Amended proposal for a Directive of the European Parliament and of the Council amending Directives 2002/21/EC on a common regulatory framework for electronic communications networks and services, 2002/19/EC on access to, and interconnection of, electronic communications networks and services, and 2002/20/EC on the authorisation of electronic communications networks and services
Date: 2008-11-06
Institutions: European Commission
Subjects: approximation of laws, competition law, electronic mail, regulation of telecommunications, single market, systems interconnection, telecommunications, transmission network

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 6.11.2008 
COM(2008) 724 final 

2007/0247 (COD) 

Amended proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  

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

(presented by the Commission) 

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2007/0247 (COD) 

Amended proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL  

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

(Text with EEA relevance) 

1. 

PROCEDURAL STAGES 

The  proposal  —  COM(2007)  697  –  2007/0247  (COD)  —  was  adopted  by  the 
Commission on 13 November 2007 and was sent to the European Parliament and to 
the Council on 16 November 2007. 

The European Economic and Social Committee adopted its opinion on the proposal 
from the Commission on 29 May 2008. 

The Committee of the Regions adopted its opinion on the Commission’s proposal on 
18 June 2008. 

The European Parliament adopted 126 amendments at first reading on 24 September 
2008. 

2. 

OBJECTIVE OF THE PROPOSAL 

The  objective  is  to  adjust  the  regulatory  framework  for  e-communications,  notably 
the  Framework1,  Authorisation2  and  Access  Directives3,  by 
its 
effectiveness,  reducing  the  administrative  resources  needed  for  implementing 
economic  regulation  and  making  access  to  radio  frequencies  simpler  and  more 
efficient. It is in line with the Commission’s Better Regulation Programme, which is 
designed to ensure that legislative intervention remains proportionate to the political 
objectives  pursued,  and  forms  part  of  the  Commission’s  overall  strategy  to 
strengthen and complete the internal market. 

improving 

More specifically, the proposal aims to:  

1 

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3 

Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common 
regulatory framework for electronic communications networks and services (OJ L 108, 24.4.2002). 
Directive  2002/20/EC  of  the  European  Parliament  and  of  the  Council  of  7  March  2002  on  the 
authorisation of electronic communications networks and services (OJ L 108, 24.4.2002). 
Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and 
interconnection of, electronic communications networks and associated facilities (OJ L 108, 24.4.2002). 

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

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

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

3. 

OBJECTIVE OF THE AMENDED PROPOSAL 

The  amended  proposal  adapts  the  original  proposal  on  a  number  of  points  as 
suggested by the European Parliament. 

4. 

OBSERVATIONS ON THE AMENDMENTS ADOPTED BY THE EUROPEAN PARLIAMENT 

4.1. 

Amendments accepted by the Commission 

The Commission can accept amendments 12, 16, 19, 24, 32, 38, 39, 40, 41, 42, 43, 
45, 56, 58, 59, 60, 61, 79, 81, 89, 92, 96, 99, 111, 112, 113, 115, 116, 117, 123 and 
124. 

4.2. 

Amendments accepted by the Commission in part or subject to rewording 

With regard to the Framework Directive: 

Amendments 2, 5, 6, 7, 14/rev, 15, 17, 26, 27, 31, 35, 36, 37, 44, 46, 48, 52, 53/rev, 
138 (plenary), 62, 63/rev, 64/rev, 65, 66, 67/rev, 68, 69, 70, 71, 72, 74, 75, 77, 80, 
84, 85 and 86 . 

- Amendment 2 

The Commission can accept the insertion of the words ‘and coordinated’, but rejects 
deletion  of  the  reference  to  the  Regulation  establishing  the  Authority.  It  does 
nevertheless  recognise  the  possibility  that  the  Authority  will  ultimately  have  a 
different  name,  and  therefore  has  changed  references  to  the  Authority  and  to  ‘the 
BERT’  (the  term  adopted  by  the  European  Parliament  at  its  first  reading)  to 
references to ‘[the Body]’ throughout this modified proposal.  

Recital 3 of the amending act: 

"The EU regulatory framework for electronic communications networks and services 
should therefore be reformed in order to complete the internal market for electronic 
communications  by  strengthening  the  Community  mechanism  for  regulating 
operators with significant market power in the key markets. This is complemented 
through the establishment by Regulation […/…./EC] of [date] of the European 
Parliament  and  of  the  Council∗  of  a  Body  of  European  Telecoms  Regulators 
(hereinafter referred to as “[the Body]”). The reform also includes the definition 
of an efficient and coordinated spectrum management strategy in order to achieve a 

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Single  European  Information  Space  and  the  reinforcement  of  provisions  for  users 
with disabilities in order to obtain an inclusive information society." 

__________ 

∗ 

OJ L […], […], p. […]. 

– Amendment 5  

The  wording  of  the  amendment  is  adjusted  to  reflect  the  need  for  appropriate 
regulatory discretion in decision-making by NRAs, taking into account differences in 
the competitive conditions within a Member State. 

Recital 3c (new) of the amending act: 

"In order to ensure a proportionate and suitable approach to varying competitive 
conditions,  national  regulatory  authorities  should  be  able  to  define  markets  on  a 
sub-national  basis  and  apply  or  to  lift  any  regulatory  obligations  accordingly  in 
markets  or  geographic  areas  where  there  is  effective  infrastructure  competition. 
This  should  apply  even  where  geographical  areas  are  not  defined  as  separate 
markets." 

– Amendment 6  

The wording of the amendment is slightly modified. 

Recital 3d (new) of the amending act:  

"The provision of an appropriate framework for investment in new high-speed 
networks is a key issue for the coming years in In order to achieve the goals of 
the Lisbon Agenda. it is necessary to give appropriate incentives for investment in 
high  High-speed  networks  that  will  support  innovation,  the  development  of  in 
content-rich  internet  services  and  strengthen  the  international  competitiveness  of 
the European Union, Such networks have enormous potential to deliver delivering 
benefits to European consumers and businesses across the European Union. It is 
therefore  vital  to  promote  sustainable  investment  in  the  development  of  such 
networks, while safeguarding competition and boosting consumer choice through 
regulatory predictability and consistency." 

- Amendment 7 

Recital 3e must mention the fact that improved access to radio spectrum will allow 
for the development of wireless networks to help bridge the broadband gap. 

Recital 3e (new) of the amending act: 

"In  its  Communication  “Bridging  the  Broadband  Gap”  of  20  March  2006,  the 
European  Commission  acknowledged  that  there  is  a  territorial  divide  in  the 
European Union regarding access to high-speed broadband services. Easier access 
to  radio  spectrum  will  facilitate  the  development  of  high-speed  broadband 
in  broadband 
services 
connectivity, access in various regions is limited on account of high costs resulting 

in  remote  regions.  Despite 

the  general 

increase 

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from low population densities and remoteness. Commercial incentives to invest in 
broadband  deployment  in  these  areas  often  turn  out  to  be  insufficient.  However, 
technological innovation reduces deployment costs. In order to ensure investment 
in  new  technologies  in  underdeveloped  regions,  electronic  communications 
regulation  should  be  consistent  with  other  policies,  such  as  state  aid  policy, 
structural funds cohesion policy or the aims of wider industrial policy." 

– Amendment 14/rev  

The  wording  of  the  amendment  is  slightly  modified  in  accordance  with  the  policy 
objective for NRAs to contribute to the development of the internal market. 

Recital 11a (new) of the amending act: 

"National  electronic communications  markets  will  continue  to  differ  within  the 
European Union. It is therefore essential that national regulatory authorities and 
[the  Body]  the  Body  of  European  Regulators  in  Telecom  ("BERT")  possess  the 
powers competences and knowledge necessary in order to build a competitive EU 
"ecosystem"  internal  market 
in  electronic  communications  markets  and 
services while  at  the  same  time  understanding  national  and  regional  differences 
and complying with the principle of subsidiarity." 

- Amendment 15 

Recital 16 must also mention the fact that electronic communications services serve 
additional important goals such as social and territorial cohesion. 

Recital 16 of the amending act: 

"Radio  frequencies  should  be  considered  a  scarce  public  resource  that  has  an 
important  public  and  market  value.  It  is  in  the  public  interest  that  spectrum  is 
managed  as  efficiently  and  effectively  as  possible  from  an  economic,  social  and 
environmental perspective, taking account of the important role of radio spectrum 
for  electronic  communications,  the  objectives  of  cultural  diversity  and  media 
pluralism, and social and territorial cohesion,. and that Obstacles obstacles to its 
efficient use are should therefore be gradually withdrawn." 

- Amendment 17 

Recital  16b  can  be  accepted  to  the  extent  that  the  Commission  recognises  the 
importance  of  international  and  regional  agreements,  in  particular  agreements 
negotiated  within  the  International  Telecommunications  Union  (ITU)  framework. 
However, Member States always enter such international agreements subject to their 
compatibility with Community law. Secondly, the EU policy on spectrum should be 
developed  to  the  full  extent  allowed  by  ITU  rules,  i.e.  as  long  as  no  external 
interference is caused to neighbouring non-EU Member States. EU spectrum policy 
could  be  developed  in  such  a  way  that  EU  and  Member  States  keep  a  margin  of 
discretion to organise the use of the spectrum and their spectrum policy. Moreover, 
the work of the CEPT is recognised as a basis for technical harmonisation under the 
Radio Spectrum Decision. Therefore, the wording used should reflect such margin of 
discretion. 

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Recital 16b (new) of the amending act: 

"The  provisions  of  this  Directive  relating  to  spectrum  management  should  be 
consistent with take into account, to the extent compatible with Community law, 
the work of international and regional organisations dealing with radio spectrum 
management, such as the International Telecommunications Union (ITU) and the 
European  Conference  of  Postal  and  Telecommunications  Administrations 
(CEPT), so as to ensure the efficient management and harmonisation of the use of 
spectrum across the Community and globally." 

– Amendment 26  

The wording of the amendment is slightly modified in line with the proposal on the 
competences of [the Body]. 

Recital 29 of the amending act: 

"In  order  to  promote  the  functioning  of  the  internal  market,  and  to  support  the 
development  of  cross-border  services,  the  Commission  should  be  able  to  consult 
BERT regarding numbering. Furthermore,In order to allow citizens of the Member 
States, including travellers and disabled users, to be able to reach certain services by 
using  the  same  recognisable  numbers  at  similar  prices  in  all  Member  States,  the 
powers  of  the  Commission  to  adopt  technical  implementing  measures  should  also 
cover, where necessary, the applicable tariff principle or mechanism, as well as the 
establishment of a single EU front-up call number ensuring user-friendly access to 
those services." 

- Amendment 27 

The  wording  of  recital  31  has  been  modified  in  order  to  introduce  a  distinction 
between  facility  sharing  in  the  context  of  symmetric  regulation  and  in  the  context 
asymmetric (SMP) regulation. 

The wording of this  modification  to recital 31, in as far as it refers to risk sharing, 
takes  into  account  the  content  of  amendment  102  and  must  be  seen  in  conjunction 
with the modifications introduced in amendment 101. 

Recital 31 of the amending act: 

"It  is  necessary  to  strengthen  the  powers  of  the  Member  States  vis-à-vis  holders  of 
rights of way to ensure the entry or roll out of new network infrastructure in a fair, 
efficient and environmentally responsible way and independently of any obligation 
on  an  operator  with  significant  market  power  to  grant  access  to  its  electronic 
communications network. National regulatory authorities should  be able to  impose, 
on  a  case-by-case  basis,  the  sharing  of  network  elements  and  associated  facilities 
such as ducts, masts, and antennas, the entry into buildings and a better coordination 
of civil works. Improving facility sharing can significantly improve competition and 
lower  the  overall  financial  and  environmental  cost  for  undertakings  of  deploying 
electronic communications infrastructure, in particular of for new fibre-optic access 
networks.  National  regulatory  authorities  should  be  able  to  impose  on  operators 
with  significant  market  power obligations  to  provide  These  strengthened  powers 
should  not  prejudice  the  wider  powers  of  national  regulatory  authorities  to 

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impose  additional  requirements  on  operators  with  significant  market  power, 
which may extend to the sharing of dark fibre and the provision of a reference 
offer for granting fair and non-discriminatory access to facilities, including their 
ducts."  

