CELEX: 51988PC0825
Language: en
Date: 1989-01-09
Title: PROPOSAL FOR A COUNCIL DIRECTIVE ON THE ESTABLISHMENT OF THE INTERNAL MARKET FOR TELECOMMUNICATIONS SERVICES THROUGH THE IMPLEMENTATION OF OPEN NETWORK PROVISION ( ONP )

No C 39/8                                Official Journal of the European Communities                                   16. 2. 89
               Proposal for a Council Directive on the establishment of the internal market for telecommuni-
                       cations services through the implementation of open network provision (ONP)
                                                 COM(88) 825 final — SYN 187
                                       (Submitted by the Commission on 5 January 1989)
                                                          (89/C 39/08)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                             7. Whereas the conditions of open network provision
                                                                        must be consistent with certain principles and should
Having regard to the Treaty establishing the European                   not restrict access to networks and services except
Economic Community, and in particular Article 100a                      for reasons of general public interest, hereinafter
thereof,                                                                referred to as 'essential requirements';
Having regard to the proposal from the Commission,
                                                                     8. Whereas the definition and interpretation of such
                                                                        principles and essential requirements must take full
In cooperation with the European Parliament,                             account of the fact that any restrictions of the right
                                                                        to provide services within and between Member
Having regard to the opinion of the Economic and                        States must be objectively justified, must follow the
Social Committee,                                                       principle of proportionality and must not be
                                                                       .excessive in relation to the aim pursued;
  1. Whereas Article 8a of the Treaty stipulates that the
     internal market shall comprise an area without
     internal frontiers in which the free movement of                   Whereas the working-out in detail of harmonized
     services is ensured, in accordance with the other                  conditions of open network provision must be a
     provisions of the Treaty;                                          progressive process and should be prepared in
                                                                        consultation with the Member States, the telecom-
                                                                        munications administrations and the other parties
 2. Whereas the Commission has submitted a Green
                                                                         concerned, and in particular with the assistance of
     Paper on the Development of the Common Market
                                                                        the Senior Officials Group on Telecommunications
     for Telecommunications Services and Equipment
                                                                         (SOG-T);
     (COM(87) 290), dated 30 June 1987, and a
     communication on the implementation of the Green
     Paper up to 1992 (COM(88) 48), dated 9 February                10. Whereas the definition of harmonized conditions for
     1988;                                                               open network provision must be a process open to
                                                                        all parties concerned and therefore sufficient time
 3. Whereas the Council adopted on 30 June 1988 a                       should be given for public comment;
     resolution on the development of the common
     market for telecommunications              services  and
     equipment up to 1992 (');                                      11. Whereas      the Community-wide          definition    of
                                                                         harmonized      technical   interfaces    and     access
  4. Whereas the Commission has issued a directive on                    conditions must be based on the definition of
     competition in the markets in telecommunications                    common technical specifications based on interna-
     services;                                                           tional standards and specifications;
  5. Whereas, given the obstacles resulting from
                                                                    12. Whereas work in this area must take full account,
     diverging laws, regulations, or administrative actions
                                                                         inter alia, of the framework provided by Council
     in the Member States, the full establishment of a
                                                                         Directive 83/189/EEC laying down a procedure for
     Community-wide market in telecommunications
                                                                        the provision of information in the field of technical
     services can only be achieved by the rapid intro-
                                                                         standards and regulations, Council Directive
     duction of harmonized principles and conditions for
                                                                         86/361 /EEC on the initial stage of the mutual
     open network provision (ONP), in order to avoid a
                                                                         recognition of type approval for telecommunications
     series of contentious cases and lengthy conflict, in
                                                                         terminal    equipment      and     Council     Decision
