Source: EURLEX
Language: en
Format: md

1990L0388 — EN — 15.02.1996 — 003.001 — 1

**This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents**

**►B** **COMMISSION DIRECTIVE**

**of 28 June 1990**

**on competition in the markets for telecommunications services**

(90/388/EEC)

(OJ L 192, 24.7.1990, p. 10)

Amended by:

Official Journal

No page date

**►M1** Commission Directive 94/46/EC of 13 October 1994 L 268 15 19.10.1994

**►M2** Commission Directive 95/51/EC of 18 October 1995 L 256 49 26.10.1995

**►M3** Commission Directive 96/2/EC of 16 January 1996 L 20 59 26.1.1996

Corrected by:

**►C1** Corrigendum, OJ L 308, 29.11.1996, p. 59 (95/51/EC)

**►C2** Corrigendum, OJ L 66, 16.3.1996, p. 36 (96/2/EC)

1990L0388 — EN — 15.02.1996 — 003.001 — 2

- **B**

**COMMISSION DIRECTIVE**

**of 28 June 1990**

**on competition in the markets for telecommunications services**

(90/388/EEC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Economic
Community, and in particular Article 90 (3) thereof,

Whereas:

(1) The improvement of telecommunications in the Community is an
essential condition for the harmonious development of economic
activities and a competitive market in the Community, from the
point of view of both service providers and users. The
Commission has therefore adopted a programme, set out in its
Green Paper on the development of the common market for
telecommunications services and equipment and in its communication on the implementation of the Green Paper by 1992, for
progressively introducing competition into the telecommunications market. The programme does not concern mobile telephony
and paging services, and mass communication services such as
radio for television. The Council, in its resolution of 30 June
1988 ( [1] ), expressed broad support for the objectives of this
programme, and in particular the progressive creation of an open
Community market for telecommunications services. The last
decades have seen considerable technological advances in the
telecommunications sector. These allow an increasingly varied
range of services to be provided, notably data transmission
services, and also make it technically and economically possible
for competition to take place between different service providers.

(2) In all the Member States the provision and operation of
telecommunications networks and the provision of related
services are generally vested in one or more telecommunications
organizations holding exclusive or special rights. Such rights are
characterized by the discretionary powers which the State
exercises, in various degrees with regard to access to the market
for telecommunications services.

(3) The organizations entrusted with the provision and operation of
the telecommunications network are undertakings within the
meaning of Article 90 (1) of the Treaty because they carry on an
organized business activity, namely the provision of telecommunications services. They are either public untertakings or private
enterprises to which the State has granted exclusive or special
rights.

(4) Several Member States, while ensuring the performance of public
service tasks, have already revised the system of exclusive or
special rights that used to exist in the telecommunications sector
in their country. In all cases, the system of exclusive or special
rights has been maintained in respect of the provision and
operation of the network. In some Member States, it has been
maintained for all telecommunications services, while in others
such rights cover only certain services. All Member States have
either themselves imposed or allowed their telecommunications
administrations to impose restrictions on the free provision of
telecommunications services.

(5) The granting of special or exclusive rights to one or more
undertakings to operate the network derives from the discretionary power of the State. The granting by a Member State of
such rights inevitably restricts the provision of such services by
other undertakings to or from other Member States.

( [1] ) OJ No C 257, 4. 10. 1988, p. 1.

1990L0388 — EN — 15.02.1996 — 003.001 — 3

- **B**

(6) In practice, restrictions on the provision of telecommunications
services within the meaning of Article 59 to or from other
Member States consist mainly in the prohibition on connecting
leased lines by means of concentrators, multiplexers and other
equipment to the switched telephone network, in imposing access
charges for the connection that are out of proportion to the service
provided, in prohibiting the routing of signals to or from third
parties by means of leased lines or applying volume sensitive
tariffs without economic justification or refusing to give service
providers access to the network. The effect of the usage
restrictions and the excessive charges in relation to net cost is
to hinder the provision to or from other Member States of such
telecommunications services as:

— services designed to improve telecommunications functions,
e.g. conversion of the protocol, code, format or speed,

— information services providing access to data bases,

— remote data-processing services,

— message storing and forwarding services, e.g. electronic mail,

— transaction services, e.g. financial transactions, electronic
commercial data transfer, teleshopping and telereservations,

— teleaction services, e.g. telemetry and remote monitoring.