– Amendment 31  

It  is  necessary  to  stress  the  exceptional  nature  of  the  remedy,  the  need  to  preserve 
incentives  for  investment  and  the  overriding  objective  of  preserving  consumer 
welfare. 

Recital 43 of the amending act: 

"The purpose of functional separation, whereby the vertically integrated operator is 
required  to  establish  operationally  separate  business  entities,  is  to  ensure  the 
provision of fully equivalent access products to all downstream operators, including 
the vertically integrated operator’s own downstream divisions. Functional separation 
may  have  the  capacity  to  improve  competition  in  several  relevant  markets  by 
significantly  reducing  the  incentive  for  discrimination  and  by  making  it  easier  for 
compliance  with  non-discrimination  obligations  to  be  verified  and  enforced.  In 
exceptional  cases,  it  may  be  justified  as  a  remedy  where  there  has  been 
persistent  failure  to  achieve  effective  non-discrimination  in  several  of  the 
market  or  markets  concerned,  and  where  there  is  little  or  no  prospect  of 
infrastructure competition within a reasonable timeframe after recourse to one 
or more remedies previously considered to be appropriate. However, it is very 
important to ensure that its imposition preserves the incentives of the concerned 
undertaking  to  invest  in  its  network  and  that  it  does  not  entail  any  potential 
negative effects on consumer welfare. In order to avoid distortions of competition 
in  the  internal  market,  proposals  for  functional  separation  should  be  approved  in 
advance by the Commission." 

- Amendment 35 

The deletion of the reference to the absence of the need to grant individual rights in 
certain cases should be rejected, given the priority accorded as a matter of principle 
to  general  authorisations  compared  to  individual  rights  of  use.  In  addition,  a 
reference to spectrum assignment should be added, since assignment, which refers to 
the  actual  granting  of  rights,  may  be  essential  for  the  fulfilment  of  certain  general 
interest objectives. 

Recital 49 of the amending act: 

"The  introduction  of  the  requirements  of  service  and  technology  neutrality  in 
assignment  and  allocation  decisions,  together  with  the  increased  possibility  to 
transfer  rights  between  undertakings,  should  increase  the  freedom  and  means  to 
deliver  electronic  communications  and  audiovisual  media  services  to  the  public, 
thereby  also  facilitating  the  achievement  of  general  interest  objectives.  However, 
certain  general  interest  obligations  imposed  on  broadcasters  for  the  delivery  of 
audiovisual  media  services  may  require  the  use  of  specific  criteria  for  spectrum 
allocation and assignment, where this appears essential in order to meet a specific 
general  interest  objective  set  out  in  national  law.  Procedures  associated  with  the 

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pursuit  of  general  interest  objectives  should  in  all  circumstances  be  transparent, 
objective, proportionate and non-discriminatory." 

- Amendment 36 

The  principles  of  proportionality  and  non-discrimination  should  also  be  applied  in 
the case of exemption from the obligation to pay fees or charges set for spectrum use. 

Recital 50 of the amending act: 

"Any exemption, full or partial, from the obligation to pay the fees or charges set for 
the  use  of  the  spectrum  should  be  proportionate,  non-discriminatory,  objective 
and transparent and based on other general interest obligations set out in national 
law." 

- Amendment 37 

The references to ITU and CEPT activities should be nuanced as these activities do 
not have the same legal value. On the one hand, the ITU indeed takes decisions that 
have a legal bearing under international law, while under Community law, the work 
of  CEPT  is  used  as  a  basis  for  technical  harmonisation  under  the  Radio  Spectrum 
Decision. Moreover, CEPT is not directly involved in selection procedures. 

Recital 53 of the amending act: 

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

– Amendment introduced by the Commission as a consequence of Amendment 47 to 
the  Commission's  proposal  for  a  Directive  of  the  European  Parliament  and  of  the 
Council  amending  Directive  2002/22/EC  on  universal  service  and  users'  rights 

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relating  to  electronic  communications  networks,  Directive  2002/58/EC  concerning 
processing  of  personal  data  and  the  protection  of  privacy  in  the  electronic 
communications sectors and Regulation (EC) No 2006/2004 on consumer protection 
cooperation (COM(2007) 698 – 2007/0248 (COD)) ("Citizens’ Rights Directive") 

This  amendment  concerns  the  inclusion  of  the  definition  of  ‘network  termination 
point’ in the Framework Directive 2002/21/EC, in the light of its deletion from the 
Universal  Service  Directive  2002/22/EC  by  Amendment  47  to  the  Citizens'  Rights 
Directive.  It  is  appropriate  to  include  the  definition  of  ‘network  termination  point’ 
directly after the definition of ‘public communications network’ — where reference 
is made to it — in the Framework Directive. 

Article  1,  point  2(ba)  (new),  of  the  amending  act;  Article  2,  point  (da)  (new),  of 
Directive 2002/21/EC:  

"“network  termination  point”  (NTP)  means  the  physical  point  at  which  a 
subscriber is provided with access to a public communications network; in the 
case of networks involving switching or routing, the NTP is identified by means 
of a specific network address, which may be linked to a subscriber number or 
name;" 

– Amendment 44  

The  second  subparagraph  concerns  adequate  financial  and  human  resources  which 
are required under the Commission's proposal, as are separate budgets, which should 
be made public. The requirement that resources should cover the ability to participate 
in [the Body] is acceptable, since regulators should clearly be cooperating with [the 
Body] in order to achieve the objectives of the regulatory framework. 

Article 1, point 3a, of the amending act; Article 3, paragraph 3a (new), of Directive 
2002/21/EC: 

"(3a) In Article 3, the following paragraph shall beis added: 

"3a. Member States shall ensure that the goals of BERT [the Body] of promoting 
greater  regulatory  coordination  and  coherence  are  actively  supported  by  the 
national regulatory authorities. 

Member  States  shall  ensure  that national regulatory authorities  have  adequate 
financial  and  human  resources  to  carry  out  the  tasks  assigned  to  them  and  to 
[the 
enable 
Body]. National regulatory authorities  shall  have separate  annual  budgets  and 
those budgets shall be made public." 

to  actively  participate 

in  and  contribute 

to  BERT 

them 

– Amendment 46 

The last sentence of the amendment is not acceptable, since the setting of time limits 
for  consideration  of  national  appeals  would  raise  questions  regarding  Community 
competence in relation to national court procedures. 

Article  1,  point  4,  sub-point  a,  of  the  amending  act;  Article  4,  paragraph  1,  first 
subparagraph, of Directive 2002/21: 

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"Member States shall ensure that effective mechanisms exist at national level under 
which any user or undertaking providing electronic communications networks and/or 
services who is affected by a decision of a national regulatory authority has the right 
of  appeal  against  the  decision  to  an  appeal  body  that  is  independent  of  the  parties 
involved.  This  body,  which  may  be  a  court,  shall  have  the  appropriate  expertise  to 
enable  it  to  carry  out  its  functions  effectively.  Member  States  shall  ensure  that  the 
merits  of  the  case  are  duly  taken  into  account,  that  there  is  an  effective  appeal 
mechanism  and  that  proceedings  before  the  appeal  body  are  not  unduly  lengthy. 
Member States shall set time limits for consideration of such appeals." 

– Amendment 48 

Recourse  to  [the  Body]  for  its  opinion  in  relation  to  appeal  proceedings  would 
increase its authority and standing, and could contribute to more consistent judicial 
decisions  in  the  single  market.  However,  such  opinions  should  relate  to  technical 
matters  only,  and  not  the  interpretation  of  Community  law,  and  this  should  be 
clarified in the text. 

Article 1, point 4, point aa (new), of the amending act; Article 4, paragraph 2a (new), 
of Directive 2002/21/EC: 

"(aa) the following paragraph shall be is added: 

"2a. Appeal bodies shall be entitled to request the opinion of BERT [the Body] on 
matters related to the sector before reaching a decision in the course of an appeal 
proceeding."" 

- Amendment 52 

The  Commission  can  accept  the  Parliament’s  amendments  to  Article  7  which 
strengthen  the  requirements  for  transparency  and  co-operation  between  the 
Commission, [the Body] and the national regulatory authorities. It can also accept the 
amendments consequential upon the separate treatment, in a new Article -7a, of the 
procedures governing the notification of remedies, provided that the new Article -7a 
preserves  the  Commission’s  prerogatives  as  guardian  of  the  Treaty  and  offers  an 
effective mechanism to ensure the consistent application of remedies.  

In the context of an overall compromise solution on Article 7 and -7a, guaranteeing 
effective  cooperation  between  the  Commission,  [the  Body]  and  national  regulatory 
authorities  and  allowing  the  Commission  to  act  where  necessary  to  ensure  the 
consistent  application  of  remedies  in  the  interests  of  the  internal  market,  the 
Commission  can  also  accept  deletion  of  the  power  in  paragraph  8  of  its  original 
proposal  for  it  to  require  a  national  regulatory  authority  to  impose  a  specific 
obligation. 

Article  1,  point  6,  of  the  amending  act;  Article  7,  paragraphs  2  to  10,  of  Directive 
2002/21/EC: 

"2. National regulatory authorities shall contribute to the development of the internal 
market  by  working  with  the  Commission  and  [the  Body]  BERT  in  a  transparent 
manner  so  as  to  ensure  the  consistent  application,  in  all  Member  States,  of  the 
provisions  of  this  Directive  and  the  Specific  Directives.  To  this  end,  they  shall,  in 

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particular, work with the Commission and [the Body] BERT to identify the types of 
instruments and remedies best suited to address particular types of situations in the 
marketplace. 

3. Except where otherwise provided in implementing provisions adopted pursuant to 
Article  7a,  upon  completion  of  the  consultation  referred  to  in  Article  6,  where  a 
national regulatory authority intends to take a measure which: 

(a) falls within the scope of Articles 15 or 16 of this Directive, or Articles 5 or 8 of 
Directive 2002/19/EC (Access Directive), and 

(b) would affect trade between Member States, 

it shall make the draft measure accessible to the Commission, [the Body] BERT, and 
the  national  regulatory  authorities  in  other  Member  States,  at  the  same  time, 
together  with  the  reasoning  on  which  the  measure  is  based,  in  accordance  with 
Article  5(3),  and  inform  the  Commission,  the  [Body]  BERT  and  other  national 
regulatory  authorities  thereof.  National  regulatory  authorities,  BERT,  and  the 
Commission  may  make  comments  to  the  national  regulatory  authority  concerned 
only within one month. The one-month period may not be extended. 

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

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

those  defined 

in 

the 

(b) deciding whether or not to designate an undertaking as having, either individually 
or jointly with others, significant market power, under Article 16(3), (4) or (5), 

and would affect trade between Member States, and the Commission has indicated to 
the national regulatory authority that it considers that the draft measure would create 
a barrier to the single market or if it has serious doubts as to its compatibility with 
Community law and in particular the objectives referred to in Article 8, then the draft 
measure  shall  not  be  adopted  for  a  further  two  months.  This  period  may  not  be 
extended. 

5. Within the two month period referred to in paragraph 4, the Commission may take 
a decision requiring the national regulatory authority concerned to withdraw the draft 
measure. The Commission shall take the utmost account of the opinion of the [Body] 
BERT  submitted  in  accordance  with  Article  5  of  Regulation  [……/EC]  before 
issuing  a  decision.  The  decision  shall  be  accompanied  by  a  detailed  and  objective 
analysis  of  why  the  Commission  considers  that  the  draft  measure  should  not  be 
adopted together with specific proposals for amending the draft measure. 

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

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7.  The  national  regulatory  authority  concerned  shall  take  the  utmost  account  of 
comments  of  other  national  regulatory  authorities,  BERT  [the  Body],  and  the 
Commission  and  may,  save  as  otherwise  provided  except  in  cases  covered  by 
paragraph 4 or Article -7a, adopt the resulting draft measure and, where it does so, 
shall  communicate  it  to  the  Commission.  Any  other  national  body  exercising 
functions  under  this  Directive  or  the  Specific  Directives  shall  also  take  the  utmost 
account of the comments of the Commission. 