     particular for transfrontier provision of services;
                                                                         87/95/EEC on standardization in the field of infor-
                                                                         mation technology and telecommunications;
 6. Whereas, since situations differ, and technical and
     administrative constraints exist in the Member
     States, progress towards this objective should be              13. Whereas for formal adoption of the statutes of the
     made in stages;                                                     European Telecommunications Standards Institute
                                                                         (ETSI) on 12 February 1988, and of the associated
                                                                         internal rules, has created a new mechanism for
O OJ No C 257, 4. 10. 1988, p. 1.                                        producing European telecommunications standards;
 ---pagebreak---  16. 2. 89                                   Official Journal of the European Communities                             ^oC^B^
 1^. whereas the general guidelines agreed with the]oint                    markets^ whereas it will therefore he necessary, as
      European        standards      Institution     CEc^C^enelec           detailed directives are elahorated, to ensure that
      henceforth make it possihle to entrust specialized                    these ohiectives are taken into account with a view
      technical harmonization work to this hody^                            to reaching asituation where the realization of the
                                                                            more open community market for telecommuni
 1^. whereas the Community^wide definition and                              cations services will, where appropriate, he accom
      implementation of clearharmonized networktermi                        paniedhy reciprocal market opening elsewhere^
      nation points estahlishin^ the physical interface
      hetween the network infrastructure and users^ and                     whereas this can he achieved either in the
      other service providers^ equipment will he an                         frameworkof multilateralne^otiations, inparticular
      essential element of the overall concept of open                      in the (GATT,or through hilateral negotiations^
      network provisions
 ID. whereas Commission Directive ^B^OtBEEC^ on                        ^ . whereas this Directive should not address the
      competition in the markets in telecommunications                      prohlems of mass media, meanin^hroadcastin^ and
      terminal e q u i p m e n t s squires ^viemher states to               distribution of television programmes via telecommu
      ensure that users who so request shall he ^iven                       nications means, in particular cahle television
      access to puhlic network terminationpointswithina                     networks, which need special considerations
      reasonahle time periods
 t^. whereas the principal aim of the estahlishment of an              ^ . whereas this Directive should not address communi
      internalmarket in telecommunications servicesmust                     cation via satellite for which, according to the
      he the freedom to provide services in the whole of                    Council resolution of ^0 ]une 1 ^ ^ , a common
      the Communityonceauthorizedorle^ally provided                         position should he worked out^
      ina^iemher^tate^
                                                                       ^ . whereas the estahlishment of harmonized technical
 t^. whereas this willrequirethe mutual recognition of                      conditions, usa^e conditions and tariff principles
      licensing procedures for services provision where                     under open network provision according to this
      such authorization may he required^                                   Directive addresses with priority puhlic telecommu
                                                                            nications networks and puhlic telecommunications
 t^. whereas such mutual recognition of licensing                           services for which telecommunications adminis
      procedures required must depend on progress on the                    trations are in law or in fact the sole or main
      harmonization of the conditions for service                           providers^
      provision, hy the progressive implementation of open
      network provisions
                                                                       ^D. whereas the effects on the workin^of the internal
^0. whereas in its resolution of ^0 ]une t ^ ^ on the                       market of any remaining conditions for access to
      development of the common market for telecommu                        telecommunications services which have not heen
      nications services and equipment up to 1 ^ ^ the                      harmonized shouldhereviewed hy theC^ouncil and
      Councilconsideredthetakin^ fully into account of                      the Commission during t ^ ^ , taking account of
      the external aspects of Community measures on tele^                   technological development,
      communications to heama^or policy ^oal^
^ 1 . whereas in accordance with the Council Decision of               ^^5^o^rr^or^L5 0^^crtv^
      ^ ^ o v e m h e r t ^ ^ , the ^viemher states have accom
      paniedtheirsi^natureofthe Pinal Acts of t h e ^ o r l d
      Administrativefele^raphandlelephone Conference
      ^ A f f C ^ ^ h y a i o i n t declaration stating that they
      will apply the International Telecommunications                  This Directive provides for the harmonization of
      Regulations in accordance with their ohli^ations                 conditions for open access to, and open use of, the
      under the EECTreaty^                                             puhlic telecommunications network infrastructure and
                                                                       puhlic telecommunications services.
