Opinion of the Commission pursuant to Article 251(2), third subparagraph, point (c) of the EC Treaty, on the European Parliament's amendments to the Council's Common Position regarding the 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 associated facilities, and 2002/20/EC on the authorisation of electronic communications networks and services amending the proposal of the Commission pursuant to Article 250 (2) of the EC Treaty
Date: 2009-07-29
Institutions: European Commission
Subjects: EC opinion, approximation of laws, competition law, electronic mail, information network, regulation of telecommunications, single market, systems interconnection, telecommunications, transmission network

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 29.7.2009 
COM(2009) 420 final 

2007/0247 (COD) 

OPINION OF THE COMMISSION 

pursuant to Article 251(2), third subparagraph, point (c) of the EC Treaty, on the 
European Parliament's amendments to the Council's Common Position regarding the 
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 associated facilities, and 2002/20/EC on the authorisation 
of electronic communications networks and services 

AMENDING THE PROPOSAL OF THE COMMISSION pursuant to Article 250 (2) of the 
EC Treaty 

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2007/0247 (COD) 

OPINION OF THE COMMISSION 

pursuant to Article 251(2), third subparagraph, point (c) of the EC Treaty, on the 
European Parliament's amendments to the Council's Common Position regarding the 
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 associated facilities, and 2002/20/EC on the authorisation 
of electronic communications networks and services 

1. 

BACKGROUND 

Procedure 

The  Commission  adopted  its  proposal  for  Directive  COM(2007) 697  –  2007/0247  (COD) 
(‘Better  Regulation  Directive’)  on  13 November  2007  and  submitted  it  to  the  European 
Parliament and to the Council on 16 November 2007 for adoption by co-decision procedure as 
laid down in Article 251 of the EC Treaty. 

The Economic and Social Committee gave its opinion on 29 May 2008. The Committee of the 
Regions adopted its opinion on 19 June 2008. 

On  6  November  2008  the  Commission  adopted,  in  accordance  with  Article 250  of  the  EC 
Treaty,  its  amended  proposal1  incorporating  in  whole  or  in  part  many  of  the  amendments 
voted by the European Parliament in its first reading on 24 September 2008. 

The Council, in accordance with Article 251 of the EC Treaty, adopted its common position 
on the proposal on 16 February 20092. 

The Commission adopted its Communication on the common position of the Council on 17 
February 20093. 

The European Parliament adopted its position in second reading on 6 May 2009. 

2. 

OBJECTIVE OF THE COMMISSION PROPOSAL 

The  aim  of  the  Commission’s  proposals  is  to  adjust  the  regulatory  framework  for 
e-communications,  as  regards  the  Framework4,  Authorisation5  and  Access  Directives6,  to 

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COM(2008) 724 final. 
OJ C103E, 5.5.2009, p 1. 
COM(2009) 78 final. 
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). 

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improve  their  effectiveness,  reduce  the  administrative  resources  needed  for  implementing 
economic regulation and make access to radio frequencies simpler and more efficient. 

3. 

COMMISSION COMMENTS 

3.1. 

General 

At  its  Plenary  Session  of  6  May  2009,  the  European  Parliament  adopted  a  number  of 
amendments  negotiated  with  the  Council  to  the  Council's  common  position  with  a  view  to 
securing adoption in second reading. These amendments concern essentially: 

–  With  regard  to  spectrum:  the  introduction  of  greater  flexibility  through  service  and 
technology  neutrality  albeit  with  a  series  of  exceptions;  the  possibility  to  impose  service 
exclusivity  in  limited  cases;  the  adoption  of  pluriannual  spectrum  policy  programmes  by 
the European Parliament and Council upon a proposal by the Commission assisted by the 
Radio Spectrum Policy Group; the power to harmonise bands where rights are to be made 
tradable, and exemption from the requirement to initiate a new award of rights in the case 
of the review of restrictions to existing rights.  

–  Strengthening  the  independence  of  the  national  regulatory  authorities  responsible  for  ex 

ante market regulation and dispute resolution; 

–  Further  clarification  of  the  requirements  applicable  to  appeals  against  decisions  of  the 

national regulatory authorities; 

–  Provision 

for 

the  Commission, 

issue 
recommendations  with  regard  to  the  withdrawal  and/or  amendment  of  draft  measures 
notified  by  national  regulatory  authorities  relating  to  the  imposition,  amendment  or 
withdrawal of ex ante obligations on operators;  

in  close  cooperation  with  BEREC, 

to 

–  Ensuring  that  national  regulatory  authorities  take  measures  to  promote  the  interests  of 

citizens by safeguarding fundamental rights and freedoms of end-users; 

–  Power  for  the  Commission  to  adopt  further  harmonisation  measures  in  the  form  of 
recommendations  or  binding  decisions,  where  divergences  in  the  implementation  of 
remedies persist; 

–  Strengthening  the  powers  of  national  authorities  to  impose  obligations  for  the  sharing  of 

facilities or property associated with electronic communications networks; 

–  Clarification  of  the  principles  and  objectives  to  be  followed  by  national  regulatory 
authorities,  with  particular  reference  to  preserving  incentives  for  investment  in  new 
network infrastructure while safeguarding competition; 

–  Updating and modernisation of provisions in order to improve the technological neutrality 

of the framework; 

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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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–  New  provisions  setting  out  the  conditions  and  procedure  for  the  imposition  of  functional 

separation by a national regulatory authority. 

The  Commission  accepts  the  European  Parliament's  amendments  as  being  in  line  with  the 
overall purpose and the general characteristics of the proposal. 

Concerning  Amendment  138  the  Commission  accepted  it  in  its  amended  proposal  after  the 
European  Parliament's  first  reading  but  supported  the  European  Parliament-Council 
compromise text afterwards as a balanced solution. The Commission could, therefore, accept 
the amendment, but will do its utmost to facilitate the emergence of a compromise between 
the co-legislators on this issue. 

3.2. 

Amended Proposal 

Pursuant to Article 250(2) of the EC Treaty, the Commission amends its Proposal in line with 
the amendments voted by the European Parliament at its plenary session on 6 May 2009. 

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