10. In exceptional circumstances, where a national regulatory authority considers that 
there  is  an  urgent  need  to  act,  by  way  of  derogation  from  the  procedure  set out  in 
paragraphs 3 and 4 and Article -7a, in order to safeguard competition and protect the 
interests of users, it may immediately adopt proportionate and provisional measures. 
It  shall,  without  delay,  communicate  those  measures,  with  full  reasons,  to  the 
Commission,  the  other  national  regulatory  authorities,  and  [the  Body]  BERT.  A 
decision by the national regulatory authority to render such measures permanent or 
extend  the  time  for  which  they  are  applicable  shall  be  subject  to  the  provisions  of 
paragraphs 3 and 4 and/or Article -7a." 

- Amendment 53 

This amendment sets out an arbitration procedure under which the Commission, [the 
Body] and NRAs cooperate closely with a view to ensuring the consistent application 
of  obligations  imposed  following  the  market  analysis  and  notification  procedures 
required by the regulatory framework. The Commission can support the underlying 
objective  of  the  amendment,  namely  that  this  process  of  cooperation  can  help  to 
identify  the  most  appropriate  and  effective  remedies  which  should  be  applied  upon 
the finding of dominance in a relevant market, in light of the objectives of Article 8 
of the Framework Directive.  

The  Commission  considers  that  the  integration  of  the  collective  expertise  of  the 
national regulators in the Article 7 procedure (given expression through the opinions 
on  notified  measures  to  be  issued  by  [the  Body])  is  in  line  with  the  Commission’s 
proposal.  The  Commission  also  welcomes  the  fact  that  the  EP  procedure  would 
maintain,  albeit  in  circumscribed  form,  the  Commission’s  proposed  power  to  order 
the withdrawal of a proposed remedy in the interests of the internal market.  

However,  the  mechanism  whereby  [the  Body]  could  confirm,  in  the  face  of  the 
Commission’s  serious  doubts,  that  the  remedy  is  appropriate  and  effective,  thereby 
enabling  the  NRA  concerned  to  adopt  the  proposed  remedy,  requires  revision.  The 
Commission  can  accordingly  not  accept  the  wording  of  this  element  of  the  EP’s 
proposed  amendment,  since  it  would  allow  [the  Body]  to  usurp  the  Commission’s 
role as guardian of the Treaty, in particular as laid down in Article 85 EC.  

Likewise, the Commission cannot accept the proposed integration into the Article -7a 
procedure of draft measures proposing functional separation (under Article 13a of the 
Access Directive). Such measures, since they can extend beyond individually defined 
relevant  markets  and  the  obligations  described  in  Articles  9  to  13  of  the  Access 
Directive,  are  inherently  different  from  the  remedies  which  are  proposed  under  the 
latter  Articles  and  which  are  subject  to  the  Article  7  procedure.  It  is  therefore 
appropriate  that  the  separate  procedure  for  the  authorisation  by  the  Commission  of 

EN 

12 

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proposals for functional separation in accordance with Article 8(3) and Article 13a of 
the Access Directive be maintained.  

The Commission’s modified text for Article -7a therefore maintains the role of [the 
Body], as proposed by the Parliament, in issuing opinions on proposed remedies on 
which the Commission has expressed serious doubts, and maintains the mechanism 
whereby  the  Commission  can  adopt  a  decision  requiring  the  amendment  of  such  a 
proposed measure where [the Body] shares its serious doubts. On the other hand, in 
the event that [the Body] does not share the Commission’s serious doubts, it should 
still be open to the Commission, in order to preserve its prerogatives as guardian of 
the Treaty, to adopt a decision requiring the amendment or withdrawal of a notified 
measure  imposing  a  remedy,  albeit  with  the  additional  safeguards  that  the 
Commission’s  decision  should  take  utmost  account  of  [the  Body’s]  opinion  and  be 
subject  to  prior  consultation  with  the  Member  States  in  the  Communications 
Committee.  

In order to allow sufficient time for [the Body] to issue a reasoned opinion on a draft 
measure subject to the Article -7a procedure and for the Commission then to adopt 
any decision in the light of that opinion (including where appropriate consultation of 
the Communications Committee), the two month period allowed for these steps to be 
taken should be extended to three months. 

The  Commission  also  considers  that  it  should  have  the  power  to  require  the 
withdrawal of a draft measure imposing remedies as well as its amendment. 

Article  1,  point  6  a  (new),  of  the  amending  act;  Article  -7a  (new)  of  Directive 
2002/21/EC:  

"(6a) the following Article shall be is inserted: 

"Article -7a 

Procedure for the consistent application of remedies 

1.  Where  an  intended  measure  covered  by  Article  7(3)  aims  at  imposing, 
amending  or  withdrawing  a  national  regulatory  authority  intends  to  adopt  a 
measure to impose, amend or withdraw an obligation on an operator in application 
of Article 16 in conjunction with Articles 5 and 9 to 13a of Directive 2002/19/EC 
(Access  Directive),  and  Article  17  of  Directive  2002/22/EC  (Universal  Service 
Directive)the  Commission  and  the  national  regulatory  authorities  of  the  other 
Member States shall have a period of  one month from the date of notification of 
the draft measure in which to make comments to the national regulatory authority 
concerned. 

2. If the draft measure concerns the  imposition,  amendment or withdrawal of an 
obligation  other  than  the  obligation  laid  down  in  Article  13a  of  Directive 
2002/19/EC  (Access  Directive),  the  Commission  may,  within  the  same  period  of 
one month provided for by Article 7(3), notify the national regulatory authority 
concerned and [the Body] BERT of the reasons why that it considers that the draft 
measure  would  create  a  barrier  to  the  single  market  or  that  why  it  has  serious 
doubts  as  to  its  compatibility  with  Community  law.  In  such  a  case,  the  draft 

EN 

13 

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measure  shall  not  be  adopted  for  a  further  three  two  months  following  the 
Commission’s notification. 

In  the  absence  of  such  notification,  the  national  regulatory  authority  concerned 
may adopt the draft measure, taking utmost account of any comments made by the 
Commission, [the Body] or by any other national regulatory authority. 

23.  Within  the  three  two-month  period  referred  to  in  paragraph  1  2,  the 
Commission,  [the  Body]  BERT  and  the  national  regulatory  authority  concerned 
shall  cooperate  closely  with  the  objective  of  identifying  the  most  appropriate  and 
effective measure in the light of the objectives laid down in Article 8, whilst taking 
due  account  of  the  views  of  market  participants  and  the  need  to  ensure  the 
development of consistent regulatory practice. 

3.  Within  one  month  from  the  beginning  of  the  same  three  two-month  period 
referred  to  in  paragraph  1,  [the  Body]  BERT  shall,  acting  by  an  absolute 
majority, issue in accordance with Article [X] of Regulation [……/EC] adopt an 
opinion on the question whether confirming the appropriateness and effectiveness 
of  the  draft  measure  would  create  a  barrier  to  the  single  market  or  be 
incompatible  with  Community law  and in particular the objectives referred to 
in Article 8, or indicating whether it considers that the draft measure should be 
amended  or  withdrawn  and  (where  appropriate)  providing  specific  proposals  to 
that end. This opinion shall be reasoned and made public. 

If BERT has confirmed the appropriateness and effectiveness of the draft measure, 
the  national  regulatory  authority  concerned  may  adopt  the  draft  measure,  taking 
utmost  account  of  any  comments  made  by  the  Commission  and  BERT.  The 
national regulatory authority shall make public how it has taken these comments 
into account.  

4. If [the Body] BERT has indicated in its opinion that the draft measure should 
be  amended  or  withdrawn,  the  Commission  may,  taking  utmost  account  of  the 
opinion of [the Body] BERT’s, adopt a decision before the end of the three month 
period  referred  to  in  paragraph  1,  requiring  the  national  regulatory  authority 
concerned  to  amend  or  withdraw  the  draft  measure  and  providing  reasons  and 
specific proposals to that end. 

4. If the draft measure concerns the imposition, amendment or withdrawal of the 
obligation laid down in Article 13a of Directive 2002/19/EC (Access Directive), the 
draft measure shall not be adopted for a further two-month period starting at the 
end of the one-month period referred to in paragraph 1. 

Within  the  two-month  period  referred  to  in  the  first  subparagraph,  the 
Commission,  BERT  and  the  national  regulatory  authority  concerned  shall 
cooperate  closely  with  the  objective  of  determining  whether  the  proposed  draft 
measure  complies  with  the  provisions  of  Article13a  of  Directive  2002/19/EC 
(Access  Directive),  and,  in  particular,  whether  it  is  the  most  appropriate  and 
effective measure. To that end, due account shall be taken of the views of market 
participants  and  of  the  need  to  ensure  the  development  of  consistent  regulatory 
practice.  At  the  reasoned  request  of  BERT  or  the  Commission,  this  two-month 
period shall be extended by up to a further two months. 

EN 

14 

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Within  the  maximum  period  set  out  in  the  second  subparagraph,  BERT  shall, 
acting  by  an  absolute  majority,  adopt  an  opinion  confirming  the  appropriateness 
and effectiveness of the draft measure or indicating that the draft measure should 
not be adopted. This opinion shall be reasoned and made public. 

5. In all other cases the Commission may, taking utmost account of any opinion 
of [the Body] and in accordance with the procedure referred to in Article 22(2) 
(advisory committee procedure), adopt a reasoned decision before the end of the 
three  month  period  referred  to  in  paragraph  1,  requiring  the  national 
regulatory  authority  concerned  to  amend  or  withdraw  the  draft  measure  and 
providing specific proposals to that end.  

6. Only Iif the Commission has not taken a decision pursuant to paragraphs 4 or 
5  by  the  end  of  the  three  month  period  referred  to  in  paragraph  1  and  BERT 
have  confirmed  the  appropriateness  and  effectiveness  of  the  draft  measure,  the 
national  regulatory  authority  concerned  may  adopt  the  draft  measure,  taking 
utmost account of any comments made by the Commission and [the Body] BERT. 
The  national  regulatory  authority  shall  make  public  how  it  has  taken  these 
comments into account. 

75. Within three months of the adoption by the Commission in accordance with the 
fourth  subparagraph  of  paragraph  3  of  a  reasoned  decision,  in  accordance  with 
paragraphs  4  or  5,  paragraph  3,  subparagraph  4  of  this  Article,  requiring  a 
national  regulatory  authority  to  amend  or  withdraw  the  draft  measure,  the 
national  regulatory  authority  concerned  shall  amend  or  withdraw  the  draft 
measure in accordance with that decision. If the draft measure is to be amended, 
the  national  regulatory  authority  shall  undertake  a  public  consultation  in 
accordance with the consultation and transparency procedure referred to in Article 
6, and re-notify the amended draft measure to the Commission in accordance with 
Article 7. 

86. The national regulatory authority may withdraw the proposed draft measure at 
any stage of the procedure.". 

- Amendment 138 (plenary) 

The Commission can accept in principle Amendment 138 (plenary) which serves as a 
useful restatement of principles applying independently of this provision, and which 
leaves  Member  States  to  ensure  that  a  fair  balance  is  struck  between  the  various 
fundamental rights protected by the Community legal order, in particular, the right to 
respect  for  private  life,  the  right  to  protection  of  property,  the  right  to  an  effective 
remedy and the right to freedom of expression and information. 

