

The  Commission  shall  assess  the  justification  for  the  request,  taking  into 
account  the  specific  situation  in  the  Member  State,  and  may  grant  a  partial 
exemption or temporary derogation or both provided this does not unduly defer 
the implementation of the implementing measures referred to in paragraph 1 or 
create  undue  differences  in  the  competitive  or  regulatory  situations  between 
Member States. 

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50 

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3. 

In implementing the provisions of this Article, the Commission may be assisted 
by  the  European  Electronic  Communications  Market  Authority  (hereinafter 
referred to as 'the Authority'). The Commission shall take the utmost account of 
the opinion of the Authority, if any, submitted in accordance with Article 11 of 
Regulation [ ]. 

Article 6b 
Common selection procedure for issuing rights  

1. 

The  technical  implementing  measure  referred  to  in  paragraph  6a(1)(f)  may 
provide for the Authority to make proposals for the selection of undertaking(s) 
to  which  individual  rights  of  use  for  radio  frequencies  or  numbers  are  to  be 
granted, in accordance with Article 12 of Regulation [..].  

In such cases, the measure shall specify the period within which the Authority 
shall complete the selection, the procedure, rules and conditions applicable to 
the selection, and details of any charges and fees to be imposed on the holders 
of  rights  for  use  of  radio  frequencies  and/or  numbers,  in  order  to  ensure  the 
optimal use of spectrum or numbering resources. The selection procedure shall 
be open, transparent, non-discriminatory and objective. 

2. 

Taking  the  utmost  account  of  the  opinion  of  the  Authority,  the  Commission 
shall adopt a measure selecting the undertaking(s) to which individual rights of 
use for radio frequencies or numbers shall be issued. The measure shall specify 
the  time  within  which  such  rights  of  use  shall  be  issued  by  the  national 
regulatory  authorities.  In  so  doing,  the  Commission  shall  act  in  accordance 
with the procedure referred to in Article 14a(2).’ 

(6) 

Article 7 is amended as follows: 

(a)  Paragraph 1 is amended as follows 

(i) The introductory phrase is replaced by the following: 

‘1.  Where a Member State is considering whether to limit the number of rights of 
use  to  be  granted  for  radio  frequencies  or  whether  to  extend  the  duration  of 
existing rights other than in accordance with the terms specified in such rights, 
it shall inter alia:’ 

(ii)  Point (c) is replaced by the following:  

publish any decision to limit the granting of rights of use or the renewal 

‘(c) 
of rights of use, stating the reasons therefore;’ 

(c)  Paragraph 3 is replaced by the following: 

‘3.  Where the granting of rights of use for radio frequencies needs to be limited, 
Member States shall grant such rights  on the basis of selection criteria which 
must be objective, transparent, non-discriminatory and proportionate. Any such 
selection criteria must give due weight to the achievement of the objectives of 

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Article 8  of  Directive 2002/21/EC  (Framework  Directive)  and  of 
requirements of Article 9 of that Directive.’ 

the 

(d) 

In paragraph 5 'Article 9' is replaced by 'Article 9b'. 

(7) 

Article 8 is deleted. 

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(8) 

Article 10 is amended as follows: 

(a)  Paragraph 1, 2 and 3 are replaced by the following: 

‘1.  National  regulatory  authorities  shall  monitor  and  supervise  compliance  with 
the  conditions  of  the  general  authorisation  or  of  rights  of  use  and  with  the 
specific obligations referred to in Article 6(2), in accordance with Article 11. 

National  regulatory  authorities  shall  have  the  power  to  require  undertakings 
providing  electronic  communications  networks  or  services  covered  by  the 
general authorisation or enjoying rights of use for radio frequencies or numbers 
to provide  all information necessary to  verify  compliance  with  the  conditions 
of the general authorisation or of rights of use or with the specific obligations 
referred to in Article 6(2), in accordance with Article 11. 

