Proposal for a Directive of the European Parliament and of the Council amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on consumer protection cooperation {SEC(2007) 1472} {SEC(2007) 1473}
Date: 2007-11-13
Institutions: European Commission
Subjects: administrative cooperation, competition law, consumer protection, data protection, electronic mail, personal data, protection of privacy, telecommunications, transmission network, universal service

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 13.11.2007 
COM(2007) 698 final 

2007/0248 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  

amending Directive 2002/22/EC on universal service and users’ rights relating to 
electronic communications networks, Directive 2002/58/EC concerning the processing of 
personal data and the protection of privacy in the electronic communications sector and 
Regulation (EC) No 2006/2004 on consumer protection cooperation 

(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 

Ensuring  a  high  level  of  protection  of  consumers’  and  users’  rights,  including  the  right  to 
privacy and data protection in electronic communications, is one of the crucial elements of an 
inclusive  Information  Society,  enabling  the  smooth  development  and  wide  take-up  of  new 
innovative  services  and  applications.  The  EU  framework  for  electronic  communications 
networks and services is built on the premise that an open and competitive market offers the 
best means of promoting innovation and user choice. Recognising, however, that competition 
alone  may  not  be  sufficient  to  satisfy  the  needs  of  all  citizens  and  protect  users’  rights,  the 
competition-based  approach  of  the  framework  is  complemented  by  specific  provisions 
safeguarding universal service and users’ rights, as well as the protection of personal data. 

This  proposal  is  one  of  three  legislative  reform  proposals  to  amend  the  current  regulatory 
framework.  This  legislative  reform  proposal  covers  changes  to  the  Universal  Service 
Directive1 and the Directive on privacy and electronic communications2. A second legislative 
reform proposal3 covers changes to the other three directives. This is complemented by a third 
legislative  proposal  to  create  a  European  Electronic  Communications  Market  Authority 
(hereinafter, “the Authority”)4. The three legislative proposals are accompanied by an Impact 
Assessment5  and  a  Communication  setting  out  the  main  policy  lines  and  reporting  on  the 
public consultation6.  

The  present  legislative  reform  proposal  adapts  the  regulatory  framework  by  strengthening 
certain consumers’ and users’ rights (in particular with a view to improving accessibility and 
promoting an inclusive Information Society), and ensuring that electronic communications are 
trustworthy, secure and reliable and provide a high level of protection for individuals’ privacy 
and  personal  data.  The  proposal  does  not  alter  the  current  scope  or  concept  of  universal 
service in the EU, which will be subject to a separate consultation in 2008. 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 two-fold:  

1. 

Strengthening  and  improving  consumer  protection  and  user  rights  in  the  electronic 
communication sector, through — amongst other aspects —giving consumers more 

1 

2 

3 
4 
5 
6 

Directive  2002/22/EC  of  the  European  Parliament  and  of  the  Council  of  7  March  2002  on  universal 
service  and  users’  rights  relating  to  electronic  communications  networks  and  services  (OJ  L  108, 
24.4.2002). 
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). 
COM(2007) 697. 
COM(2007) 699. 
SEC(2007) 1472. 
COM(2007) 696. 

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information about prices and supply conditions, and facilitating access to and use of 
e-communications, including emergency services, for disabled users; and 

2. 

Enhancing the protection of individuals’ privacy and personal data in the electronic 
communications sector, in particular through strengthened security-related provisions 
and improved enforcement mechanisms. 

•  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  orientation  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,  with  a  particular  emphasis  on  security  and  the  protection  of  privacy  and 
personal  data.  Furthermore,  ensuring  an  adequate  level  of  universal  service  provision  is 
crucial for achieving an inclusive Information Society. 

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. On 29 June 2006 
the  Commission  presented  a  report7  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 for citizens, 
consumers,  and  businesses  in  terms  of  better  choice,  lower  prices  and  more  innovation,  but 
there  was  room  for  improvement  in  the  field  of  consumer  protection  and  security  to  ensure 
that  it  kept  pace  with  technological  developments  and  remained  effective  for  the  coming 
decade. 

•  Existing provisions in the area of the proposal 

The objective of this proposal is to amend two Directives: the Universal Service Directive and 
the Directive on privacy and electronic communications. 

•  Consistency with the other policies and objectives of the Union 

The  Universal  Service  Directive  sets  out  sector-specific  measures  that  complement  existing 
EU  law  in  the  field  of  consumer  protection.  The  Directive  on  privacy  and  electronic 
communications complement Directive 95/46/EC on the protection of individuals with regard 
to  the  processing  of  personal  data  and  on  the  free  movement  of  such  data  by  introducing 
specific provisions concerning the electronic communications sector. 

7 

COM(2006) 334. 

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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 starting 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  Review8,  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.  A  total  of  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).  

Summary of responses and how they have been taken into account  

In general, the proposals made in the area of Universal Service were supported by consumer 
organisations and the ERG, as well as by most Member States. On the other hand, operators 
were generally in favour of self- and co-regulatory approaches. This was particularly the case 
for  improving  transparency  of  tariffs  and  facilitating  the  use  of  electronic  communications 
services and equipment and access to emergency services for disabled users. 

Concerning the proposals to enhance the security provisions of the Directive on privacy and 
electronic communications, 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. Generally speaking, Member States expressed cautious support for 
the Commission  proposals, consumer organisations were also  in favour  and  Data Protection 
Authorities considered that the Commission proposals did not always go far enough. On the 
other  hand,  the  industry  tended  to  favour  alternatives  that  did  not  involve  regulatory 
intervention. 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. 

8 

See footnote 7. 

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Summary of advice received and used 

The  study  confirmed  the  general  soundness  of  the  regulatory  framework,  its  objectives  and 
the overall approach. However, it indicated the need for a number of adjustments to be made 
in certain areas. 

The study examined measures safeguarding users’ rights, as well as the privacy, security and 
confidentiality of on-line communications. It put forward a number of recommendations for 
change,  including  improving  transparency  and  publication  of  information  for  end-users,  the 
introduction  of  security  breach  notification  under  the  Directive  on  privacy  and  electronic 
communications,  and  an  explicit  right  for  national  authorities  to  provide  guidelines  on 
security. 

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  more  specific 
options for those proposals with the most far-reaching effects. 

The  groups  affected  most  by  the  proposed  changes  are  businesses,  public  administrations, 
citizens and European society at large, since all are users of electronic communications. This 
stakeholder group is not homogeneous and its members often have conflicting interests. The 
key  players  affected  by  the  present  proposals  are  electronic  communications  services 
providers and network operators, and national regulatory authorities (NRAs). 

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 

•  305Summary of the proposed action 

The  proposal  aims  to  amend  the  existing  Universal  Service  Directive  and  the  Directive  on 
privacy and electronic communications.  

The main proposed amendments to the Universal Service Directive are the following: 

–  improving the transparency and publication of information for end-users; 

–  facilitating use of and access to e-communications for disabled users; 

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–  facilitating  the  switching  of  suppliers  by  consumers  through,  among  other  things; 

strengthened provisions on number portability; 

–  improving obligations related to emergency services; 

–  ensuring basic connectivity and quality of service; and 

–  modernising  specific  provisions  of  the  Directive  to  bring  them  into  line  with  technology 
and  market  developments,  including  the  deletion  of  a  number  of  obsolete  or  redundant 
provisions. 

As regards the Directive on privacy and electronic communications, the main proposals are as 
follows: 

–  introducing  mandatory  notification  of  security  breaches  resulting  in  users’  personal  data 

being lost or compromised; 

–  strengthening implementation provisions related to network and information security to be 

adopted in consultation with the Authority; 

–  strengthening  implementation  and  enforcement  provisions  to  ensure  that  sufficient 

measures are available at Member State level to combat spam; 

–  clarifying  that  the  Directive  also  applies  to  public  communications  networks  supporting 
data  collection  and  identification  devices  (including  contactless  devices  such  as  Radio 
Frequency Identification Devices); 

–  modernising certain provisions that have become outdated, including the deletion of some 

obsolete or redundant provisions. 

•  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. The 
regulatory  model  of  the  framework  is  based  on  the  principle  of  decentralised  regulation  in 
Member  States,  giving  national  authorities  responsibility  for  overseeing  national  markets 
according to common set of principles and procedures. 

•  Proportionality principle 

This proposal complies with the proportionality principle in that it sets forth a minimum level 
of harmonisation, leaving the definition of the implementing measures to the Member States 
or  the  national  regulatory  authorities.  When  a  higher  level  of  harmonisation  is  required, 
provision  is  made  for  the  Commission  to  adopt  detailed  technical  implementing  measures. 
This  approach  allows  for  ex  ante  regulation  to  be  flexible  enough  to  respond  to  on-going 
technology  and  market  changes  in  the  sector  while  respecting  the  objectives  and  principles 
defined by the legislator.  

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The proposed amendments do not go beyond what is necessary to achieve the aim of better 
regulating  the  sector  and  ensuring  a  high  level  of  protection  of  users’  rights.  They  comply 
with the principle of proportionality set out in Article 5 of the EC Treaty. 

•  Choice of instruments 

Proposed instrument: directive. 

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

4. 

BUDGETARY IMPLICATION 

The proposal has no implication for the Community budget. 

5. 

ADDITIONAL INFORMATION 

•  Simplification 

The  present  proposal  will  simplify  administrative  procedures  for  public  authorities 
withdrawing some outdated provisions, such as the obligation to determine a minimum set of 
leased  lines  and  other  obligations  under  the  previous  framework  (retail  tariffs,  carrier 
selection  and  carrier  pre-selection).  Other  simplifications  are  introduced  for  national 
regulatory  authorities,  which  will  be  no  longer  required  to  submit  information  on  the  retail 
controls applied and the cost accounting systems used by the undertakings concerned.  

Furthermore,  it  is  proposed  to  repeal  other  outdated  provisions  including,  for  example,  the 
measures  to  facilitate  the  transition  between  the  “old”  framework  of  1998  and  the  2002 
framework.  

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

•  Repeal of existing legislation 

The adoption of the proposal will lead to the repeal of Commission Decision 2003/548/EC of 
24  July  2003  on  the  minimum  set  of  leased  lines  with  harmonised  characteristics  and 
associated  standards  referred  to  in  Article  18  of  Directive  2002/22/EC  (Universal  Service 
Directive)9. 

•  Review/revision/sunset clause 

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

9 

OJ L 186, 25.7.2003, p. 43. 

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•  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  European 
Economic Area. 

