2002 21 EC

From La Quadrature du Net

DIRECTIVE 2002/21/EC OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL
of 7 March 2002
a

on a common regulatory framework
for electronic communications networks and services

[highlighting the amendments proposed by the European Commission in its 2007 Reform Proposals dated 13 November 2007]

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 95 thereof,
Having regard to the proposal from the Commission
,
Having regard to the opinion of the Economic and Social Committee
,
Acting in accordance with the procedure laid down in Article 251 of the Treaty
,

Whereas:
(1) The current regulatory framework for telecommunications has been successful in creating the conditions for effective competition
in the telecommunications sector during the transition from monopoly to full competition.
(2) On 10 November 1999, the Commission presented a communication to the European Parliament, the Council, the Economic and
Social Committee and the Committee of the Regions entitled "Towards a new framework for electronic communications
infrastructure and associated services – the 1999 communications review". In that communication, the Commission reviewed the
existing regulatory framework for telecommunications, in accordance with its obligation under Article 8 of Council Directive
implementation of open network provision

. It also presented a series of policy proposals for a new regulatory framework for
electronic communications infrastructure and associated services for public consultation.
(3) On 26 April 2000 the Commission presented a communication to the European Parliament, the Council, the Economic and Social
Committee and the Committee of the Regions on the results of the public consultation on the 1999 communications review and
orientations for the new regulatory framework. The communication summarised the public consultation and set out certain key
orientations for the preparation of a new framework for electronic communications infrastructure and associated services.
(4) The Lisbon European Council of 23 and 24 March 2000 highlighted the potential for growth, competitiveness and job creation of
the shift to a digital, knowledge-based economy. In particular, it emphasised the importance for Europe’s businesses and citizens
of access to an inexpensive, world-class communications infrastructure and a wide range of services.

(5) The convergence of the telecommunications, media and information technology sectors means all transmission networks and
services should be covered by a single regulatory framework. That regulatory framework consists of this Directive and four
specific Directives: Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of
electronic communications networks and services (Authorisation Directive)
, Directive 2002/19/EC of the European Parliament
and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated
facilities (Access Directive)
, Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal
service and users’ rights relating to electronic communications networks and services (Universal Service Directive)

, Directive
protection of privacy in the telecommunications sector
, (hereinafter referred to as "the Specific Directives"). It is necessary to
separate the regulation of transmission from the regulation of content. This framework does not therefore cover the content of
services delivered over electronic communications networks using electronic communications services, such as broadcasting
content, financial services and certain information society services, and is therefore without prejudice to measures taken at
Community or national level in respect of such services, in compliance with Community law, in order to promote cultural and

linguistic diversity and to ensure the defence of media pluralism. The content of television programmes is covered by Council
Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative
action in Member States concerning the pursuit of television broadcasting activities
. The separation between the regulation of
transmission and the regulation of content does not prejudice the taking into account of the links existing between them, in
particular in order to guarantee media pluralism, cultural diversity and consumer protection.
(6) Audiovisual policy and content regulation are undertaken in pursuit of general interest objectives, such as freedom of expression,
media pluralism, impartiality, cultural and linguistic diversity, social inclusion, consumer protection and the protection of minors.
The Commission communication "Principles and guidelines for the Community’s audio-visual policy in the digital age", and the

Council conclusions of 6 June 2000 welcoming this communication, set out the key actions to be taken by the Community to
implement its audio-visual policy.
(7) The provisions of this Directive and the Specific Directives are without prejudice to the possibility for each Member State to take
the necessary measures to ensure the protection of its essential security interests, to safeguard public policy and public security, and
to permit the investigation, detection and prosecution of criminal offences, including the establishment by national regulatory
authorities of specific and proportional obligations applicable to providers of electronic communications services.
(8) This Directive does not cover equipment within the scope of Directive 1999/5/EC of the European Parliament and of the Council of
9 March 1999 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity
,

but does cover consumer equipment used for digital television. It is important for regulators to encourage network operators and
terminal equipment manufacturers to cooperate in order to facilitate access by disabled users to electronic communications
services.
(9) Information society services are covered by Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000
on certain legal aspects of information society services, in particular electronic commerce, in the internal market (Directive on
electronic commerce)
.
(10) The definition of "information society service" in Article 1 of Directive 98/34/EC of the European Parliament and of the Council of

rules of information society services
spans a wide range of economic activities which take place on-line. Most of these activities
are not covered by the scope of this Directive because they do not consist wholly or mainly in the conveyance of signals on
electronic communications networks. Voice telephony and electronic mail conveyance services are covered by this Directive. The
same undertaking, for example an Internet service provider, can offer both an electronic communications service, such as access to
the Internet, and services not covered under this Directive, such as the provision of web-based content.
(11) In accordance with the principle of the separation of regulatory and operational functions, Member States should guarantee the
independence of the national regulatory authority or authorities with a view to ensuring the impartiality of their decisions. This

requirement of independence is without prejudice to the institutional autonomy and constitutional obligations of the Member States
or to the principle of neutrality with regard to the rules in Member States governing the system of property ownership laid down in
Article 295 of the Treaty. National regulatory authorities should be in possession of all the necessary resources, in terms of
staffing, expertise, and financial means, for the performance of their tasks.
(12) Any party who is the subject of a decision by a national regulatory authority should have the right to appeal to a body that is
independent of the parties involved. This body may be a court. Furthermore, any undertaking which considers that its applications
for the granting of rights to install facilities have not been dealt with in accordance with the principles set out in this Directive
should be entitled to appeal against such decisions. This appeal procedure is without prejudice to the division of competences
within national judicial systems and to the rights of legal entities or natural persons under national law.

(13) National regulatory authorities need to gather information from market players in order to carry out their tasks effectively. Such
information may also need to be gathered on behalf of the Commission, to allow it to fulfil its obligations under Community law.
Requests for information should be proportionate and not impose an undue burden on undertakings. Information gathered by
national regulatory authorities should be publicly available, except in so far as it is confidential in accordance with national rules
on public access to information and subject to Community and national law on business confidentiality.
(14) Information that is considered confidential by a national regulatory authority, in accordance with Community and national rules on
business confidentiality, may only be exchanged with the Commission and other national regulatory authorities where such
exchange is strictly necessary for the application of the provisions of this Directive or the Specific Directives. The information
exchanged should be limited to that which is relevant and proportionate to the purpose of such an exchange.