^ . whereas theCommunityattachesmaior importance
      to the continued growth of crosshorder telecommu                 These conditions will apply in particular also for the
      nications services,to the contrihutionof telecommu^              provisionof services via these telecommunications means
      nications services provided hy companies, firms or               within and hetween ^viemher states, including in
      natural persons estahlishedina^iemher^tate of the                particular the provision of services hy companies, firms
      community to the growth of the Community                         ornatu^alpersons estahlished i n a ^viemher ^tateof the
      market, and to the increased participation of                    Community other than that of the company, firm or
      Community service providers in third country                     natural person for whom the services are intended, in
                                                                       order to estahlish a common market for telecommuni
(') OJ No L 131, 27. 5. 1988, p. 73.                                   cations services.
 ---pagebreak---  No C 39/10                             Official Journal of the European Communities                                  16. 2. 89
                           Article 2                                  gation for gaining access to, and using public tele-
                                                                      communications networks and services, within the
 For the purposes of this Directive:
                                                                      framework of Community law.
 1. 'Telecommunications organizations' means the adminis-          6. 'Technical specifications', 'standards' and 'terminal
    trations or private operating agencies recognized in              equipment' are given the same meaning as in Article 2
    the Community, providing public telecommunications                of Directive 86/361/EEC on the initial stage of the
    networks and/or public telecommunications services.               mutual recognition of type approval for telecommuni-
                                                                      cations terminal equipment.
    The bodies listed in Annex 1 fulfil these criteria.
                                                                                            Article 3
2. 'Public network' means' a public telecommunications             1.    O N P conditions must comply with a number of
    infrastructure which provides for the transmission of         basic principles. These principles are that:
    services between and including defined termination
    points, be it by wire, radio link, or any other electro-      — conditions must be based on objective criteria,
    magnetic or optical means.
                                                                  — conditions must be transparent, and published in an
                                                                       appropriate manner,
3. 'Public network termination point' means the physical
    connection and technical access              specifications   — conditions must guarantee equality of access, and
    required to gain access to, and to communicate effi-               must be nondiscriminatory, in accordance with
    ciently via, a public network.                                     Community law.
4. 'Open network provision conditions' means the                  2.     O N P conditions must be based on essential
    conditions harmonized according to the provisions set         requirements, within the framework of Community law.
    forth in this Directive which may be imposed on users         These essential requirements are:
    and/or providers of services for access to and use of
                                                                  — security of network operations,
    the public network and/or public telecommunications
    services (hereinafter referred to as ' O N P conditions').    — maintenance of network integrity,
    O N P can include in particular harmonized conditions         — interoperability of services, in justified cases,
    with regard to:
                                                                  — protection of data, in justified cases,
   — technical interfaces, including the definition and           — the essential requirements in general applicable to the
        implementation of public network termination                  connection of terminal equipment to the network.
        points, where required,
                                                                  3.    O N P conditions must not allow for any additional
   — usage conditions, including access to frequencies            restrictions on the use of the public network and/or
        where required,                                           public services except those which may be derived from
                                                                  the exercise of exclusive or special rights granted by
   — tariff principles.                                           Member States, and are compatible with Community
                                                                  law.
    O N P conditions will apply to the areas defined
    according to Article 4. O N P conditions will apply to        4.    The Council, acting by a qualified majority on a
   access or use of those public telecommunications               proposal from the Commission shall supplement as
   networks and public telecommunications services for            necessary the lists drawn up under 1 and 2.
   which the telecommunications organizations defined
   under 1 are in law or in fact the sole or main                                           Article 4
   providers either singly or jointly.
                                                                  1.    O N P conditions shall be defined in stages, in
                                                                  accordance with the procedure set out hereafter.
   For specific areas, where other service providers are
   of comparable importance, the Council, acting by a
   qualified     majority on a proposal from                the   2.    O N P conditions shall concern the areas listed in
   Commission, shall supplement as necessary the bodies           Annex 2.
   listed under 1.