•  Detailed explanation of the proposal 

Article 1: changes to the Universal Service Directive 

The aims of the proposed changes are as follows: 

Improving the transparency and publication of information for users 

In Article 21, paragraphs (2) to (6): the aim is to increase price transparency to the benefit of 
consumers by imposing on operators an obligation to publish comparable, adequate and up-to-
date information in an easily accessible form (paragraph 2) and allowing third parties to use 
publicly  available  tariffs  (e.g.  for  the  purpose  of  selling  or  making  available  interactive 
guides) and national regulatory authorities to make  such guide available when these are not 
available  on  the  market  (paragraph  3).  NRAs  are  given  powers  to  require  from  operators 
better tariff transparency (paragraph 4) as well as clear information on possible restrictions on 
access  to  all  types  of  content  and  applications  (paragraph  5).  The  possibility  for  the 
Commission  to  take  implementing  measures  is  intended  to  ensure,  where  appropriate,  a 
minimum level of harmonisation in this area (paragraph 6).  

Facilitating the use of and access to eCommunications for disabled users 

In  Article  7:  this  replaces  the  possibility  for  Member  States  to  take  specific  measures  for 
disabled users with an explicit obligation to do so. 

In Article 22: this extends the NRAs’ powers to request operators to publish information for 
end-users on the quality of their services to also include equivalent access for disabled end-
users. 

In  Article  26(4):  this  imposes  on  Member  States  an  obligation  to  ensure  that  disabled  end-
users are able to access emergency services with a view to achieving fully inclusive electronic 
communications. 

In Article 33: this provides for a Community mechanism to address eAccessibility issues in 
order  to  ensure  that  disabled  users  have  equivalent  access  to  electronic  communications 
services as enjoyed by other end-users (paragraph 4). Paragraph 3 requires the Member States 
to  provide  the  Authority  with  information  on  the  measures  taken  and  the  progress  towards 
eAccessibility. 

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Improving caller location obligations related to emergency services 

In Article 26: this modernises the Directive so as to take account of market and technological 
developments  in  order  to  ensure  that  users  of  a  service  offering  outgoing  calls  are  able  to 
access emergency services (paragraph 2) and to strengthen the obligation to pass information 
to  emergency  authorities  (paragraph  5).  The  possibility  for  the  Commission  to  take 
implementing measures, in paragraph 7, is intended to ensure, where appropriate, a minimum 
level of harmonisation in this area. 

Basic access and quality of service (“net neutrality and freedoms”) 

In Article 20(5): this provides for a transparency mechanism concerning possible restrictions 
on  end-users’  choice  of  lawful  content  and  applications  in  order  to  empower  end-users  to 
make  an  informed  choice  of  services,  thus  allowing  them  to  reap  the  full  benefits  of 
technological developments in the Information Society. 

In  Article  22:  this  grants  to  the  national  regulatory  authorities  the  power  to  prevent 
degradation of quality of service by setting minimum quality levels for network transmission 
services for end-users. The possibility for the Commission to take implementing measures is 
intended  to  ensure,  where  appropriate,  a  minimum  level  of  harmonisation  in  this  area 
(paragraph 3). 

Other consumers’ and users’ rights 

In  Article  9:  this  allows  national  regulatory  authorities  to  monitor  retail  tariffs  if  no 
undertakings  are  designated  as  a  universal  service  provider  and  clarifies  the  scope  of 
application of special tariff options. Disability is added as a criterion in paragraph 3. 

In  Article  20(2)(h):  this  ensures  that  consumer  contracts  provide  minimum  of  information 
related to security of electronic communications services. 

In Article 20(4): this ensures that customers are duly informed by their provider of electronic 
communications services of whether or not access to emergency services is provided. 

In Article 20(6): this ensures that end-users are clearly informed in advance of the conclusion 
of the contract (and regularly thereafter) of their obligations to respect copyright and related 
rights,  as  well  as  of  the  most  common  acts  of  infringements  and  their  legal  consequences. 
This is without prejudice to the provisions of Directive 2000/31/EC on electronic commerce10. 

In  Article  27(2)  and  (3):  this  aims  to  foster  the  development  of  the  European  Telephony 
Numbering Space (ETNS) which offers an opportunity for pan-European services to develop. 

In Article 28(1) and (2):  this  fosters access to cross-border services, thereby contributing to 
the completion of the Internal Market for citizens and business.  

In Article 30: in order to ensure that consumers can fully benefit from number portability, the 
right  to  number  portability  is  no  longer  limited  to  publicly  available  telephone  services 
(PATS),  but  is  instead  linked  to  the  right  to  numbers  from  national  numbering  plans.  In 
addition, the maximum time limit for the effective porting of numbers is set at one working 

10 

OJ L 178, 17.7.2000, p. 1. 

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day.  Paragraph  4  introduces  a  procedure  to  allow  for  adjustments  to  future  technological 
developments. This is complemented by amendments to Annex I, Part C. In addition, national 
regulatory authorities will have to ensure that consumers are not discouraged from changing 
service providers when it is in their interest. 

In  Article  31:  in  order  to  ensure  that  “must  carry”  rules  are  proportionate  and  adapted  to 
market and technological developments, this strengthens the obligation of Member States to 
review and justify them. 

In  Article  33:  the  new  sub-paragraph  aims  to  ensure  that  the  interests  of  consumers  are 
adequately  taken  into  account  in  the  decision-making  process  of  national  regulatory 
authorities. 

Technical adjustments to the wording of the Directive 

In Article 1(1): this reflects the fact that certain aspects of terminal equipment are covered by 
the framework. This is in line with the provisions concerning access to and use of electronic 
communications, including terminal equipment, for disabled users.  

In Article 2(c): clarifies the definition of publicly available telephone service (PATS). It is in 
line with the amendment to Article 26, as the emergency services obligation is imposed only 
on  certain  providers.  In  addition,  it  is  clarified  that,  where  access  to  emergency  services  is 
mandated, users can make calls to the “112” number free of charge and without having to use 
any means of payment. 

In  Article  4:  this  makes  a  technical  adjustment  to  the  formulation  of  universal  service  by 
separating access from provision of electronic communications services. This does not affect 
the scope or the provision of universal service to consumers and end-users. 

In Article 8(3): this allows national regulatory authorities to assess the effects of any intended 
disposal  of  the  local  access  network  to  a  separate  legal  entity  by  the  universal  service 
provider. 

In Article 23: this amendment is in line with the introduction of a specific security chapter in 
the Framework Directive 2002/21/EC. 

In Article 26(1): this amendment is in line with the modification to Article 2(c).  

In  Article  37:  the  Committee  procedure  is  updated  to  reflect  the  amendments  to  Decision 
1999/468/EC.  

The  following  provisions  are  amended  in  order  to  reflect  technological  and  market 
developments: 

–  Article 20(2) and (3) 

–  Article 25  

–  Article 27(1) and (2) 

–  Article 29 

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–  Article 34 

–  Annexes I, II and III11. 

Removal of outdated or obsolete provisions 

In Article 1(2): the reference to the retail provision of leased lines is obsolete and thus deleted 
(see changes to Article 18, below). 

In Article 2(b): the definition is repealed as it is no longer necessary.  

Article  16  is  deleted  as  it  concerned  obligations  imposed  on  Member  States  in  order  to 
facilitate the transition from the regulatory package of 1998 to the 2002 framework, which are 
now outdated.  

Article  17(3)  is  deleted  as  redundant.  This  information  is  provided  to  the  Commission  by 
national  regulatory  authorities  under  the  “Article  7  procedure”.  Moreover,  the  Commission 
has  the  power  to  submit  reasoned  requests  for  information  to  the  national  regulatory 
authorities (Article 5(2) of the Framework Directive 2002/21/EC). 

Article 18 is deleted as it is no longer necessary to maintain the obligation for a minimum set 
of  leased  lines.  This  obligation  was  justified  at  the  time  of  the  entry  into  force  of  the  2002 
framework since the market was not yet sufficiently competitive at that time. This amendment 
also necessitates the deletion of Annex VII, as well as a minor adjustment to Article 35. 

Article 19 is deleted as redundant. It was included in the Universal Service Directive in order 
to facilitate the transition from the old regulatory framework of 1998 to the 2002 framework. 
Carrier selection and carrier pre-selection are one of the obligations that may be imposed by 
national  regulatory  authorities  on  operators  having  significant  market  power.  Such  access 
obligations are more appropriately handled under the Access Directive 2002/19/EC.  

Article 2: changes to the Directive on privacy and electronic communications 

The aims of the proposed changes are as follows: 

Notification of security breaches by network operators and ISPs 

In Article 4(3): this ensures that end-users are notified about breaches of security resulting in 
their  personal  data  being  lost  or  otherwise  compromised,  and  are  informed  about 
available/advisable  precautions  that  they  may  take  in  order  to  minimise  possible  economic 
loss or social harm that could result from such a security breach. 

In Article 4(4): this ensures a minimum level of harmonisation by granting to the Commission 
the possibility, where appropriate, to adopt technical implementing measures in the areas of 
security and breach notification, drawing on the expert advice provided by the Authority.  

11 

Consideration was  also given  to  the  continuing  appropriateness of  the provisions  in  Annex  VI on  the 
interoperability  of  digital  consumer  equipment.  As  the  examination  is  still  on-going,  however,  the 
availability  of comitology powers  enables  the  Commission  to  amend  these  provisions  in  a  faster way 
(Articles 35 and 37). 

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Improved enforcement mechanisms 

In Article 13(6): this introduces the possibility for, in particular, Internet Service Providers to 
take  legal  action  against  spammers,  which  should  become  an  important  tool  in  the  fight 
against unsolicited commercial communications in Europe.  

In Article 15a: this  enhances  the  implementation  and  enforcement  mechanisms  currently  in 
place,  in  order  to  enable  competent  authorities  to  take  effective  and  efficient  action  against 
infringements.  In  order  to  ensure  harmonised  conditions  for  the  provision  of  services 
involving  cross-border  data  flows,  the  Commission  will  have  the  powers  to  adopt  technical 
implementing measures in this area, drawing on the expert advice provided by the Authority. 

Technical adjustments to the wording of the Directive 

In Article 2(e): this adapts the definition of “call” in order to ensure consistency throughout 
the Regulatory Framework. 

In  Article  3(1):  this  clarifies  that  the  Directive  applies  to  public  communications  networks 
supporting  data  collection  and  identification  devices  (including  contactless  devices  such  as 
Radio Frequency Identification Devices). 

In  Article  5(3):  this  ensures  that  use  of  “spyware”  and  other  malicious  software  remains 
prohibited under EC law, regardless of the method used for its delivery and installation on a 
user’s  equipment  (distribution  through  downloads  from  the  Internet  or  via  external  data 
storage media, such as CD-ROMs, USB sticks, flash drives etc.). 