(15) It is important that national regulatory authorities consult all interested parties on proposed decisions and take account of their
comments before adopting a final decision. In order to ensure that decisions at national level do not have an adverse effect on the

single market or other Treaty objectives, national regulatory authorities should also notify certain draft decisions to the
Commission and other national regulatory authorities to give them the opportunity to comment. It is appropriate for national
regulatory authorities to consult interested parties on all draft measures which have an effect on trade between Member States.
The cases where the procedures referred to in Articles 6 and 7 apply are defined in this Directive and in the Specific Directives.
The Commission should be able, after consulting the Communications Committee, to require a national regulatory authority to

withdraw a draft measure where it concerns definition of relevant markets or the designation or not of undertakings with significant
market power, and where such decisions would create a barrier to the single market or would be incompatible with Community law
and in particular the policy objectives that national regulatory authorities should follow. This procedure is without prejudice to the 
notification procedure provided for in Directive 98/34/EC and the Commission’s prerogatives under the Treaty in respect of
infringements of Community law.
(16) National regulatory authorities should have a harmonised set of objectives and principles to underpin, and should, where necessary,
coordinate their actions with the regulatory authorities of other Member States in carrying out their tasks under this regulatory

framework.
(17) The activities of national regulatory authorities established under this Directive and the Specific Directives contribute to the
fulfilment of broader policies in the areas of culture, employment, the environment, social cohesion and town and country
planning.
(18) The requirement for Member States to ensure that national regulatory authorities take the utmost account of the desirability of
making regulation technologically neutral, that is to say that it neither imposes nor discriminates in favour of the use of a particular
type of technology, does not preclude the taking of proportionate steps to promote certain specific services where this is justified,
for example digital television as a means for increasing spectrum efficiency.
(19) Radio frequencies are an essential input for radio-based electronic communications services and, in so far as they relate to such

services, should therefore be allocated and assigned by national regulatory authorities according to a set of harmonised objectives
and principles governing their action as well as to objective, transparent and non-discriminatory criteria, taking into account the
democratic, social, linguistic and cultural interests related to the use of frequency. It is important that the allocation and
assignment of radio frequencies is managed as efficiently as possible. Transfer of radio frequencies can be an effective means of
increasing efficient use of spectrum, as long as there are sufficient safeguards in place to protect the public interest, in particular the
need to ensure transparency and regulatory supervision of such transfers. Decision No 676/2002/EC of the European Parliament
and of the Council of 7 March 2002 on a regulatory framework for radio spectrum policy in the European Community (Radio
Spectrum Decision)

establishes a framework for harmonisation of radio frequencies, and action taken under this Directive should
seek to facilitate the work under that Decision.
(20) Access to numbering resources on the basis of transparent, objective and non-discriminatory criteria is essential for undertakings to
compete in the electronic communications sector. All elements of national numbering plans should be managed by national
regulatory authorities, including point codes used in network addressing. Where there is a need for harmonisation of numbering
resources in the Community to support the development of pan-European services, the Commission may take technical
implementing measures using its executive powers. Where this is appropriate to ensure full global interoperability of services,
Member States should coordinate their national positions in accordance with the Treaty in international organisations and fora

where numbering decisions are taken. The provisions of this Directive do not establish any new areas of responsibility for the
national regulatory authorities in the field of Internet naming and addressing.
(21) Member States may use, inter alia, competitive or comparative selection procedures for the assignment of radio frequencies as well
as numbers with exceptional economic value. In administering such schemes, national regulatory authorities should take into
account the provisions of Article 8.
(22) It should be ensured that procedures exist for the granting of rights to install facilities that are timely, non-discriminatory and
transparent, in order to guarantee the conditions for fair and effective competition. This Directive is without prejudice to national
provisions governing the expropriation or use of property, the normal exercise of property rights, the normal use of the public
domain, or to the principle of neutrality with regard to the rules in Member States governing the system of property ownership.

(23) Facility sharing can be of benefit for town planning, public health or environmental reasons, and should be encouraged by national
regulatory authorities on the basis of voluntary agreements. In cases where undertakings are deprived of access to viable
alternatives, compulsory facility or property sharing may be appropriate. It covers inter alia: physical co-location and duct,
building, mast, antenna or antenna system sharing. Compulsory facility or property sharing should be imposed on undertakings
only after full public consultation.
(24) Where mobile operators are required to share towers or masts for environmental reasons, such mandated sharing may lead to a
reduction in the maximum transmitted power levels allowed for each operator for reasons of public health, and this in turn may
require operators to install more transmission sites to ensure national coverage.

(25) There is a need for ex ante obligations in certain circumstances in order to ensure the development of a competitive market. The
definition of significant market power in the Directive 97/33/EC of the European Parliament and of the Council of 30 June 1997 on
interconnection in telecommunications with regard to ensuring universal service and interoperability through application of the
principles of open network provision (ONP)
has proved effective in the initial stages of market opening as the threshold for ex
ante obligations, but now needs to be adapted to suit more complex and dynamic markets. For this reason, the definition used in
this Directive is equivalent to the concept of dominance as defined in the case law of the Court of Justice and the Court of First
Instance of the European Communities.

(26) Two or more undertakings can be found to enjoy a joint dominant position not only where there exist structural or other links
between them but also where the structure of the relevant market is conducive to coordinated effects, that is, it encourages parallel
or aligned anti-competitive behaviour on the market.
(27) It is essential that ex ante regulatory obligations should only be imposed where there is not effective competition, i.e. in markets
where there are one or more undertakings with significant market power, and where national and Community competition law
remedies are not sufficient to address the problem. It is necessary therefore for the Commission to draw up guidelines at
Community level in accordance with the principles of competition law for national regulatory authorities to follow in assessing
whether competition is effective in a given market and in assessing significant market power. National regulatory authorities
should analyse whether a given product or service market is effectively competitive in a given geographical area, which could be

the whole or a part of the territory of the Member State concerned or neighbouring parts of territories of Member States considered
together. An analysis of effective competition should include an analysis as to whether the market is prospectively competitive,
and thus whether any lack of effective competition is durable. Those guidelines will also address the issue of newly emerging
markets, where de facto the market leader is likely to have a substantial market share but should not be subjected to inappropriate
obligations. The Commission should review the guidelines regularly to ensure that they remain appropriate in a rapidly developing
market. National regulatory authorities will need to cooperate with each other where the relevant market is found to be
transnational.
(28) In determining whether an undertaking has significant market power in a specific market, national regulatory authorities should act
in accordance with Community law and take into the utmost account the Commission guidelines.

