Commission Directive 2008/63/EC of 20 June 2008 on competition in the markets in telecommunications terminal equipment (Codified version) (Text with EEA relevance)
Date: 2008-06-20
Institutions: European Commission
Subjects: competition, competition law, free movement of goods, market, national law, telecommunications equipment

L 162/20

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Official Journal of the European Union

21.6.2008

COMMISSION DIRECTIVE 2008/63/EC

of 20 June 2008

on competition in the markets in telecommunications terminal equipment

(Text with EEA relevance)

(Codified version)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty
Community, and in particular Article 86(3) thereof,

establishing the European

Whereas:

(1)

(2)

(3)

(4)

Commission Directive 88/301/EEC of 16 May 1988 on
in telecommunications
competition in the markets
terminal
substantially
amended (2).
In the interests of clarity and rationality
the said Directive should be codified.

equipment (1)

been

has

the Member States,

In all
telecommunications were,
either wholly or partly, a State monopoly generally
granted in the form of special or exclusive rights to
responsible for providing and
one or more bodies
network
operating
related
the
services. Those
rights, however, often used to go
beyond the provision of network utilisation services
and used to extend to the supply of user terminal
equipment
for connection to the network. The last
decades have seen considerable technical developments
in networks, and the pace of development has been
especially striking in the area of terminal equipment.

infrastructure

and

Member States have,
in response to technical and
economic developments, reviewed their grant of special
or exclusive rights in the telecommunications sector. The
proliferation of
terminal equipment and the
possibility of the multiple use of terminals means that
users must be allowed a free choice between the various
types of equipment available if they are to benefit fully
from the technological advances made in the sector.

types of

the effect of
The existence of exclusive rights has
restricting the free movement of
telecommunications
terminal equipment either as regards the importation
and marketing
(including
terminal
satellite equipment), because certain products are not
marketed, or as regards the connection, bringing into
service or maintenance because, taking into account the

equipment

of

(1) OJ L 131, 27.5.1988, p. 73. Directive as amended by Directive

94/46/EC (OJ L 268, 19.10.1994, p. 15).

(2) See Annex II, Part A.

that

the fact

the products,

the market and in particular

the
characteristics of
diversity and technical nature of
a
monopoly has no incentive to provide these services in
relation to products which it has not marketed or
imported, nor to align its prices on costs, since there is
no threat of competition from new entrants on the
market. Taking into account
in most
equipment markets there is typically a large range of
telecommunication equipment, any special right which
directly or indirectly limits the number of the under-
takings authorised to import, market, connect, bring
into service and maintain such equipment,
is liable to
have the same kind of effect as the grant of exclusive
constitute
rights. Such exclusive or
quantitative
having
measures
restrictions incompatible with Article 28 of the Treaty.
Thus it is necessary to abolish all existing exclusive rights
in the importation, marketing, connection, bringing into
service and maintenance of terminal and telecommuni-
those rights having
cations equipment, as well as
comparable effects — that is to say, all special rights
except those consisting in legal or regulatory advantages
conferred on one or more undertakings and affecting
only the ability of other undertakings to engage in any
of the abovementioned activities in the same geogra-
phical area under substantially equivalent conditions.

special
effect

rights
to

equivalent

(5)

(6)

(7)

relating to terminal
The special or exclusive rights
equipment are exercised in such a way as,
in practice,
to disadvantage equipment from other Member States,
notably by preventing users from freely choosing the
equipment that best suits their needs in terms of price
and quality, regardless of its origin. The exercise of these
rights is therefore not compatible with Article 31 of the
Treaty in all the Member States.

The provision of installation and maintenance services is
a key factor in the purchasing or rental of
terminal
equipment. The retention of exclusive rights in this
to retention of exclusive
field would be tantamount
marketing rights. Such rights must
therefore also be
abolished if
the abolition of exclusive importing and
marketing rights is to have any practical effect.

terminal equipment

The maintenance of
is a service
within the meaning of Article 50 of the Treaty. The
service in question, which cannot from a commercial
point of view be dissociated from the marketing of the
equipment
in
accordance with Article 49 of
the Treaty and in
particular when provided by qualified operators.

terminals, must be provided freely

(8)

(9)

(10)

(11)

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Official Journal of the European Union

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competition in the

The situation in the market continues to produce infrin-
gements of the competition rules laid down by the Treaty
and to affect adversely the development of trade to such
an extent as would be contrary to the interests of the
terminal
Community. Stronger
equipment market requires the introduction of
trans-
parent technical specifications which meet the essential
requirements mentioned in 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
conformity (1) and allow the free movement of terminal
equipment. In turn, such transparency necessarily entails
the publication of technical specifications.

