CELEX: 51997PC0531
Language: en
Date: 1997-10-20
Title: Amended proposal for a European Parliament and Council Directive on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment (replacing European Parliament and Council Directive 95/62/EC)

COMMISSION OF THE EUROPEAN COMMUNITIES
                                                 Brussels, 20.10.1997
                                                 COM(97) 531 final
                                                 96/ 0226 (COD)
                      OPINION OF THE COMMISSION
             pursuant to Article 189 b (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
   on the application of open network provision (ONP) to voice telephony
and on universal service for telecommunications in a competitive environment
      (replacing European Parliament and Council Directive 95/62/EC)
         AMENDING THE PROPOSAL OF THE COMMISSION
                pursuant to Article 189 a (2) of the EC Treaty
 ---pagebreak---  ---pagebreak---                              EXPLANATORY MEMORANDUM
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 these amendments to the Council's
Common Position regarding the proposal for a European Parliament and Council Directive
on the application of open network provision (ONP) to voice telephony and on universal
 service for telecommunications in a competitive environment (replacing European
Parliament and Council Directive 95/62/EC).
The amended proposal incorporates those amendments proposed by the European
Parliament at Second Reading which were accepted by the Commission.
 L. Introduction
a)     Background
The Commission adopted its proposal on 11.9.19961, and it was formally transmitted to
the EP and the Council on 5.11.1996.
The Economic and Social Committee gave a favourable Opinion on 15 January 19972.
The European Parliament adopted a favourable Resolution at its First Reading on
20.2.1997, and proposed 34 amendments to the Commission proposal3.
The Council adopted its Common Position4 on 9 June 1997,
The European Parliament adopted a Decision5 at its Second Reading on 17.9.1997, putting
forward 17 amendments to the Council Common Position.
b)     Purpose of the Directive
The aim of the Commission proposal is to replace the existing European Parliament and
Council Directive 95/62/EC on the application of open network provision (ONP) to voice
telephony6.
The adaptation is being made in view of the liberalisation of public voice telephony
services by 1st January 1998 (with transition periods for certain Member States), in
accordance with Commission Directive 96/19/EC7.
The purpose of the adaptation is two-fold: firstly it is necessary to adapt the Directive to a
competitive environment and, in particular, to be more specific as to whom the provisions
of the Directive will apply in a market with many players; secondly the Directive is being
1
   COM(96) 419, OJ C 371, 9.12.1996, p. 22
2
   .COM(96) 73 final, CdR 371/96 fin E-PES/jg
3
   A4-0049/97, PV 20.2.1997
4
   OJC 234, 1.8.97, p.87
 5
    A4 0263/97 PV 17.9.1997
 6
   OJL 321, 30.12.1995, p. 6
 7
   OJL 74, 22.3.1996, p. 13
                                              -2-
 ---pagebreak--- strengthened in the area of universal service, in line with the position expressed in the
Commission Communication on universal service for telecommunications8.
The adaptation is consistent with the European Parliament and Council Directive
97/33/EC on interconnection in telecommunication9, which lays down that only the
provision of a fixed public telephone network and fixed public telephone service can be
financed by a universal service financing scheme.
11.    EP amendments accepted by the Commission
Of the 17 amendments adopted by the European Parliament at Second Reading, the
Commission accepted 14 in full, in part or in principle (i.e. with some reformulation of the
text).
Amendments accepted in full, in part or in principle:
2, 3, 5, 6, 7,10, 11, 15, 17, 19, 20, 21, 22, 26
The Commission accepted as drafted those amendments which:
 • improve consumer protection provided they were in line with other directive [accepted
     in full amendment 5, and in part amendments 15: first and last parts, 17: two last parts
    and 26 first part],
 • improve the clarity of the text on rides on the provision, costing and financing of
     universal service [first and last part of amendment 2],
 • are in line with Commission position on Comitology [accepted in full 21, 22],
 • clarify special network access [accepted in full 20].
