CELEX: 51994PC0048
Language: en
Date: 1994-03-01
Title: Amended proposal for a EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE on the application of open network provision (ONP) to voice telephony

COMMISSION OF THE EUROPEAN COMMUNITIES
                                                                                   COM(94) 48 final - COD 437
                                                                                   Brussels, 01.03.1994
:#*"4:
  \,4 V. •.! •;•('.•;-'-i . i »
                                                      OPINION OF THE COMMISSION
                                                pursuant to Article 189b(2)(d) of the EC Treaty
                                   on the European Parliament's amendments to the Council's common position
                                                          regarding the proposal for a
                                           EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE
            flffl
                                              on the application of open network provision (ONP)
                                                               to voice telephony
                                            AMENDING THE PROPOSAL OF THE COMMISSION
                                                  pursuant to Article 189a(2) of the EC Treaty
•4'
 ---pagebreak---                            EXPLANATORY MEMORANDUM
In view of the fact that on 1 November 1993 the Treaty on European Union came into
effect, this proposed Directive comes now under the co-decision procedure (Article 189b
of the EC Treaty).
Article 189b. 2(d) requests the Commission to express its opinion on the amendments
proposed by the European Parliament in its second reading.
 The Commission hereby presents its Opinion on the 14 Amendments proposed by the
European Parliament, including, in accordance with Article 189a (second paragraph) of
the EC Treaty, a Modified proposal incorporating four of the EP amendments which the
Commission has accepted
 1. BACKGROUND
 a)   The Commission submitted its proposal to the Council on 27 August lc)()2
      [COM(92) 247 final - SYN 437].
 b)   The Economic and Social Committee gave its favourable opinion on 25 November
       1992.
 c)   The European Parliament, on the first reading, adopted a favourable Resolution on
       10 March 1993, including 37 amendments to the proposal of the Commission.
 d)   In accordance with Article 149.3 of the EEC Treaty, the Commission adopted an
      amended proposal on 7 Mav 1993, incorporating in full or in part 25 of those
      amendments (COM(93) 182). '
 e)   The Council adopted its Common Position on 30 June 1993.
 f)   The Commission accepted this Common Position and informed the European
      Parliament of its opinion on 9 July 1993 (SEC(93)1069).
 g)   The European Parliament, at the second reading debate on 27 October 1903,
      discussed 14 amendments to the common position, but did not vote.
 h)   Following the coming into force of the Treaty on European Union on 1 November
      1993, the Commission confirmed its original proposal to the European Parliament,
      the European Parliament confirmed its opinion in first reading on 2 December 1993,
      the Commission confirmed its Modified Proposal (COM(93)570); the Council
      confirmed its Common Position on 14 December 1993.
 i)   The European Parliament voted on the second reading on 19 January 1994, adopting
      a favourable resolution which included 14 amendments to the Common Position.
 ---pagebreak--- 2. PURPOSE OF THE DIRECTIVE
The proposal for a Directive on the application of open network provision to voice
telephony services has three basic goals:
       to establish the rights of users of voice telephony services;
       to improve access to the public telephone network infrastructure for all users,
       including service providers;
       to enhance Community-wide provision of voice telephony services.
 ---pagebreak---           POSITION OF THE COMMISSION ON THE EP AMENDMENTS
In considering the amendments proposed by the European Parliament on second reading,
the Commission can accept those which:
i)    are consistent with the Commission's initial proposal, and/or
ii)   are consistent with the Commission's position on the first reading of the European
     Parliament, and/or
iii) clarify the text in a useful way.
1. Amendments accepted by the Commission
In view of the strength of feeling in the European Parliament, the Commission can accept
Amendments 5. 6, 8 and 10, arid has incorporated these into its Modified proposal in
order to allow them to be re-considered by Council.
The amendments can be divided in two categories:
      a.l) User rights andfacilities
      These includes the following two amendments:
             i) Amendment 5, deaiing with compulsory compensation in cases of failure to
             meet the contracted service quality levels.
             ii) Amendment 6, concerning the obligation for prompt and justified
             explanation to users on reasons for refusal of special network access.