- Amendment 62 

The  amendment  provides  further  guidance  for  regulatory  authorities  when  carrying 
out  their  task  under  the  regulatory  framework,  including  in  relation  to  the 
development  of  next  generation  networks.  The 
that  regulatory 
predictability  could  be  achieved  through  continuity  of  remedies  where  those 
remedies would not otherwise have been selected should, however, be avoided. 

implication 

EN 

15 

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Article 1, point 8, sub-point eb (new), of the amending act; Article 8, paragraph 4a 
(new), of Directive 2002/21/EC:  

"(eb) the following paragraph shall be is added: 

"4a.  The  national  regulatory  authorities  shall,  in  pursuit  of  the  policy  objectives 
referred  to  in  paragraphs  2,  3  and  4,  apply  objective,  transparent,  non-
discriminatory and proportionate regulatory principles by, inter alia: 

(a)  promoting  regulatory  predictability  through  the  continuity  of remedies  over 
several  market  reviews  as  appropriate,  by  ensuring  a  consistent  regulatory 
approach over successive review periods;  

(b)  ensuring  that,  in  similar  circumstances,  there  is  no  discrimination  in  the 
treatment  of  undertakings  providing  electronic  communications  networks  and 
services; 

(c)  safeguarding  competition  to  the  benefit  of  consumers  and  promoting 
infrastructure-based competition wherever possible; 

(d)  promoting  market  driven  investment  and  innovation  in  new  and  enhanced 
infrastructures  including  by  encouraging  sharing  of  investment  and  by  ensuring 
that  the  cost  of  access  to  facilities  takes  appropriate  account  of  the  risks 
incurred  by  appropriate  -sharing  of  risk  between  the  investors  and  those 
undertakings enjoying access to the new facilities; 

(e)  taking  due  account  of  the  variety  of  conditions  relating  to  competition  and 
consumers that exist in the different geographic areas within a Member State; 

(f)  imposing  ex-ante  regulatory  obligations  only  where  there  is  no  effective  and 
sustainable  competition,  and  relaxing  or  lifting  such  obligations  as  soon  as  that 
condition is fulfilled."" 

- Amendment 63/rev. 

The Commission understands the EP’s desire to be more involved in policy decisions 
regarding  the  strategic  approach  to  spectrum  and  is  ready  to  examine  the  best 
institutional  solution,  while  leaving  the  technical  harmonisation  of  spectrum  use 
under the Radio Spectrum Decision separate and untouched.  

The creation of an RSPC in the EP’s Article 8a cannot be accepted as it would create 
difficulties  in  that  the  RSPC’s  role  would  be  limited  in  scope  to  electronic 
communications,  it  would  overlap  with  existing  structures  carrying  out  the  same 
tasks,  and  the  creation  of  another  committee  is  not  essential  to  achieving  the  EP’s 
main goal in proposing this new Article, as set out in Article 8b(4) —– see below .  

The  proposed  Article  8b  needs  to  be  reformulated  to  make  the  Community 
dimension clearer.  

The text of the proposed Article 8b(2), which mentions Community law principles, 
should be moved into a recital. 

EN 

16 

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Article  8b(3)  needs  reformulation  to  ensure  that  the  Community  dimension  is 
maintained.  The  Parliament’s  text  ignores  the  already  established  role  of  the 
Commission  and  shifts  responsibilities  from  the  Community  to  Member  States.  As 
the directive only applies to electronic communications, the reference to other policy 
areas such as transport or research and development should be deleted. 

In Article 8b(5), the first part must be deleted as it is for the Commission rather than 
the Member States to ensure the coordination of EU interests. 

As  regards  the  EP's  proposed  Article  8b(4),  the  Commission  welcomes  the 
involvement of the EP and Council in policy strategy, on condition that it focuses on 
the strategic direction of EU spectrum policy, but the text of the paragraph has to be 
reformulated in order not to limit the Commission’s right of initiative. Furthermore, 
the  suggested  use  of  codecision  measures  to  set  technical  parameters  (e.g.  for  the 
avoidance  of  harmful  interference)  risks  preventing  the  Community  from  taking 
necessary  and  timely  action,  and  risks  creating  confusion  as  to  the  ongoing  role  of 
the Radio Spectrum Decision. 

Article  1,  point  8a  (new),  of  the  amending  act;  Article  8  a  (new)  of  Directive 
2002/21/EC:  

"The following Articles shall be is inserted: 

"Article 8a 

Radio Spectrum Policy Committee 

1. A Radio Spectrum Policy Committee (the "RSPC") is hereby created in order to 
contribute  to  the  fulfilment  of  the  objectives  set  out  in  paragraphs  1,  3  and  5  of 
Article 8b. 

The RSPC shall provide advice to the European Parliament, the Council and the 
Commission on radio spectrum policy issues. 

The  RSPC  shall  be  composed  of  high-level  representatives  from  the  competent 
national  authorities  responsible  for  radio  spectrum  policy  in  each  Member  State. 
Each Member State shall have one vote and the Commission shall not vote. 

2. At the request of the European Parliament, the Council or the Commission or 
on  its  own  initiative,  the  RSPC,  acting  by  an  absolute  majority,  shall  adopt 
opinions. 

3.The RSPC shall submit an annual activity report to the European Parliament 
and to the Council. 

"Article 8ba 

"Strategic planning and coordination of radio spectrum policy in the European 
Union Community 

1. Member States shall contribute to the development of the internal market by 
cooperateing with each other and with the Commission in the strategic planning, 

EN 

17 

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coordination  and  harmonisation  of  the  use  of  radio  spectrum  in  the  European 
Union  Community.  To  this  end  In  so  doing,  they  shall  take  into  consideration, 
inter alia, economic, safety, health, public interest, freedom of expression, cultural, 
scientific, social and technical aspects of the EUC policies as well as the various 
interests of radio spectrum user communities with the aim of optimising the use of 
radio spectrum and of avoiding harmful interference. 

2.  Radio  spectrum  policy  activities  in  the  European  Union  shall  be  without 
prejudice to: 

(a)  measures  taken  at  Community  or  national  level,  in  compliance  with 
Community law, to pursue general interest objectives, in particular with regard to 
content regulation and audio-visual and media policies,  

(b) the provisions of Directive 1999/5/EC∗; and  

(c  )  the  right  of  Member  States  to  organise  and  use  their  radio  spectrum  for  the 
purposes of public order, public security and defence. 

32.  By  cooperating  with  each  other  and  with  the  Commission,  Member  States 
shall ensure contribute to the coordination of radio spectrum policy approaches in 
the European Union Community and, where appropriate, harmonised conditions 
with regard to the availability and efficient use of radio spectrum necessary for the 
establishment and functioning of the internal market in EU policy areas such as 
electronic communications, transport and research and development. 

34 The Commission taking due account of the opinion of the RSPC, may submit a 
legislative  proposal  for  establishing  a  radio  spectrum  action  programme  with 
regard to the strategic planning and harmonisation of the use of radio spectrum in 
the European Union or other legislative measures with the aim of optimising the 
use  of  radio  spectrum  and  of  avoiding  harmful  interference.  The  Commission 
may  submit  a  legislative  proposal  for  establishing  a  radio  spectrum  policy 
programme.  The  programme  shall  set  out  the  policy  orientations  for  the 
strategic  planning  and  harmonisation  of  the  use  of  radio  spectrum  in 
accordance with the provisions of this Directive and the Specific Directives.  

45.  Member  States  shall  ensure  the  effective  coordination  of  the  interests  of  the 
European  Union  in  international  organisations  competent  in  radio  spectrum 
matters.  Whenever  necessary  for  ensuring  such  the  effective  coordination  of  the 
interests of the European Community in international organisations competent 
in radio spectrum matters, the Commission, taking due account of the opinion of 
the  RSPC,  may  propose  to  the  European  Parliament  and  the  Council  common 
policy objectives including, if necessary, a negotiation mandate."" 

__________ 

∗ 
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 (OJ L 91, 7.4.1999, p. 10)." 

Add new recital: 

EN 

18 

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"Radio  spectrum  policy  activities  in  the  European  Community  should  be 
without  prejudice  to  measures  taken  at  Community  or  national  level,  in 
compliance  with  Community  law,  to  pursue  general  interest  objectives,  in 
particular  with  regard  to  content  regulation  and  audio-visual  and  media 
policies, the provisions of Directive 1999/5/EC∗ and the right of Member States 
to  organise  and  use  their  radio  spectrum  for  the  purposes  of  public  order, 
public security and defence." 

__________ 

∗ 
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 (OJ L 91, 7.4.1999, p. 10)." 

- Amendment 64/rev 

The second subparagraph of Article 9(1) needs reformulation to clarify that it refers 
to international agreements that are applicable, as action by Member States must be 
compliant with Community law. 

In  Article  9(3),  the  reference  to  radio  network  or  wireless  access  is  necessary  to 
frame  Member  States’  action  and  to  prevent  detailed  constraints  on  network 
architecture  being  imposed  and  unduly  limiting  the  principle  of  neutrality.  The 
reference to  international  agreements is  more appropriate  in Article 9(1) and in the 
recitals.  

Under  Article  9(3),  second  subparagraph,  point  (a),  the  term  ‘the  possibility  of’ 
should  be  avoided  as  there  is  always  a  possibility,  even  very  slight,  of  harmful 
interference. The proportionality test applicable to national exceptions should allow 
determination  of  the  intensity  of  the  restriction  necessary  to  avoid  harmful 
interference. 

The reference in the new paragraph (ba) to the need to ensure the technical quality of 
the service should be linked to the need to avoid harmful interference, and should not 
per  se  be  used  to  justify  an  exception  to  technology  neutrality.  The  same  goes  for 
safeguarding  the  efficient  use  of  spectrum  under  the  new  (ca):  this  is  an  important 
aim  of  spectrum  management,  but  is  also  linked  to  interference  management 
parameters. 

Under  paragraph  (c),  the  link  should  be  made  between  the  maximisation  of  radio 
frequency sharing and general authorisations to enable tighter technical conditions to 
be imposed in bands under general authorisations. 

Under  paragraph  (d),  a  restriction  on  technology  neutrality  should  only  be  allowed 
for the fulfilment of general interest objectives if such objectives cannot be achieved 
through restrictions on service neutrality only. This must be justified and proven by 
the Member State invoking the exception. This should be stated by adding to recital 
21  the  following  words:  ‘in  particular  for  a  general  interest  objective,  where  such 
objective cannot be fulfilled through a restriction to service neutrality’.  

In  Article  9(4),  the  first  part  of  the  amendment  creates  legal  uncertainty  and  is 
rejected. The reference to ITU radio regulations is rejected, as these do not specify 

EN 

19 

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electronic  communications  services  and  such  a  reference  would  only  create  an 
unfounded  expectation.  The  term  ‘in  accordance  with’  must  also  be  replaced  by  a 
reference simply to identification. 

All other changes are accepted. 

Article 1, point 9, of the amending act; Article 9 of Directive 2002/21/EC:  

"1.  Taking  due  account  of  the  fact  that  radio  frequencies  are  a  public  good  that 
has an important social, cultural and economic value, Member States shall ensure 
the  effective  management  of  radio  frequencies  for  electronic  communications 
services in their territory in accordance with Articles 8 and 8b. They shall ensure that 
the  allocation  and  assignment  of  such  radio  frequencies  by  national  regulatory 
authorities are based on objective, transparent, non-discriminatory and proportionate 
criteria. In so doing, they shall act in accordance with their obligations under the 
Treaty and, where applicable, corresponding international agreements, and may 
take public policy considerations into account as set out below. 

2. Member States shall promote the harmonisation of use of radio frequencies across 
the Community, consistent with the need to ensure effective and efficient use thereof 
and  in  pursuit  of  benefits  for  the  consumer  such  as  economies  of  scale  and 
interoperability of services. In so doing, they shall act in accordance with Articles 
8b  and  9c  of  this  Directive,  and  Decision  No  676/2002/EC  (Radio  Spectrum 
Decision). 

3. Unless otherwise provided in the second subparagraph or in the measures adopted 
pursuant to Article 9c, Member States shall, ensure that all types of technology used 
for  electronic  communications  services  may  be  used  in  the  radio  frequency  bands 
open  to  available  for  electronic  communications  services  in  accordance  with  the 
ITU Radio Regulations. 

Member  States  may,  however,  provide  for  proportionate  and  non-discriminatory 
restrictions  to  the  types  of  technology  used  for  electronic  communication  services 
where this is necessary to:  

(a) avoid the possibility of harmful interference, notably to ensure technical quality 
of service and the efficient use of radio frequencies, 

(b) protect public health against electromagnetic fields, 

(ba) ensure technical quality of service, 

(c) ensure maximisation of radio frequency sharing where the use of frequencies is 
subject to a general authorisation, 

(ca) safeguard the efficient use of radio frequencies, 

(d) fulfil a general interest objective in accordance with paragraph 4. 