In Article 14a: this introduces a standard provision for the Committee procedure. 

Removal of outdated or obsolete provisions 

Article  3(2)  and  (3)  are  deleted  as  redundant.  Because  of  technological  progress,  the 
exceptions  justified  by  technical  impossibility  or  disproportionate  economic  effort  will  be 
rendered obsolete by the time the present amendments become effective. 

Article  3:  amendment  to  the  Regulation  (EC)  No  2006/2004  on  consumer  protection 
cooperation 

Concerning protection of consumers against unsolicited commercial communications (spam), 
this  amends  the  Regulation  (EC)  No  2006/2004  of  the  European  Parliament  and  of  the 
Council on cooperation between national authorities responsible for enforcement of consumer 
protection  laws  (Regulation  on  consumer  protection  cooperation12)  so  as  to  reinforce  the 
cross-border  cooperation  and  enforcement  in  line  with  an  existing  Community  mechanism 
laid down by that regulation. 

12 

OJ L 364, 9.12.2004, p. 1. 

EN 

12 

   EN 

 
                                                 
2007/0248 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  

amending Directive 2002/22/EC on universal service and users’ rights relating to 
electronic communications networks, Directive 2002/58/EC concerning the processing of 
personal data and the protection of privacy in the electronic communications sector and 
Regulation (EC) No 2006/2004 on consumer protection cooperation 

(Text with EEA relevance) 

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 Commission13, 

Having regard to the opinion of the European Economic and Social Committee14, 

Having regard to the opinion of the Committee of the Regions15, 

After having consulted the European Data Protection Supervisor16,  

Acting in accordance with the procedure laid down in Article 251 of the Treaty17, 

Whereas: 

(1) 

The functioning of the five directives 2002/19/EC of the European Parliament and of 
the  Council  of  7  March  2002  on  access  to,  and  interconnection  of,  electronic 
communications  networks  and  associated  facilities  (Access  Directive)18,  2002/20/EC 
of the European Parliament and of the Council of 7 March 2002 on the authorisation 
of  electronic  communications  networks  and  services  (Authorisation  Directive)19, 
2002/21/EC  of  the  European  Parliament  and  the  Council  of  7  March  2002  on  a 
common regulatory framework  for  electronic communications networks  and  services 
(Framework Directive)20, 2002/22/EC of the European Parliament and the Council of 
7  March  2002  on  universal  service  and  users'  rights  relating  to  electronic 

13 
14 
15 
16 
17 
18 
19 
20 

OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 
OJ L 108, 24.4.2002, p. 7. 
OJ L 108, 24.4.2002, p. 21. 
OJ L 108, 24.4.2002, p. 33. 

EN 

13 

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(Universal  Service  Directive)21  and 
communications  networks  and  services 
2002/58/EC of the European Parliament and 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 communications)22 which 
constitute the existing regulatory framework for electronic communications networks 
and services 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  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. 

The reform of the EU regulatory framework for electronic communications networks 
and  service,  including  the  reinforcement  of  provisions  for  users  with  disabilities, 
represents a key step towards achieving a Single European Information Space and at 
the  same  time  an  inclusive  information  society.  These  objectives  are  included  in  the 
strategic framework for the development of the information society as described in the 
Commission  Communication  to  the  Council,  the  European  Parliament,  the  European 
Economic and Social Committee and the Committee of the Regions entitled “i2010 — 
A European Information Society for growth and employment”. 

For the sake of clarity and simplicity, the present act only deals with the amendments 
to Directives 2002/22/EC and 2002/58/EC. 

Definitions  need  to  be  adjusted  so  as  to  conform  to  the  principle  of  technology 
neutrality and to keep pace with technological development. In particular, conditions 
for the provision of a service should be separated from the actual definitional elements 
of  a  publicly  available  telephone  service,  i.e.  a  service  available  to  the  public  for 
originating and receiving, directly or indirectly via carrier selection or pre-selection or 
resale, national and/or international calls through a number or numbers in a national or 
international  telephone  numbering  plan.  A  service  which  does  not  fulfil  all  these 
conditions is not a publicly available telephone service. 

It  is  necessary  to  clarify  the  application  of  certain  provisions  to  take  account  of 
situations  where  a  service  provider  resells  or  re-brands  publicly  available  telephone 
services provided by another undertaking. 

As a result of technological and market evolutions, networks are increasingly moving 
to  the  “Internet  Protocol”  (IP)  technology  and  consumers  are  increasingly  able  to 
choose  between  a  range  of  competing  voice  service  providers.  Therefore,  Member 
States  should  be  able  to  separate  universal  service  obligations  concerning  the 
provision  of  a  connection  to  the  public  communications  network  at  a  fixed  location 
from  the  provision  of  a  publicly  available  telephone  service  (including  calls  to 
emergency  services  via  the  number  “112”).  Such  separation  should  not  affect  the 
scope  of  universal  service  obligations  defined  and  reviewed  at  Community  level. 

(2) 

(3) 

(4) 

(5) 

(6) 

(7) 

21 
22 

OJ L 108, 24.4.2002, p. 51. 
OJ L 201, 31.7.2002, p. 37. 

EN 

14 

   EN 

 
                                                 
Member States that use other national emergency numbers besides “112” may impose 
on undertakings similar obligations for access to those national emergency numbers. 

National regulatory authorities should be able to monitor the evolution and the level of 
retail tariffs for services that fall under the scope of universal service obligations even 
when  a  Member  State  has  not  yet  designated  an  undertaking  to  provide  universal 
service.  

Redundant  obligations  designed  to  facilitate  the  transition  from  the  old  regulatory 
framework  of  1998  to  the  one  of  2002  should  be  deleted,  together  with  other 
provisions that overlap with and duplicate those laid down in Directive 2002/21/EC.  

(8) 

(9) 

(10)  The  requirement  to  provide  a  minimum  set  of  leased  lines  at  retail  level,  which  was 
necessary  to  ensure  the  continued  application  of  provisions  of  the  regulatory 
framework  of  1998  in  the  field  of  leased  lines,  which  was  not  yet  sufficiently 
competitive at the time the 2002 framework entered into force, is no longer necessary 
and should be repealed. 

(11)  Continuing  to  impose  carrier  selection  and  carrier  pre-selection  directly  by 
Community  legislation  could  hamper  technological  progress.  These  remedies  should 
rather be imposed by national regulatory authorities as a result of market analysis in 
accordance with the procedures in Directive 2002/21/EC. 

(12)  Providers of electronic communications services should ensure that their customers are 
adequately  informed  as  to  whether  or  not  access  to  emergency  services  is  provided, 
and are given clear and transparent information in the initial customer contract and at 
regular  intervals  thereafter,  for  example  in  customer  billing  information.  Customers 
should  also  be  kept  well  informed  of  possible  actions  that  the  provider  of  electronic 
communications  service  may  take  to  address  security  threats  or  in  response  to  a 
security or integrity incident, since such actions could have a direct or indirect impact 
on the customer’s data, privacy or other aspects of the service provided. 

(13)  The  right  of  subscribers  to  withdraw  from  their  contracts  without  penalty  refers  to 
modifications  in  contractual  conditions  which  are  imposed  by  the  providers  of 
electronic communications networks and/or services. 

(14)  A  competitive  market  should  ensure  that  end-users  are  able  to  access  and  distribute 
any lawful content and to use any lawful applications and/or services of their choice, 
as  stated  in  Article  8  of  Directive  2002/21/EC.  Given  the  increasing  importance  of 
electronic communications for consumers and businesses, users should in any case be 
fully informed of any restrictions and/or limitations imposed on the use of electronic 
communications services by the service and/or network provider. Where there is a lack 
of  effective  competition,  national  regulatory  authorities  should  use  the  remedies 
available  to  them  in  Directive  2002/19/EC  to  ensure  that  users’  access  to  particular 
types of content or applications is not unreasonably restricted. 

(15)  The availability of transparent, up-to-date and comparable tariffs is a key element for 
consumers in competitive markets with several providers offering services. Consumers 
of  electronic  communications  services  should  be  able  to  easily  compare  prices  of 
various  services  offered  on  the  market  based  on  tariff  information  published  in  an 
easily  accessible  form.  In  order  to  allow  them  to  make  price  comparisons  easily, 

EN 

15 

   EN 

 
national  regulatory  authorities  should  have  powers  to  require  from  operators  better 
tariff transparency and to ensure that third parties have the right to use without charge 
publicly  available 
tariffs  published  by  undertakings  providing  electronic 
communications  services.  They  should  also  make  price  guides  available  where  the 
market  has  not  provided  them.  Operators  should  not  be  entitled  to  any  remuneration 
for such use of tariffs which had already been published and thus belong to the public 
domain. In addition, users should be adequately informed of the price involved or the 
type  of  service  offered  before  they  purchase  a  service,  in  particular  if  a  freephone 
number is subject to any additional charges. The Commission should be able to adopt 
technical  implementing  measures  to  ensure  that  end-users  benefit  from  a  consistent 
approach to tariff transparency in the Community. 

(16)  A competitive market should ensure that users are able to have the quality of service 
they  require,  but  in  particular  cases  it  may  be  necessary  to  ensure  that  public 
communications networks attain minimum quality levels so as to prevent degradation 
of  service,  the  blocking  of  access  and  the  slowing  of  traffic  over  the  networks.  In 
particular,  the  Commission  should  be  able  to  adopt  implementing  measures  with  a 
view  to  identifying  the  quality  standards  to  be  used  by  the  national  regulatory 
authorities. 

(17) 

In future IP networks where provision of a service may be separated from provision of 
the network, Member States should determine the most appropriate steps to be taken to 
ensure the availability of publicly available telephone services provided using public 
communications networks and uninterrupted access to emergency services in the event 
of catastrophic network breakdown or in cases of force majeure. 

(18)  Operator  assistance  services  cover  a  range  of  different  services  for  end-users.  The 
provision  of  such  services  should  be  left  to  commercial  negotiations  between 
providers  of  public  communications  networks  and  operator  assistance  services,  as  is 
the  case  for  any  other  customer  support  service,  and  there  is  no  need  to  continue  to 
mandate their provision. Therefore, the corresponding obligation should be repealed. 