(7) Articles 55, 56 and 66 of the Treaty allow exceptions on noneconomic grounds to the freedom to provide services. The
restrictions permitted are those connected, even occasionally,
with the exercise of official authority, and those connected with
public policy, public security or public health. Since these are
exceptions, they must be interpreted restrictively. None of the
telecommunications services is connected with the exercise of
official authority involving the right to use undue powers
compared with the ordinary law, privileges of public power or a
power of coercion over the public. The supply of telecommunication services cannot in itself threaten public policy and cannot
affect public health.

(8) The Court of Justice caselaw also recognizes restrictions on the
freedom to provide services if they fulfil essential requirements in
the general interest and are applied without discrimination and in
proportion to the objective. Consumer protection does not make it
necessary to restrict freedom to provide telecommunications
services since this objective can also be attained through free
competition. Nor can the protection of intellectual property be
invoked in this connection. The only essential requirements
derogating from Article 59 which could justify restrictions on the
use of the public network are the maintenance of the integrity of
the network, security of network operations and in justified cases,
interoperability and data protection. The restrictions imposed,
however, must be adapted to the objectives pursued by these
legitimate requirements. Member States will have to make such
restrictions known to the public and notify them to the
Commission to enable it to assess their proportionality.

(9) In this context, the security of network operations means ensuring
the availability of the public network in case of emergency. The
technical integrity of the public network means ensuring its
normal operation and the interconnection of public networks in
the Community on the basis of common technical specifications.
The concept of interoperability of services means complying with
such technical specifications introduced to increase the provision
of services and the choice available to users. Data protection
means measures taken to warrant the confidentiality of communications and the protection of personal data.

(10) Apart from the essential requirements which can be included as
conditions in the licensing or declaration procedures, Member
States can include conditions regarding public-service requirements which constitute objective, non-discriminatory and
transparent trade regulations regarding the conditions of permanence, availability and quality of the service.

1990L0388 — EN — 15.02.1996 — 003.001 — 4

- **B**

(11) When a Member State has entrusted a telecommunications
organization with the task of providing packet or circuit switched
data services for the public in general and when this service may
be obstructed because of competition by private providers, the
Commission can allow the Member State to impose additional
conditions for the provision of such a service, with respect also to
geographical coverage. In assessing these measures, the Commission in the context of the achievement of the fundamental
objectives of the Treaty referred to in Article 2 thereof, including
that of strengthening the Community's economic and social
cohesion as referred to in Article 130a, will also take into account
the situation of those Member States in which the network for the
provision of the packet or circuit switched services is not yet
sufficiently developed and which could justify the deferment for
these Member States until 1 January 1996 of the date for
prohibition on the simple resale of leased line capacity.

(12) Article 59 of the Treaty requires the abolition of any other
restriction on the freedom of nationals of Member States who are
established in a Community country to provide services to
persons in other Member States. The maintenance or introduction
of any exclusive or special right which does not correspond to the
abovementioned criteria is therefore a breach of Article 90 in
conjunction with Article 59.

(13) Article 86 of the Treaty prohibits as incompatible with the
common market any conduct by one or more undertakings that
involves an abuse of a dominant position within the common
market or a substantial part of it. Telecommunications organizations are also undertakings for the purposes of this Article
because they carry out economic activities, in particular the
service they provide by making telecommunications networks and
services available to users. This provision of the network
constitutes a separate services market as it is not interchangeable
with other services. On each national market the competitive
environment in which the network and the telecommunications
services are provided is homogeneous enough for the Commission
to be able to evaluate the power held by the organizations
providing the services on these territories. The territories of the
Member States constitute distinct geographical markets. This is
essentially due to the existing difference between the rules
governing conditions of access and technical operation, relating to
the provision of the network and of such services. Furthermore,
each Member State market forms a substantial part of the
common market.