2.  Where  a  national  regulatory  authority  finds  that  an  undertaking  does  not 
comply  with  one  or  more  of  the  conditions  of  the  general  authorisation  or  of 
rights of use, or with the specific obligations referred to in Article 6(2), it shall 
notify  the  undertaking  of  those  findings  and  give  the  undertaking  the 
opportunity to state its views, within a reasonable time limit. 

3. 

The  relevant  authority  shall  have  the  power  to  require  the  cessation  of  the 
breach  referred  to  in  paragraph  2  either  immediately  or  within  a  reasonable 
time  limit  and  shall  take  appropriate  and  proportionate  measures  aimed  at 
ensuring compliance.  

In this regard, Member States shall empower the relevant authorities to impose 
financial penalties where appropriate. The measures and the reasons on which 
they  are  based  shall  be  communicated  to  the  undertaking  concerned  without 
delay and shall stipulate a reasonable period for the undertaking to comply with 
the measure.’ 

(b)  Paragraph 4 is replaced by the following: 

‘4. Notwithstanding the provisions of paragraphs 2 and 3, Member States shall 
empower the relevant authority to impose financial penalties where appropriate 
on  undertakings  for  failure  to  provide  information  in  accordance  with 
obligations imposed under Article 11(1)(a) or (b) of this Directive or Article 9 
of  Directive  2002/19/EC  (Access  Directive)  within  a  reasonable  period 
stipulated by the national regulatory authority.’ 

(c)  Paragraph 5 is replaced by the following: 

‘5. 

In  cases  of  serious  and  repeated  breaches  of  the  conditions  of  the  general 
authorisation  or  of  the  rights  of  use,  or  specific  obligations  referred  to  in 
Article 6(2),  where  measures  aimed  at  ensuring  compliance  as  referred  to  in 
paragraph 3  of  this  Article  have  failed,  national  regulatory  authorities  may 
prevent an undertaking from continuing to provide electronic communications 
networks  or  services  or  suspend  or  withdraw  rights  of  use.  Sanctions  and 
penalties  which  are  effective,  proportionate  and  dissuasive  may  be  applied  to 

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cover  the  period  of  any  breach,  even  if  the  breach  has  subsequently  been 
rectified.’ 

(d)  Paragraph 6 is replaced by the following: 

‘6. 

Irrespective  of  the  provisions  of  paragraphs 2,  3  and  5,  where  the  relevant 
authority has evidence of a breach of the conditions of the general authorisation 
rights of use or specific obligations referred to in Article 6(2) that represents an 
immediate and serious threat to public safety, public security or public health 
or will create serious economic or operational problems for other providers or 
users  of  electronic  communications  networks  or  services,  it  may  take  urgent 
interim  measures  to  remedy  the  situation  in  advance  of  reaching  a  final 
decision.  The  undertaking  concerned  shall  thereafter  be  given  a  reasonable 
opportunity  to  state  its  views  and  propose  any  remedies.  Where  appropriate, 
the relevant authority may confirm the interim measures, which shall be valid 
for a maximum of 3 months.’ 

(9) 

In  points  (a)  and  (b)  of  Article  11,  paragraph  1,  the  word  ‘Annex’  is  replaced  by 
‘Annex I’. 

(10) 

Article 14 is replaced by the following: 

‘Article 14 
Amendment of rights and obligations 

1.  Member  States  shall  ensure  that  the  rights,  conditions  and  procedures 
concerning general authorisations and rights of use or rights to install facilities 
may  only  be  amended  in  objectively  justified  cases  and  in  a  proportionate 
manner,  taking  into  consideration,  where  appropriate,  the  specific  conditions 
applicable  to  transferable  rights  of  use  for  radio  frequencies.  Notice  shall  be 
given in an appropriate manner of the intention to make such amendments and 
interested parties, including users and consumers, shall be allowed a sufficient 
period of time to express their views on the proposed amendments, which shall 
be no less than four weeks except in exceptional circumstances. 