In addition, the Commission agreed with the EP on the principles underlying the following
 amendments:
 • Amendment 2 (secondpart) : concerns operators who may provide universal service,
 • Amendment 3 (Last part): which improves disabled users access to telecommunication
     services,
 • Amendment 19: transition measure to be provided until number portability is
      introduced,
  • Amendment 7: includes text-telephones in the definition of public pay-phone,
  • Amendment 17: itemised billing to be provided in alternative format for blind and
     partially sighted users,
  • Amendment 11: Allows Member States to requires additional services to be provided, if
      they are not financed through contributions from market players.
 In its modified proposal, the Commission has taken over amendments 7, 17 in the relevant
 recitals rather than as changes to the Articles. In addition, amendments 2 (second part), 3
 (last part), 19 and 11 have been taken over with some textual changes.
  8
    COM(96) 73, 13.3.1996
  9
    OJL199/32, 26.7.97,
 ---pagebreak--- 3.    Amendments not accepted by the Commission
The reasons which led the Commission not to accept a number of the amendments (or
parts of them) proposed by the European Parliament are given below, grouped into 3
categories.
Users' and consumers' rights
In amendment 3 to recital 8 the term "does include" instead of "could include" is too
binding for a recital.
In the second part of amendment 15, the Commission believes that requests by users for
alteration of contracts can be handled under the procedure in Article 26 (1).
In the third part of amendment 15 concerning the basis for alteration of contracts the
common position already limits alteration by stating: "insofar as they concern the
provisions of this directive order to protect the rights of users". The Commission prefers
the text of the Common Position.
The second part of amendment 26 which requests the Commission to review the quality of
services biannually is not necessary since the Commission is already doing this, and will
be producing a report on universal service at the end of 1997 as foreseen in the
Commission Communication of 13 March 1996 on Universal Service for
telecommunications in the perspective of a fully liberalised environment, COM(96) 73.
Rules on the provision, costing and financing of universal service [Amendments 8, 10]
Amendment 8 proposes a change to the existing definition of universal service (in the
Directive 97/33/EC on interconnection]. This change is not accepted.
Amendment 10 to Article 3 deletes reference to "in the light of specific national
conditions". As the agreed definition of universal service include this reference, this
deletion cannot be accepted.
European guidelines for affordability [amendments 1, 9]
This Directive does not seek to change the existing situation, whereby Member States are
free to have or not to have uniform prices throughout their territory. Therefore the first
part of amendment 1 is not accepted.
In accordance with the principle of subsidiarity, the criteria to calculate affordability are to
be determined at a national level. Considering the very different national or regional
conditions throughout the Union, it does not seem appropriate to aim at guidelines on
affordability (amendment 1 and 9).
4.   Conclusion
The Commission has accepted 14 of the 17 amendments proposed by the European
Parliament at Second Reading either in whole, in part or in principle.
In accordance with Article 189a paragraph 2 of the EC Treaty, the Commission's modified
proposal incorporates these amendments.
                                              4-
 ---pagebreak---     AMENDED PROPOSAL FOR A EUROPEAN PARLIAMENT AND COUNCIL
 DIRECTIVE ON THE APPLICATION OF OPEN NETWORK PROVISION (ONP)
       TO VOICE TELEPHONY AND ON UNIVERSAL SERVICE FOR
      TELECOMMUNICATIONS IN A COMPETITIVE ENVIRONMENT
(REPLACING EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE 95/62/EC)
 ---pagebreak---                  Common      Position                                         Amended text
                                                 Recital 6
                                      (based on EP amendment 2)
Whereas the importance of the fixed public                 Whereas the importance of the fixed public
telephone network and service is such that the             telephone network and service is such that the
latter should be available to anyone reasonably            latter should be available to anyone reasonably
requesting it; whereas, in accordance with the             requesting it; whereas, in accordance with the
principle of subsidiarity, it is for Member States to      principle of subsidiarity, it is for Member States to
decide which organizations have the responsibility         decide on the basis of objective and non-
 for providing the universal service for                   discriminatory criteria which organizations have
 telecommunications as defined in this Directive,          the responsibility for providing the universal
 taking into account the ability of organizations to       service for telecommunications as defined in this
 provide it; whereas corresponding obligations             Directive, taking into account the ability and,
 could be included as conditions in authorizations         where appropriate the willingness of organizations
 to provide publicly available telephone services;         to provide all or part of its element: whereas
 whereas, in accordance with Article 5(1) of               corresponding obligations could be included as
 Directive 97/. ./EC of the European Parliament and        conditions in authorizations to provide publicly
 of     the    Council    on      interconnection    in    available telephone services; whereas, in
 telecommunications with regard to ensuring                accordance with Article 5(1) of Directive
 universal service and interoperability through            97/33/EC of the European Parliament and of the
 application of the principles of Open Network             Council on interconnection in telecommunications
 Provision (ONP), Member States may establish              with regard to ensuring universal service and
 mechanisms for sharing the net cost of the                interoperability through application of the
 universal     service    obligations     with    other    principles of Open Network Provision (ONP),
 organizations             operating             public    Member States may establish mechanisms for
 telecommunications networks and/or publicly               sharing the net cost of the universal service