(19)  End-users should be able to call and access the emergency services provided using any 
telephone service capable of  originating voice calls through a number or numbers in 
the national or international telephone numbering plans. Emergency authorities should 
be able to handle and answer calls to the number “112” at least as expeditiously and 
effectively  as  calls  to  other  national  emergency  numbers.  It  is  important  to  increase 
awareness of “112” in order to improve the level of protection and security of citizens 
travelling in the European Union. To this end, citizens should be made fully aware that 
“112”  can  be  used  as  a  single  emergency  number  when  travelling  in  any  Member 
States, in particular through information provided in international bus terminals, train 
stations, ports or airports and in telephone directories, payphone kiosks, subscriber and 
billing  material.  The  obligation  to  provide  caller  location  information  should  be 
strengthened  so  as  to  increase  the  protection  of  citizens  of  the  European  Union.  In 
particular, operators should provide caller location information to emergency services 
in a “push” mode. In order to respond to technological developments, including those 
leading  to  increasingly  precise  accuracy  of  location  information,  the  Commission 
should  be  able  to  adopt  technical  implementing  measures  in  order  to  ensure  the 
effective implementation of “112” in the Community for the benefit of citizens of the 
European Union. 

EN 

16 

   EN 

 
(20)  Member  States  should  take  specific  measures  to  ensure  that  emergency  services, 
including “112”, are equally accessible to disabled persons, in particular deaf, hearing-
impaired,  speech-impaired  and  deaf-blind  users.  This  could  involve  the  provision  of 
special terminal devices to hearing-impaired users, text relay services, or other specific 
equipment. 

(21)  The  countries  to  which  the  International  Telecommunications  Union  assigned  the 
international  code  “3883”  have  delegated  administrative  responsibility  for  the 
European  Telephony  Numbering  Space  (ETNS)  to  the  electronic  communications 
committee  (ECC)  of  the  European  Conference  of  Postal  and  Telecommunications 
Administrations  (CEPT).  Technological  and  market  developments  show  that  ETNS 
represents an opportunity for pan-European services to develop, but that it is currently 
prevented from realising its potential by overly bureaucratic procedural requirements 
and  a  lack  of  coordination  between  national  administrations.  In  order  to  foster  the 
development of ETNS, its administration (which includes assignment, monitoring and 
development)  should  be  transferred  to  the  European  Electronic  Communications 
Market Authority established by Regulation (EC) No…/… of the European Parliament 
and of the Council of […]23, hereinafter referred to as “the Authority”. The Authority 
should ensure coordination with those countries that share “3883” but are not Member 
States on behalf of the Member States to which “3883” has been assigned. 

(22)  A single market implies that end-users are able to access all numbers included in the 
national  numbering  plans  of  other  Member  States,  and  to  access  services,  including 
Information  Society  services,  using  non-geographic  numbers  within  the  Community, 
including among others freephone and premium rate numbers. End-users should also 
be  able  to  access  numbers  from  the  European  Telephone  Numbering  Space  (ETNS) 
and  universal  international  freephone  numbers  (UIFN).  Cross-border  access  to 
numbering resources and to the associated service should not be prevented except in 
objectively justified cases, such as when this is necessary to combat fraud, and abuse 
e.g. in connection with certain premium-rate services, or when the number is defined 
as  having  a  national  scope  only  (e.g.  national  short  code).  Users  should  be  fully 
informed  in  advance  in  a  clear  manner  of  any  charges  applicable  to  freephone 
numbers,  such  as  international  call  charges  for  numbers  accessible  through  standard 
international dialling codes. In order to ensure that end-users have effective access to 
numbers  and  services  in  the  Community,  the  Commission  should  be  able  to  adopt 
implementing measures. 

(23) 

In order to take full advantage of the competitive environment, consumers should be 
able to make informed choices and to change providers when it is in their interest. It is 
essential  to  ensure  that  they  can  do  so  without  being  hindered  by  legal,  technical  or 
practical  obstacles,  including  contractual  conditions,  procedures,  charges  etc.  This 
does  not  preclude  imposing  reasonable  minimum  contractual  periods  in  consumer 
contracts.  Number  portability  is  a  key  facilitator  of  consumer  choice  and  effective 
competition  in  competitive  markets  for  electronic  communications,  and  should  be 
implemented  with  the  minimum  of  delay.  In  order  to  be  able  to  adapt  number 
portability  to  market  and  technological  evolution,  including  the  possible  porting  of 
subscriber’s personal directories and profile information stored within the network, the 
Commission  should  be  able  to  take  technical  implementing  measures  in  this  area. 

23 

OJ C […], […], p. […]. 

EN 

17 

   EN 

 
                                                 
Assessment  of  whether  technology  and  market  conditions  are  such  as  to  allow  for 
porting  of  numbers  between  networks  providing  services  at  a  fixed  location  and 
mobile networks should in particular take into account prices for users and switching 
costs for undertakings providing services at fixed locations and mobile networks. 

(24)  A  television  broadcast  is  a  linear  audiovisual  media  service  as  defined  in  the 
Audiovisual Media Services Directive of the European Parliament and of the Council 
of [….] 2007, which is provided by a media service provider for simultaneous viewing 
of programmes on the basis of a programme schedule; a media service provider may 
provide  a  number  of  audio  or  audio  visual  programme  schedules  (channels).  Legal 
“must-carry”  obligations  may  be  applied,  but  only  to  specified  broadcast  channels 
supplied by a specified media service provider. Member States should provide a clear 
justification for the “must carry” obligations in their national law so as to ensure that 
such  obligations  are  transparent,  proportionate  and  properly  defined.  In  that  regard, 
“must  carry”  rules  should  be  designed  in a  way  which  provides  sufficient  incentives 
for  efficient  investment  in  infrastructure.  “Must  carry”  rules  should  be  periodically 
reviewed in order to keep them up-to-date with technological and market evolution in 
order to ensure that they continue to be proportionate to the objectives to be achieved. 
Given the rapid change in technology and market conditions such a full review would 
need  to  be  carried  out  at  least  every  three  years  and  would  require  a  public 
consultation  of  all  stakeholders.  One  or  more  broadcast  channels  may  be 
complemented by services to improve accessibility for users with disabilities, such as 
a videotext service, subtitling service, an audio description or sign language. 

(25) 

In  order  to  overcome  existing  shortcomings  in  terms  of  consumer  consultation  and 
appropriately  address  the  interests  of  citizens,  Member  States  should  put  in  place  an 
appropriate consultation mechanism. Such a mechanism could take the form of a body 
which  would,  independently  from  the  national  regulatory  authority  as  well  as  from 
service  providers,  carry  out  research  on  consumer-related  issues,  such  as  consumer 
behaviour  and  mechanisms  for  changing  suppliers,  and  which  would  operate  in  a 
transparent  manner  and  contribute  to  the  existing  mechanisms  for  stakeholders’ 
consultation. Where there is a need to address the facilitation of the access to and use 
of electronic communications services and terminal equipment for disabled users, and 
without  prejudice  to  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  conformity24  and  in  particular  the 
disability requirements pursuant to its Article 3(3)(f), the Commission should be able 
to adopt implementing measures. 

(26)  Obligations  imposed  on  an  undertaking  designated  as  having  universal  service 

obligations should be notified to the Commission. 

(27)  Liberalisation of electronic communications networks and services markets and rapid 
technological development have combined to boost competition and economic growth 
and  resulted  in  a  rich  diversity  of  end-user  services  accessible  via  public  electronic 
communications  networks.  There  is  a  need  to  ensure  that  consumers  and  users  are 

24 

OJ  L  91,  7.4.1999,  p.  10.  Directive  as  amended  by  Regulation  (EC)  No  1882/2003  of  the  European 
Parliament and of the Council (OJ L 284, 31.10.2003, p. 1). 

EN 

18 

   EN 

 
                                                 
afforded  the  same  level  of  protection  of  privacy  and  personal  data,  regardless  of  the 
technology used to deliver a particular service. 

(28)  Technological progress allows the development of new applications based on devices 
for  data  collection  and  identification,  which  may  be  contactless  devices  using  radio 
frequencies.  For  example,  Radio  Frequency  Identification  Devices  (RFID)  use  radio 
frequencies  to  capture  data  from  uniquely  identified  tags,  which  can  then  be 
transferred  over  existing  communications  networks.  The  wide  use  of  such 
technologies  can  bring  considerable  economic  and  social  benefits  and  thus  make  a 
powerful  contribution  to  the  internal  market  if  their  use  is  acceptable  to  citizens.  To 
achieve  that,  it  is  necessary  to  ensure  that  the  fundamental  rights  of  individuals,  in 
particular the right to privacy and data protection, are safeguarded. When such devices 
are connected to publicly available electronic communications networks or make use 
of electronic communications services as a basic infrastructure, the relevant provisions 
of Directive 2002/58/EC, including those on security, traffic and location data and on 
confidentiality, should apply. 

(29)  A  breach  of  security  resulting  in  the  loss  or  compromising  personal  data  of  an 
individual subscriber may, if not addressed in an adequate and timely manner, result in 
substantial  economic  loss  and  social  harm,  including  identity  fraud.  Therefore, 
subscribers concerned by such security incidents should be notified without delay and 
informed in order to be able to take the necessary precautions. The notification should 
include  information  about  measures  taken  by  the  provider  to  address  the  breach,  as 
well as recommendations for the users affected. 

(30)  National  regulatory  authorities  should  promote  the  interests  of  the  citizens  of  the 
European  Union  by  inter  alia  contributing  to  ensuring  a  high  level  of  protection  of 
personal data and privacy. To this end, they must have the necessary means to perform 
their duties, including comprehensive and reliable data about actual security incidents 
that have led to the personal data of individuals being compromised. 

(31)  Provision  should  be  made  for  implementing  measures  to  establish  a  common  set  of 
requirements  to  achieve  an  adequate  level  of  privacy  protection  and  security  of 
personal  data  transmitted  or  processed  in  connection  with  the  use  of  electronic 
communications networks in the internal market. 

(32) 

In  setting  detailed  rules  concerning  the  format  and  procedures  applicable  to  the 
notification  of  security  breaches,  due  consideration  should  be  given  to  the 
circumstances  of  the  breach,  including  whether  or  not  the  personal  data  had  been 
protected by encryption or other means, effectively limiting the likelihood of identity 
fraud or other forms of misuse. Moreover, such rules and procedures should take into 
account  the  legitimate  interests  of  law  enforcement  authorities  in  cases  where  early 
disclosure  could  unnecessarily  hamper  the  investigation  of  the  circumstances  of  a 
breach. 

(33)  The Authority can contribute to the enhanced level of protection for personal data and 
privacy  in  the  Community  by,  among  other  things,  providing  expertise  and  advice, 
promoting  the  exchange  of  best  practices  in  risk  management,  and  establishing 
common  methodologies  for  risk  assessment.  In  particular,  it  should  contribute  to 
harmonisation of appropriate technical and organisational security measures. 

