CELEX: 51996PC0418
Language: en
Date: 1996-07-31
Title: Amended proposal for a EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE amending Council Directives 90/387/EEC and 92/44/EEC for the purpose of adaptation to a competitive environment in telecommunications

COMMISSION OF THE EUROPEAN COMMUNITIES
*    it
•is   à
                                              Brussels, 31.07.1996
                                              COM(96) 418 final
                                              95/0280 (COD)
                           Amended proposal for a
        EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE
    amending Council Directives 90/387/EEC and 92/44/EEC for the purpose of
         adaptation to a competitive environment in telecommunications
        (presented by the Commission pursuant to Article 189 a (2)
                              of the EC-Treaty)
 ---pagebreak---  ---pagebreak---                             EXPLANATORY MEMORANDUM
     The Commission hereby presents a modified proposal for a European Parliament
     and Council Directive amending Council Directives 90/387/EEC and 92/44/EEC for
     the purpose of adaptation to a competitive environment in telecommunications.
     The modified proposal incorporates those amendments proposed by the European
     Parliament at First Reading which were accepted by the Commission.
1.      Introduction
a)      Background
The Commission adopted its proposal on 14.11.19951, and it was formally transmitted to
the EP and the Council on 10.01.1996.
The Economic and Social Committee gave a favourable Opinion on 25.04.19962. The
European Parliament adopted a favourable Resolution at its First Reading on
22.05.1996, and proposed 17 amendments to the Commission proposal3.
b)       Purpose of the Directive
 The aim of the Commission proposal is to amend the two following existing ONP
 Directives:
       - the ONP framework Directive (90/387/EEC)4
       - the ONP leased lines Directive (92/44/EEC)5
 in order to adapt them to the post-1998 liberalised telecommunications market.
 The ONP framework Directive was adopted in 1990, and set out basic principles for
 harmonising conditions for access to, and use of, public telecommunications networks
 and services.
 The ONP leased lines Directive was adopted in June 1992, and set out harmonised
 supply and usage conditions for leased lines, including a requirement for a minimum set
 of 5 types of leased lines to be available in all Member States
          COM(95) 543, OJ C 62, 1.03.1996, p. 3
  2
          TRA/304, 25.04.1996
  3
          A4-0144/96, PV 22.05.1996
  4
          OJL 192, 24.07.1990, p. 1
  5
          OJL 165, 19.06.1992, p. 27
                                                 2-
 ---pagebreak---  2.      EP amendments accepted bv the Commission
 Of the 17 amendments adopted by the European Parliament at First Reading, the
 Commission accepted 3 in full, 3 in part, and 2 in principle, making a total of 8.
 Amendments accepted in full :                 ?, 13, 17
 Amendments accepted in part:                  4, 10, 14
 Amendments accepted in principle :            9, 19(part)
The Commission accepted those amendments which:
      •    call for examination before the year 2000 of the possibility of establishing a
          European regulatory authority for telecommunications [Amendments 10 (part)].
      •   support the need to review before the year 2000 the provisions of these two
          ONP Directives in the light of the developments in the market [Amendments 10
          and 14 (parts)].
     •    are coherent with other Directives, and in particular with the Common Position
          reached on the proposed Interconnection Directive [Amendments 2, 4(lst
          part)].
     •    improve the clarity of the text [Amendments 13 and 17].
In addition, the Commission accepted in principle the following amendments::
          Amendment 9: The Commission agrees with the concern of the Parliament in
          terms of providing national regulatory authorities with all necessary resources to
          fulfil their mission in full autonomy, but the creation of legal difficulties for
          national transposition of such requirement should be avoided. For this reason,
          such a provision should be in a recital (recital 7), instead of an article.
          Amendment 19 (3rdpart): The Commission can accept in principle the need for
          restructuring the ONP committee, but this should not be a legal requirement.
3.      Amendments not accepted bv 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, where the
amendments are grouped into 6 categories.
                                             -3-
 ---pagebreak--- Changes to definitions and concepts
(Amendments 1, 3, 4 (2nd part), 6 and 7)
These amendments propose changes to definitions and concepts which are inconsistent
with other Directives in the telecommunications sector, and in particular with the
Common Position reached on the proposed Directive on interconnection in
telecommunications6. These would risk of reopening debates on issues, commonly
agreed in the other Directives, and in particular could endanger the political agreement
achieved on that Common Position and accepted by the Commission. This would also
go against the Parliament's wish of consistency between all EC Directives in this field.