 available voice telephony services; whereas public        obligations with other organizations operating
 telecommunications networks include both public           public telecommunications networks and/or
  fixed networks and public mobile networks;               publicly available voice telephony services;
 whereas national regulatory authorities should            whereas public telecommunications networks
  satisfy themselves that those organizations              include both public fixed networks and public
 benefiting from universal service funding provide         mobile networks; whereas national regulatory
  sufficient level of detail of the specific elements      authorities should satisfy themselves that those
 requiring such funding in order to justify their          organizations benefiting from universal service
 request; whereas the Commission has adopted                funding provide sufficient level of detail of the
 guidelines on the costing and financing of                 specific elements requiring such funding in order
                                                           to justify their request; whereas the accounting
 universal service indicating the level of detail to be
                                                           methods and the level of detail to be used for the
 provided in such declarations bv operators;
                                                            costing and financing of the universal service shall
                                                           be monitored by the Commission in conformity
                                                            with the applicable competition law and sector
                                                            specific directives.
 ---pagebreak---            Council Common      Position                                   Revised    Proposal
                                              Recital 8
                             (based on EP amendments 3 , 7 and 17)
Whereas Member States shall, where appropriate,          Whereas Member States shall, where appropriate,
take suitable measures in order to guarantee the         take suitable measures in order to guarantee the
access to and affordability of fixed public              access to and affordability of all fixed public
telephone services for disabled users and users          telephone services for disabled users and users
with special social needs; whereas this could            with special social needs; whereas this could
include, where.appropriate, specific measures for        include, where appropriate, specific measures for
blind, partially sighted, deaf or hearing-impaired       blind, partially sighted, deaf or hearing-impaired
people;                                                  people; Whereas public pay telephone may include
                                                         public pav text telephones for deaf or speech-
                                                         impaired people, whereas free access to directory
                                                         enquiry services for disabled users, especially
                                                         blind or partially sighted, is essential to guarantee
                                                         their equal access to information available to the
                                                          general public: whereas itemised "billing in
                                                          alternative format should be available on request
                                                          for blind and partially sighted people.
                                              Recital 14
                                    (based on EP amendment 5)
 Whereas price transparency should ensure that            Whereas price transparency should ensure that
 residential subscribers do not subsidize discounts       residential subscribers do not subsidize discounts
 to business customers; whereas certain obligations       to business customers; whereas certain obligations
 concerning tariffs and cost accounting systems           concerning tariffs and cost accounting systems
 will no longer be appropriate once competition is        will no longer be appropriate once competition is
 introduced and whereas others can be relaxed by           introduced and whereas others can be relaxed by
 the competent national regulatory authority as           the competent national regulatory authority as
 soon as competition achieves the desired                  soon as competition achieves the desired
 objectives;     whereas    in    all   cases    the       objectives;     whereas      in   all   cases    the
 non-discrimination      requirements     of     the       non-discrimination       requirements     of     the
 competition rules of Community law apply;                 competition rules of Community law apply;
 whereas the requirement for unbundling does not           whereas the requirement for unbundling does not
 prevent facilities from being combined in a tariff        prevent facilities from being combined in a tariff
 package;                                                  package, provided this practice is not used to
                                                           unduly restrict the users' freedom of choosing their
                                                           suppliers for the different services they may wish
                                                           to use:
                                                  -7
 ---pagebreak---            Coined Common Position                                          Revised Proposal
                                Article 1(1) second subparagraph
                                   (based on EP amendment 6)
                                                          The aims are to ensure the availability throughout
The aims are to ensure the availability throughout        the Community of good quality fixed public
the Community of good quality fixed public                telephone services and to define the set of sen-ices
telephone services and to define the set of services      to which all users, including consumers, should
to which all users, including consumers, should           have access in the context of universal service.
have access in the context of universal serviceJn
the light of specific national conditions, at an
affordable price.