(29) The Community and the Member States have entered into commitments in relation to standards and the regulatory framework of
telecommunications networks and services in the World Trade Organisation.
(30) Standardisation should remain primarily a market-driven process. However there may still be situations where it is appropriate to
require compliance with specified standards at Community level to ensure interoperability in the single market. At national level,
Member States are subject to the provisions of Directive 98/34/EC. Directive 95/47/EC of the European Parliament and of the
Council of 24 October 1995 on the use of standards for the transmission of television signals
did not mandate any specific digital
television transmission system or service requirement. Through the Digital Video Broadcasting Group, European market players

have developed a family of television transmission systems that have been standardised by the European Telecommunications
Standards Institute (ETSI) and have become International Telecommunication Union recommendations. Any decision to make the
implementation of such standards mandatory should follow a full public consultation. Standardisation procedures under this
Directive are without prejudice to the provisions of Directive 1999/5/EC, Council Directive 73/23/EEC of 19 February 1973 on the
harmonisation of the laws of Member States relating to electrical equipment designed for use within certain voltage limits
and
Council Directive 89/336/EEC of 3 May 1989 on the approximation of the laws of the Member States relating to electromagnetic
compatibility

.
(31) Interoperability of digital interactive television services and enhanced digital television equipment, at the level of the consumer,
should be encouraged in order to ensure the free flow of information, media pluralism and cultural diversity. It is desirable for
consumers to have the capability of receiving, regardless of the transmission mode, all digital interactive television services, having
regard to technological neutrality, future technological progress, the need to promote the take-up of digital television, and the state
of competition in the markets for digital television services. Digital interactive television platform operators should strive to
implement an open application program interface (API) which conforms to standards or specifications adopted by a European
standards organisation. Migration from existing APIs to new open APIs should be encouraged and organised, for example by
Memoranda of Understanding between all relevant market players. Open APIs facilitate interoperability, i.e. the portability of

interactive content between delivery mechanisms, and full functionality of this content on enhanced digital television equipment.
However, the need not to hinder the functioning of the receiving equipment and to protect it from malicious attacks, for example
from viruses, should be taken into account.
(32) In the event of a dispute between undertakings in the same Member State in an area covered by this Directive or the Specific
Directives, for example relating to obligations for access and interconnection or to the means of transferring subscriber lists, an
aggrieved party that has negotiated in good faith but failed to reach agreement should be able to call on the national regulatory
authority to resolve the dispute. National regulatory authorities should be able to impose a solution on the parties. The

intervention of a national regulatory authority in the resolution of a dispute between undertakings providing electronic

communications networks or services in a Member State should seek to ensure compliance with the obligations arising under this
Directive or the Specific Directives.
(33) In addition to the rights of recourse granted under national or Community law, there is a need for a simple procedure to be initiated
at the request of either party in a dispute, to resolve cross-border disputes which lie outside the competence of a single national
regulatory authority.
(34) A single Committee should replace the "ONP Committee" instituted by Article 9 of Directive 90/387/EEC and the Licensing
Committee instituted by Article 14 of Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 on a

common framework for general authorisations and individual licences in the field of telecommunications services
.
(35) National regulatory authorities and national competition authorities should provide each other with the information necessary to
apply the provisions of this Directive and the Specific Directives, in order to allow them to cooperate fully together. In respect of
the information exchanged, the receiving authority should ensure the same level of confidentiality as the originating authority.
(36) The Commission has indicated its intention to set up a European regulators group for electronic communications networks and
services which would constitute a suitable mechanism for encouraging cooperation and coordination of national regulatory
authorities, in order to promote the development of the internal market for electronic communications networks and services, and
to seek to achieve consistent application, in all Member States, of the provisions set out in this Directive and the Specific

Directives, in particular in areas where national law implementing Community law gives national regulatory authorities
considerable discretionary powers in application of the relevant rules.
(37) National regulatory authorities should be required to cooperate with each other and with the Commission in a transparent manner
to ensure consistent application, in all Member States, of the provisions of this Directive and the Specific Directives. This
cooperation could take place, inter alia, in the Communications Committee or in a group comprising European regulators. Member
States should decide which bodies are national regulatory authorities for the purposes of this Directive and the Specific Directives.
(38) Measures that could affect trade between Member States are measures that may have an influence, direct or indirect, actual or
potential, on the pattern of trade between Member States in a manner which might create a barrier to the single market. They
comprise measures that have a significant impact on operators or users in other Member States, which include, inter alia: measures

which affect prices for users in other Member States; measures which affect the ability of an undertaking established in another
Member State to provide an electronic communications service, and in particular measures which affect the ability to offer services
on a transnational basis; and measures which affect market structure or access, leading to repercussions for undertakings in other
Member States.
(39) The provisions of this Directive should be reviewed periodically, in particular with a view to determining the need for modification
in the light of changing technological or market conditions.
(40) The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision
Commission
.

(41) Since the objectives of the proposed action, namely achieving a harmonised framework for the regulation of electronic
communications services, electronic communications networks, associated facilities and associated services cannot be sufficiently
achieved by the Member States and can therefore, by reason of the scale and effects of the action, be better achieved at Community
level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In
accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary for
those objectives.
(42) Certain directives and decisions in this field should be repealed.
(43) The Commission should monitor the transition from the existing framework to the new framework, and may in particular, at an
appropriate time, bring forward a proposal to repeal Regulation (EC) No 2887/2000 of the European Parliament and of the Council

of 18 December 2000 on unbundled access to the local loop
,

HAVE ADOPTED THIS DIRECTIVE:
CHAPTER I
SCOPE, AIM AND DEFINITIONS 
Article 1
Scope and aim 
This Directive establishes a harmonised framework for the regulation of electronic communications services, electronic

communications networks, associated facilities and associated services
,
.

and certain aspects of terminal equipment.
It lays down
tasks of national regulatory authorities and establishes a set of procedures to ensure the harmonised application of the regulatory
framework throughout the Community.
This Directive as well as the Specific Directives are without prejudice to obligations imposed by national law in accordance with

Community law or by Community law in respect of services provided using electronic communications networks and services.
This Directive as well as the Specific Directives are without prejudice to measures taken at Community or national level, in
compliance with Community law, to pursue general interest objectives, in particular relating to content regulation and audio-visual
policy.
This Directive and the Specific Directives are without prejudice to the provisions of Directive 1999/5/EC.
Article 2
Definitions 
For the purposes of this Directive:
(a) "electronic communications network" means transmission systems and, where applicable, switching or routing equipment and

other resources which permit the conveyance of signals by wire, by radio, by optical or by other electromagnetic means, including
satellite networks, fixed (circuit- and packet-switched, including Internet) and mobile terrestrial networks, electricity cable systems,
to the extent that they are used for the purpose of transmitting signals, networks used for radio and television broadcasting, and
cable television networks, irrespective of the type of information conveyed;
(b) "transnational markets" means markets
~~identified in accordance with Article 15(4)~~
covering the Community or a substantial part

thereof
located in more than one Member State
;
.