(14) In each national market the telecommunications organizations
hold individually or collectively a dominant position for the
creation and the exploitation of the network because they are the
only ones with networks in each Member State covering the
whole territory of those States and because their governments
granted them the exclusive right to provide this network either
alone or in conjunction with other organizations.

(15) Where a State grants special or exclusive rights to provide
telecommunications services to organizations which already have
a dominant position in creating and operating the network, the
effect of such rights is to strengthen the dominant position by
extending it to services.

(16) Moreover, the special or exclusive rights granted to telecommunications organizations by the State to provide certain
telecommunications services mean such organizations:

(a) prevent or restrict access to the market for these telecommunications services by their competitors, thus limiting
consumer choice, which is liable to restrict technological
progress to the detriment of consumers;

(b) compel network users to use the services subject to exclusive
rights, and thus make the conclusion of network utilization

1990L0388 — EN — 15.02.1996 — 003.001 — 5

- **B**

contracts dependent on acceptance of supplementary services
having no connection with the subject of such contracts.

Each of these types of conduct represents a specific abuse of a
dominant position which is likely to have an appreciable effect on
trade between Member States, as all the services in question could
in principle be supplied by providers from other Member States.
The structure of competition within the common market is
substantially changed by them. At all events, the special or
exclusive rights for these services give rise to a situation which is
contrary to the objective in Article 3 (f) of the Treaty, which
provides for the institution of a system ensuring that competition
in the common market is not distorted, and requires _a fortiori_ that
competition must not be eliminated. Member States have an
obligation under Article 5 of the Treaty to abstain from any
measure which could jeopardize the attainment of the objectives
of the Treaty, including that of Article 3 (f).

17) The exclusive rights to telecommunications services granted to
public undertakings or undertakings to which Member States have
granted special or exclusive rights for the provision of the
network are incompatible with Article 90 (1) in conjunction with
Article 86.

(18) Article 90 (2) of the Treaty allows derogation from the
application of Articles 59 and 86 of the Treaty where such
application would obstruct the performance, in law or in fact, of
the particular task assigned to the telecommunications organizations. This task consists in the provision and exploitation of a
universal network, i.e. one having general geographical coverage,
and being provided to any service provider or user upon request
within a reasonable period of time. The financial resources for the
development of the network still derive mainly from the operation
of the telephone service. Consequently, the opening-up of voice
telephony to competition could threaten the financial stability of
the telecommunications organizations. The voice telephony
service, whether provided from the present telephone network
or forming part of the ISDN service, is currently also the most
important means of notifying and calling up emergency services
in charge of public safety.

(19) The provision of leased lines forms an essential part of the
telecommunications organizations' tasks. There is at present, in
almost all Member States, a substantial difference between
charges for use of the data transmission service on the switched
network and for use of leased lines. Balancing those tariffs
without delay could jeopardize this task. Equilibrium in such
charges must be achieved gradually between now and 31
December 1992. In the meantime it must be possible to require
private operators not to offer to the public a service consisting
merely of the resale of leased line capacity, i.e. including only
such processing, switching of data, storing, or protocol conversion
as is necessary for transmission in real time. The Member States
may therefore establish a declaration system through which
private operators would undertake not to engage in simple resale.
However, no other requirement may be imposed on such
operators to ensure compliance with this measure.

(20) These restrictions do not affect the development of trade to such
an extent as would be contrary to the interests of the Community.
Under these circumstances, these restrictions are compatible with
Article 90 (2) of the Treaty. This may also be the case as regards
the measures adopted by Member States to ensure that the
activities of private service providers do not obstruct the public
switched-data service.

(21) The rules of the Treaty, including those on competition, apply to
telex services; however, the use of this service is gradually
declining throughout the Community owing to the emergence of
competing means of telecommunication such as telefax. The
abolition of current restrictions on the use of the switched
telephone network and leased lines will allow telex messages to

1990L0388 — EN — 15.02.1996 — 003.001 — 6

- **B**

be retransmitted. In view of this particular trend, an individual
approach is necessary. Consequently, this Directive should not
apply to telex services.

(22) The Commission will in any event reconsider in the course of
1992 the remaining special or exclusive rights on the provision of
services taking account of technological development and the
evolution towards a digital infrastructure.