                                  Article 3(1), first subparagraph
                                   (based on EP amendment 10)
 Member States shall ensure that the services set          Member States shall ensure that the services set
 out in this Chapter are made available to all users       out in this Chapter are made available to all users
 in their territory, independent of geographical           in their territory, indépendant of the geographical
 location, and, in light of specific national              location, and, in light of specific national
 conditions, at an affordable price as determined by       conditions, and at an affordable price.
 them.
                                Article 4, second paragraph a (new)
                                    (based on EP amendment 11)
                                                           2a. Member States may impose additional
                                                           requirements concerning the provision of
                                                            telecommunication services in accordance with
                                                            Community law. Such additional requirements
                                                            may not, under any circumstances whatever, have
                                                            an impact on the costing of universal service
                                                            provision as laid down at EU level and mav not be
                                                             financed from a mandatory contribution bv market
                                                            players,
                                                   -8-
 ---pagebreak---             Council Common Position                                        Revised Proposal
                                              Article 10
                                   (based on EP amendment 15)
National regulatory authorities shall ensure that         National regulatory authorities shall ensure that
organizations providing access to fixed public            organizations providing access to fixed public
telephone networks and mobile public telephone            telephone networks and mobile public telephone
networks provide a contract. The contract shall           networks provide a contract. The contract shall
specify the service to be provided or shall make          specify the service to be provided or shall make
reference to publicly available terms and                 reference to publicly available terms and
conditions. The contract or the publicly available        conditions. The contract or the publicly available
terms and conditions shall at least specify the           terms and conditions shall at least specify the
 supply time for initial connection and the types of      supply time for initial connection, the types of
maintenance service offered, the compensation             maintenance service and the level of quality of
 and/or refund arrangements for subscribers which         service offered, the compensation and/or refund
 apply if the contracted service is not met and a         arrangements for subscribers which apply if the
 summary of the method of initiating procedures           contracted service is not met and a summary of the
 for the settlement of disputes in accordance with        method of initiating procedures for the'settlement
 Article 26.                                              of disputes in accordance with Article 26.
 National regulatory authorities or other competent       National regulatory authorities or other competent
 bodies according to national legislation shall be        bodies according to national legislation shall be
 able to require the alteration of the conditions of      able to require the alteration of the conditions of
 contracts referred to in paragraph 1 and the              contracts referred to in paragraph 1 and the
 conditions of any compensation and/or refund             conditions of any compensation and/or refund
 schemes used insofar as they concern the                  schemes used insofar as they concern the
 provisions of this Directive in order to protect the     provisions of this Directive in order to protect the
 rights of users and/or subscribers.                       rights of users and/or subscribers.
                                                           The Commission shall ensure that the alterations
                                                           called for do not interfere with fair competition on
                                                           the market,
                                  Article 12(1), first subparagraph
                                     (based on EP amendment 26)
  1. Member States shall be able, where they deem it       1. Member States shall take the necessary
  necessary, to set the quality of services identified     steps to ensure the quality of services
  in this Directive for organizations providing fixed      identified in this Directive for organizations
  public telephone networks and/or fixed public            providing fixed public telephone networks
  telephone services.                                      and/or fixed public telephone services.
                                                    -9-
 ---pagebreak---             Council Common       Position                                   Revised    Proposal
                                  Article 14(1) first subparagraph
                                    (based on EP amendment 17)
1. In order to ensure that users have access over          1. In order to ensure that users have access over
fixed public telephone networks as early as                fixed public telephone networks as early as
possible to the facilities of:                             possible to the facilities of:
- tone dialling                                            - tone dialling
- itemized billing and selective call barring as           - itemized billing and selective call barring as
facilities available on request,                           facilities available on request,
Member States may designate one or more                    national regulatory authorities may designate one
operators to provide these facilities to most              or more operators to provide these facilities to
telephone users before 31 December 1998 and to             most telephone users before 31 December 1998
ensure that they are generally available before 31         and to ensure that they are generally available
December 2002.                                             before 31 December 2001.