In this category fall the definitions of'universal service' (Amendment 3), 'essential "
requirements' (Amendment 4, 2nd part on 'data protection') and 'interconnection'
(Amendment 6). Also fall in this category Amendments 1 and 7: the former modifying
the 'significant market power' concept agreed in the Interconnection Directive, and the
latter introducing the concept of'network interconnection point', which is a new concept
not defined or included in the Interconnection Directive.
Directive on costing and financing of universal service
(Amendment 8)
The Interconnection Directive sets out a framework for costing and financing of
universal service. In addition, the Communication on universal service for
telecommunications7 announces a Commission Communication on costing and financing
of universal service by September 1996, which will provide guidelines to be used in
assessing national approaches to costing and financing universal service. Therefore, the
Commission does not share the need for a specific Directive on the costing and financing
of universal service.
Review of the Directive
(Amendments 10 and 14 (parts))
The Commission accepts the need to examine what provisions of the two Directives
(90/387/EEC and 92/44/EEC) should be adapted in the light of market developments,
but such adaptation should be limited to these two ONP Directives.
The Commission considers inappropriate the requirement for further measures that can
be proposed in the report for the full implementation of the aims of these Directives to
take the form of a proposal for a single consolidated text, as this would prejudge the
need for such measures.
6
         OJC313, 24.11.1995, p. 7.
7
         COM(96) 73, 13.03.1996
                                              -4-
 ---pagebreak---  Comitology
 (Amendment 19(lst and 2nd parts))
 The Commission can not accept the replacement of Member States' by 'national
regulatory authorities' proposed in thefirstparagraph of Amendment 19, as it goes
against standard consultative committee procedures.
The Commission neither accepts the second paragraph of Amendment 19, as there is
already a specific mechanism for consultation with trade unions (i.e. the Joint Committee
on Telecommunications).
Applicability of the ONP Leased Lines Directive
(Amendment 12)
Amendment 12 would significantly reduce the scope of the Leased Lines Directive, as
thefixedpublic telephone network is commonly used for provision of leased lines.
Other amendments
(Amendments 15,16 and 18)
The Commission can not accept Amendments 15 (1st part) and 16: the former would be
against standard provision in EC Directives, and the latter inconsistent with other ONP
Directives.
Although agreeing with the aim of Amendment 15 (2nd part) in terms of publication of a
consolidated version, the Commission considers inappropriate that it constitutes a legal
requirement.
The Commission can neither accept Amendment 18, as 'net' cost is unclear and
potentially too restrictive, excluding other costs which may be taken into account (e.g.
general network costs).
4. Conclusion
The Commission has accepted 8 of the 17 amendments proposed by the European
Parliament at First Reading either in whole, in part or in principle.
In accordance with Article 189a paragraph 2 of the EC Treaty, the Commission amends
its initial proposal, incorporating these amendments.
                                              -5-
 ---pagebreak---             Modified Proposal for a European Parliament and Council Directive
                  amending Council Directives 90/387/EEC and 92/44/EEC
    for the purpose of adaptation to a competitive environment in telecommunications
                    Original text                                             Amended text
                                                 Recital 7
                                   (based on EP amendment 9)
7. Whereas in conformity with the principle of          7. Whereas in conformity with the principle of
    separation of regulatory and operational               separation of regulatory and operational
   functions, Member States should guarantee               functions, Member States should guarantee
   the independence of the national regulatory             the independence of the national regulatory
   authority or authorities, and ensure that the           authority or authorities, and ensure that the
   national regulatory authority or authorities            national regulatory authority or authorities
   of each Member State will play à key role in            of each Member State will play a key role in
   the implementation of the regulatory                    the implementation of the regulatory
   framework set out in relevant Community                 framework set out in relevant Community
   legislation; whereas the national regulatory            legislation; whereas the national regulatory
   authorities should have the necessary means             authorities should be in possession of all
   to carry out fuliv the tasks assigned to them;          necessary resources, both in terms of
                                                           staffing, expertise, and financial means to
                                                           fulfil their mission in full autonomy:
                                             ARTICLE 1(2)
                      Article 2(3), first indent, of Directive 90/387/EEC
                                  (based on EP amendment 2)
     3. -'telecommunications services' means                 3. -'telecommunications services' means
          services whose provision consists                        services whose provision consists
          wholly or partly in the transmission                     wholly or partly in the transmission
          and/or routing of signals on                             and/or routing of signals on
          telecommunications networks;                             telecommunications networks, with
                                                                   the exception of radio broadcasting or
                                                                   television;
 ---pagebreak---                                       ARTICLE 1(2)
                       Article 2(6) of Directive 90/387/EEC
                            (based on EP amendment 4)
    'essential requirements' means the non-              'essential requirements' means the non-
    economic reasons in the general                      economic reasons in the general
    interest which may cause a Member                    interest which may cause a Member
    State to restrict access to public                   State to restrict access to public
    telecommunications networks or                       telecommunications networks or
    public telecommunications services.                  public telecommunications services.