(12)

under which an importing Member State must allow
terminal equipment legally manufactured and marketed
in another Member State.

cannot be

To ensure that type-approval specifications are applied
transparently, objectively and without discrimination
monitoring applications
entrusted to a
competitor in the terminal equipment market in view
of
interest. Member States
should therefore ensure that the responsibility for moni-
toring is assigned to a body independent of the operator
of
the network and of any other competitor in the
market in question.

the obvious conflict of

that

Special or exclusive rights to import and market terminal
equipment give rise to a situation which is contrary to
the objective of Article 3(g) of the Treaty, which provides
for the institution of a system ensuring that competition
in the internal market is not distorted, and requires a
fortiori
eliminated.
competition must not be
Member States have an obligation under Article 10 of
the Treaty to abstain from any measure which could
jeopardise the attainment of
the
Treaty, including Article 3(g). The exclusive rights must
therefore be regarded as incompatible with Article 82 of
the Treaty in conjunction with Article 3 thereof, and the
grant or maintenance of such rights by a Member State is
prohibited under Article 86(1) of the Treaty.

the objectives of

To enable users to have access to the terminal equipment
of their choice, it is necessary to know and make trans-
parent the characteristics of the interface points of the
public network to which the terminal equipment is to be
connected. Member States must therefore ensure that the
characteristics are published and that users have access to
interface points of the public network.

they must
formalise

satisfy. Member
and publish the

To be able to market their products, manufacturers of
terminal equipment must know what technical specifi-
States
cations
should
therefore
specifications,
which they must notify to the Commission in draft
form,
the
in accordance with Directive 98/34/EC of
the Council of 22 June
European Parliament and of
1998 laying down a procedure for the provision of infor-
technical standards and regu-
mation in the field of
lations (2). The
extended to
products imported from other Member States only in
so far as they are necessary to ensure conformity with
the essential
specified in Article 3 of
Directive 1999/5/EC that can legitimately be required
under Community law. Member States must,
in any
event, comply with Articles 28 and 30 of the Treaty,

specifications may be

requirements

(1) OJ L 91, 7.4.1999, p. 10. Directive as amended by Regulation (EC)

No 1882/2003 (OJ L 284, 31.10.2003, p. 1).

(2) OJ L 204, 21.7.1998, p. 37. Directive as last amended by Council

Directive 2006/96/EC (OJ L 363, 20.12.2006, p. 81).

(13)

This Directive should be without prejudice to the obli-
gations of the Member States relating to the time limits
for transposition into national law of the Directives set
out in Annex II, Part B,

HAS ADOPTED THIS DIRECTIVE:

Article 1

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

1.

‘terminal equipment’ means:

(a) equipment directly or

indirectly connected to the
interface of a public telecommunications network to
send, process or
in either case
the connection may be made by
(direct or indirect),
wire, optical fibre or electromagnetically; a connection
is indirect if equipment is placed between the terminal
and the interface of the network;

receive information;

(b) satellite earth station equipment;

2.

‘satellite earth station equipment’ means equipment which is
capable of being used for the transmission only (‘transmit-
only’), or
transmission and reception (‘trans-
mit/receive’), or for the reception only (‘receive-only’) of
radio communication signals by means of
satellites or
other space-based systems;

the

for

3.

‘undertaking’ means a public or private body, to which a
Member State grants special or exclusive rights for the
importation, marketing, connection, bringing into service
of
telecommunications terminal equipment and/or main-
tenance of such equipment;

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Official Journal of the European Union

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4.

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

conditions, national rules shall be proportionate to those
essential
and shall be notified to the
Commission in accordance with Directive 98/34/EC where
that Directive so requires;

requirements

(a)

limits to two or more the number of such undertakings,
otherwise than according to objective, proportional and
non-discriminatory criteria; or

(b) designates, otherwise than according to the criteria
referred to in point (a), several competing undertakings;
or

(c) confers on any undertaking or undertakings, otherwise
than according to the criteria referred to in points (a) and
(b), any legal or regulatory advantages which substan-
tially affect
the ability of any other undertaking to
import, market, connect, bring into service and/or
maintain telecommunication terminal equipment in the
same geographical area under substantially equivalent
conditions.

Article 2

Member States which have granted special or exclusive rights to
undertakings shall ensure that all exclusive rights are withdrawn,
as well as those special rights which:

(a)

limit to two or more the number of undertakings, otherwise
than according to objective, proportional and non-discrimi-
natory criteria; or

(b) designate, otherwise than according to the criteria referred

to in point (a), several competing undertakings.

They shall
draft legislation introduced to that end.

inform the Commission of the measures taken or

Article 3

Member States shall ensure that economic operators have the
to import, market, connect, bring into service and
right
maintain terminal equipment.