4.  Unless  otherwise  provided  in  the  second  subparagraph  or  in  the  measures 
adopted  pursuant  to  Article  9c,  Member  States  shall  ensure  that  all  types  of 
electronic  communications  services  may  be  provided  in  the  radio  frequency  bands 

EN 

20 

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available  for  electronic  communications  services  in  accordance  with  as  identified 
in their national frequency allocation plans and with the ITU Radio Regulations. 
The Member States may, however, provide for proportionate and non-discriminatory 
restrictions to the types of electronic communications services to be provided. 

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

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

5.  Member  States  shall  regularly  review  the  necessity  of  the  restrictions  and 
measures  referred  to  in  paragraphs  3  and  4  and  shall  make  the  results  of  these 
reviews public. 

6.  Paragraphs  3  and  4  shall  apply  to  the  allocation  and  assignment  of  radio 
frequencies from [date of transposition of this Directive]." 

- Amendment 65 

The term ‘in line with’ would be preferable to ‘in accordance with’ as Article 9(3) 
and (4) do not contain assignment procedures. 

Article 1, point 10, of the amending act; Article 9a of Directive 2002/21/EC:  

"Review of restrictions to existing rights 

1.  For  a  period  of  five  years  starting  on  [date  of  transposition  of  this  Directive], 
Member  States  may  ensure  that  allow  holders  of  rights  to  use  radio  frequencies 
which were granted before that date and which will remain valid for a period of not 
less  than  five  years  after  that  date  may  to  submit  an  application  to  the  competent 
national authority for a reassessment of the restrictions to their rights in accordance 
with Article 9(3) and (4).  

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

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

2.  Where  the  right  holder  mentioned  in  paragraph  1  is  a  provider  of  radio  or 
television broadcast content services, and the right to use radio frequencies has been 
granted  for  the  fulfilment  of  a  specific  general  interest  objective,  including  the 
delivery of broadcasting services, the right to use the part of the radio frequencies 
which is necessary for the fulfilment of that objective shall remain unchanged. The 

EN 

21 

   EN 

 
part  of  the  radio  frequencies  which  becomes  unnecessary  for  the  fulfilment  of  that 
objective  shall  be  subject  to  a  new  assignment  procedure  in  line  accordance  with 
Article  9(3)  and  (4)  of  this  Directive  and  in  conformity  with  Article  7(2)  of  the 
Authorisation Directive. 

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

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

- Amendment 66 

The  reference  to  national  procedures  can  be  accepted,  but  not  the  reference  to 
national  frequency  allocation  plans,  in  order  to  avoid  undue  lack  of  flexibility. 
Moreover,  tradability  in  a  band  cannot  be  prevented  if  this  has  been  agreed  at  EU 
level. 

In Article 9b(2), a second notification can be avoided if the notification of the intent 
to trade contains the expected date of actual transfer. 

Article 1, point 10, of the amending act; Article 9b of Directive 2002/21/EC:  

"1.  Member  States  shall  ensure  that  undertakings  may  transfer  or  lease  to  other 
undertakings individual rights to use radio frequencies in the bands for which this is 
provided in the implementing measures adopted pursuant to Article 9c, provided that 
such  transfer  or  lease  is in  accordance  with  national  procedures  and  national 
frequency allocation plans. 

In other bands, Member States may also make provision for undertakings to transfer 
or  lease  individual  rights  to  use  radio  frequencies  to  other  undertakings  in 
accordance with national procedures. 

2. Member States shall ensure that an undertaking’s intention to transfer rights to use 
radio  frequencies,  as  well  as  the  effective  transfer  thereof,  is  notified  to  the 
competent  national  regulatory  authority  responsible  for  granting  individual  rights 
to use radio frequencies and that it is made public. Where radio frequency use has 
been  harmonised  through  the  application  of  Article  9c  and  the  Radio  Spectrum 
Decision  or  other  Community  measures,  any  such  transfer  shall  comply  with  such 
harmonised use." 

- Amendment 67/rev 

Under  paragraphs  (b)  and  (c),  the  scope  of  action  by  the  Commission  must  remain 
wide  enough  to  cope  with  the  details  of  the  conditions  attached  to  the  procedures, 
limits and restrictions applicable to transfers  or  leases  as well  as  to competition, to 
give  the  Commission  sufficient  tools  to  achieve  the  completion  of  the  internal 
market. 

Article 1, point 10, of the amending act; Article 9c of Directive 2002/21/EC:  

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22 

   EN 

 
"In order to contribute to the development of the internal market, for the achievement 
of the principles of Articles 8b, 9, 9a and 9b, the Commission may adopt appropriate 
technical implementing measures to:  

(-a)  apply  the  radio  spectrum  action  policy  programme  established  pursuant  to 
Article 8b(4); 

(a)  identify  the  bands  for  which  usage  rights  may  be  transferred  or  leased  between 
undertakings;  

(b) harmonise the conditions attached to such rights; 

(c)  avoid  the  distortions  of  competition  that  may  arise  where  individual  rights 
are transferred; 

(d) identify the bands for which the principle of service neutrality applies. 

These  measures  designed  to  amend  non-essential  elements  of  this  Directive  by 
supplementing it, shall be adopted in accordance with the regulatory procedure with 
scrutiny referred to in Article 22(3)." 

- Amendment 68 

The  amendment  makes  clear  that  Member  States  are  to  remove  restrictions  in 
national  numbering  plans  and  associated  rules  which  may  harm  citizen,  consumer 
and  business 
the  EU.  However,  ‘publicly  available  electronic 
communications  services’  and  ‘electronic  communications  services’  should  be 
retained to assist comprehension. 

interests 

in 

Article  1,  point  11,  sub-point  a,  of  the  amending  act;  Article  10,  paragraph  2,  of 
Directive 2002/21/EC:  

"2. National regulatory authorities shall ensure that numbering plans and procedures 
are  applied  in  a  manner  that  gives  equal  treatment  to  all  providers  of  publicly 
available  electronic  communications  services  and  more  generally  to  users  of 
numbers across the European Union. In particular, Member States shall ensure that 
an  undertaking  assigned  a  range  of  numbers  does  not  discriminate  against  other 
providers of electronic communications services and users as regards the number 
sequences used to give access to their services.". 

- Amendment 69 

This amendment is acceptable insofar as it clarifies that harmonisation is limited to 
specific numbers or numbering ranges. The deletion of the reference to the urgency 
procedure  is  also  acceptable.  However,  cross-border  access  to  national  numbers  is 
dealt  with  in  the  Universal  Service  Directive,  and  reference  to  it  is  therefore  not 
appropriate  in  this  context.  Moreover,  the  reference  to  the  possibility  to  establish 
tariff  principles  should  be  retained,  since  this  is  an  important  area  where  further 
harmonisation may be needed in the interests of the internal market. 

Article 1, point 11, point b, of the amending act; Article 10, paragraph 4, of Directive 
2002/21/EC:  

EN 

23 

   EN 

 
"4.  Member  States  shall  support  harmonisation  of  specific  numbers  or  numbering 
ranges  within  the  Community  where  that  promotes  the  functioning  of  the  internal 
market or supports the development of pan-European services. The Commission may 
take appropriate technical implementing measures on this matter, which may include 
establishing  tariff  principles  for  specific  numbers  or  numbering  ranges  and 
ensuring appropriate cross-border access to national numbering used for essential 
services such as directory enquiries. The implementing measures may grant BERT 
[the Body] specific responsibilities in the application of those 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 22(3)." 

- Amendment 70 

The  Commission  generally  welcomes  the  additional  support  given  by  this 
amendment  to  the  objective  of  encouraging  appropriate  infrastructure  competition 
through proportionate facility sharing. However, with regard to paragraph 1, it would 
not be proportionate to provide access to all passive network elements (such as dark 
fibre) unless the undertaking concerned has significant market power, in which case 
it could be subject to access measures pursuant to Article 12 of the Access Directive. 
The  modifications  made  by  the  Commission  to  recital  27  (in  the  context  of 
Amendment  27)  aim  to  explain  this  approach  by  spelling  out  that  facility  sharing 
may  respond  to  different  objectives  depending  on  whether  it  is  applied  under 
symmetric regulation or asymmetric (significant market power) regulation. 

In  paragraph  2a,  while  it  is  necessary  to  maintain  appropriate  incentives  for  the 
investing operator through appropriate risk sharing, the methodology for sharing the 
risks involved should be consistent with that already applied by national regulatory 
authorities under asymmetric regulation in accordance with Article 13 of the Access 
Directive,  whereby  the  cost  of  capital  employed  is  adjusted  by  means  of  an 
appropriate risk premium. 

Article 1, point 13, of the amending act; Article 12 of Directive 2002/21/EC:  

"Co-location and sharing of network elements and associated facilities for providers 
of electronic communications networks 

1. Where an undertaking providing electronic communications networks has the right 
under  national  legislation  to  install  facilities  on,  over  or  under  public  or  private 
property,  or  may  take  advantage  of  a  procedure  for  the  expropriation  or  use  of 
property, national regulatory authorities shall, taking full account of the principle of 
proportionality, be able to impose the sharing of such facilities or property, including 
entries to buildings, building wiring, masts, antennae, towers and other supporting 
constructions,  ducts,  conduits,  manholes  and  cabinets  and  all  other  network 
elements which are not active.  

2. Member States may require that the holders of the rights referred to in paragraph 1 
share  facilities  or  property  (including  physical  co-location)  or  take  measures  to 
facilitate the coordination of public works in order to protect the environment, public 
health, public security or to meet town and country planning objectives only after an 

EN 

24 

   EN 

 
appropriate  period  of  public  consultation,  during  which  all  interested  parties  are 
given  an  opportunity  to  express  their  views.  Such  sharing  or  coordination 
arrangements  may  include  rules  for  apportioning  the  costs  of  facility  or  property 
sharing. 

2a.  Member  States  shall  ensure  that  national  regulatory  authorities  have  the 
powers to require, after an appropriate period of public consultation during which 
all interested  parties  are  given the opportunity to state their  views, the  holders of 
the  rights  referred  to  in  paragraph  1  to  share  facilities  or  property,  including  by 
means  of  physical  co-location,  in  order  to  encourage  efficient  investment  in 
infrastructure  and  the  promotion  of  innovation.  Such  sharing  or  coordination 
arrangements  may include rules  for apportioning the costs of facility or property 
sharing,  adjusted  for  risk  where  appropriate  and  shall  ensure  that  there  is  an 
adequate sharing of risks between the undertakings concerned. 

2b.  Member  States  shall  ensure  that  national  regulatory  authorities  establish  a 
detailed  inventory  of  the  nature,  availability  and  geographical  location  of  the 
facilities referred to in paragraph 1 based on information provided by the holders 
of  the  rights  referred  to  in  that  paragraph,  and  that  they  make  that  inventory 
available to interested parties. 

2c.  Member  States  shall  ensure  that  the  competent  authorities  establish 
appropriate  coordination  procedures,  in  cooperation  with  national  regulatory 
authorities, with respect to the public works referred to in paragraph 2 and to other 
appropriate public facilities or property. These procedures may include procedures 
that ensure that interested parties have information concerning appropriate public 
facilities or property and on-going and planned public works, that they are notified 
in a timely manner of such works, and that sharing is facilitated to the maximum 
extent possible. 

3. Measures taken by a national regulatory authority in accordance with this Article 
shall be objective, transparent, non-discriminatory and proportionate.". 

- Amendment 71 

The  amendment  provides  several  useful  clarifications.  However,  the  change  from 
‘NRA’ to ‘competent authority’ is unnecessary (cf. Article 3 Framework Directive). 
It is also important to note that this provision concerns a different type of situation 
than  the  privacy  breach  notification  requirements  dealt  with  in  Article  4(3)  of  the 
ePrivacy  Directive  2002/58/EC  and  that  therefore  a  different  set  of  rules  and 
procedures  is  needed  for  the  cases  handled  under  this  Article.  The  possibility  for 
additional  national  measures  allows  Member  States  to  take  account  of  specific 
national conditions. 