(c) "electronic communications service" means a service normally provided for remuneration which consists wholly or mainly in the
conveyance of signals on electronic communications networks, including telecommunications services and transmission services

in networks used for broadcasting, but exclude services providing, or exercising editorial control over, content transmitted using
electronic communications networks and services; it does not include information society services, as defined in Article 1 of
Directive 98/34/EC, which do not consist wholly or mainly in the conveyance of signals on electronic communications networks;
(d) "public communications network" means an electronic communications network used wholly or mainly for the provision of
~~publicly available~~
electronic communications services
available to the public which support the transfer of information between

network termination points, including network elements which are not active
;
(e) "associated facilities" means those facilities associated with an electronic communications network and/or an electronic
communications service which enable and/or support the provision of services via that network and/or service
or have the potential
to do so, and include number or address translation systems,
~~. It includes~~

conditional access systems and electronic programme
guides
, as well as physical infrastructure such as ducts, masts, street cabinets and buildings
;
(f) "conditional access system" means any technical measure and/or arrangement whereby access to a protected radio or television
broadcasting service in intelligible form is made conditional upon subscription or other form of prior individual authorisation;
(g) "national regulatory authority" means the body or bodies charged by a Member State with any of the regulatory tasks assigned in

this Directive and the Specific Directives;
(h) "user" means a legal entity or natural person using or requesting a publicly available electronic communications service;
(i)
"consumer" means any natural person who uses or requests a publicly available electronic communications service for purposes
which are outside his or her trade, business or profession;
(j)

"universal service" means the minimum set of services, defined in Directive 2002/22/EC (Universal Service Directive), of specified
quality which is available to all users regardless of their geographical location and, in the light of specific national conditions, at an
affordable price;
(k) "subscriber" means any natural person or legal entity who or which is party to a contract with the provider of publicly available
electronic communications services for the supply of such services;
(l)

"Specific Directives" means Directive 2002/20/EC (Authorisation Directive), Directive 2002/19/EC (Access Directive), Directive
~~97/66/EC~~
2002/58/EC of the European Parliament and of the Council
21

(hereinafter referred to as Directive 2002/58/EC (Directive on privacy and electronic communications)
;

(m) "provision of an electronic communications network" means the establishment, operation, control or making available of such a
network;
(n) "end-user" means a user not providing public communications networks or publicly available electronic communications services;
(o) "enhanced digital television equipment" means set-top boxes intended for connection to television sets or integrated digital

television sets, able to receive digital interactive television services;
(p) "application program interface (API)" means the software interfaces between applications, made available by broadcasters or
service providers, and the resources in the enhanced digital television equipment for digital television and radio services
;
.

(q) “allocation” means the designation of a given frequency band or number range for use by one or more types of services, where

appropriate, under specified conditions;
(r) “assignment” means the authorisation given by a national regulatory authority to a legal entity or natural person to use a radio
frequency or radio frequency channel, or a number (or block(s) of numbers);
(s) “harmful interference” means interference which endangers the functioning of a radionavigation service or of other safety services
or which otherwise seriously degrades, obstructs or repeatedly interrupts a radiocommunications service operating in accordance
with the applicable Community or national regulations.

CHAPTER II
NATIONAL REGULATORY AUTHORITIES

Article 3
National regulatory authorities 
Member States shall ensure that each of the tasks assigned to national regulatory authorities in this Directive and the Specific
Directives is undertaken by a competent body.
Member States shall guarantee the independence of national regulatory authorities by ensuring that they are legally distinct from
and functionally independent of all organisations providing electronic communications networks, equipment or services. Member
States that retain ownership or control of undertakings providing electronic communications networks and/or services shall ensure
effective structural separation of the regulatory function from activities associated with ownership or control.
Member States shall ensure that national regulatory authorities exercise their powers

independently,
impartially and transparently.

National regulatory authorities shall not seek or take instructions from any other body in relation to the day-to-day performance of
the tasks assigned to them under national law implementing Community law. Only appeal bodies set up in accordance with Article
4 or national courts shall have the power to suspend or overturn decisions by the national regulatory authorities.
Member States shall ensure that the head of a national regulatory authority or his/her replacement may be dismissed only if he no
longer fulfils the conditions required for the performance of his duties laid down in advance in national law, or if he has been guilty

of serious misconduct. The decision to dismiss the head of the national regulatory authority shall contain a statement of reasons and
be made public at the time of dismissal.
Member States shall ensure that national regulatory authorities have adequate financial and human resources to carry out the tasks
assigned to them and that they have separate annual budgets. The budgets shall be made public.

Member States shall publish the tasks to be undertaken by national regulatory authorities in an easily accessible form, in particular
where those tasks are assigned to more than one body. Member States shall ensure, where appropriate, consultation and
cooperation between those authorities, and between those authorities and national authorities entrusted with the implementation of

21
OJ L 201, 31.7.2002, p. 37. Directive as last amended by Directive 2006/24/EC (OJ L 105, 13.4.2006, p. 54).
competition law and national authorities entrusted with the implementation of consumer law, on matters of common interest.
Where more than one authority has competence to address such matters, Member States shall ensure that the respective tasks of
each authority are published in an easily accessible form.
National regulatory authorities and national competition authorities shall provide each other with the information necessary for the
application of the provisions of this Directive and the Specific Directives. In respect of the information exchanged, the receiving
authority shall ensure the same level of confidentiality as the originating authority.