(23) Member States may draw up fair procedures for ensuring
compliance with the essential requirements without prejudice to
the harmonization of the latter at Community level within the
framework of the Council Directives on open network provision
(ONP). As regards data-switching, Member States must be able,
as part of such procedures, to require compliance with trade
regulations from the standpoint of conditions of permanence,
availability and quality of the service, and to include measures to
safeguard the task of general economic interest which they have
entrusted to a telecommunications organization. The procedures
must be based on specific objective criteria and be applied
without discrimination. The criteria should in particular be
justified and proportional to the general interest objective, and
be duly motivated and published. The Commission must be able
to examine them in depth in the light of the rules on free
competition and freedom to provide services. In any event,
Member States that have not notified the Commission of their
planned licensing criteria and procedures within a given time may
no longer impose any restrictions on the freedom to provide data
transmission services to the public.

(24) Member States should be given more time to draw up general
rules on the conditions governing the provision of packet- or
circuit-switched data services for the public.

(25) Telecommunications services should not be subject to any
restriction, either as regards free access by users to the services,
or as regards the processing of data which may be carried out
before messages are transmitted through the network or after
messages have been received, except where this is warranted by
an essential requirement in proportion to the objective pursued.

(26) The digitization of the network and the technological improvement of the terminal equipment connected to it have brought
about an increase in the number of functions previously carried
out within the network and which can now be carried out by users
themselves with increasingly sophisticated terminal equipment. It
is necessary to ensure that suppliers of telecommunication
services, and notably suppliers of telephone and packet or
circuit-switched data transmission services enable operators to use
these functions.

(27) Pending the establishing of Community standards with a view to
an open network provision (ONP), the technical interfaces
currently in use in the Member States should be made publicly
available so that firms wishing to enter the markets for the
services in question can take the necessary steps to adapt their
services to the technical characteristics of the networks. If the
Member States have not yet established such technical interfaces,
they should do so as quickly as possible. All such draft measures
should be communicated to the Commission in accordance with
Council Directive 83/189/EEC ( [1] ), as last amended by Directive
88/182/EEC ( [2] ).

(28) Under national legislation, telecommunications organizations are
generally given the function of regulating telecommunications
services, particularly as regards licensing, control of typeapproval and mandatory interface specifications, frequency
allocation and monitoring of conditions of use. In some cases,

( [1] ) OJ No L 109, 26. 4. 1983, p. 8.
( [2] ) OJ No L 81, 26. 3. 1988, p. 75.

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- **B**

the legislation lays down only general principles governing the
operation of the licensed services and leaves it to the
telecommunications organizations to determine the specific
operating conditions.

(29) This dual regulatory and commercial function of the telecommunications organizations has a direct impact on firms offering
telecommunications services in competition with the organizations in question. By this bundling of activities, the organizations
determine or, at the very least, substantially influence the supply
of services offered by their competitors. The delegation to an
undertaking which has a dominant position for the provision and
exploitation of the network, of the power to regulate access to the
market for telecommunication services constitutes a strengthening
of that dominant position. Because of the conflict of interests, this
is likely to restrict competitors' access to the markets in
telecommunications services and to limit users' freedom of
choice. Such arrangements may also limit the outlets for
equipment for handling telecommunications messages and,
consequently, technological progress in that field. This combination of activities therefore constitutes an abuse of the dominant
position of telecommunications organizations within the meaning
of Article 86. If it is the result of a State measure, the measure is
also incompatible with Article 90 (1) in conjunction with Article
86.

(30) To enable the Commission to carry out effectively the monitoring
task assigned to it by Article 90 (3), it must have available certain
essential information. That information must in particular give the
Commission a clear view of the measures of Member States, so
that it can ensure that access to the network and the various
related services are provided by each telecommunications
organization to all its customers on non-discriminatory tariff
and other terms. Such information should cover:

— measures taken to withdraw exclusive rights pursuant to this
Directive,

— the conditions on which licences to provide telecommunications services are granted.

The Commission must have such information to enable it to
check, in particular, that all the users of the network and services,
including telecommunications organizations where they are
providers of services, are treated equally and fairly.