Article 1, point 14, of the amending act; Article 13a of Directive 2002/21/EC: 

"1. Member  States  shall ensure that  undertakings providing  public communications 
networks  or  publicly  available  electronic  communications  services  take  appropriate 
technical and organisational measures to safeguard the security of their networks or 
services. Having regard to the state of the art, these measures shall ensure a level of 
security  appropriate  to  the  risk  presented.  In  particular,  measures  shall  be  taken  to 

EN 

25 

   EN 

 
prevent and minimise the impact of security incidents on users and on interconnected 
networks. 

2.  Member  States  shall  ensure  that  undertakings  providing  public  communications 
networks  take  appropriate  steps  to  ensure  the  integrity  of  their  networks  so  as  to 
ensure  the  continuity  of  supply  of  services  provided  over  those  networks.  The 
competent  nNational  regulatory  authorities  shall  consult  with  electronic 
communications  services  providers  prior  to  adopting  specific  measures  for  the 
security and integrity of electronic communications networks. 

3.  Member  States  shall  ensure  that  undertakings  providing  public  communications 
networks  or  publicly  available  electronic  communications  services  notify  the 
competent national regulatory authority of a breach of security or loss of integrity 
that had a significant impact on the operation of networks or services. 

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

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

4.  The  Commission,  taking  the  utmost  account  of  the  opinion  of  after  consulting 
ENISA,  may  adopt  appropriate  technical  implementing  measures  with  a  view  to 
harmonising the measures referred to in paragraphs 1, 2, and 3, including measures 
defining  the  circumstances,  format  and  procedures  applicable  to  notifications.  The 
adoption  of  such  technical  implementing  measures  shall  not  prevent  Member 
States from adopting additional requirements in order to pursue the objectives set 
out in paragraphs 1 and 2. 

Technical  implementing  measures  relating  to  notifications  shall  comply  with  the 
provisions of 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∗. 

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

__________ 

∗ 

OJ L 201, 31.7.2002, p. 37.". 

- Amendment 72 

The  amendment  provides  a  clarification.  However,  the  addition  of  sustainability 
criteria is not acceptable as it would weaken the Commission proposal. 

EN 

26 

   EN 

 
Article  1,  point  14,  of  the  amending  act;  Article  13b,  paragraph  1,  of  Directive 
2002/21/EC: 

"1.  Member  States  shall  ensure  that  the  competent  national  regulatory  authorities 
have  the  power  to  issue  binding  instructions  to  undertakings  providing  public 
communications  networks  or  publicly  available  electronic  communications  services 
in order to implement the provisions of Article 13a. These binding instructions shall 
be  proportionate  and  economically  and  technically  sustainable  and  shall  be 
implemented within a reasonable timeframe.". 

Amendment 74 

The  amendment  provides  a  clarification.  However,  it  needs  to  take  account  of  the 
fact that in the present provisions ‘security’ refers to both services and networks, but 
‘integrity’ only concerns networks. 

Article  1,  point  14,  of  the  amending  act;  Article  13b,  paragraph  2,  point  a,  of 
Directive 2002/21/EC: 

"(a)  provide  the  information  needed  to  assess  the  security  and/or  integrity  of  their 
services and networks, including documented security policies; and". 

- Amendment 75 

The  amendment  reinforces  the  provision.  However,  the  addition  of  ‘competent’  to 
‘NRA’ is unnecessary. 

Article  1,  point  14,  of  the  amending  act;  Article  13b,  paragraph  3,  of  Directive 
2002/21/EC: 

"3.  Member  States  shall  ensure  that  the  competent  national  regulatory  authorities 
have  all  the  powers  necessary  to  investigate  cases  of  non-compliance  and  their 
effects on the security and integrity of the networks." 

- Amendment 77 

The  Commission  can  accept  the  retention  of  paragraph  3  of  Article  14  of  the 
Framework  Directive,  but  does  not  agree  with  the  changes  made  to  it  by  this 
amendment. The modified proposal therefore drops the provision in the amending act 
deleting this paragraph from the Directive.  

Article 1, point 15, sub-point b, of the amending act is deleted. 

- Amendment 80 

The  Commission  can  accept  in  principle  the  modification  to  Article  16(1)  of  the 
Framework  Directive  in  this  amendment,  but  considers  the  reference  to  the 
Recommendation  to  be  redundant,  since  the  obligation  for  national  regulatory 
authorities  to  take  account  of  the  Recommendation  is  already  more  appropriately 
dealt with in Article 15(3).  

EN 

27 

   EN 

 
Article  1,  point  17,  sub-point  a,  of  the  amending  act;  Article  16,  paragraph  1,  of 
Directive 2002/21/EC: 

"National  regulatory  authorities  shall  carry  out  an  analysis  of  the  relevant  markets, 
taking account of the markets listed in the Recommendation and taking the utmost 
account  of  the  Guidelines.  Member  States  shall  ensure  that  this  analysis  is  carried 
out, where appropriate, in collaboration with the national competition authorities." 

- Amendment 84 

The Commission can accept the deletion of the reference to the urgency procedure in 
this  amendment,  but  does  not  agree  that  the  regulatory  procedure  with  scrutiny 
should  be  extended  to  cover  implementing  measures  referred  to  in  paragraph  1  of 
Article 17, since such measures are non-binding acts. 

Article  1,  point  18,  sub-point  c,  of  the  amending  act;  Article  17,  paragraph  6a,  of 
Directive 2002/21/EC: 

"6a. The implementing measures referred to in paragraphs 1, 4 and 6, designed to 
amend non-essential elements of this Directive by supplementing it, shall be adopted 
in  accordance  with  the  regulatory  procedure  with  scrutiny  referred  to  in  Article 
22(3)." 

– Amendment 85 

The wording in paragraph 1 of this amendment would allow the Commission to take 
action only ex post — after a divergence in implementation of regulatory tasks has 
already created a barrier to the internal market. Furthermore, the Commission needs 
to be able to issue a recommendation pursuant to this Article, which provides it with 
a rapid and flexible soft law instrument. Paragraph 2 is therefore retained. 

The Commission can accept the deletion of the reference to the urgency procedure in 
paragraph 3. 

The  amendment  to  paragraph  4(c)  is  rejected  since  it  would  give  the  Commission 
unduly wide comitology powers, going beyond the consumer issues included in the 
Universal  Service  Directive,  and  thus  beyond  the  scope  of  the  Regulatory 
Framework, whereas implementation measures to be taken pursuant to Article 19 are 
restricted to issues covered by the regulatory framework. 

The  additional  wording  in  paragraph  4(d)  is  needed  for  consistency  in  the 
terminology used to address this issue. 

The  deletion  of  paragraph  5  cannot  be  accepted:  it  represents  an  unnecessary 
restriction  on  the  tasks  of  [the  Body],  the  experience  of  which  may  be  useful  in 
advising the Commission on this issue. 

Article 1, point 20, of the amending act; Article 19 of Directive 2002/21/EC: 

"1.  Without  prejudice  to  Article  9  of  this  Directive  and  to  Articles  6  and  8  of 
Directive  2002/20/EC  (Authorisation  Directive),  where  the  Commission  finds  that 
divergences  in  the  implementation  by  national  regulatory  authorities  of  the 

EN 

28 

   EN 

 
regulatory  tasks  specified  in  this  Directive  and  the  Specific  Directives  may  create 
creates  a  barrier  to  the  internal  market,  it  may,  taking  the  utmost  account  of  the 
opinion of BERT [the Body], if any, issue a recommendation or a decision on the 
harmonised application of the provisions in this Directive and the Specific Directives 
in order to further the achievement of the objectives set out in Article 8. 

2. Where the Commission issues a recommendation pursuant to paragraph 1, it 
shall act in accordance with the procedure referred to in Article 22(2).  

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

3. The decision referred to in paragraph 1 designed to amend non-essential elements 
of  this  Directive  by  supplementing  it,  shall  be  adopted  in  accordance  with  the 
regulatory procedure with scrutiny referred to in Article 22(3). 

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

(a) the consistent implementation of regulatory approaches, including the regulatory 
treatment  of  new  services,  sub-national  markets  and  cross-border  business 
electronic communications services provided to businesses; 

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

(c)  consumer  issues  not  covered  by  Directive  2002/22/EC  (Universal  Service 
Directive), including in particular access to electronic communications services and 
equipment by disabled end-users; 

(d) regulatory accounting, including the calculation of investment risk. 

5.  [The  Body]  may  on  its  own  initiative  advise  the  Commission  on  whether  a 
measure should be adopted pursuant to paragraph 1." 

– Amendment 86 

The  reference  to  a  ‘joint  decision’  in  this  amendment  must  be  rejected.  NRAs  can 
only adopt binding decisions which apply to their territory. The possibility to adopt 
common decisions would impinge on the Member States' rights; there would also be 
concerns  as  to  the  competent  court  for  challenging  such  decisions.  However,  the 
NRAs  could  coordinate  and  agree  on  the  decisions  applying  to  the  undertakings 
concerned operating in their respective national territory and under their jurisdiction. 

Article 1, point 22, of the amending act; Article 21, paragraph 2, first subparagraph, 
of Directive 2002/21/EC: 

"2. Any party may refer the dispute to the national regulatory authorities concerned. 
The  competent  national  regulatory  authorities  shall  coordinate  their  efforts,  and 

EN 

29 

   EN 

 
where  appropriate  consult  within  BERT  [the  Body],  in  order  to  bring  about  a 
consistent  resolution  of  the  dispute,  as  far  as  possible  through  the  adoption  of  a 
joint  decision,  in  accordance  with  their  respective  competences  under  national 
law  and  the  objectives  set  out  in  Article  8.  Any  obligations  imposed  on 
undertakings  by  the  national  regulatory  authorities  as  part  of  the  resolution  of  a 
dispute  shall  comply  with  the  provisions  of  this  Directive  and  the  Specific 
Directives." 

With regard to the Access Directive: 

Amendments 91, 95, 98, 100, 101, 103 and 105.  

- Amendment 91 

The addition of a service-specific reference such as the one suggested in the area of 
directory  services  is  not  appropriate  within  the  EU  regulatory  framework.  The 
regulatory framework must not make any distinction between services belonging to 
the same category, in this particular case by singling out directory services provision 
from the more general category of information society services to which it belongs. 
Access  to  subscriber  information  would  potentially  raise  personal  data  protection 
issues; moreover, it is not clear that the repayment of sums between access providers 
and directory services providers is an access issue. 

Article 2, point 1, of the amending act; Article 2, point a, of Directive 2002/19/EC: 

"(a)  “access”  means  the  making  available  of  facilities  and/or  services  to  another 
undertaking, under defined conditions, on either an exclusive or non-exclusive basis, 
for  the  purpose  of  providing  electronic  communications  services,  including  the 
delivery of information society services or broadcast content services. It covers inter 
alia:  access  to  network  elements  and  associated  facilities,  which  may  involve  the 
connection  of  equipment  by  fixed  or  non-fixed  means  (in  particular  this  includes 
access  to  the  local  loop  and  to  facilities  and  services  necessary  to  provide  services 
over the local loop); access to physical infrastructure including buildings, ducts and 
masts;  access  to  relevant  software  systems  including  operational  support  systems; 
access to number translation or systems offering equivalent  functionality; access to 
necessary  subscriber  information  and  to  mechanisms  for  paying  back  sums 
invoiced  to  end  users  to  the  providers  of  directory  services;  access  to  fixed  and 
mobile networks, in particular for roaming; access to conditional access systems for 
digital television services; and access to virtual network services." 

- Amendment 95 

The  addition  of  a  service-specific  reference  such  as  that  suggested  in  Article  5, 
paragraph  1, point a, with regard to directory services is not appropriate within the 
EU regulatory framework. The regulatory framework must not make any distinction 
between services belonging to the same category, in this particular case by singling 
out  directory  services  provision  from  the  more  general  category  of  information 
society services to which it belongs.  