Member States shall notify to the Commission all national regulatory authorities assigned tasks under this Directive and the
Specific Directives, and their respective responsibilities.
Article 4
Right of appeal 
Member States shall ensure that effective mechanisms exist at national level under which any user or undertaking providing
electronic communications networks and/or services who is affected by a decision of a national regulatory authority has the right of
appeal against the decision to an appeal body that is independent of the parties involved. This body, which may be a court, shall
have the appropriate expertise available to it to enable it to carry out its functions. Member States shall ensure that the merits of

the case are duly taken into account and that there is an effective appeal mechanism.

Pending the outcome of any
~~such~~
the [sic]
appeal, the decision of the national regulatory authority shall stand, unless
~~the appeal~~
~~body decides otherwise~~

interim measures are granted. Interim measures may be granted if there is an urgent need to suspend the
effect of the decision in order to prevent serious and irreparable damage to the party applying for those measures and the balance of
interests so requires
.
Where the appeal body referred to in paragraph 1 is not judicial in character, written reasons for its decision shall always be given.
Furthermore, in such a case, its decision shall be subject to review by a court or tribunal within the meaning of Article 234 of the
Treaty.

3.
Member States shall collect information on the subject of appeals, the number of requests for appeal, the duration of the appeal
proceedings, the number of decisions to grant interim measures taken in accordance with paragraph 1 and the reasons for such
decisions. Member States shall make available such information to the Commission and the European Communications Market
Authority (hereinafter referred to as 'the Authority') on an annual basis.

Article 5
Provision of information 
Member States shall ensure that undertakings providing electronic communications networks and services provide all the

information, including financial information, necessary for national regulatory authorities to ensure conformity with the provisions
of, or decisions made in accordance with, this Directive and the Specific Directives.
~~These~~
Those
undertakings shall
also be
required to submit information concerning future network or service developments that could have an impact on the wholesale
services made available to competitors. These undertakings shall
provide such information promptly on request and to the

timescales and level of detail required by the national regulatory authority. The information requested by the national regulatory
authority shall be proportionate to the performance of that task. The national regulatory authority shall give the reasons justifying
its request for information.
Member States shall ensure that national regulatory authorities provide the Commission, after a reasoned request, with the
information necessary for it to carry out its tasks under the Treaty. The information requested by the Commission shall be
proportionate to the performance of those tasks. Where the information provided refers to information previously provided by
undertakings at the request of the national regulatory authority, such undertakings shall be informed thereof. To the extent
necessary, and unless the authority that provides the information has made an explicit and reasoned request to the contrary, the
Commission shall make the information provided available to another such authority in another Member State.

Subject to the requirements of paragraph 3, Member States shall ensure that the information submitted to one national regulatory
authority can be made available to another such authority in the same or different Member State, after a substantiated request,
where necessary to allow either authority to fulfil its responsibilities under Community law.
Where information is considered confidential by a national regulatory authority in accordance with Community and national rules
on business confidentiality, the Commission and the national regulatory authorities concerned shall ensure such confidentiality.
Member States shall ensure that, acting in accordance with national rules on public access to information and subject to
Community and national rules on business confidentiality, national regulatory authorities publish such information as would
contribute to an open and competitive market.
National regulatory authorities shall publish the terms of public access to information as referred to in paragraph 4, including

procedures for obtaining such access.
Article 6
Consultation and transparency mechanism 
Except in cases falling within Articles 7(
6
10
), 20 or 21

, and unless otherwise provided in the implementing measures adopted pursuant

to Article 9c,
Member States shall ensure that
,
where national regulatory authorities intend to take measures in accordance with this
Directive or the Specific Directives which have a significant impact on the relevant market,
or where they intend to provide for
restrictions in accordance with Article 9(3) and 9(4),
they give interested parties the opportunity to comment on the draft measure within

a reasonable period.

National regulatory authorities shall publish their national consultation procedures.

Member States shall ensure the establishment of a single information point through which all current consultations can be accessed.

The results of the consultation procedure shall be made publicly available by the national regulatory authority, except in the case of
confidential information in accordance with Community and national law on business confidentiality.
Article 7

Consolidating the internal market for electronic communications 
In carrying out their tasks under this Directive and the Specific Directives, national regulatory authorities shall take the utmost
account of the objectives set out in Article 8, including in

so

far as they relate to the functioning of the
I
i

nternal
M
m
arket.
National regulatory authorities shall contribute to the development of the
i
I
nternal
M

m
arket by
~~cooperating with each other and~~
working
with the Commission
~~in a transparent manner~~
and the Authority so as
to ensure the consistent application, in all Member
States, of the provisions of this Directive and the Specific Directives. To this end, they shall, in particular,

~~seek to agree on~~
work
with the Commission and the Authority to identify
the types of instruments and remedies best suited to address particular types of
situations in the market

place.
Except where otherwise provided in implementing provisions adopted pursuant to Article 7a, upon completion of
~~In addition to~~

the
consultation referred to in Article 6, where a national regulatory authority intends to take a measure which:
(a) falls within the scope of Articles 15 or 16 of this Directive, Articles 5 or 8 of Directive 2002/19/EC (Access Directive)
or
~~Article 16 of Directive 2002/22/EC (Universal Service Directive)~~
, and
(b) would affect trade between Member States,
it shall

~~at the same time~~
make the draft measure accessible to the Commission
, the Authority,
and the national regulatory
authorities in other Member States, together with the reasoning on which the measure is based, in accordance with Article 5(3), and
inform the Commission and other national regulatory authorities thereof. National regulatory authorities and the Commission may
make comments to the national regulatory authority concerned only within one month
~~or within the period referred to in Article 6 if~~

~~that period is longer~~
. The one-month period may not be extended.
Where an intended measure covered by paragraph 3 aims at:
(a) defining a relevant market which differs from those defined in the
r
R
ecommendation in accordance with Article 15(1), or
(b) deciding whether or not to designate an undertaking as having, either individually or jointly with others, significant market
power, under Article 16(3), (4) or (5)

; or
(c) imposing, amending or withdrawing an obligation on an operator in application of Article 16 in conjunction with Articles 5
and 9 to 13 of Directive 2002/19/EC (Access Directive), and Article 17 of Directive 2002/22/EC (Universal Service
Directive),

,

and would affect trade between Member States
,

and the Commission has indicated to the national regulatory authority that it
considers that the draft measure would create a barrier to the single market or if it has serious doubts as to its compatibility with
Community law and in particular the objectives referred to in Article 8, then the draft measure shall not be adopted for a further
two months. This period may not be extended.