(31) The holders of special or exclusive rights to provide telecommunications services that will in future be open to competition have
been able in the past to impose long-term contracts on their
customers. Such contracts would in practice limit the ability of
any new competitors to offer their services to such customers and
of such customers to benefit from such services. Users must
therefore be given the right to terminate their contracts within a
reasonable length of time.

(32) Each Member State at present regulates the supply of telecommunications services according to its own concepts. Even the
definition of certain services differs from one Member State to
another. Such differences cause distortions of competition likely
to make the provision of cross-frontier telecommunications
services more difficult for economic operators. This is why the
Council, in its resolution of 30 June 1988, considered that one of
the objectives of a telecommunications policy was the creation of
an open Community market for telecommunications services, in
particular through the rapid definition, in the form of Council
Directives, of technical conditions, conditions of use and
principles governing charges for an open network provision
(ONP). The Commission has presented a proposal to this end to
the Council. Harmonization of the conditions of access is not
however the most appropriate means of removing the barriers to
trade resulting from infringements of the Treaty. The Commission
has a duty to ensure that the provisions of the Treaty are applied
effectively and comprehensively.

1990L0388 — EN — 15.02.1996 — 003.001 — 8

- **B**

(33) Article 90 (3) assigns clearly-defined duties and powers to the
Commission to monitor relations between Member States and
their public undertakings and undertakings to which they have
granted special or exclusive rights, particularly as regards the
removal of obstacles to freedom to provide services, discrimination between nationals of the Member States and competition. A
comprehensive approach is necessary in order to end the
infringements that persist in certain Member States and to give
clear guidelines to those Member States that are reviewing their
legislation so as to avoid further infringements. A Directive
within the meaning of Article 90 (3) of the Treaty is therefore the
most appropriate means of achieving that end,

HAS ADOPTED THIS DIRECTIVE:

_Article 1_

1. For the purposes of this Directive:

— ‘telecommunication organizations’ means public or private bodies,
and the subsidiaries they control, to which a Member State grants
special or exclusive rights for the provision of a public telecommunications network and, when applicable, telecommunications
services,

- **M1**

— ‘exclusive rights’ means the rights that are granted by a Member
State to one undertaking through any legislative, regulatory or
administrative instrument, reserving it the right to provide a
telecommunication service or undertake an activity within a given
geographical area,

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

— limits to two or more the number of such undertakings authorized
to provide a service or undertake an activity, otherwise than
according to objective, proportional and non-discriminatory
criteria, or

— designates, otherwise than according to such criteria, several
competing undertakings as being authorized to provide a service
or undertake an activity, or

— confers on any undertaking or undertakings, otherwise than
according to such criteria, legal or regulatory advantages which
substantially affect the ability of any other undertaking to provide
the same telecommunications service or to undertake the same
activity in the same geographical area under substantially
equivalent conditions,

- **B**

— ‘public telecommunications network’ means the public telecommunications infrastructure which permits the conveyance of signals
between defined network termination points by wire, by microwave,
by optical means or by other electromagnetic means,

- **M2**

— ‘telecommunications services’ means services whose provision
consists wholly or partly in the transmission and/or routing of
signals on a telecommunications network,

- **M1**

— ‘satellite earth station network’ means a configuration of two or
more earth stations which interwork by means by means of a
satellite,

— ‘satellite network services’ means the establishment and operation of
satellite earth station networks; these services consist, as a minimum,
in the establishment, by satellite earth stations, of radiocommunications to space segment (‘uplinks’), and in the establishment of
radiocommunications between space segment and satellite earth
stations (‘downlinks’),

1990L0388 — EN — 15.02.1996 — 003.001 — 9

- **M1**

— ‘satellite communications services’ means service whose provision
makes use, wholly or partly, of satellite network services,

— ‘satellite services’ means the provision of satellite communications
services and/or the provision of satellite networks services,

- **M3**

— ‘mobile and personal communications services’ means services other
than satellite services whose provision consists, wholly or partly, in
the establishment of radiocommunications to a mobile user, and
makes use wholly or partly of mobile and personal communications
systems,

— ‘mobile and personal communications systems’ means systems
consisting of the establishment and operation of a mobile network
infrastructure whether connected or not to public network termination points, to support the transmission and provision of
radiocommunications services to mobile users,