EN 

19 

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(34)  Software that surreptitiously monitors actions of the user and/or subverts operation of 
the  user’s  terminal  equipment  for  the  benefit  of  a  third  party  (so-called  “spyware”) 
poses  a  serious  threat  to  users’  privacy.  A  high  and  equal  level  of  protection  of  the 
private  sphere  of  users  needs  to  be  ensured,  regardless  of  whether  unwanted  spying 
programmes are inadvertently downloaded via electronic communications networks or 
are delivered and installed hidden in software distributed on other external data storage 
media, such as CDs, CD-ROMs, USB keys. 

(35)  Electronic communications service providers have to make substantial investments in 
order to combat unsolicited commercial communications (“spam”). They are also in a 
better position than end-users in possessing the knowledge and resources necessary to 
detect  and  identify  spammers.  Email  service  providers  and  other  service  providers 
should therefore have the possibility to initiate legal action against spammers and thus 
defend  the  interests  of  their  customers,  as  well  as  their  own  legitimate  business 
interests. 

(36)  The  need  to  ensure  an  adequate  level  of  protection  of  privacy  and  personal  data 
transmitted  and  processed  in  connection  with  the  use  of  electronic  communications 
networks  in  the  Community  calls  for  effective  implementation  and  enforcement 
powers  in  order  to  provide  adequate  incentives  for  compliance.  National  regulatory 
authorities  should  have  sufficient  powers  and  resources  to  investigate  cases  of  non-
compliance  effectively,  including  the  possibility  to  obtain  any  relevant  information 
they  might  need,  to  decide  on  complaints  and  to  impose  sanctions  in  cases  of  non-
compliance. 

(37)  Cross  border cooperation and enforcement  should  be reinforced  in line  with existing 
Community  cross  border  enforcement  mechanisms  such  as  that  laid  down  by  the 
Regulation  (EC)  No  2006/2004  of  the  European  Parliament  and  of  the  Council  on 
cooperation  between  national  authorities  responsible  for  enforcement  of  consumer 
protection  laws  (Regulation  on  consumer  protection  cooperation)25  by  way  of  an 
amendment to that regulation. 

(38)  The measures necessary for the implementation of the Universal Service Directive and 
the  Directive  on  privacy  and  electronic  communications  should  be  adopted  in 
accordance  with  Council  Decision  1999/468/EC  of  28  June  1999  laying  down  the 
procedures for the exercise of implementing powers conferred on the Commission.  

(39) 

In  particular  power  should  be  conferred  on  the  Commission  to  adopt  implementing 
measures  on  tariff  transparency,  minimum  quality  of  service  requirements,  effective 
implementation  of  “112”  services,  effective  access  to  numbers  and  services, 
improvement  of  accessibility  by  disabled  end-users  as  well  as  amendments  to  adapt 
the  Annexes  to  technical  progress  or  changes  in  market  demand.  This  power  should 
also  be  conferred  to  adopt  implementing  measures  concerning  information  and 
notification  requirements  as  well  as  cross-border  cooperation.  Since  those  measures 
are  of  a  general  scope  and  are  designed  to  supplement  this  Directive  by  adding  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  the  regulatory  procedure 

25 

OJ L 364, 9.12.2004, p. 1. 

EN 

20 

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with  scrutiny  cannot  be  complied  with,  the  Commission  should  be  able  to  use  the 
urgency procedure provided for in Article 5a(6) of the Decision. 

(40)  Directives 2002/22/EC and 2002/58/EC should therefore be amended accordingly. 

HAVE ADOPTED THIS DIRECTIVE: 

Article 1 

Amendments to Directive 2002/22/EC (Universal Service Directive) 

Directive 2002/22/EC (Universal Service Directive) is amended as follows: 

(1) 

Article 1 is replaced by the following: 

‘Article 1 
Subject-matter and scope 

1.  Within  the  framework  of  Directive  2002/21/EC  (Framework  Directive),  this 
Directive  concerns  the  provision  of  electronic  communications  networks  and 
services  to  end-users.  The  aim  is  to  ensure  the  availability  throughout  the 
Community  of  good  quality  publicly  available  services  through  effective 
competition and choice and to deal with circumstances  in which the needs of 
end-users are not satisfactorily met by the market. This Directive also includes 
provisions concerning consumer premises terminal equipment. 

2. 

This  Directive  establishes  the  rights  of  end-users  and  the  corresponding 
obligations  on  undertakings  providing  publicly  available  electronic 
communications  networks  and  services.  With  regard  to  ensuring  provision  of 
universal service within an environment of open and competitive markets, this 
Directive defines the minimum set of services of specified quality to which all 
end-users  have  access,  at  an  affordable  price  in  the  light  of  specific  national 
conditions,  without  distorting  competition.  This  Directive  also  sets  out 
obligations with regard to the provision of certain mandatory services.’  

(2) 

In Article 2: 

(a) 

Point (b) is deleted. 

(b) 

Point (c) is replaced by the following: 

‘(c) 
“publicly available telephone service” means a service available to the 
public for originating and receiving, directly or indirectly via carrier selection 
or pre-selection or resale, national and/or international calls through a number 
or numbers in a national or international telephone numbering plan;’ 

(3) 

Article 4 is replaced by the following: 

EN 

21 

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‘Article 4 
Provision of access at a fixed location and provision of telephone services 

1.  Member  States  shall  ensure  that  all  reasonable  requests  for  connection  at  a 
fixed  location  to  a  public  communications  network  are  met  by  at  least  one 
undertaking.  

2. 

The  connection  provided  shall  be  capable  of  supporting  voice,  facsimile  and 
data  communications,  at  data  rates  that  are  sufficient  to  permit  functional 
Internet  access,  taking  into  account  prevailing  technologies  used  by  the 
majority of subscribers and technological feasibility. 

3.  Member  States  shall  ensure  that  all  reasonable  requests  for  provision  of  a 
telephone  service  over  the  network  connection  referred  to  in  paragraph  1, 
allowing originating and receiving of national and international calls and calls 
to  emergency  services  via  the  number  “112”,  are  met  by  at  least  one 
undertaking.’ 

(4) 

In Article 5, paragraph 2 is replaced by the following: 

‘2.  The  directories  in  paragraph  1  shall  comprise,  subject  to  the  provisions  of 
Article  12  of  Directive  2002/58/EC,  all  subscribers  of  publicly  available 
telephone services.’ 

(5) 

Article 7 is replaced by the following: 

‘Article 7 
Special measures for disabled users 

1.  Member States shall take specific measures for disabled end-users in order to 
ensure  access  to  and  affordability  of  publicly  available  telephone  service, 
including  access  to emergency  services,  directory  enquiry  services  and 
directories, equivalent to that enjoyed by other end-users. 

2.  Member States shall take specific measures, in the light of national conditions, 
to  ensure  that  disabled  end-users  can  also  take  advantage  of the  choice  of 
undertakings and service providers available to the majority of end-users.’ 

(6) 

In Article 8, the following paragraph 3 is added: 

‘3.  When  an  operator  designated  in  accordance  with  paragraph  1  intends  to 
dispose  of  a  substantial  part  or  all  of  its  local  access  network  assets  to  a 
separate legal entity under different ownership, it shall inform in advance the 
national regulatory authority in a timely manner, in order to allow the national 
regulatory  authority  to  assess  the  effect  of  the  intended  transaction  on  the 
provision  of  access  at  a  fixed  location  and  of  telephone  services  pursuant  to 
Article  4.  The  national  regulatory  authority  may  impose  conditions  in 
accordance  with  Article  6(2)  of  Directive  2002/20/EC  (Authorisation 
Directive).’ 

(7) 

In Article 9, paragraphs 1, 2 and 3 are replaced by the following: 

EN 

22 

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‘1.  National  regulatory  authorities  shall  monitor  the  evolution  and  level  of  retail 
tariffs  of  the  services  identified  in  Articles  4,  5,  6  and  7  as  falling  under  the 
universal service obligations and provided by designated undertakings, or if no 
undertakings are designated in relation to those services, otherwise available in 
the market, in particular in relation to national consumer prices and income. 

2.  Member States may, in the light of national conditions, require that designated 
undertakings  provide  tariff  options  or  packages  to  consumers  which  depart 
from  those  provided  under  normal  commercial  conditions,  in  particular  to 
ensure that those on low incomes or with special social needs are not prevented 
from  accessing  or  using  the  network  access referred  to  in  Article  4(1),  or  the 
services  identified  in  Articles  4(3),  5,  6  and  7  as  falling  under  the  universal 
service obligations and provided by designated undertakings. 

3.  Member  States  may,  besides  any  provision  for  designated  undertakings  to 
provide  special  tariff  options  or  to  comply  with  price  caps  or  geographical 
averaging  or  other  similar  schemes,  ensure  that  support  is  provided  to 
consumers identified as having low incomes, disability or special social needs.’ 

(8) 

The title of Chapter III is replaced by the following: 

‘REGULATORY CONTROLS ON UNDERTAKINGS WITH SIGNIFICANT 
MARKET POWER IN SPECIFIC RETAIL MARKETS’ 

(9) 

Article 16 is deleted. 

(10) 

Article 17 is amended as follows: 

(a) 

Paragraph 1 is replaced by the following: 

‘1.  Member  States  shall  ensure  that  national  regulatory  authorities  impose 
appropriate  regulatory  obligations  on  undertakings  identified  as  having 
significant market power on a given retail market in accordance with Article 14 
of Directive 2002/21/EC (Framework Directive): 

(a) 
where  as  a  result  of  a  market  analysis  carried  out  in  accordance  with 
Article  16  of  Directive  2002/21/EC  (Framework  Directive)  a  national 
regulatory  authority  determines  that  a  given  retail  market  identified  in 
accordance with Article 15 of Directive 2002/21/EC (Framework Directive) is 
not effectively competitive, and 

where  the  national  regulatory  authority  concludes  that  obligations 
(b) 
imposed  under  Directive 2002/19/EC  (Access  Directive),  would  not  result  in 
the achievement of the objectives set out in Article 8 of Directive 2002/21/EC 
(Framework Directive).’ 

(b) 

Paragraph 3 is deleted. 

(11) 

Articles 18 and 19 are deleted. 

EN 

23 

   EN 

 
(12) 

Articles 20 and 21 are replaced by the following: 

‘Article 20 
Contracts 

1. 

This  Article  shall  apply  without  prejudice  to  Community  rules  on  consumer 
protection, in particular Directives 93/13/EC and 97/7/EC, and national rules in 
conformity with Community law. 