With respect to the proposed analysis of the different competitive conditions in the 
the 
Member  States  when  assessing 

the  proportionality  of 

the  obligations, 

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30 

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Commission has doubts about its feasibility, as this task would require a geographic 
analysis of markets which can be performed only as part of the market definition, a 
step that is not mandatory under paragraph 1 of Article 5, as the related obligations 
and  conditions  are  without  prejudice  to  the  existence  of  significant  market  power. 
There  is  thus  a  significant  risk  that  this  proposed  provision  would  create  some 
confusion and legal uncertainty. 

Article 2, point 2, of the amending act; Article 5 of Directive 2002/19/EC: 

"Paragraphs 1 and 2 are replaced by the following: 

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

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

(a) to the extent that is necessary to ensure end-to-end connectivity or fair and 
reasonable access to third-party services such as directory services, obligations on 
undertakings  that  control  access  to  end-users,  including  in  justified  cases  the 
obligation to interconnect their networks where this is not already the case or to 
make their services interoperable including through mechanisms for paying back 
to  service  providers  sums  invoiced  to  end-users,  on  fair,  transparent  and 
reasonable terms.; 

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

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

When  assessing  the  proportionality  of  the  obligations  and  conditions  to  be 
imposed,  national  regulatory  authorities  shall  take  into  account  the  different 
competitive  conditions  existing  in  the  different  areas  within  their  Member 
States."" 

- Amendment 98 

While  the  addition  of  the  wording  ‘including  any  restrictions  on  access  to  services 
and  applications’  brings  useful  clarification  in  the  context  of  next  generation 
services, the specific reference to traffic management would be disproportionate. 

EN 

31 

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Article 2,  point  6a  (new), of the amending act; Article 9, paragraph  1, of Directive 
2002/19/EC: 

"(6a) Article 9(1) shall be is replaced by the following: 

"1.  National  regulatory  authorities  may,  in  accordance  with  the  provisions  of 
Article 8,  impose  obligations  for  transparency  in  relation  to  interconnection 
and/or access, requiring operators to make public specified information, such as 
information,  technical  specifications,  network  characteristics, 
accounting 
including  any  restrictions  on  access  to  services  and  applications,  traffic 
management policies, terms and conditions for supply and use, and prices."" 

- Amendment 100 

In  paragraph  1,  second  sub-paragraph,  the  wording  must  remain  ‘may’  as  the 
obligations listed in points (a) to (j) are not all applied in a systematic way but rather 
selected, all or part of them only, further to the NRA’s analysis. 

The Commission has a positive view on the provision proposed in paragraph 1, point 
(fa),  as  it  would  encourage  investment  in  infrastructure  in  a  next  generation  access 
network  environment;  however,  this  obligation  duplicates  amendment  99  (accepted 
by the Commission), which modifies Article 9, paragraph 4 of Directive 2002/19/EC 
as  follows:  "Notwithstanding  paragraph  3,  where  an  operator  has  been  found,  in 
accordance with Article 14 of Directive 2002/21/EC (Framework Directive), to have 
significant  market  power  in  a  relevant  market  relating  to  local  access  at  a  fixed 
location, national regulatory authorities shall ensure the publication of a reference 
offer containing at least the elements set out in Annex II". 

In paragraph 2, point (c), the Commission’s modifications to Amendment 100 reflect 
the  need  to  ensure,  in  order  to  avoid  unnecessary  fragmentation  of  the  regulatory 
framework  within  a  Member  State  and  across  the  EU,  that  the  methodology  for 
sharing the risks involved should be consistent with that already applied by national 
regulatory authorities under asymmetric (i.e. SMP) regulation on the basis of Article 
13 of the Access Directive, under which the cost of capital employed is adjusted by a 
risk premium. 

Article 2, point 8, of the amending act; Article 12 of Directive 2002/19/EC: 

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

Operators shall may be required inter alia: 

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

(b) to negotiate in good faith with undertakings requesting access; 

EN 

32 

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

(d) to provide specified services on a wholesale basis for resale by third parties; 

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

(f) to provide co-location or other forms of facility sharing, including the sharing of 
ducts,  buildings  or  entry  to  buildings,  antennae  towers  and  other  supporting 
constructions, masts, manholes, cabinets and other network elements which are not 
active; 

(fa)  to  provide  third  parties  with  a  reference  offer  for  the  granting  of  access  to 
ducts; 

(g) to provide specified services needed to ensure interoperability of end-to-end 
services to users, including facilities for intelligent network services or roaming 
on mobile networks; 

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

(i) to interconnect networks or network facilities; 

(j)  to  provide  access  to  associated  services  such  as  identity,  location  and  presence 
capability. 

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

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

(a)  the  technical  and  economic  viability  of  using  or  installing  competing 
facilities, in the light of the rate of market development, taking into account the 
nature and type of interconnection and access involved, including the viability of 
other upstream access products such as access to ducts; 

(b)  the  feasibility  of  providing  the  access  proposed,  in  relation  to  the  capacity 
available; 

(c)  the  initial  investment  by  the  facility  owner,  bearing  in  mind  any  public 
investment made and the risks involved in making the investment, including an 
appropriate  risk-sharing  among  those  undertakings  enjoying  access  to  these  new 
facilities when imposing pricing obligations pursuant to Article 13; 

(d)  the  need  to  safeguard  competition  in  the  long  term,  in  particular 
infrastructure-based competition; 

EN 

33 

   EN 

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

(f) the provision of pan-European services. 

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

- Amendment 101 

It is useful to clarify that the costing methodology for regulated access prices should 
factor  in  the  risks  involved  in  infrastructure  investment  by  means  of  adjustments 
(through  a  risk  premium)  to  the  minimum  return  on  capital  employed.  This 
effectively implies that a financial contribution is made by access seekers to the risks 
borne by the investing operator. 

The  section  of  text  on  Article  19  of  the  Framework  Directive  is  unnecessary  as 
Article 19 would apply in its own terms. 

The last section of the amendment, introducing a differentiated regulatory treatment 
of  short  term  and  long  term  contracts,  lacks  proportionality  and  could  result  in  the 
creation of regulatory barriers to entry with the effect of impeding competition and 
investment in infrastructure. 

Article 2, point 8a (new), of the amending act; Article 13, paragraph 1, of Directive 
2002/19/EC: 

"(8a) Article 13(1) shall be is replaced by the following: 

"1.  A  national  regulatory  authority  may,  in  accordance  with  the  provisions  of 
Article  8,  impose  obligations  relating  to  cost  recovery  and  price  controls, 
including  obligations  for  cost  orientation  of  prices  and  obligations  concerning 
cost  accounting  systems,  for  the  provision  of  specific  types  of  interconnection 
and/or  access,  in  situations  where  a  market  analysis  indicates  that  a  lack  of 
effective competition means that the operator concerned might sustain prices at 
an excessively high level, or apply a price squeeze, to the detriment of end-users. 
When  setting  an  access  price,  Nnational  regulatory  authorities  shall  take  into 
account the investment made by the operator and allow him a reasonable rate of 
return  on  adequate  capital  employed,  including  where  relevant  a  premium  to 
reflect  the  risks  involved,  and,  without  prejudice  to  Article  19(d)  of  Directive 
2002/21/EC (Framework Directive), take into account the risks involved and the 
appropriate  sharing  of  risk  between  investors  and  those  undertakings  enjoying 
access to the new facilities, including differentiated short-term and long-term risk-
sharing arrangements.""  

- Amendment 103 

EN 

34 

   EN 

 
In  paragraph  1,  first  sub-paragraph,  the  word  ‘fixed’  must  be  rejected  because  it  is 
not technologically neutral. 

In paragraph 2, the word ‘request’ must be used instead of ‘proposal’ because it has 
to  be  consistent  with  the  wording  used  in  Article  8,  paragraph  3,  of  Directive 
2002/19/EC. 

In  paragraph  2,  point  (a),  the  word  ‘wholesale’  is  rejected  because  the  competition 
problem  could  be  identified  at  retail  level,  even  if  the  regulatory  intervention  is  at 
wholesale level. 

In paragraph 2, point (c) has been included, and paragraph 3 is modified accordingly 
for clarification purposes. 

In  paragraph  2,  point  (ba),  the  wording  has  been  adjusted  in  the  light  of  Article  8, 
paragraph 4, of Directive 2002/19/EC. 

Article 2, point 9, of the amending act; Article 13a, paragraphs 1 to 3, of Directive 
2002/19/EC: 

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

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

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

(a) evidence that the imposition and enforcement over a reasonable period, taking 
due  account  of  regulatory  best  practice,  of  appropriate  obligations  amongst  those 
identified in Articles 9 to 13 to achieve effective competition following a coordinated 
analysis of the relevant markets in accordance with the market analysis procedure set 
out  in  Article  16  of  Directive  2002/21/EC  (Framework  Directive)  has  failed  and 
would  fail  on  a  persistent  basis  to  achieve  effective  competition  and  that  there  are 
important  and  persisting  competition  problems  and  market  failures  identified  in 
several of the wholesale product markets analysed; 

(ab) evidence that there is little or no prospect of infrastructure-based competition 
within a reasonable timeframe; 

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

EN 

35 

   EN 

 
(ba)  an  analysis  of  the  reasons  justifying  that  this  obligation  would  be  the  most 
efficient  means  to  enforce  remedies  aimed  at  addressing  the  competition 
problems/market  failures  identified  demonstrating  that  this  obligation  would 
satisfy the requirements of Article 8(4) of Directive 2002/19/EC; 

(c) a draft of the measure being proposed. 

3. The national regulatory authority draft measure shall include in its proposal a 
draft of the proposed measure, which shall include the following elements: 

(a) the precise nature and level of separation; 

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

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

(d) rules for ensuring compliance with the obligations; 

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

(f) a monitoring programme to ensure compliance, including publication of an annual 
report." 

- Amendment 105 

The  Commission  can  accept  all  the  changes  to  Annex  II  of  the  Access  Directive 
made  by  this  amendment,  as  they  improve  the  technological  neutrality  of  the 
provisions  within  it,  except  for  the  Parliament's  deletion  of  the  footnote  in  part  A, 
paragraph  2  and  part  B,  paragraph  1.  This  footnote  contains  an  important 
qualification relating to public security concerns. 

Article 2 – point 10 a (new) of the amending act; Annex II of Directive 2002/19/EC: 

"Minimum list of items to be included in a reference offer for wholesale network 
infrastructure access , including shared or fully unbundled access at a fixed 
location, to be published by [...] operators with significant market power (SMP) 

For the purposes of this Annex the following definitions apply: 

(a)  "local  sub-loop"  means  a  partial  local  loop  connecting  the  network 
termination  point  to  a  concentration  point  or  a  specified  intermediate  access 
point in the fixed public electronic communications network; 

(b)  "unbundled  access  to  the  local  loop"  means  full  unbundled  access  to  the 
local  loop  and  shared  access  to  the  local  loop;  it  does  not  entail  a  change  in 
ownership of the local loop; 

EN 

36 

   EN 

 
(c)  "full  unbundled  access  to  the  local  loop"  means  the  provision  to  a 
beneficiary  of  access  to  the  local  loop  or  local  sub-loop  of  the  SMP  operator 
allowing the use of the full capacity of the network infrastructure ; 

(d)  "shared  access  to  the  local  loop"  means  the  provision  to  a  beneficiary  of 
access to the local loop or local sub-loop of the SMP operator allowing the use of 
a  specified  part  of  the  capacity  of  the  network  infrastructure  such  as  part  of  the 
frequency or an equivalent ; 

A. Conditions for unbundled access 

1.  Network  elements  to  which  access  is  offered  covering  in  particular  the 
following elements together with appropriate associated facilities: 

(a) unbundled access to local loops and local sub-loops; 

(b)  shared  access  at  appropriate  points  in  the  network  permitting  equivalent 
functionality  to  unbundled  access  in  circumstances  where  such  access  is  not 
technically or economically feasible; 

(ba) duct access enabling installation of access and backhaul networks; 

2. Information concerning the locations of physical access sites∗ including street 
cabinets  and  distribution  frames,  availability  of  local  loops  and  sub-loops,  ducts 
and backhaul in specific parts of the access network and availability within ducts; 

3. Technical conditions related to access and use of local loops and sub-loops and 
ducts , including the technical characteristics of the twisted pair , optical fibre or 
an equivalent, and of the cable distributors, ducts and associated facilities; 

4. Ordering and provisioning procedures, usage restrictions. 

B. Co-location services 

1.  Information  on  the  SMP  operator's  existing  relevant  sites  or  equipment 
locations and planned updates thereto∗." 