However, Member States may:

(a)

in the case of satellite earth station equipment, refuse to
allow such equipment to be connected to the public tele-
into service
communications network or to be brought
where it does not satisfy the relevant common technical
regulations adopted in pursuance of Directive 1999/5/EC
in the absence thereof, the essential requirements laid
or,
in the absence of
that Directive;
down in Article 3 of
regulatory
of
common

harmonised

technical

rules

(b) in the case of other terminal equipment, refuse to allow
such equipment to be connected to the public telecommu-
nications network where it does not satisfy the relevant
common technical regulations adopted in pursuance of
the
Directive 1999/5/EC or,
essential
that
Directive;

thereof,
laid down in Article 3 of

requirements

absence

in the

(c) require economic operators to possess the technical qualifi-
cations needed to connect, bring into service and maintain
terminal equipment on the basis of objective, non-discrimi-
natory and publicly available criteria.

Article 4

Member States shall ensure that users have access to new public
network interface points and that the physical characteristics of
these points are published by users of the telecommunications
public network.

Article 5

Member States shall ensure that all specifications for terminal
equipment are formalised and published.

Member States shall notify those technical specifications in draft
form to the Commission in accordance with Directive
98/34/EC.

Article 6

Member States shall ensure that in monitoring the specifications
referred to in Article 5, the application is entrusted to a body
independent of public or private undertakings offering goods
and/or services in the telecommunications sector.

Article 7

Member States shall provide the Commission at the end of each
year with a report allowing it to monitor compliance with the
provisions of Articles 2, 3, 4, and 6.

An outline of the report is set out in Annex I.

Article 8

Directive 88/301/EEC, as amended by the Directive listed in
Annex II, Part A,
is repealed, without prejudice to the obli-
gations of the Member States relating to the time limits for
transposition into national
in
law of
Annex II, Part B.

the Directives set out

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References to the repealed Directive shall be construed as
references to this Directive and shall be read in accordance
with the correlation table in Annex III.

Article 10

This Directive is addressed to the Member States.

Done at Brussels, 20 June 2008.

Article 9

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

For the Commission
The President

José Manuel BARROSO

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Official Journal of the European Union

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ANNEX I

Outline of the report referred to in Article 7

Implementation of Article 2

Terminal equipment for which legislation is being or has been modified.

By category of terminal equipment:

— date of adoption of the measure, or

— date of introduction of the bill, or

— date of entry into force of the measure.

Implementation of Article 3

— terminal equipment, the connection and/or commissioning of which has been restricted,

— technical qualifications required, giving reference of their publication.

Implementation of Article 4

— references of publications in which the physical characteristics are specified,

— number of existing public network interface points,

— number of public network interface points now accessible.

Implementation of Article 6

— independent body or bodies appointed.

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ANNEX II

PART A

Repealed Directive with its successive amendment

(referred to in Article 8)

Commission Directive 88/301/EEC

(OJ L 131, 27.5.1988, p. 73)

Commission Directive 94/46/EC

(OJ L 268, 19.10.1994, p. 15)

List of time limits for transposition into national law

PART B

(referred to in Article 8)

Directive

Time limit for transposition

88/301/EEC
94/46/EC

—

8 August 1995

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ANNEX III

Correlation table

Directive 88/301/EEC

This Directive

Article 1, introductory words

Article 1, introductory words

Article 1, first indent, first and second sentences

Article 1, point (1)(a)

Article 1, first indent, last sentence

Article 1, second indent

Article 1, point (1)(b)

Article 1, point (3)

Article 1, third indent, introductory words

Article 1, point (4), introductory words

Article 1, third indent, first sub-indent

Article 1, third indent, second sub-indent

Article 1, third indent, third sub-indent

Article 1, fourth indent

Article 2

Article 3, first sentence

Article 3, second sentence

Article 3, first indent

Article 3, second indent

Article 3, third indent

Article 4, first paragraph

Article 4, second paragraph

Article 5(1)

Article 5(2), first sentence

Article 5(2), second sentence

Article 1, point (4)(a)

Article 1, point (4)(b)

Article 1, point (4)(c)

Article 1, point (2)

Article 2

Article 3, first paragraph

Article 3, second paragraph, introductory sentence

Article 3, second paragraph, point (a)

Article 3, second paragraph, point (b)

Article 3, second paragraph, point (c)

Article 4

—

—

Article 5, first paragraph

Article 5, second paragraph

Article 6

Article 8

Article 9

Article 10

—

—

Article 11

Annex I

Annex II

—

—

Article 6

—

Article 7

—

Article 8

Article 9

Article 10

—

Annex I

Annex II

Annexe III