             (Note: Amendment 6 also contains a clarification concerning the right of
             telecommunications organizations to request special network access for the
             provision of competitive services, i.e. insertion of the word 'when',).
      a. 2) Transparency
      These includes the following two amendments:
             i) amendment 8, calling for an external audit of the financial accounts of
             telecommunications organizations (TOs).
             ii) Amendment 10, dealing with information availability and submission to the
             Commission in cases of access restriction or denial.
 2. Amendments rejected by the Commission
 Amendments 1, 2, 3, 4, 7, 9, 11, 12, 13 and 14 are rejected              by the
Commission.
Amendments linked to comitology procedures are rejected because any changes to
comitology procedures require an inter-institutional agreement which would cover in a
horizontal way issues of comitology in the context of Co-decision.
 Specific amendments are discussed in section a) to d) below.
                                              4
 ---pagebreak---      a) Comitology, including Consultation with the EP
     Amendments 3 (second part), and 12 call for the involvement of the European
     Parliament in the Committee procedure.
     These are rejected for the reasons given above. Moreover, it is considered
     inappropriate to consult the European Parliament on detailed technical changes to the
     Annexes of the Directive. Any significant major changes would be a result of a
     Review of the Directive, and the European Parliament would then be consulted in
     accordance with Article 32 of the Common Position;
     Amendment 14 is also rejected. The Common Position foresees the use of a
     Regulatory Committee type Ilia in limited areas of this Directive. The two areas are:
             i) Technical adjustment (Article 29 of the Common Position)
                        This involves updating the Annexes of the Directive to take account
                        of new technological developments and changes in market demand.
             ii) Convergence (Article 25 of the Common Position)
                        This involves setting harmonised targets and target dates for
                        Community-wide provision of facilities.
    Despite its preference for an advisory Committee for acts based on Article 100A, the
    Commission accepted the Common Position on the grounds that a Regulatory
    Committee type Ilia is consistent with the ONP Framework Directive1 and the ONP
    Leased Lines Directive2.
    b) Consultation with interested parties
    Amendments proposed in this area (2, 3, (part), 11 (part) and 13) include
    consultation with representative bodies in the telecommunications sector. These are
    rejected because:
            i) It is important to safeguard the Commission'srightof initiative.
            ii) Within ONP there is already a very open and successful consultation
            procedure involving telecommunications organizations, users, consumers,
            manufacturers and service providers. In addition, the Joint Committee on
           Telecommunications3 provides a mechanism for consultation with trade unions.
   c) Effectiveness of national regulatory authorities
   Amendments 1 and 11 address the European Parliament's concern that national
   regulatory authorities (NRAs) should be effective in protecting user rights.
1
  OJNo.L 192, 24.7.90, p. 1.
2
  OJNo.L 165, 19.6.92, p. 27.
3
  OJ No. L 230, 24.8.90, p. 25.
 ---pagebreak---     Part of amendment 1 has already been included in Article 26.1 of the Common
    Position, and other parts in Recital 9.
     NRAs were set up under the 1990 Telecommunications Services Directive4. The
     Commission is in constant dialogue with representatives of the NRAs - in the ONP
     committee and via bilateral meetings - to ensure that ONP legislation is properly
     implemented. Day-to-day application of the legislation has to be judged at a national
     level.
     Any shortcomings in Member States implementation can be addressed under
     standard infringement procedures foreseen in the Treaty.
     Therefore, it is considered inappropriate to include these two amendments in the
     Directive.
     d) Small and medium sized Telecommunications Organisations
     Amendments 7 and 9 (and the associated Amendment 4) are designed to address
     specific      interconnection issues related to small and medium sized
     telecommunications organizations.
     The Directive sets up a mechanism by which the NRA can be called in to settle
     disputes about interconnection according to the principle of non-discrimination
     (Article 11 of the Common Position). The Commission considers that this is a better
     approach than addressing detailed interconnection problems in the Directive itself.
     Therefore, these three amendments are considered unnecessary.
CONCLUSION
In conclusion, the Commission is of the opinion that European Parliament proposed
amendments 5, 6, 8 and 10 to the Common Position reinforce the text in the areas of user
rights and transparency, and add clarity to some points, being fully compatible with the
goals of the proposed Directive.
The Modified proposal incorporates these amendments.
   OJNo.L 192,24.7.90, p. 10.