- **B**

— ‘network termination point’ means all physical connections and their
technical access specifications which form part of the public
telecommunications network and are necessary for access to and
efficient communication through that public network,

- **M3**

— ‘essential requirements’ means the non-economic reasons in the
public interest which may cause a Member State to impose
conditions on the establishment and/or operation of telecommunications networks or the provision of telecommunications services.
These reasons are the security of network operations, maintenance of
network integrity, and where justified, interoperability of services,
data protection, the protection of the environment and town and
country planning objectives as well as the efficient use of the
frequency spectrum and the avoidance of harmful interference
between radio-based telecommunications systems and other spacebased or terrestrial technical systems.

Data protection may include protection of personal data, the
confidentiality of information transmitted or stored as well as the
protection of privacy,

- **B**

— ‘voice telephony’ means the commercial provision for the public of
the direct transport and switching of speech in real-time between
public switched network termination points, enabling any user to use
equipment connected to such a network termination point in order to
communicate with another termination point,

— ‘telex service’ means the commercial provision for the public of
direct transmission of telex messages in accordance with the relevant
Comité consultatif international télégraphique et téléphonique
(CCITT) recommendation between public switched network termination points, enabling any user to use equipment connected to such
a network termination point in order to communicate with another
termination point,

— ‘packet- and circuit-switched data services’ means the commercial
provision for the public of direct transport of data between public
switched network termination points, enabling any user to use
equipment connected to such a network termination point in order to
communicate with another termination point,

— ‘simple resale of capacity’ means the commercial provision on
leased lines for the public of data transmission as a separate service,
including only such switching, processing, data storage or protocol
conversion as is necessary for transmission in real time to and from
the public switched network,

- **M2**

- **C1**

— ‘cable TV network’ means any mainly wire-based infrastructure
approved by a Member State for delivery or distribution of radio or
television signals to the public.

1990L0388 — EN — 15.02.1996 — 003.001 — 10

- **M2**

This Directive shall be without prejudice to the specific rules adopted by
the Member States in accordance with Community law, governing the
distribution of audiovisual programmes intended for the general public,
and the content of such programmes.

- **M3**

2. This Directive shall not apply to telex.

- **B**

_Article 2_

- **M1**

Without prejudice to Article 1 (2), Member States shall withdraw all
those measures which grant:

(a) exclusive rights for the supply of telecommunications services
otherwise than voice telephony and

(b) special rights which limit to two or more the number of undertakings
authorized to supply such telecommunication services, otherwise
than according to objective, proportional and non-discriminatory
criteria, or

(c) special rights which designate, otherwise than according to such
criteria, several competing undertakings to provide such telecommunication services.

They shall take the measures necessary to ensure that any operator is
entitled to supply any such telecommunications services, otherwise than
voice telephony.

- **B**

Member States which make the supply of such services subject to a
licensing or declaration procedure aimed at compliance with the
essential requirements shall ensure that the conditions for the grant of
licences are objective, non-discriminatory and transparent, that reasons
are given for any refusal, and that there is a procedure for appealing
against any such refusal.

Without prejudice to Article 3, Member States shall inform the
Commission no later than 31 December 1990 of the measures taken to
comply with this Article and shall inform it of any existing regulations
or of plans to introduce new licensing procedures or to change existing
procedures.

- **M1**

Member States shall communicate the criteria on which authorizations
are granted, together with the conditions attached to such authorizations
and to the declaration procedures for the operation of transmitting earth
stations.

Member States shall continue to inform the Commission of any plans to
introduce new licensing procedures or to change existing procedures.

- **B**

_Article 3_

As regards packet- or circuit-switched data services, Member States
may, until 31 December 1992, under the authorization procedures
referred to in Article 2, prohibit economic operators from offering leased
line capacity for simple resale to the public.

Member States shall, no later than 30 June 1992, notify to the
Commission at the planning stage any licensing or declaration procedure
for the provision of packet- or circuit-switched data services for the
public which are aimed at compliance with:

— essential requirements, or
— trade regulations relating to conditions of permanence, availability
and quality of the service, or
— measures to safeguard the task of general economic interest which
they have entrusted to a telecommunications organization for the
provision of switched data services, if the performance of that task is
likely to be obstructed by the activities of private service providers.