5.
Within
~~this~~

the two month
period
referred to in paragraph 4,
the Commission may
~~, in accordance with the procedure referred to in~~
~~Article 22(2),~~

take a decision requiring the national regulatory authority concerned to withdraw the draft measure.

The
Commission shall take the utmost account of the opinion of the Authority submitted in accordance with Article 5 of Regulation
[……/EC] before issuing a decision.
Th
e
is
decision shall be accompanied by a detailed and objective analysis of why the
Commission considers that the draft measure should not be adopted together with specific proposals for amending the draft

measure.

6.
Within three months of the Commission issuing a decision in accordance with paragraph 5 requiring the national regulatory
authority to withdraw a draft measure, the national regulatory authority shall amend or withdraw the draft measure. If the draft
measure is amended, the national regulatory authority shall undertake a public consultation in accordance with the procedures
referred to in Article 6, and re-notify the amended draft measure to the Commission in accordance with the provisions of
paragraph 3.

5
7
. The national regulatory authority concerned shall take the utmost account of comments of other national regulatory authorities and
the Commission and may, except in cases covered by paragraph 4, adopt the resulting draft measure and, where it does so, shall
communicate it to the Commission.
Any other national body exercising functions under this Directive or the Specific Directives
shall also take the utmost account of the comments of the Commission.
8.

Where a draft measure has been amended in accordance with paragraph 6, the Commission may take a decision, requiring the
national regulatory authority to impose a specific obligation under Articles 9 to 13a of Directive 2002/19/EC (Access Directive),
In so doing, the Commission shall pursue the same policy objectives as set out for national regulatory authorities in Article 8. The
Commission shall take the utmost account of the opinion of the Authority submitted in accordance with Article 6 of Regulation
[…./EC], in particular in elaborating the details of the obligation(s) to be imposed.
9.
The national regulatory authority shall communicate to the Commission all final measures which fall under conditions a) and b) in
Article 7(3).

6
10
. In exceptional circumstances, where a national regulatory authority considers that there is an urgent need to act, by way of
derogation from the procedure set out in paragraphs 3 and 4, in order to safeguard competition and protect the interests of users, it
may immediately adopt proportionate and provisional measures. It shall, without delay, communicate those measures, with full
reasons, to the Commission
,

~~and~~

the other national regulatory authorities
and the Authority
. A decision by the national regulatory
authority to render such measures permanent or extend the time for which they are applicable shall be subject to the provisions of
paragraphs 3 and 4.

~~Article 7a~~
~~Implementing provisions~~

1.
The Commission may lay down implementing provisions in relation to Article 7 that define the form, content and level of details to
be given in the notifications required in accordance with Article 7(3), the circumstances in which notifications would not be
required, and the calculation of the time limits.
2.
The measures referred to in paragraph 1, designed to amend non-essential elements of this Directive by supplementing it, shall be
adopted in accordance with the regulatory procedure with scrutiny referred to in Article 22(3). On imperative grounds of urgency,
the Commission may use the urgency procedure referred to in Article 22(4).

CHAPTER III
TASKS OF NATIONAL REGULATORY AUTHORITIES 
Article 8
Policy objectives and regulatory principles 
Member States shall ensure that in carrying out the regulatory tasks specified in this Directive and the Specific Directives, the
national regulatory authorities take all reasonable measures which are aimed at achieving the objectives set out in paragraphs 2, 3
and 4. Such measures shall be proportionate to those objectives.
Unless otherwise provided in Article 9 regarding radio frequencies,
Member States

shall take the utmost account of the desirability
of making regulations technologically neutral and
shall ensure that
,
in carrying out the regulatory tasks specified in this Directive
and the Specific Directives, in particular those designed to ensure effective competition, national regulatory authorities
~~take the~~
~~utmost account of the desirability of making regulations technologically neutral~~

do likewise
.
National regulatory authorities may contribute within their competencies to ensuring the implementation of policies aimed at the
promotion of cultural and linguistic diversity, as well as media pluralism.
The national regulatory authorities shall promote competition in the provision of electronic communications networks, electronic
communications services and associated facilities and services by inter alia:
(a) ensuring that users, including disabled users,
elderly users, and users with special social needs
derive maximum benefit in

terms of choice, price, and quality;
(b) ensuring that there is no distortion or restriction of competition in the electronic communications sector
, in particular for the
delivery of content
;
(c) encouraging efficient investment in infrastructure, and promoting innovation;

and
(d) encouraging efficient use and ensuring the effective management of radio frequencies and numbering resources.

The national regulatory authorities shall contribute to the development of the internal market by inter alia:
(a) removing remaining obstacles to the provision of electronic communications networks, associated facilities and services and
electronic communications services at European level;
(b) encouraging the establishment and development of trans-European networks and the interoperability of pan-European
services, and end-to-end connectivity;
(c) ensuring that, in similar circumstances, there is no discrimination in the treatment of undertakings providing electronic
communications networks and services;
(d)
working with the Commission and the Authority so as

~~cooperating with each other and with the Commission in a transparent~~
~~manner~~
to ensure the development of consistent regulatory practice and the consistent application of this Directive and the
Specific Directives.
The national regulatory authorities shall promote the interests of the citizens of the European Union by inter alia:
(a) ensuring all citizens have access to a universal service specified in Directive 2002/22/EC (Universal Service Directive);
(b) ensuring a high level of protection for consumers in their dealings with suppliers, in particular by ensuring the availability of
simple and inexpensive dispute resolution procedures carried out by a body that is independent of the parties involved;
(c) contributing to ensuring a high level of protection of personal data and privacy;

(d) promoting the provision of clear information, in particular requiring transparency of tariffs and conditions for using publicly
available electronic communications services;
(e) addressing the needs of specific social groups, in particular disabled users
, elderly users and users with special social needs
;

~~and~~

(f) ensuring that the integrity and security of public communications networks are maintained;

(g) applying the principle that end-users should be able to access and distribute any lawful content and use any lawful
applications and/or services of their choice.
.

Article 9
Management of radio frequencies for electronic communications services 
Member States shall ensure the effective management of radio frequencies for electronic communication services in their territory
in accordance with Article 8. They shall ensure that the allocation and assignment of such radio frequencies by national regulatory
authorities are based on objective, transparent, non-discriminatory and proportionate criteria.