2.  Member  States  shall  ensure  that,  where  subscribing  to  services  providing 
connection  to  a  public  communications  network  and/or  publicly  available 
telephone services, consumers have a right to a contract with an undertaking or 
undertakings  providing  such  services  and/or  connection.  The  contract  shall 
specify at least: 

(a) 

the identity and address of the supplier; 

the services provided, the service quality levels offered, as well as the 

(b) 
time for the initial connection; 

(c) 

the types of maintenance service offered; 

particulars  of  prices  and  tariffs  and  the  means  by  which  up-to-date 
(d) 
information on all applicable tariffs and maintenance charges may be obtained; 

(e) 
the duration of the contract, the conditions for renewal and termination 
of services and of the contract, including direct costs for portability of numbers 
and other identifiers; 

any  compensation  and  the  refund  arrangements  which  apply  if 

(f) 
contracted service quality levels are not met;  

the  method  of  initiating  procedures  for  settlement  of  disputes  in 

(g) 
accordance with Article 34; 

(h) 
the action that might be taken by the undertaking providing connection 
and/or  services  in  reaction  to  security  or  integrity  incidents  or  threats  and 
vulnerabilities. 

Member States may extend these obligations to cover other end-users. 

3. 

The  information  listed  in  paragraph  2  shall  also  be  included  in  contracts 
concluded  between  consumers  and  electronic  communications  services 
providers  other  than  those  providing  connection  to  a  public  communications 
network  and/or  publicly  available  telephone  services.  Member  States  may 
extend this obligation to cover other end-users. 

4.  Member  States  shall  ensure  that  where  contracts  are  concluded  between 
subscribers  and  undertakings  providing  electronic  communications  services 
that  allow  voice  communication,  subscribers  are  clearly  informed  whether  or 
not  access  to  emergency  services  is  provided.  Providers  of  electronic 

EN 

24 

   EN 

 
communications  services  shall  ensure  that  customers  are  clearly  informed  of 
the  lack  of  access  to  emergency  services  in  advance  of  the  conclusion  of  a 
contract and regularly thereafter. 

5.  Member  States  shall  ensure  that  where  contracts  are  concluded  between 
subscribers  and  undertakings  providing  electronic  communications  services 
and/or networks, subscribers are clearly informed in advance of the conclusion 
of  a  contract  and  regularly  thereafter  of  any  limitations  imposed  by  the 
provider on their ability to access or distribute lawful content or run any lawful 
applications and services of their choice.  

6.  Member  States  shall  ensure  that  where  contracts  are  concluded  between 
subscribers  and  undertakings  providing  electronic  communications  services 
and/or networks, subscribers are clearly informed in advance of the conclusion 
of the contract and regularly thereafter of their obligations to respect copyright 
and  related  rights.  Without  prejudice  to  Directive  2000/31/EC  on  electronic 
commerce,  this  includes  the  obligation  to  inform  subscribers  of  the  most 
common acts of infringements and their legal consequences. 

7. 

Subscribers shall have a right to withdraw from their contracts without penalty 
upon  notice  of  modifications  in  the  contractual  conditions  proposed  by 
operators.  Subscribers  shall  be  given  adequate  notice,  not  shorter  than  one 
month, ahead of any such modifications and shall be informed at the same time 
of their right to withdraw, without penalty, from such contracts, if they do not 
accept the new conditions. 

Article 21 
Transparency and publication of information 

1.  Member States shall ensure that transparent, comparable, adequate and up-to-
date  information  on  applicable  prices  and  tariffs,  and  on  standard  terms  and 
conditions, in respect of access to and use of the services identified in Articles 
4, 5, 6, and 7 is available to end-users and consumers, in accordance with the 
provisions of Annex II. 

2.  Member  States  shall  ensure  that  undertakings  providing  public  electronic 
communications  networks  and/or  services  publish  comparable,  adequate  and 
up-to-date information on applicable prices and tariffs in respect of access and 
use  of  their  services  provided  to  consumers.  Such  information  shall  be 
published in an easily accessible form. 

3.  National regulatory authorities shall encourage the provision of information to 
enable end-users and consumers to make an independent evaluation of the cost 
of  alternative  usage  patterns,  by  means  of  interactive  guides  or  similar 
techniques.  Member  States  shall  ensure  that  national  regulatory  authorities 
make such guides or techniques available, when these are not available on the 
market.  Third  parties  shall  have  a  right  to  use  without  charge  the  tariffs 
published  by  undertakings  providing  electronic  communications  networks 
and/or services, for the purposes of selling or making available such interactive 
guides or similar techniques.  

EN 

25 

   EN 

 
4.  Member  States  shall  ensure  that  national  regulatory  authorities  are  able  to 
oblige  undertakings  providing  electronic  communications  services  to  provide 
applicable tariff information to customers at the time and point of purchase to 
ensure that customers are fully informed of pricing conditions. 

5.  Member  States  shall  ensure  that  national  regulatory  authorities  are  able  to 
oblige  undertakings  providing  electronic  communications  services  and/or 
networks  to  provide  information  required  in  accordance  with  Article  20(5)  to 
customers in a clear, comprehensive and easily accessible form. 

6. 

In  order  to  ensure  that  end-users  can  benefit  from  a  consistent  approach  to 
tariff  transparency,  as  well  as  to  the  provision  of  information  in  accordance 
with Article 20(5) in the Community, the Commission may, having consulted 
the  European  Electronic  Communications  Market  Authority  (hereinafter 
referred  to  as  “the  Authority”),  take  the  appropriate  technical  implementing 
measures  in  this  area,  such  as  specify  the  methodology  or  procedures.  Those 
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  37(2).  On  imperative  grounds  of  urgency, 
the Commission may use the urgency procedure referred to in Article 37(3).’ 

(13) 

Article 22 is amended as follows: 

(a) 

Paragraph 1 is replaced by the following: 

‘1.  Member States shall ensure that national regulatory authorities are, after taking 
account  of  the  views  of  interested  parties,  able  to  require  undertakings  that 
provide publicly available electronic communications networks and/or services 
to  publish  comparable,  adequate  and  up-to-date  information  for  end-users  on 
the quality of their services, including equivalent access for disabled end-users. 
The  information  shall,  on  request,  also  be  supplied  to  the  national  regulatory 
authority in advance of its publication.’ 

(b) 

The following paragraph 3 is added: 

‘3. 

In order to prevent degradation of service and slowing of traffic over networks, 
the  Commission  may,  having  consulted  the  Authority,  adopt  technical 
implementing  measures  concerning  minimum  quality  of  service  requirements 
to be set by the national regulatory authority on undertakings providing public 
communications  networks.  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  37(2).  On 
imperative  grounds  of  urgency,  the  Commission  may  use  the  urgency 
procedure referred to in Article 37(3).’  

EN 

26 

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(14) 

Article 23 is replaced by the following: 

‘Article 23 
Availability of services 

Member  States  shall  take  all  necessary  steps  to  ensure  the  availability  of 
publicly  available  telephone  services  provided  over  public  communications 
networks in the event of catastrophic network breakdown or in cases of force 
majeure.  Member  States  shall  ensure  that  undertakings  providing  publicly 
available  telephone  services  take  all  reasonable  steps  to  ensure  uninterrupted 
access to emergency services.’ 

(15) 

Article 25 is amended as follows: 

(a) 

The title is replaced by the following: 

‘Telephone directory enquiry services’ 

(b) 

Paragraph 3 is replaced by the following: 

‘3.  Member  States  shall  ensure  that  all  end-users  provided  with  a  publicly 
available telephone service can access directory enquiry services in accordance 
with Article 5(1)(b).’ 

(c) 

Paragraph 5 is replaced by the following:  

‘5.  Paragraphs 1, 2, 3 and 4 shall apply subject to the requirements of Community 
legislation  on  the  protection  of  personal  data  and  privacy  and,  in  particular, 
Article 12 of Directive 2002/58/EC.’ 

(16) 

Articles 26, 27 and 28 are replaced by the following:  

‘Article 26 
Emergency services and the single European emergency call number 

1.  Member  States  shall  ensure  that,  in  addition  to  any  other  national  emergency 
call  numbers  specified  by  the  national  regulatory  authorities,  all  end-users  of 
services  referred  to  in  paragraph  2,  including  users  of  public  pay  telephones, 
are able to call the emergency services free of charge and without having to use 
any  means  of  payment,  by  using  the  single  European  emergency  call  number 
“112”. 

2.  Member  States  shall  ensure  that  undertakings  providing  a  service  for 
originating national and/or international calls through a number or numbers in 
a  national  or  international  telephone  numbering  plan  provide  access  to 
emergency services. 

3.  Member  States  shall  ensure  that  calls  to  the  single  European  emergency  call 
number ”112” are appropriately answered and handled in a manner best suited 
to  the  national  organisation  of  emergency  systems.  Such  calls  shall  be 

EN 

27 

   EN 

 
answered  and  handled  at  least  as  expeditiously  and  effectively  as  calls  to 
national emergency number or numbers, where these continue in use. 

4.  Member  States  shall  ensure  that  disabled  end-users  are  able  to  access 
emergency  services.  In  order  to  ensure  that  disabled  end-users  are  able  to 
access  emergency  services  while  travelling  in  other  Member  States,  the 
measures  taken  may  include  ensuring  compliance  with  relevant  standards  or 
specifications  published  in  accordance  with  the  provisions  of  Article  17  of 
Directive 2002/21/EC (Framework Directive).  

5.  Member States  shall ensure that caller  location  information  is  made  available 
free  of  charge  to  authorities  handling  emergencies  for  all  calls  to  the  single 
European emergency call number “112”.  

Member  States  shall  require  that  caller  location  information  is  automatically 
provided as soon as the emergency call reaches the authority dealing with the 
emergency. 

6.  Member  States  shall  ensure  that  citizens  are  adequately  informed  about  the 
existence  and  use  of  the  single  European  emergency  call  number  “112”,  in 
particular  through  initiatives  specifically  targeting  persons  travelling  between 
Member States. Member States shall submit a yearly report to the Commission 
and the Authority on the measures taken in that respect. 

7. 

In  order  to  ensure  the  effective  implementation  of  “112”  services  in  the 
Member  States,  including  access  for  disabled  end-users  when  travelling  in 
other  Member  States,  the  Commission,  having  consulted  the  Authority,  may 
adopt technical implementing measures. 

Those 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  37(2).  On  imperative  grounds  of  urgency, 
the Commission may use the urgency procedure referred to in Article 37(3). 

Article 27 
European telephone access codes 

1.  Member  States  shall  ensure  that  the  “00”  code  is  the  standard  international 
access code. Special arrangements for making calls between adjacent locations 
across  borders  between  Member  States  may  be  established  or  continued.  The 
end-users 
informed  of 
locations  concerned  shall  be 
the 
such arrangements.  

fully 

in 

2. 

Those Member States to which the ITU assigned the international code “3883” 
shall  entrust  the  Authority  with  sole  responsibility  for  management  of  the 
European Telephony Numbering Space. 