2.  Member States shall not restrict or withdraw rights to install facilities or rights 
of  use  for  radio  frequencies  before  expiry  of  the  period  for  which  they  were 
granted  except  where  justified  and  where  applicable  in  conformity  with 
relevant national provisions regarding compensation for withdrawal of rights.’ 

(11) 

The following Article 14a is inserted: 

‘Article 14a 
Committee 

1. 

The Commission shall be assisted by the Communications Committee. 

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. 

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3.  Where reference is made to this paragraph, Article 5a(1) to (4) and Article 7 of 
Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 
thereof. 

4.  Where reference is made to this paragraph, Article 5a(1), (2), (4) and (6) and 
Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions 
of Article 8 thereof.’ 

(12) 

Article 15(1) is replaced by the following: 

‘1.  Member States shall ensure that all relevant information on rights, conditions, 
procedures,  charges,  fees  and  decisions  concerning  general  authorisations, 
rights of use and rights to install facilities is published and kept up to date in an 
appropriate  manner  so  as  to  provide  easy  access  to  that  information  for  all 
interested parties.’ 

(13) 

In Article 17 paragraphs 1 and 2 are replaced by the following: 

‘1.  Without  prejudice  to  Article  9a  of  Directive  2002/21/EC  (Framework 
Directive), Member States shall bring authorisations already in existence on 31 
December  2009  into  conformity  with  Articles  5,  6,  7,  and  Annex  I  of  this 
Directive by [31 December 2010] at the latest. 

2.  Where  application  of  paragraph 1  results  in  a  reduction  of  the  rights  or  an 
extension of the obligations under authorisations already in existence, Member 
States may extend the validity of those rights and obligations till [30 September 
2011]  at  the  latest,  provided  that  the  rights  of  other  undertakings  under 
Community  law  are  not  affected  thereby.  Member  States  shall  notify  such 
extensions to the Commission and state the reasons therefore.’ 

(14) 

The Annex is amended as set out in Annex I to this Directive. 

(15) 

A new Annex II, the text of which is set out in the Annex to this Directive, is added. 

Regulation (EC) No 2887/2000 is repealed. 

Article 4 
Repeal 

Article 5  
Transposition 

1. 

Member States shall adopt and publish by [..] at the latest the laws, regulations and 
administrative  provisions  necessary  to  comply  with  this  Directive.  They  shall 
forthwith  communicate  to  the  Commission  the  text  of  those  provisions  and  a 
correlation table between those provisions and this Directive. 

They shall apply those provisions from [...]. 

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When  Member  States  adopt  those  provisions,  they  shall  contain  a  reference  to  this 
Directive  or  be  accompanied  by  such  a  reference  on  the  occasion  of  their  official 
publication. Member States shall determine how such reference is to be made. 

2. 

Member States shall communicate to the Commission the text of the main provisions 
of national law which they adopt in the field covered by this Directive. 

Article 6 
Entry into force 

This  Directive  shall  enter  into  force  on  the  […]  day  following  that  of  its  publication  in  the 
Official Journal of the European Union. 

Article 7 
Addressees 

This Directive is addressed to the Member States. 

Done at Brussels,  

For the European Parliament 
The President 

For the Council 
The President 

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ANNEX I 

The Annex to Directive 2002/20/EC (Authorisation Directive) is amended as follows: 

(1) 

(2) 

The heading ‘Annex’ is replaced by the heading ‘Annex I’. 

The first paragraph is replaced by the following heading: 

‘The  conditions  listed  in  this  Annex  provide  the  maximum  list  of  conditions 
which  may  be  attached  to  general  authorisations  (Part  A),  rights  to  use  radio 
frequencies  (Part  B)  and  rights  to  use  numbers  (Part C)  as  referred  to  in 
Article 6(1) and Article 11(1)(a), within the limits allowed under Articles 5, 6, 
7, 8 and 9 of Directive 2002/21/EC (the Framework Directive).’ 