    These reasons are security of network                These reasons are security of network
    operations, maintenance of network                   operations, maintenance of network
    integrity and, in justified cases,                   integrity.     protection     of    the
    interoperability of services and data                environment or town planning, and, in
    protection.                                          justified cases, interoperability of
                                                         services and data protection.
                                       ARTICLE 1(8)
                         Article 8 of Directive 90/387/EEC
                           (based on EP amendment 10)
The Commission shall examine and report              The Commission shall examine and report
to the European Parliament and to the                to the European Parliament and to the
Council on the functioning of this                   Council on the functioning of this
Directive, on the first occasion not later           Directive, on the first occasion not later
than 31 December 1999. The report shall              than 31 December 1999. The report shall
be based inter alia on the information               be based inter alia on the information
provided by the Member States to the                 provided by the Member States to the
Commission and to the ONP Committee.                 Commission and to the ONP Committee.
Where necessary, further measures can be             Where necessary, the report shall examine
proposed in the report for adapting this             what provisions of this Directive should be
Directive, taking account of developments            adapted in the light of the developments in
towards a fully competitive environment.             the market. Further measures can be
                                                     proposed in the report for . the full
                                                     implementation of the aims of this
                                                     Pirecfive; jn particular, the report shajl
                                                     examine the possibility of establishing a
                                                     European Regulatory Authority.
                                         -7-
 ---pagebreak---                                       ARTICLE 2(10)(b)
                         Article 10(4) of Directive 92/44/EEC
                             (based on EP amendment 13)
 4.  The national regulatory authority shall            4. The national regulatory authority shall
     not apply the requirements , of                        not apply the requirements of
     paragraph 1 where an organisation                      paragraph 1 where an organisation
     does not have significant market                       does not have significant market
     power in respect of a specific leased                  power in respect of a specific leased
     line offering in a specific geographical               line offering in a specific geographical
     area.                                                  area, the market power of an
                                                            undertaking being defined by the
                                                            provisions of European Parliament
                                                           and Council Directive .... on
                                                           interconnection           to       public
                                                           telecommunications networks and
                                                           public telecommunications services in
                                                           the context of Open Network
                                                           Provision (ONP).
                                       ARTICLE 2(12)
                          Article 14 of Directive 92/44/EEC
                            (based on EP amendment 14)
The Commission shall examine and report                The Commission shall examine and report
to the European Parliament and to the                  to the European Parliament and to the
Council on the functioning of this                     Council on the functioning of this
Directive, on the first occasion not later            Directive, on the first occasion not later
than 31 December 1999. The report shall               than 31 December 1999. The report shall
be based inter alia on the information                be based inter alia on the information
provided by the Member States to the                   provided by the Member States to the
Commission and to the ONP Committee.                   Commission and to the ONP Committee.
The report shall include an assessment of             The report shall include an assessment of
the need for continuation of this Directive,          the need for continuation of this Directive,
taking account of developments towards a              taking account of developments towards a
fully competitive environment. Where                  fully competitive environment. Where
necessary, further measures can be                    necessary, the report shall examine what
proposed in the report for adapting this               provisions of this Directive should be
Directive, taking account of developments              adapted in the light of the developments in
towards a fully competitive environment.              the market, and further measures can be
                                                       proposed in the report for the full
                                                       implementation of the aims of this
                                                       Directive.
 ---pagebreak---               Annex 1(3), second paragraph, fourth indent
                       (based on EP amendment 17)
tariffs must be non-discriminatory and          - tariffs must be non-discriminatory and
guarantee equality of treatment.                  guarantee equality of treatment,.
                                                  except for restrictions which are
                                                  compatible with Community law.
 ---pagebreak---  ---pagebreak---                                                                    ISSN 0254-1475
                                                            COM(96) 418 final
                                              DOCUMENTS
 EN                                                             06 08 10      15
                                    Catalogue number : CB-CO-96-400-EN-C
                                                             ISBN 92-78-07710-0
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