3.  Member States shall ensure that all undertakings that provide publicly available 
telephone  services  handle  all  calls  to  and  from  the  European  telephony 
numbering space, at rates that do not exceed the maximum rate they apply for 
calls to and from other Member States. 

EN 

28 

   EN 

 
Article 28 
Access to numbers and services 

1.  Member  States  shall  ensure  that  national  regulatory  authorities  take  all 

necessary steps to ensure that:  

end-users  are  able  to  access  and  use  services,  including  information 

(a) 
society services, provided within the Community; and 

(b) 
end-users  are  able  to  access  all  numbers  provided  in  the  Community, 
including those in the national numbering plans of Member States, those from 
the  European  Telephone  Numbering  Space  and  Universal  International 
Freephone Numbers. 

National  regulatory  authorities  shall  be  able  to  block  on  a  case-by-case  basis 
access  to  numbers  or  services  where  this  is  justified  by  reasons  of  fraud  or 
misuse. 

2. 

In order to ensure that end users have effective access to numbers and services 
in  the  Community,  the  Commission  may,  having  consulted  the  Authority, 
adopt  technical  implementing  measures.  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 
37(2).  On  imperative  grounds  of  urgency,  the  Commission  may  use  the 
urgency procedure referred to in Article 37(3). 

Any  such  technical  implementing  measure  may  be  periodically  reviewed  to 
take account of market and technological developments.’ 

(17) 

Article 29 is amended as follows: 

(a) 

Paragraph 1 is replaced by the following: 

‘1.  Member  States  shall  ensure  that  national  regulatory  authorities  are  able  to 
require  all undertakings  that  operate  publicly  available  telephone  services 
and/or  public  communications  networks  to  make  available  to  end-users 
additional facilities listed in Annex I, Part B, subject to technical feasibility and 
economic viability.’ 

(b) 

Paragraph 3 is replaced by the following:  

‘3.  Without prejudice to Article 10(2), Member States may impose the obligations 
in  Annex I,  Part A,  point  (e),  concerning  disconnection  as  a  general 
requirement  on  all  undertakings  providing  access  to  public  communications 
networks and/or publicly available telephone services.’ 

EN 

29 

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(18) 

Article 30 is replaced by the following: 

‘Article 30 
Facilitating change of supplier  

1.  Member States shall ensure that all subscribers with numbers from the national 
numbering plan who so request can retain their number(s) independently of the 
undertaking providing the service in accordance with the provisions of Annex 
I, part C. 

2.  National  regulatory  authorities  shall  ensure  that  pricing  between  operators 
related  to  the  provision  of  number  portability  is  cost  oriented  and  that  direct 
charges to subscribers, if any, do not act as a disincentive for the use of these 
facilities. 

3.  National regulatory authorities shall not impose retail tariffs for the porting of 
numbers in a manner that would distort competition, such as by setting specific 
or common retail tariffs. 

4. 

5. 

Porting of numbers and their subsequent activation shall be executed within the 
shortest possible delay, no later than one working day from the initial request 
by the subscriber. 

The Commission may, having consulted the Authority and taking into account 
technology  and  market  conditions,  amend  Annex  I  in  accordance  with  the 
procedure referred to in Article 37(2). 

Such an amendment may, in particular provide for:  

(a) 

the portability of numbers between fixed and mobile networks; 

(b) 
the  portability  of  subscriber  identifiers  and  related  information,  in 
which  case  the  provisions  of  paragraphs  2,  3  and  4  shall  also  apply  to  these 
identifiers. 

6.  Without  prejudice  to  any  minimum  contractual  period,  national  regulatory 
authorities  shall  ensure  that  conditions  and  procedures  for  termination  of 
contract do not act as a disincentive for changing suppliers of services.’ 

(19) 

In Article 31, paragraph 1 is replaced by the following: 

‘1.  Member  States  may  impose  reasonable  “must  carry”  obligations,  for  the 
transmission  of  specified  radio  and  television  broadcast  channels  and 
accessibility  services,  on  undertakings  under  their  jurisdiction  providing 
electronic  communications  networks  used  for  the  distribution  of  radio  or 
television broadcasts to the public where a significant number of end-users of 
such networks use them as their principal means to receive radio and television 
broadcasts. Such obligations shall only be imposed where they are necessary to 
meet  general  interest  objectives  as  clearly  and  specifically  defined  by  each 
Member State in its national law and shall be proportionate and transparent.  

EN 

30 

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The  obligations  referred  to  in  the  first  subparagraph  shall  be  reviewed  by  the 
Member States at the latest within one year of <time-limit for implementation 
of  the  amending  act>,  except  where  Member  States  have  carried  out  such  a 
review within the previous 2 years.  

Member  States  shall  review  “must  carry”  obligations  at  least  every  three 
years.’ 

(20) 

Article 33 is amended as follows: 

(a) 

In paragraph 1 , the following second sub-paragraph is added: 

‘In  particular,  Member  States  shall  ensure  that  national  regulatory  authorities 
establish  a  consultation  mechanism  ensuring  that  in  their  decision-making 
process  due  consideration  is  given  to  consumer  interests  in  electronic 
communications.’ 

(b) 

The following paragraphs 3 and 4 are added: 

‘3.  Member  States  shall  submit  a  yearly  report  to  the  Commission  and  the 
Authority  on  the  measures  taken  and  the  progress  towards  improving 
interoperability and use of, and access to, electronic communications services 
and terminal equipment by disabled end-users. 

4.  Without  prejudice to the application of  Directive  1999/5/EC  and  in  particular 
of  disability  requirements  pursuant  to  its  Article  3(3)(f),  and  in  order  to 
improve accessibility to electronic communications services and equipment by 
disabled end-users, the Commission may, having consulted the Authority, take 
the appropriate technical implementing measures to address the issues raised in 
the  report  referred  to  in  paragraph  3,  following  a  public  consultation.  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  37(2).  On  imperative  grounds  of  urgency, 
the Commission may use the urgency procedure referred to in Article 37(3).’  

(21) 

Article 34(1) is replaced by the following: 

‘1.  Member  States  shall  ensure 

that 

transparent,  simple  and 

inexpensive 
out-of-court  procedures  are  available  for  dealing  with  unresolved  disputes 
between  consumers  and  undertakings  providing  electronic  communications 
networks  and/or  services,  relating  to  the  contractual  conditions  and/or 
performance  of  contracts  concerning  supply  of  such  networks  or  services. 
Member  States  shall  adopt  measures  to  ensure  that  such  procedures  enable 
disputes  to  be  settled  fairly  and  promptly  and  may,  where  warranted,  adopt  a 
system  of  reimbursement  and/or  compensation.  Member  States  may  extend 
these obligations to cover disputes involving other end-users. 

Member States shall ensure that bodies in charge of dealing with such disputes 
provide relevant information for statistical purposes to the Commission and the 
Authority.’ 

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(22) 

Article 35 is replaced by the following: 

‘Article 35 
Adaptation of annexes 

Amendments  necessary  to  adapt  Annexes  I,  II,  III,  and  VI  to  technological 
developments  or  to  changes  in  market  demand  shall  be  adopted  by  the 
Commission in accordance with the procedure referred to in Article 37(2).’ 

(23) 

In Article 36, paragraph 2 is replaced by the following: 

‘2.  National regulatory authorities shall notify to the Commission the obligations 
imposed upon undertakings designated as having universal service obligations. 
Any  changes  affecting  the  obligations  imposed  upon  undertakings  or  of  the 
undertakings affected under the provisions of this Directive shall be notified to 
the Commission without delay.’ 

(24) 

Article 37 is replaced by the following: 

‘Article 37 
Committee 

1. 

The Commission shall be  assisted by the Communications Committee,  set up 
by Article 22 of Directive 2002/21/EC (Framework Directive). 

2.  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. 

3.  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) 

Annexes I, II and III are replaced by Annexes I, II and III to this Directive. 

(26) 

Annex VII is deleted. 

Article 2 

Amendments to Directive 2002/58/EC (Directive on privacy and electronic 
communications) 

Directive 2002/58/EC (Directive on privacy and electronic communications) is amended as 
follows: 

(1) 

Article 2(e) is replaced by the following: 

‘(e)  “call”  means  a  connection  established  by  means  of  a  publicly  available 
telephone service allowing two-way communication;’ 

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(2) 

Article 3 is replaced by the following: 

‘Article 3 
Services concerned 

This Directive shall apply to the processing of personal data in connection with 
the  provision  of  publicly  available  electronic  communications  services  in 
including  public 
in 
public  communications  networks 
communications  networks  supporting  data  collection  and 
identification 
devices.’ 

the  Community, 

(3) 

Article 4 is amended as follows: 

(a) 

 The title is replaced by the following: 

‘Security of processing’ 

(b) 

 The following paragraphs 3 and 4 are added: 

‘3. 

4. 

In case of a breach of security leading to the accidental or unlawful destruction, 
loss,  alteration,  unauthorised  disclosure  of  or  access  to  personal  data 
transmitted, stored or otherwise processed in connection with the provision of 
publicly available communications services in the Community, the provider of 
publicly  available  electronic  communications  services  shall,  without  undue 
delay, notify the subscriber concerned and the national regulatory authority of 
such  a  breach.  The  notification  to  the  subscriber  shall  at  least  describe  the 
nature of the breach and recommend measures to mitigate its possible negative 
effects. The notification to the national regulatory authority shall, in addition, 
describe the consequences of and the measures taken by the provider to address 
the breach. 

In order to ensure consistency in implementation of the measures referred to in 
paragraphs  1,  2  and  3,  the  Commission  may,  following  consultation  with  the 
European  Electronic  Communications  Market  Authority  (hereinafter  referred 
to  as  “the  Authority”),  and  the  European  Data  Protection  Supervisor,  adopt 
technical  implementing  measures  concerning  inter  alia  the  circumstances, 
format and procedures applicable to information and notification requirements 
referred to in this Article.  

Those 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 14a (2). On imperative grounds of urgency, 
the Commission may use the urgency procedure referred to in Article 14a (3).’ 