                                                                  The Council, acting by a qualified majority on a
                                                                  proposal from the Commission, shall supplement as
5. 'Essential requirements' means requirements of a               necessary this list.
   non-economic nature which, for reasons of general
   public interest, can be considered of such importance          3.    The priority areas for which O N P conditions shall
   as to necessitate compliance as a matter of legal obli-        be drawn up initially are listed in Annex 3.
 ---pagebreak---  16. 2. 89                               Official Journal of the European Communities                            No C 39/11
The Commission shall draw up each year, after                      — details of harmonized tariff principles,
consulting the Committee referred in Article 9, an
updated list of priority areas.
                                                                    and any other aspects of relevance.
4.      For the priority areas chosen, the Commission
shall:
                                                                                            Article 7
(1) carry out a detailed analysis, in consultation with the         1.    Depending on the progress of harmonization of
      Committee referred to in Article 9, according to             conditions through the establishment of O N P according
      defined time schedules, and establish reports on the         to the procedures set out under Articles 4, 5 and 6, the
      results of this analysis;                                    Council acting by qualified majority on a proposal from
                                                                   the Commission shall adopt measures specifying the
(2) request, on the basis of the reports on this analysis,         conditions under which the mutual recognition of
      taking into consideration the comments received              declaration and/or licensing procedures for the provision
      during the public comment period according to                of services via public networks shall be ensured where
      Article 5 (1), and with due regard to the general            such declaration or licence is required by Member States.
      programme of standardization in the information
      technology sector, the European Telecommuni-
      cations Standards Institute (ETSI) to draw up                The measures shall eliminate any requirement for
      European standards, taking account, as appropriate,          additional declaration or licensing in other Member
      of international standardization as a basis for              States, once a service is legally produced in a Member
      harmonized technical interfaces and/or service               State.
      features where required, within specified time limits;
      in so doing, it shall coordinate, in particular, with
      the     Joint    European       Standards     Institution
                                                                   2.    Towards this end, the Council acting by a qualified
      CEN—Cenelec;
                                                                   majority on a proposal by the Commission shall adopt
                                                                   measures for harmonizing declaration and/or licensing
(3) draw up O N P conditions in accordance with the                procedures, where required.
      elements listed in the O N P reference framework in
      Annex 4, based on the general principles and
      requirements set out in Article 3.
                                                                   3.    In accordance with Article 8c of the Treaty, these
                                                                   proposals may take into account, to the extent required
                            Article 5                              up to the end of 1992, the effort that certain economies,
                                                                   showing differences in development of these services,
 1.     The Commission shall invite, by publication in the         will have to sustain during the establishment of the
 Official Journal of the European Communities, public              harmonized conditions and declaration and/or licensing
comment by all parties concerned on the reports estab-             schemes referred to under 1 and 2.
lished according to Article 4 (4) (1). The period for
public comment will be no less than three months from
the date of publication.
                                                                                            Article 8
2.      Reference to European standards drawn up as a              During 1992, the Council, on the basis of a report by the
basis for harmonized technical interfaces and/or service           Commission, shall review the effect on the working of
features for O N P according to Article 4 (4) (2) shall be         the internal market of any remaining conditions for
published in the Official Journal of the European                  access to telecommunications services which have not
 Communities.                                                      been harmonized, taking account of technological devel-
                                                                   opment and in accordance with the general procedure
                                                                   foreseen under Article 100b of the Treaty.
                            Article 6
Following the completion of the procedures set forth in
Articles 4 and 5, and acting by a qualified majority on                                     Article 9
the proposal from the Commission, the Council shall
adopt detailed directives for the establishment of O N P           1.    The Commission shall be assisted by a committee
conditions for each area which shall include:                      of an advisory nature composed of the representatives of
                                                                   the Member States and chaired by the representative of
— a time schedule for the implementation of                        the Commission. This committee shall be the Senior
     harmonized technical interfaces and/or service                Officials Group on Telecommunications (SOG-T).
     features where required, including the implemen-
     tation of harmonized public network termination
    points, as appropriate,                                        2.    The representative of the Commission shall submit
                                                                   to the committee a draft of the measures to be taken.