 ---pagebreak---                             awonctart proposal for a
                  Europe rmLimm tm           COUNCIL PIKECPVE
                   OBI
(presented by the Commission in accordance with Article 189a, second paragraph, of the
EC Treaty)
                                         Ir
 ---pagebreak---                          EXPLANATORY MEMORANDUM
In view of the fact that on 1 November 1993 the Treaty on European Union came into
effect, this proposed Directive comes now under the co-decision procedure (Article 189b
of the EC Treaty).
In accordance with Article 189b. 2(d) of the EC Treaty, the Commission is to deliver an
Opinion on the amendments proposed by the European Parliament to the Common
Position of the Council. The Commission has acceptedfour of the EP amendments, for
the reasons given in section 1 of the attached Opinion.
In accordance with Article 189a (second paragraph) of the EC Treaty, the Commission
hereby presents a Modified proposal incorporating four EP amendments to the Common
Position of the Council which the Commission has accepted
                                      t
 ---pagebreak---   Common position of the Council                 Text amended
                                  Article 7(1)
1. National regulatory authorities         1. National regulatory authorities
shall ensure that users have a            shall ensure that users have a
contract which specifies the service      contract which specifies the service
to     be     provided        by    a     to     be    provided         by    a
telecommunications      organization.     telecommunications      organization.
National regulatory authorities may       National regulatory authorities shall
require compensation and/or refund        require compensation and/or refund
arrangements to be provided if the        arrangements to be provided if the
contracted service quality-levels are     contracted service quality-levels are
not met.                                  not met.
 ---pagebreak---                                m**&mm»0m*t*mm***litaÈm
  COMAon jpouition •£ ttle Council                            Text —cnckxi
                                       Articl« V©<U
I. National r*Hjulato<ry authorities                   l, «ational regulatory authorities
shall ensure that telecoiwmj*\icatio«s                 shall ensure that telecommunications
organizations respond to reasonable                    organizations respond to reasonable
requests from users other than                         requests fro» users other than
a) operators of       public    mobile-                a) operators of        pubIi e   mobi1 e -
telephony services.                                    telephony services,
b) telecommunications organizations                    b) telecommunications organizations
providing voice telephony service,                     when    providing    voice     telephony
                                                       service,
for access to the fixed public                         for access to the fixed public
telephone     network    at     network                telephone     network     at     network
termination points other than the                      termination points other than the
network termination points referred                    network termination points referred
to in Annex I.                                         to in Annex I.
Where in response to a particular                      Where in response to a particular
request     the     telecommunications                 request     the     telecommunications
organization consider it unreasonable                  organization consider it unreasonable
to provide the special network access                  to provide the special network access
requested, it must seek the agreement                  requested, it must seek the agreement
of the national regulatory authority                   of the national regulatory authority
to restrict or deny that access.                       to restrict or deny that access.
Users affected should be granted the                   Users affected should be granted the
opportunity to put their case before                   opportunity to put their case before
the national regulatory authority                      the national regulatory authority
before a decision is taken.                            before a decision is taken, and must
                                                       in all cases be given a prompt and
                                                       justified explanation as to why a
                                                       revest fo*S been refused,
                                             MO
 ---pagebreak--- Common position of the Council                Text amended
                           Article 13(3a) (new)
                                       3a. National regulatory authorities
                                       shall ensure that the financial
                                       accounts of those telecommunications
                                       organizations notified in accordance
                                       with Article 26(3) are audited on an
                                       annual   basis    by    a  qualified
                                       independent auditor in order to
                                       ensure compliance with the approved
                                       cost accounting system.
                               tl
 ---pagebreak--- Common position of the Council                Text amended
                           Article 26(5a) (new)
                                       5a. National regulatory authorities
                                       shall keep available and submit to
                                       the Commission on request details of
                                       individual cases where access to or
                                       use of the public telephone network
                                       or voice telephony service has been
                                       restricted or denied, including the
                                       measures      taken    and     their
                                       justification.
                               I2L
 ---pagebreak---                                                                      ISSN 0254-1475
                                                               COM(94) 48 final
                                                      DOCUMENTS
EN                                                                         1015
                                 Catalogue number : CB-CO-94-055-EN-C
                                                             ISBN 92-77-65570-4
Offîce for Official Publications of the European Communities
L-2985 Luxembourg
                                                 IS