(3) 

Part A is amended as follows: 

(a)  Point 4 is replaced by the following: 

‘4.  Accessibility  of  numbers  from  the  national  numbering  plan  to  end-users, 
in  conformity  with 

numbers  from  ETNS  and  UIFN,  and  conditions 
Directive 2002/22/EC (Universal Service Directive).’ 

(b)  Point 7 is replaced by the following: 

‘7.  Personal data and privacy protection specific to the electronic communications 
sector  in  conformity  with  Directive  2002/58/EC  of  the  European  Parliament 
and of the Council (Directive on privacy and electronic communications)34.’ 

(c)  Point 8 is replaced by the following: 

‘8.  Consumer  protection  rules  specific  to  the  electronic  communications  sector, 
including  conditions  in  conformity  with  Directive 2002/22/EC  (Universal 
Service Directive), and conditions on accessibility for users with disabilities in 
accordance with Article 7 of that Directive.’ 

(d) 

In  points  11  and  16,  ‘Directive  97/66/EC’  is  replaced  by  ‘Directive 
2002/58/EC’. 

(e)  The following point 11a is added: 

‘11a  Terms of use for communications from public authorities to the general public 
for warning the public of imminent threats and for mitigating the consequences 
of major catastrophes.’ 

(f) 

In point 12 the terms 'and broadcasts to the general public' are deleted. 

(g)  The following point 19 is added: 

34 

OJ L 201, 31.7.2002, p. 37. 

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‘19.  Compliance with national measures implementing Directive 2001/29/EC of the 
European  Parliament  and  of  the  Council35  and  Directive  2004/48/EC  of  the 
European Parliament and of the Council36 ’ 

(4) 

Part B is amended as follows: 

(a)  Point 1 is replaced by the following:  

‘1.  Obligation  to  provide  a  service  or  to  use  a  type  of  technology  for  which  the 
rights of use for the frequency has been granted, including, where appropriate, 
coverage requirements.’ 

(b)  Point 2 is deleted. 

(c) 

In point 4 the terms ‘subject to any changes in the national frequency plan’ are 
deleted. 

(d)  Point 7 is replaced by the following:  

‘7.  Voluntary  commitments  which  the  undertaking  obtaining  the  usage  right  has 
made in the course of a competitive or comparative selection procedure.’ 

(e)  The following point 9 is added: 

‘9.  Obligations specific to an experimental use of radio frequencies.’ 

(5) 

In Part C, point 8 is replaced by the following: 

‘8.  Voluntary  commitments  which  the  undertaking  obtaining  the  usage  right  has 
made in the course of a competitive or comparative selection procedure.’ 

35 
36 

OJ L 167, 22.6.2001, p. 10. 
OJ L 157, 30.4.2004, p. 45. 

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The following Annex II is added to Directive 2002/20/EC (Authorisation Directive): 

ANNEX II 

‘ANNEX II 

Conditions which may be harmonised in accordance with point (d) of Article 6a, paragraph 1 

(1) 

Conditions attached to rights of use for radio frequencies  

(a) 

the duration of the rights of use of the radio frequencies; 

(b) 

the territorial scope of the rights; 

(c) 

(d) 

the possibility to transfer the right to other radio frequencies users, as well as 
the conditions and procedures relating thereto; 

the  method  of  determining  usage  fees  for  the  right  of  use  of  the  radio 
frequencies; 

(e) 

the number of rights of use to be granted to each undertaking; 

(f) 

conditions listed in Part B of Annex I. 

(2) 

Conditions attached to rights of use for numbers: 

(g) 

the duration of the rights of use of the number(s) concerned; 

(h) 

the territory within which they are valid; 

(i) 

any specific services or uses for which the numbers are to be reserved; 

(j) 

the transfer and portability of the rights of use; 

(k) 

the  method  of  determining  usage  fees  (if  any)  for  the  rights  of  use  for  the 
numbers; 

(l) 

conditions listed in Part C of Annex I.’ 

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