Member States shall promote the harmonisation of use of radio frequencies across the Community, consistent with the need to
ensure effective and efficient use thereof and in accordance with the Decision No 676/2002/EC (Radio Spectrum Decision).
3.
~~Member States may make provision for undertakings to transfer rights to use radio frequencies with other undertakings.~~
4.
~~Member States shall ensure that an undertaking’s intention to transfer rights to use radio frequencies is notified to the national~~
~~regulatory authority responsible for spectrum assignment and that any transfer takes place in accordance with procedures laid down~~
~~by the national regulatory authority and is made public. National regulatory authorities shall ensure that competition is not~~
~~distorted as a result of any such transaction. Where radio frequency use has been harmonised through the application of Decision~~

~~No 676/2002/EC (Radio Spectrum Decision) or other Community measures, any such transfer shall not result in change of use of~~
~~that radio frequency.~~
3.
Unless otherwise provided in the second subparagraph or in the measures adopted pursuant to paragraph Article 9c, Member States
shall ensure that all types of radio network or wireless access technology may be used in the radio frequency bands open to
electronic communications services.
Member States may, however, provide for proportionate and non discriminatory restrictions to the types of radio network or
wireless access technology used where this is necessary to:
(a) avoid harmful interference,

(b) protect public health against electromagnetic fields,
(c) ensure maximisation of radio frequencies sharing where the use of frequencies is subject to a general authorisation, or
(d) comply with a restriction in accordance with paragraph 4 below.
4.
Unless otherwise provided in the second subparagraph or in the measures adopted pursuant to Article 9c, Member States shall
ensure that all types of electronic communications services may be provided in the radio frequency bands open to electronic
communications. The Member States may, however, provide for proportionate and non discriminatory restrictions to the types of
electronic communications services to be provided.
Restrictions that require a service to be provided in a specific band shall be justified in order to ensure the fulfilment of a general

interest objective in conformity with Community law, such as safety of life, the promotion of social, regional or territorial
cohesion, the avoidance of inefficient use of radio frequencies, or, as defined in national legislation in conformity with Community
law, the promotion of cultural and linguistic diversity and media pluralism.
A restriction which prohibits the provision of any other service in a specific band may only be provided for where justified by the
need to protect safety of life services.
5.
Member States shall regularly review the necessity of the restrictions referred to in paragraphs 3 and 4.
6.
Paragraphs 3 and 4 shall apply to allocation and assignment of radio frequencies after 31 December 2009.

~~'Article 9a~~
~~Review of restrictions to existing rights~~
1.
For a period of five years starting on [1 January 2010], Member States shall ensure that holders of rights to use radio frequencies
which were granted before that date may submit an application to the competent national regulatory authority for a reassessment of
the restrictions to their rights in accordance with Article 9(3) and (4).
Before adopting its decision the competent national regulatory authority shall notify the right holder of its reassessment of the
restrictions, indicating the extent of the right after reassessment, and allow him a reasonable time limit to withdraw his application.

If the right holder withdraws his application, the right shall remain unchanged until its expiry or till the end of the 5 year period,
whichever is the earlier date.
2
Where the right holder mentioned in paragraph 1 is a provider of radio or television broadcast content services, and the right to use
radio frequencies has been granted for the fulfilment of a specific general interest objective, an application for reassessment can
only be made in respect of the part of the radio frequencies which is necessary for the fulfilment of such objective. The part of the
radio frequencies which becomes unnecessary for the fulfilment of that objective as a result of application of Article 9(3) and (4)
shall be subject to a new assignment procedure in conformity with Article 7(2) of the Authorisation Directive.
3.

After the five-year period referred to in paragraph 1, Member States shall take all appropriate measures to ensure that Article 9(3)
and (4) apply to all remaining assignments and allocations of radio frequencies which existed at the date of entry into force of this
Directive.
4.
In applying this Article, Member States shall take appropriate measures to guarantee fair competition.
~~Article 9b~~
~~Transfer of Individual Rights to Use radio frequencies~~
1.
Member States shall ensure that undertakings may transfer or lease to other undertakings individual rights to use radio frequencies

in the bands for which this is provided in the implementing measures adopted pursuant to Article 9c without the prior consent of
the national regulatory authority.
In other bands, Member States may also make provision for undertakings to transfer or lease individual rights to use radio
frequencies to other undertakings.
2.
Member States shall ensure that an undertaking’s intention to transfer rights to use radio frequencies is notified to the national
regulatory authority responsible for spectrum assignment and is made public. Where radio frequency use has been harmonised
through the application of the Radio Spectrum Decision or other Community measures, any such transfer shall comply with such
harmonised use.

~~Article 9c~~
~~Radio Frequency Management Harmonisation Measures~~

In order to contribute to the development of the internal market, for the achievement of the principles of this Article, the
Commission may adopt appropriate implementing measures to:
(a) harmonise the identification of the bands for which usage rights may be transferred or leased between undertakings;
(b) harmonise the conditions attached to such rights and the conditions, procedures, limits, restrictions, withdrawals and
transitional rules applicable to such transfers or leases;
(c) harmonise the specific measures to ensure fair competition where individual rights are transferred;

(d) create an exception to the principle of services or technology neutrality, as well as to harmonise the scope and nature of any
exceptions to these principles in accordance with Article 9(3) and (4) other than those aimed at ensuring the promotion of cultural
and linguistic diversity and media pluralism.
These measures designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance
with the regulatory procedure with scrutiny referred to in Article 22(3). On imperative grounds of urgency, the Commission may
use the urgency procedure referred to in Article 22(4). In the implementation of the provisions of this paragraph, the Commission
may be assisted by the Authority in accordance with Article 10 Regulation […/EC].
Article 10
Numbering, naming and addressing

Member States shall ensure that national regulatory authorities control the assignment of all national numbering resources and the
management of the national numbering plans. Member States shall ensure that adequate numbers and numbering ranges are
provided for all publicly available electronic communications services. National regulatory authorities shall establish objective,
transparent and non-discriminatory assigning procedures for national numbering resources.
National regulatory authorities shall ensure that numbering plans and procedures are applied in a manner that gives equal treatment
to all providers of publicly available electronic communications services. In particular, Member States shall ensure that an
undertaking
~~allocated~~
assigned

a range of numbers does not discriminate against other providers of electronic communications
services as regards the number sequences used to give access to their services.
Member States shall ensure that the national numbering plans, and all subsequent additions or amendments thereto, are published,
subject only to limitations imposed on the grounds of national security.
Member States shall support
~~the~~
harmonisation
~~of numbering~~
in numbering

~~resources~~
within the Community where that
promotes
the functioning of the internal market or
~~is necessary to~~
support
s
the development of pan European services. The Commission

may
~~, in accordance with the procedure referred to in Article 22(3),~~

take
~~the~~
appropriate technical implementing measures on this
matter
, which may include establishing tariff principles for specific numbers or number ranges. The implementing measures may
grant the Authority specific responsibilities in the application of those measures

.