(4) 

In Article 5, paragraph 3 is replaced by the following: 

‘3.  Member States shall ensure that the storing of information, or gaining access to 
information already stored, in the terminal equipment of a subscriber or user is 
only  allowed  on  condition  that  the  subscriber  or  user  concerned  is  provided 
accordance  with 
with 

comprehensive 

information 

clear 

and 

in 

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Directive 95/46/EC,  inter alia  about  the  purposes  of  the  processing  and  is 
offered the right to refuse such processing by the data controller. This shall not 
prevent any technical storage or access for the sole purpose of carrying out or 
facilitating 
transmission  of  a  communication  over  an  electronic 
communications  network,  or  as  strictly  necessary  in  order  to  provide  an 
information society service explicitly requested by the subscriber or user.’ 

the 

(5) 

In Article 13, the following paragraph 6 is added: 

‘6.  Without  prejudice  to  any  administrative  remedy  for  which  provision 
may be made, inter alia under Article 15a(2), Member States shall ensure that 
any  individual  or  legal  person  having  a  legitimate  interest  in  combating 
infringements of national provisions adopted pursuant to this Article, including 
an  electronic  communications  service  provider  protecting  its  legitimate 
business interests or the interests of its customers, may take legal action against 
such infringements before the courts.’ 

(6) 

The following Article 14a is inserted: 

‘Article 14a 
Committee 

1. 

The  Commission  shall  be  assisted  by  the  Communications  Committee  set  up 
by Article 22 of Directive 2002/21/EC (Framework Directive). 

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

3.  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.’ 

(7) 

The following Article 15a is inserted: 

‘Article 15a 
Implementation and enforcement 

1.  Member  States  shall 

lay  down 

the  rules  on  penalties  applicable 

to 
infringements of the national provisions adopted pursuant to this Directive 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. 

2.  Without  prejudice  to  any  judicial  remedy  which  might  be  available,  Member 
States shall ensure that the national regulatory authority has the power to order 
the cessation of the infringements referred to in paragraph 1. 

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3.  Member  States  shall  ensure  that  national  regulatory  authorities  have  all  the 
investigative  powers  and  resources  necessary,  including  the  possibility  to 
obtain  any  relevant  information  they  might  need  to  monitor  and  enforce 
national provisions adopted pursuant to this Directive.  

4. 

In order to ensure effective cross-border co-operation in the enforcement of the 
national  laws  adopted  pursuant  to  this  Directive  and  to  create  harmonised 
conditions for the provision of services involving cross-border data flows, the 
following 
Commission  may  adopt 
consultation with the Authority and the relevant regulatory authorities.  

implementing  measures, 

technical 

The  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 14a (2). On imperative grounds of urgency, 
the Commission may use the urgency procedure referred to in Article 14a (3).’ 

Article 3 

Amendment to Regulation (EC) No 2006/2004 

In  the  Annex  to  Regulation  (EC)  No  2006/2004  of  the  European  Parliament  and  of  the 
Council of 27 October 2004 on cooperation between national authorities responsible for the 
enforcement  of  the  consumer  protection  law  (the  Regulation  on  consumer  protection 
cooperation26), the following point shall be added: 

‘17.  As  regards  the  protection  of  consumers,  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 
communication sector: Article 13 (OJ L 201, 31.7.2002, p. 37).’ 

Article 4 

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 […]. 

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. 

26 

OJ L 364, 9.12.2004, p. 1. 

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Article 5 

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 6 

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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DESCRIPTION OF FACILITIES AND SERVICES REFERRED TO IN ARTICLE 10 
(CONTROL OF EXPENDITURE) AND ARTICLE 29 (ADDITIONAL FACILITIES) 

ANNEX I 

Part A 

Facilities and services referred to in Article 10: 

(a) 

Itemised billing 

Member States are to ensure that national regulatory authorities, subject to the requirements 
of relevant legislation on the protection of personal data and privacy, may lay down the basic 
level of itemised bills which are to be provided by designated undertakings (as established in 
Article 8) to consumers free of charge in order that they can: 

(i) 

allow  verification  and  control  of  the  charges  incurred  in  using  the  public 
communications  network  at  a  fixed  location  and/or  related  publicly  available 
telephone services, and 

(ii) 

adequately  monitor  their  usage  and  expenditure  and  thereby  exercise  a 
reasonable degree of control over their bills. 

Where  appropriate,  additional  levels  of  detail  may  be  offered  to  subscribers  at  reasonable 
tariffs or at no charge. 

Calls which are free of charge to the calling subscriber, including calls to helplines, are not to 
be identified in the calling subscriber’s itemised bill. 

(b) 

Selective call barring for outgoing calls, free of charge 

i.e.  the  facility  whereby  the  subscriber  can,  on  request  to  a  designated  undertaking  that 
provides  telephone  services,  bar  outgoing  calls  of  defined  types  or  to  defined  types  of 
numbers free of charge. 

(c) 

Pre-payment systems 

Member  States  are  to  ensure  that  national  regulatory  authorities  may  require  designated 
undertakings to provide means for consumers to pay for access to the public communications 
network and use of publicly available telephone services on pre-paid terms. 

(d) 

Phased payment of connection fees 

Member  States  are  to  ensure  that  national  regulatory  authorities  may  require  designated 
undertakings to allow consumers to pay for connection to the public communications network 
on the basis of payments phased over time. 

(e) 

Non payment of bills 

Member  States  are  to  authorise  specified  measures,  which  are  to  be  proportionate, 
non-discriminatory  and  published,  to  cover  non-payment  of  bills  of  operators  designated  in 
accordance with Article 8. These measures are to ensure that due warning of any consequent 

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service  interruption  or  disconnection  is  given  to  the  subscriber  beforehand.  Any  service 
interruption  shall  normally  be  confined  to  the  service  concerned.  Exceptionally,  in  cases  of 
fraud,  persistent  late  payment  or  non-payment,  Member  States  shall  ensure  that  national 
regulatory authorities are able to authorise disconnection from the network as a result of non-
payment  of  bills  for  services  provided  over  the  network.  Disconnection  for  non-payment  of 
bills should take place only after due warning is given to the subscriber. Member States may 
allow a period of limited service prior to complete disconnection, during which only services 
that do not incur a charge to the subscriber (e.g. “112” calls) are permitted. 

Part B 

List of facilities referred to in Article 29: 

(a) 

Tone dialling or DTMF (dual-tone multi-frequency operation) 

i.e.  the  public  communications  network  supports  the  use  of  DTMF  tones  as  defined  in 
ETSI ETR 207 for end-to-end signalling throughout the network both within a Member State 
and between Member States. 

(b) 

Calling-line identification 

i.e.  the  calling  party’s  number  is  presented  to  the  called  party  prior  to  the  call  being 
established. 

This  facility  should  be  provided  in  accordance  with  relevant  legislation  on  protection  of 
personal data and privacy, in particular Directive 2002/58/EC. 

To the extent technically feasible, operators should provide data and signals to facilitate the 
offering of calling-line identity and tone dialling across Member State boundaries. 

Part C 

Implementation of the number portability provisions referred to in Article 30 

The requirement that all subscribers with numbers from the national numbering plan, who so 
request  can  retain  their  number(s)  independently  of  the  undertaking  providing  the  service 
shall apply: 

(a) 

in the case of geographic numbers, at a specific location; and 

(b) 

in the case of non-geographic numbers, at any location. 

This paragraph does not apply to the porting of numbers between networks providing services 
at a fixed location and mobile networks. 

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ANNEX II 

INFORMATION TO BE PUBLISHED IN ACCORDANCE WITH ARTICLE 21 
(TRANSPARENCY AND PUBLICATION OF INFORMATION) 

The  national  regulatory  authority  has  a  responsibility  to  ensure  that  the  information  in  this 
Annex is published, in accordance with Article 21. It is for the national regulatory authority to 
decide  which  information  is  to  be  published  by  the  undertakings  providing  public 
communications networks and/or publicly available telephone services and which information 
is to be published by the national regulatory authority itself, so as to ensure that consumers are 
able to make informed choices. Where information is published by the undertakings providing 
public  communications  networks  and/or  publicly  available  telephone  services,  the  national 
regulatory authority may specify the manner in which the information is published, in order to 
ensure that consumers are fully informed. 

1. 

Name(s) and address(es) of undertaking(s) 

i.e.  names  and  head  office  addresses  of  undertakings  providing  public  communications 
networks and/or publicly available telephone services. 

2. 

Description of services offered 

2.1. 

Scope of the services offered 

2.2. 

Standard Tariffs with an indication  of what is included in each  tariff element (e.g., 
charges for access, all types of usage charges, maintenance charges), and including 
details of standard discounts applied and special and targeted tariff schemes. 

2.3. 

Compensation/refund  policy,  including  specific  details  of  any  compensation/refund 
schemes offered. 

2.4. 

Types of maintenance service offered. 

2.5. 

3. 

4. 

Standard contract conditions, including any minimum contractual period, termination 
of  the  contract,  procedures  and  direct  charges  related  to  the  portability  of  numbers 
and other identifiers, if relevant. 

Dispute settlement mechanisms including those developed by the undertaking. 

Information  about  rights  as  regards  universal  service,  including  where  appropriate 
the facilities and services mentioned in Annex I. 

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ANNEX III 

QUALITY OF SERVICE PARAMETERS 

SUPPLY-TIME AND QUALITY-OF-SERVICE PARAMETERS, DEFINITIONS AND 
MEASUREMENT METHODS REFERRED TO ARTICLES 11 AND 22 

For undertaking designated to provide access to a public communications network 

PARAMETER 

DEFINITION 

MEASUREMENT METHOD 

(Note 1) 

Supply  time  for  initial 
connection 

ETSI EG 201 769-1 

ETSI EG 201 769-1 

Fault rate per access line 

ETSI EG 201 769-1 

ETSI EG 201 769-1 

Fault repair time 

ETSI EG 201 769-1 

ETSI EG 201 769-1 

For undertaking designated to provide a publicly available telephone service 

Call set up time  

ETSI EG 201 769-1 

ETSI EG 201 769-1 

(Note 2) 

Response 
operator services 

times 

for 

ETSI EG 201 769-1 

ETSI EG 201 769-1 

Response 
for 
directory enquiry services 

times 

Proportion  of  coin  and 
card  operated  public  pay-
in  working 
telephones 
order 

ETSI EG 201 769-1 

ETSI EG 201 769-1 

ETSI EG 201 769-1 

ETSI EG 201 769-1 

Bill 
complaints 

correctness 

ETSI EG 201 769-1 

ETSI EG 201 769-1 

Unsuccessful call ratio  

ETSI EG 201 769-1 

ETSI EG 201 769-1 

(Note 2)  

Version number of ETSI EG 201 769-1 is 1.1.1 (April 2000) 

Note 1 

Parameters should allow for performance to be analysed at a regional level (i.e. no less than 
level  2  in  the  Nomenclature  of  Territorial  Units  for  Statistics  (NUTS)  established  by 
Eurostat). 

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Note 2 

Member  States  may  decide  not  to  require  that  up-to-date  information  concerning  the 
performance  for  these  two  parameters  be  kept,  if  evidence  is  available  to  show  that 
performance in these two areas is satisfactory. 

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