— details of harmonized usage conditions,                          The committee shall deliver its opinion on the draft,
 ---pagebreak--- No C 39/12                             Official Journal of the European Communities                                      16. 2. 89
within a time limit which the chairman may lay down                                                Article 10
according to the urgency of the matter, if necessary by
taking a vote.                                                         1.     Member States shall bring into force the laws regu-
                                                                       lations and administrative provisions necessary in order
                                                                       to comply with this Directive by . . . at the latest. They
                                                                       shall forthwith inform the Commission thereof.
3.   The opinion shall be recorded in the minutes; in
addition, each Member State shall have the right to ask                2.     Member States shall ensure that the texts of the
to have its position recorded in the minutes.                          provisions of national law which they adopt in the field
                                                                       governed by this Directive are communicated to the
                                                                       Commission.
4.   The Commission shall take the utmost account of
the opinion delivered by the committee. It shall inform                                            Article 11
the committee of the manner in which its opinion has
been taken into account.                                               This Directive is addressed to the Member States.
                                                             ANNEX 1
                                           Bodies fulfilling the criteria of Article 2(1)
             Belgium                                                   Italy
             Regie des Telegraphes et des Telephones / Regie           Amministrazione delle Poste e delle Telecomuni-
             van Telegrafie en Telefonie                               cazioni
                                                                       Azienda di Stato per i Servizi Telefonici
                                                                       Societa Italiana per l'Esercizio Telefonico SpA
             Denmark                                                   Italcable
             Kebenhavns Telefon Aktieselskab                           Telespazio SpA
             Jydsk Telefon
             Fyns Kommunale Telefonselskab                             Luxembourg
             Post- og Telegrafvaesenet                                 Administration des Postes et des Telecommuni-
             Statens Teletjeneste                                      cations
                                                                        The Netherlands
             Federal Republic of Germany
                                                                       Post, Telegraaf en Telefoon
             Deutsche Bundespost
                                                                       Portugal
             France                                                    Correios e Telecomunicacoes de Portugal
             Direction Generate des Telecommunications                 Telefones de Lisboa e Porto
                                                                       Companhia Portuguesa Radio Marconi
             (France Telecom) and Transpac
                                                                       Spain
             Greece                                                    Compania Telefonica Nacional de Espana
             Ote / Hellenic Telecommunications Organization
                                                                        United Kingdom
                                                                       British Telecommunications pic
             Ireland                                                   Mercury Communications Ltd
             Telecom Eireann                                           City of Kingston-Upon-Hull
 ---pagebreak--- 16. 2. 89                             Official J o u r n a l of the E u r o p e a n C o m m u n i t i e s              No C 39/13
                                                               ANNEX      2
                Areas for which open network conditions are to be drawn up in accordance with Article 4 (2)
          O N P conditions shall be drawn up progressively for the following areas:
          Access to network resources:
          — leased lines,
          — new types of access to the local network infrastructure, such as access, under certain conditions, to the
              circuits connecting subscriber premises to the public network, exchange, without disruption to the basic
              service for which this connection may be provided (e.g. telephony, telex),
          — ISDN (Integrated Services Digital Network) network resources,
          — broadband network resources, according to progress on definition and technological development.
          Access to basic switched services intended for general public use:
          — voice telephony service,
          — telex service,
          — circuit switched public data services,
          — packet switched public data services,
          — ISDN (Integrated Services Digital Network) services, as applicable,
          — mobile services, as applicable,
          — broadband services, as applicable and according to progress on definition and technological devel-
              opment.
                                                               ANNEX      3
             Priority areas for which O N P conditions shall be drawn up initially in accordance with Article 4 (3)
          Access to:
          — leased lines,
          — packet switched public data services,
          — ISDN network resources and services, as applicable.