                                              Article 15(4)
                                     (based on EP amendment 19)
Where the facility of number portability, as               Where the facility of number portability, as
referred to in Article 12(5) of Directive 97/ /EC          referred to in Article 12(5) of Directive 97/33/EC
 on Interconnection, is not yet in use, national            on Interconnection, is not yet in use, national
 regulatory authorities shall ensure that, for a           regulatory authorities shall ensure that, for a
 reasonable period after a subscriber has changed           reasonable period after a subscriber has changed
 supplier, either a telephone call to his old number        supplier, either a telephone call to his old number
 can be re-routed to his new number or callers are          can be re-routed to his new number or callers are
 given an indication of the new number.                     given an indication of the new number, without
                                                            charging the user or the callers for this service.
 National regulatory authorities shall ensure that
 any fees for the above facilities are reasonable.         National regulatory authorities shall ensure that
                                                            any fees for the above facilities are reasonable.
                                                    10
 ---pagebreak---            Council Common Position                                        Revised Proposal
                                            Article 16(1)
                                  (based on EP amendment 20)
Special network access                                    Special network access
1. National regulatory authorities shall ensure that      1. National regulatory authorities shall ensure that
the organizations with significant market power in        the organizations with significant market power in
the provision of fixed public telephone networks          the provision of fixed public telephone networks
deal with reasonable requests from organizations          deal with reasonable requests from organizations
providing telecommunications services for access          providing telecommunications services for access
to the fixed public telephone network at network          to the fixed public telephone network at network
termination points other that the commonly                termination points other that the commonly
provided network termination points referred to in        provided network termination points referred to in
Annex II, part 1.                                         Annex II, part 1. This obligation may only be
                                                          limited if there are technically and commercially
                                                          viable alternatives to the special access requested.
                                                          and that the requested access is inappropriate in
                                                          relation to the resources available to meet the
                                                          request,
                                              Article 28
                                   (based on EP amendment 21)
 Modifications necessary to adapt Annexes I, II           Modifications necessary to adapt Annexes I, II
 and III to this Directive to technological                and III to this Directive to technological
 developments or to changes in market demand               developments or to changes in market demand
 shall be determined in accordance with the                shall be determined in accordance with the
 procedure laid down in Article 1Q.                        procedure laid down in Article 22
                                                   11
 ---pagebreak---             Council Common Position                              Revised Proposal
                                              Article 30
                                    (based on EP amendment 22)
                                                         Deleted
Notwithstanding the provisions of Article 29. the
following procedure shall apply in respect of the
matters covered by Article 28.
2. The representative of the Commission shall
submit to the Committee a draft of the measures to
be taken. The Committee shall deliver its opinion
on the draft within a time limit which the
Chairman may lay down according to the urgency
of the matter. The opinion shall be 'delivered by
the majority laid down in Article 148(2) of the
Treaty in the case of decisions which the Council
is required to adopt on a proposal from the
Commission. The votes of the representatives of
the Member States within the Committee shall be
weighted in the manner set out in that Article. The
Chairman shall not vote.
3. The Commission shall adopt the measures
envisaged if they are in accordance with the
opinion of the Committee.
If the measures envisaged are not in accordance
with the opinion of the Committee, or if no
opinion is delivered, the Commission shall,
without delay, submit to the Council a proposal
relating to the measures to be taken. The Council
 shall act by a qualified majority.
If. on expiry of a period of three months from the
 date of referral to the Council, the Council has not
 acted, the proposed measures shall be adopted by
 the Commission,
                                                 -12-
 ---pagebreak---                                                                   ISSN 0254-1475
                                                           COM(97) 531 final
                                             DOCUMENTS
EN                                                            15 16 10 08
                                    Catalogue number : CB-CO-97-549-EN-C
                                                             ISBN 92-78-26066-5
Office for Official Publications of the European Communities
L-2985 Luxembourg
                                              13