1990L0388 — EN — 15.02.1996 — 003.001 — 11

- **B**

The whole of these conditions shall form a set of public-service
specifications and shall be objective, non-discriminatory and transparent.

Member States shall ensure, no later than 31 December 1992, that such
licensing or declaration procedures for the provision of such services are
published.

Before they are implemented, the Commission shall verify the
compatibility of these projects with the Treaty.

- **M3**

_Article 3a_

In addition to the requirements set out in the second paragraph of Article
2 Member States shall, in attaching conditions to licences or general
authorizations for mobile and personal communications systems, ensure
the following:

(i) licensing conditions must not contain conditions other than those
justified on the grounds of the essential requirements and, in the
case of systems for use by the general public, public service
requirements in the form of trade regulation within the meaning of
Article 3;

(ii) licensing conditions for mobile network operators must ensure
transparent and non-discriminatory behaviour between fixed and
mobile network operators in common ownership;

(iii) licensing conditions should not include unjustified technical
restrictions. Member States may not, in particular, prevent
combination of licences or restrict the offer of different technologies making use of distinct frequencies, where multistandard
equipment is available.

As far as frequencies are available, member States shall award licences
according to open, non-discriminatory, and transparent procedures.

Member States may limit the number of licences for mobile and
personal communications systems to be issued only on the basis of
essential requirements and only where related to the lack of availability
of frequency spectrum and justified under the principle of proportionality.

Licence award procedures may consider public service requirements in
the form of trade regulation within the meaning of Article 3, provided
the solution which least restricts competition is chosen. The relevant
conditions related to trade regulations may be attached to the licences
granted.

Member States which are granted an additional implementation period
to abolish the restrictions with regard to infrastructure as provided for in
Article 3c, shall not during that period grant any further mobile or
personal communications licence to ► **C2** telecommunications organizations, or any associated organization. Where telecommunications
organizations in such Member States ◄ do not or no longer enjoy
exclusive or special rights, within the meaning of points (b) and (c) of
the first paragraph of Article 2, for the establishment and the provision
of the public network infrastructure, they shall not _a priori_ be excluded
from such licensing procedures.

_Article 3b_

The designation of radiofrequencies for specific communication services
must be based on objective criteria. Procedures must be transparent and
published in an appropriate manner.

Member States shall publish every year or make available on request,
the allocation scheme of frequencies reserved for mobile and personal
communications services, according to the scheme set out in the Annex,
including the plans for future extension of such frequencies.

This designation must be reviewed by Member States at regular
appropriate intervals.

1990L0388 — EN — 15.02.1996 — 003.001 — 12

- **M3**

_Article 3c_

Member States shall ensure that all restrictions on operators of mobile
and personal communications systems with regard to the establishment
of their own infrastructure, the use of infrastructures provided by third
and the sharing of infrastructure, other facilities and sites, subject to
limiting the use of such infrastructures to those activities provided for in
their licence or authorization, are lifted.

_Article 3d_

Without prejudice to the future harmonization of national interconnection rules in the context of ONP, Member States shall ensure that direct
interconnection between mobile communications systems, as well as
between mobile communications systems and fixed telecommunications
networks, is allowed. In order to achieve this, restrictions on
interconnection shall be lifted.

Member States shall ensure that operators of mobile communications
systems for the public have the right to interconnect their systems with
the public telecommunications network. To this end, Member States
shall guarantee access to the necessary number of points of
interconnection to the public telecommunications network in the
licences for mobile services. Member States shall ensure that the
technical interfaces offered at such points of interconnection are the
least restrictive interfaces available as regards the features of the mobile
services.

Member States shall ensure that interconnection conditions with the
public telecommunications network of the telecommunications organizations are set on the basis of objective criteria, are transparent and nondiscriminatory, and compatible with the principle of proportionality.
They shall ensure that, in case of appeal, full access to interconnection
agreements is given to National Regulatory Authorities and that such
information is made available to the Commission on request.