                                                               ANNEX      4
               Reference framework for the elaboration of O N P conditions in accordance with Article 4 (4) (3)
          The elaboration of O N P conditions should proceed according to the following reference framework:
          1. Definition of harmonized technical interfaces and service features
             For O N P conditions the following scheme should be taken into account for the definition of technical
             interfaces at appropriate termination points:
             — for existing services, existing interfaces should be adopted. Enhancement of such interfaces may be
                  considered for additional capabilities,
 ---pagebreak--- No C 39/14                               Official Journal of the European Communities                                      16. 2. 89
              — for entirely new services existing interfaces should also be adopted, as far as applicable. When
                   existing interfaces are not suitable, enhancements, or new interfaces, will have to be specified,
              — for services and networks that are yet to be introduced, but for which the standardization
                   programme has already commenced, O N P requirements should be taken into account when
                   specifying new interfaces.
              O N P requirements must be, wherever possible, in line with the on-going work on CCITT and CEPT
              recommendations.
              Work in this area shall take full account of the framework given by Council Directive 83/189/EEC
              laying down a procedure for the provision of information in the field of technical standards and regu-
              lations, Council Directive 86/361/EEC on the initial stage of the mutual recognition of type approval
              for telecommunications terminal equipment and Council Decision 87/95/EEC on standardization in the
              field of information technology and telecommunications.
              Work shall include the full definition of network termination points where required and not covered
              under appropriate procedures elsewhere.
              O N P offerings shall in general present increased versatility compared with existing offerings. Corre-
              spondingly, additional features should be identified where required.
              Under O N P such additional features may be classified as:
              — inclusive if they are provided in association with a specific interface and included in the standard
                   offering,
              — optional if they can be requested as an option with regard to a specific O N P offering, subject to an
                   additional tariff.
              Work shall include the elaboration of proposals for time schedules for introduction of interfaces and
              service features, taking account of the environment of telecommunications networks and services in the
              Community.
           2. Definition of harmonized usage conditions
              Usage conditions shall identify conditions of access and of supply, as far as required.
              They may include in particular the following attributes as applicable:
              — maximum provision time (delivery period),
              — minimum contractual period,
              — quality of service, including, as applicable:
                   — availability,
                   — mean time to repair,
                   — transmission quality,
              — maintenance and fault reporting, including, as applicable:
                   — access to network maintenance facilities,
                   — access to network diagnostic facilities,
                   — access to network fault reporting facilities,
              — conditions for resale of capacity,
              — conditions for shared use,
              — conditions for third party use,
              — conditions for interconnection with public and private networks.
              Usage conditions may include conditions regarding access to frequencies, as applicable, and measures
              concerning protection of personal data and confidentiality of transactions, where required.
           3. Definition of harmonized tariff'principles
              Fair and open access of users and competitive service providers to network resources and services
              requires a clear definition of tariff principles. Tariff principles must be guided by the general principles
              applying to O N P :
 ---pagebreak--- 16. 2. 89                              Official Journal of the European Communities                                   No C 39/15
             — tariffs must be based on objective criteria and must not impose directly or indirectly unfair purchase
                 or selling prices. They must be, in particular, cost-oriented,
             — tariffs must be transparent and must be properly published. With regard to service elements, tariffs
                 must be sufficiently unbundled, in order to avoid obligations and charges for users, which have no
                 connection with the subject of the uses sought. In particular, specific network or service features
                 should be charged independently of the charge for transmission via the network (bearer capability),
             — tariffs must be non-discriminatory and guarantee equality of treatment.
             Specific charges for access to network resources or services must be justified on the basis of objective
             criteria, based on, inter alia, fair sharing in the global cost of the resources used.
          4. Common principles
             The definition of harmonized usage conditions and tariff principles under 2 and 3 will take due account
             of the applicable competition rules of the Treaty.