__________ 

Availability  of  this  information  may  be  restricted  to  interested  parties  only,  in  order  to 

∗ 
avoid public security concerns. 

(Remainder of the Annex unchanged) 

With regard to the Authorisation Directive: 

Amendments 106, 107, 108/rev, 121 and 125. 

- Amendment proposed by the Commission as a consequence of Amendment 108/rev 

The  Commission  considers  it  appropriate  to  include  a  definition  of  ‘pan-European 
wireless  electronic  communications  networks  or  services’  in  Article  2  of  the 

EN 

37 

   EN 

 
Authorisation  Directive  as  a  consequence  of  the  modifications  to  its  proposal 
resulting from Parliament’s Amendment 108/rev. 

Article 3, point 1, of the amending act; Article 2, point 2, of Directive 2002/20/EC: 

"Article 2(2) is replaced by the following: 

"2. The following definition definitions shall also apply: 

(a)  "general  authorisation"  means  a  legal  framework  established  by  the  Member 
State  ensuring  rights  for  the  provision  of  electronic  communications  networks  or 
services  and  laying  down  sector  specific  obligations  that  may  apply  to  all  or  to 
specific  types  of  electronic  communications  networks  and  services,  in  accordance 
with this Directive; 

(aa)  "pan-European  wireless  electronic  communications  network  or  service" 
means a wireless electronic communications network or service with an internal 
market dimension involving at least three Member States."" 

- Amendment 106 

The amendment aims to facilitate the provision and deployment of services that are 
delivered  without  needing  any  specific  infrastructure  (e.g.  VoIP)  on  a  cross-border 
basis.  However,  the  requirement  to  treat  all  undertakings  providing  cross-border 
services  to  undertakings  located  in  several  Member  States  ‘in  the  same  way  in  all 
Member States’ is too imprecise and too general to be implemented in practice. It is 
rather an aspiration than a substantive obligation. Furthermore, the reference to ‘one 
simplified’  notification  is  unclear,  nor  is  it  clear  how  this  ‘simplified’  notification 
would  differ  from  the  notification  that  may  be  required  by  the  national  regulatory 
authority for the provision of electronic communications networks and services.  

Article 3, point 2a (new), of the amending act; Article 3, paragraph 2, subparagraph 
1a (new), of Directive 2002/20/EC: 

"(2a) In Article 3(2), the following subparagraph shall be is added: 

"Undertakings  providing  cross-border  electronic  communications  services  to 
undertakings located in several Member States shall be treated in the same way in 
all Member States and shall be subject to no more than one simplified notification 
per Member State concerned."" 

- Amendment 107 

The changes made to Article 5 (2), (3) and (4) generally make the text clearer.  

In the fifth amended subparagraph of Article 5(2) starting with ‘Where an individual 
right…’,  the  obligation  to  review  every  five  years  should  stand  since  giving  the 
means to verify does not amount to guaranteeing that it will be done. 

The  amendments  to  Article  5(1)  are  not  acceptable  as  they  would  weaken  or  even 
backtrack compared to the existing legislation, which sets more stringent conditions 
for  the  requirement  of  individual  rights  to  use  spectrum.  In  Article  5(6),  the  list  of 

EN 

38 

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competition  measures  that  Member  States  may  take  must  remain  to  confirm  the 
Member States’ power of action in these matters. 

Article 3, point 3, of the amending act; Article 5 of Directive 2002/20/EC: 

"1. Member States shall, where possible, in particular where the risk of harmful 
interference  is  negligible,  not  make  facilitate  the  usage  of  radio  frequencies 
subject  to  the  granting  of  individual  rights  of  use  by  means  of  general 
authorisations.  Member  States  may  grant  individual  rights  of  use  in  order  to:  but 
shall  include  the  conditions  for  usage  of  such  radio  frequencies  in  the  general 
authorisation 

(a) avoid the possibility of harmful interference;  

(aa) ensure the technical quality of services; 

(ab) ensure the efficient use of spectrum; 

(b)  fulfil  other  objectives  of  general  interest  defined  in  national  legislation  in 
accordance with Community law; or 

(ba) comply with a measure adopted pursuant to Article 6a. 

2.  Member  States  shall  grant  individual  rights  of  use,  upon  request,  to  any 
undertaking,  subject  to  the  provisions  of  Articles  6,  6a,  7  and  11(1)(c)  of  this 
Directive  and  any  other  rules  ensuring  the  efficient  use  of  those  resources  in 
accordance with Directive 2002/21/EC (Framework Directive). 

Without prejudice to specific criteria and procedures adopted by Member States to 
grant rights of use of radio frequencies to providers of radio or television broadcast 
content  services  with  a  view  to  pursuing  general  interest  objectives  in  conformity 
with  Community  law,  such  rights  of  use  shall  be  granted  through  open,  objective, 
transparent,  non-discriminatory  and  proportionate  procedures,  and,  in  the  case  of 
radio  frequencies,  in  accordance  with  the  provisions  of  Article  9  of  Directive 
2002/21/EC (Framework Directive). The procedures may, exceptionally, not be open 
in  cases  where  the  granting  of  individual  rights  of  use  for  radio  frequencies  to  the 
providers  of  radio  or  television  broadcast  content  services  can  be  shown  to  be 
essential  to  meet  a  particular  obligation  defined  and  justified  in  advance  by  the 
Member  State  which  is  necessary  to  achieve  a  general  interest  objective  in 
conformity with Community law.  

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

Where  Member States grant rights of use for  a  limited  period  of time, the duration 
shall  be  appropriate  for  the  service  concerned  in  view  of  the  objective  pursued, 
taking due account of the need to allow for an appropriate period for amortisation 
of investment. 

EN 

39 

   EN 

 
Where an individual rights to use radio frequencies is are granted for ten years or 
more and may not cannot be transferred or leased between undertakings pursuant to 
as  allowed  by  Article  9b  of  Directive  2002/21/EC  (Framework  Directive),  every 
five  years  and  for  the  first  time  five  years  after  its  issuance,  the  competent 
national  authority  shall  ensure  that  the  criteria  to  grant  such  individual  rights  of 
use  apply  and  are  complied  with  for  the  duration  of  the  license  licence.  If  those 
criteria are no longer applicable, the individual right of use shall be changed into a 
general  authorisation  for  the  use  of  radio  frequencies,  subject  to  prior  notice  and 
after a reasonable period of time, or shall be made freely transferable or leaseable 
between undertakings.  

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

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

With  regard 
frequencies, Article 7 shall apply. 

to  competitive  or  comparative  selection  procedures  for  radio 

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

6. Competent National regulatory authorities shall ensure that radio frequencies are 
efficiently  and  effectively  used  in  accordance  with  Articles  8(2)  and  9(2)  of 
Directive 2002/21/EC (Framework Directive). They shall also ensure competition is 
not  distorted  as  a  result  of  any  transfer  or  accumulation  of  rights  of  usage  use  of 
radio  frequencies.  For  such  purposes,  Member  States  may  take  appropriate 
measures  such  as  reducing,  withdrawing  or  forcing  the  sale  of  a  right  to  use 
radio frequencies." 

- Amendment 108/rev 

to 

(d) 

reference 

in  Article  6a(1)(c)  and 

The 
‘pan-European  electronic 
communications  networks  or  services’  in  the  context  of  spectrum  rights  may  be 
acceptable  as  long  as  the  notion  covers  any  network  or  service  that  has  an  internal 
market or a significant cross-border dimension, so as to reduce the fragmentation of 
assignment procedures. It is therefore appropriate to define the term ‘pan-European 
wireless  electronic  communications  networks  or  services’  in  Article  2  of  the 
Authorisation Directive, and such a definition is therefore included in this modified 
proposal. 

EN 

40 

   EN 

 
The deletion of the reference to the urgency comitology procedure can be accepted. 

Article 3, point 5, of the amending act; Article 6a of Directive 2002/20/EC: 

"Article 6a 

Harmonisation measures 

1. Without prejudice to Article 5(1) and (2) of this Directive and Articles 8b and 9 
of  Directive  2002/21/EC  (Framework  Directive),  the  Commission  may  adopt 
implementing measures: 

(a)  to  identify  radio  frequency  bands  the  use  of  which  is  to  be  made  subject  to 
general authorisation on a harmonised basis; 

(b) to identify the numbering ranges to be harmonised at Community level and/or to 
harmonise the procedures for the granting of rights of use for numbers within 
such  ranges,  the  procedures  for  the  selection  of  undertakings  to  which  such 
rights are to be granted and/or the conditions specified in Annex II which may 
be attached to such rights; 

(c)  to  harmonise  procedures  for  the  granting  to  undertakings  providing  pan-
European electronic communications networks or services of general authorisations 
or  individual  rights  of  use  for  radio  frequencies  or  numbers  for  the  provision  of 
pan-European  wireless  electronic  communications  networks  or  services  and  to 
lay  down,  where  applicable,  procedures  for  the  selection  of  undertakings  to 
which national individual rights of use for radio frequencies are to be granted 
for the provision of such networks or services;  

(d)  to  harmonise  the  conditions  specified  in  Annex  II  relating  to  the  granting  to 
undertakings  providing  pan-European  wireless  electronic  communications 
networks  or  services  of  general  authorisations  or  individual  rights  of  use  for  radio 
frequencies or numbers. 

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 14a(3).  

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

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

- Amendment 121 

The amendment seeks to strike a balance between transparency on access conditions 
and disclosure of possible restrictions.  

EN 

41 

   EN 

 
Annex I, point 3, sub-point ga (new), of the amending act; Annex I, part A, point 19a 
(new), of Directive 2002/20/EC: 

"(ga) the following point shall be is added: 

"19a  Transparency  obligations  on  public  communications  network  providers 
which  may  be  imposed  so  as  to  ensure  foster  end-to-end  connectivity,  including 
unrestricted  access  to  content,  services  and  applications,  in  conformity  with  the 
objectives  and  principles  set  out  in  Article  8  of  Directive  2002/21/EC,  as  well  as 
disclosure obligations regarding restrictions on access to services and applications 
and  regarding 
traffic  management  policies  and,  where  necessary  and 
proportionate,  access  by  national  regulatory  authorities  to  such  information 
needed to verify the accuracy of such disclosure."" 

- Amendment 125 

In  order  to  avoid  discriminatory  treatment  among  spectrum  users,  the  obligation  to 
fulfil specific general interest objectives imposed on providers of services should be 
quantified and subject to non-discrimination. 

Annex  II  of  the  amending  act;  Annex  II,  point  1,  sub-point  d,  of  Directive 
2002/20/EC: 

"(d) the method of determining usage fees for the right, without prejudice to systems 
defined by Member States where the obligation to pay usage fees is replaced by the 
imposition  on  a  non-discriminatory  basis  of  an  obligation  to  fulfil  specific 
general interest objectives;" 

4.3. 

Amendments not accepted by the Commission 

Amendments 1, 3, 4, 8, 9, 10, 11, 13, 18, 20, 21, 22, 23, 25, 28, 29, 30, 33, 34, 47, 
49, 50, 51, 54, 55, 57, 73/rev, 76, 78, 82, 83, 87, 88, 90, 93, 94, 97, 102, 104, 109, 
110, 114, 118, 119, 120 and 122 cannot be accepted by the Commission. 

5. 

AMENDED PROPOSAL 

Having  regard  to  Article  250(2)  of  the  EC  Treaty,  the  Commission  amends  its 
proposal as indicated above.  

EN 

42 

   EN