- **B**

_Article 4_

Member States which maintain special or exclusive rights for the
provision and operation of     - **M3** fixed ◄ public telecommunications
networks shall take the necessary measures to make the conditions
governing access to the networks objective and non-discriminatory and
publish them.

In particular, they shall ensure that operators who so request can obtain
leased lines within a reasonable period, that there are no restrictions on
their use other than those justified in accordance with Article 2.

- **M2**

Member States shall:

— abolish all restrictions on the supply of transmission capacity by
cable TV networks and allow the use of cable networks for the
provision of telecommunications services, other than voice telephony;

— ensure that interconnection of cable TV networks with the public
telecommunications network is authorized for such purpose, in
particular interconnection with leased lines, and that the restrictions
on the direct interconnection of cable TV networks by cable TV
operators are abolished.

- **B**

Member States shall inform the Commission no later than 31 December
1990 of the steps they have taken to comply with this Article.

Each time the charges for leased lines are increased, Member States
shall provide information to the Commission on the factors justifying
such increases.

1990L0388 — EN — 15.02.1996 — 003.001 — 13

- **B**

_Article 5_

Without prejudice to the relevant international agreements, Member
States shall ensure that the characteristics of the technical interfaces
necessary for the use of public networks are published by 31 December
1990 at the latest.

Member States shall communicate to the Commission, in accordance
with Directive 83/189/EEC, any draft measure drawn up for this

purpose.

_Article 6_

Member States shall, as regards the provision of telecommunications
services, and existing restrictions on the processing of signals before
their transmission via the public network or after their reception, unless
the necessity of these restrictions for compliance with public policy or
essential requirements is demonstrated.

Without prejudice to harmonized Community rules adopted by the
Council on the provision of an open network, Member States shall
ensure as regards services providers including the telecommunications
organizations that there is no discrimination either in the conditions of
use or in the charges payable.

- **M1**

Member States shall ensure that any fees imposed on providers of
services as part of authorization procedures, shall be based on objective,
transparent and non-discriminatory criteria.

Fees, the criteria upon which they are based, and any changes thereto,
shall be published in an appropriate and sufficiently detailed manner, so
as to provide easy access to that information.

Member States shall notify to the Commission no later than nine months
after publication of this Directive, and thereafter whenever changes
occur, the manner in which the information is made available. The
Commission shall regularly publish references to such notifications.

- **B**

Member States shall inform the Commission of the measures taken or
draft measures introduced in order to comply with this Article by 31
December 1990 at the latest.

- **M1**

Member States shall ensure that any regulatory prohibition or
restrictions on the offer of space-segment capacity to any authorized
satellite earth station network operator are abolished, and shall autorize
within their territory any space-segment supplier to verify that the
satellite earth station network for use in connection with the space
segment of the supplier in question is in conformity with the published
conditions for access to his space segment capacity.

- **B**

_Article 7_

Member States shall ensure that from 1 July 1991 the grant of operating
licences, the control of type approval and mandatory specifications, the
allocation of frequencies and surveillance of usage conditions are carried
out by a body independent of the telecommunications organizations.

They shall inform the Commission of the measures taken or draft
measures introduced to that end no later than 31 December 1990.

_Article 8_

Member States shall ensure that as soon as the relevant special or
exclusive rights have been withdrawn, telecommunications organizations make it possible for customers bound to them by a contract with
more than one year to run for the supply of telecommunications services
which was subject to such a right at the time it was concluded to
terminate the contract at six months' notice.

1990L0388 — EN — 15.02.1996 — 003.001 — 14

- **B**

_Article 9_

Member States shall communicate to the Commission the necessary
information to allow it to draw up, for a period of three years, at the end
of each year, an overall report on the application of this Directive. The
Commission shall transmit this report to the Member States, the Council,
the European Parliament and the Economic and Social Committee.

_Article 10_

In 1992, the Commission will carry out an overall assessment of the
situation in the telecommunications sector in relation to the aims of this

Directive.

In 1994, the Commission shall assess the effects of the measures
referred to in Article 3 in order to see whether any amendments need to
be made to the provisions of that Article, particularly in the light of
technological evolution and the development of trade within the
Community.

_Article 11_

This Directive is addressed to the Member States.