The measures designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with
the regulatory procedure with scrutiny referred to in Article 22(3). On imperative grounds of urgency, the Commission may use the
urgency procedure referred to in Article 22(4).

Where this is appropriate in order to ensure full global interoperability of services, Member States shall coordinate their positions
in international organisations and forums in which decisions are taken on issues relating to the numbering, naming and addressing

of electronic communications networks and services.
Article 11
Rights of way 
Member States shall ensure that when a competent authority considers:
-
an application for the granting of rights to install facilities on, over or under public or private property to an undertaking
authorised to provide public communications networks, or
-
an application for the granting of rights to install facilities on, over or under public property to an undertaking authorised to

provide electronic communications networks other than to the public,
the competent authority:
-
acts on the basis of
simple,
transparent and publicly available procedures, applied without discrimination and without delay,
and
in any event makes its decision within four months of the application, and

-
follows the principles of transparency and non-discrimination in attaching conditions to any such rights.
The abovementioned procedures can differ depending on whether the applicant is providing public communications networks or
not.
Member States shall ensure that where public or local authorities retain ownership or control of undertakings operating electronic
communications networks and/or services, there is effective structural separation of the function responsible for granting the rights
referred to in paragraph 1 from activities associated with ownership or control.
Member States shall ensure that effective mechanisms exist to allow undertakings to appeal against decisions on the granting of

rights to install facilities to a body that is independent of the parties involved.
Article 12
Co-location and facility sharing 
Where an undertaking providing electronic communications networks has the right under national legislation to install facilities on,
over or under public or private property, or may take advantage of a procedure for the expropriation or use of property, national
regulatory authorities shall
~~encourage the sharing of such facilities or property~~
be able to impose the sharing of such facilities or

property, including entries to buildings, masts, antennae, ducts, manholes and street cabinets
.
Member States may require that the holders of the rights referred to in paragraph 1 share facilities or property (including physical
co-location) or take measures to facilitate the coordination of public works in order to protect the environment, public health,
public security or to meet town and country planning objectives
~~In particular where undertakings are deprived of access to viable~~
~~alternatives because of the need to protect the environment, public health, public security or to meet town and country planning~~
~~objectives, Member States may impose the sharing of facilities or property (including physical co-location) on an undertaking~~
~~operating an electronic communications network or take measures to facilitate the coordination of public works~~

only after an
appropriate period of public consultation
,
during which all interested parties must be given an opportunity to express their views.
Such sharing or coordination arrangements may include rules for apportioning the costs of facility or property sharing.

3.
Measures taken by a national regulatory authority in accordance with paragraph 1 shall be objective, transparent, and proportionate.

Article 13
Accounting separation and financial reports 
Member States shall require undertakings providing public communications networks or publicly available electronic
communications services which have special or exclusive rights for the provision of services in other sectors in the same or another
Member State to:
(a) keep separate accounts for the activities associated with the provision of electronic communications networks or services, to
the extent that would be required if these activities were carried out by legally independent companies, so as to identify all
elements of cost and revenue, with the basis of their calculation and the detailed attribution methods used, related to their

activities associated with the provision of electronic communications networks or services including an itemised breakdown
of fixed asset and structural costs, or
(b) have structural separation for the activities associated with the provision of electronic communications networks or services.
Member States may choose not to apply the requirements referred to in the first subparagraph to undertakings the annual turnover
of which in activities associated with electronic communications networks or services in the Member States is less than EUR 50
million.
Where undertakings providing public communications networks or publicly available electronic communications services are not
subject to the requirements of company law and do not satisfy the small and medium-sized enterprise criteria of Community law
accounting rules, their financial reports shall be drawn up and submitted to independent audit and published. The audit shall be

carried out in accordance with the relevant Community and national rules.
This requirement shall also apply to the separate accounts required under paragraph 1(a).

Chapter IIIa 
SECURITY AND INTEGRITY OF NETWORKS 
AND SERVICES 
~~Article 13a~~
~~Security and integrity~~
1. Member States shall ensure that undertakings providing public communications networks or publicly available electronic

communications services take appropriate technical and organisational measures to safeguard the security of their networks or
services. Having regard to the state of the art, these measures shall ensure a level of security appropriate to the risk presented.
In particular, measures shall be taken to prevent or minimise the impact of security incidents on users and on interconnected
networks.
2. Member States shall ensure that undertakings providing public communications networks take all necessary steps to ensure the
integrity of their networks so as to ensure the continuity of supply of services provided over those networks.
3. Member States shall ensure that undertakings providing public communications networks or publicly available electronic
communications services notify the national regulatory authority of any breach of security or integrity that had a significant
impact on the operation of networks or services.

Where appropriate, the national regulatory authority concerned shall inform the national regulatory authorities in other
Member States and the Authority. Where disclosure of the breach is in the public interest, the national regulatory authority
may inform the public.
Every three months, the national regulatory authority shall submit a summary report to the Commission on the notifications
received and the action taken in accordance with this paragraph.
4. The Commission, taking the utmost account of the opinion of the Authority issued in accordance with Article 4(3)(b) of
Regulation […./EC], may adopt appropriate technical implementing measures with a view to harmonising the measures
referred to in paragraphs 1, 2, and 3, including measures defining the circumstances, format and procedures applicable to
notification requirements.

These implementing measures, designed to amend non-essential elements of this Directive by supplementing it, shall be
adopted in accordance with the procedure referred to in Article 22(3). On imperative grounds of urgency, the Commission
may use the urgency procedure referred to in Article 22(4).
~~Article 13b~~
~~Implementation and enforcement~~
1. Member States shall ensure that national regulatory authorities have the power to issue binding instructions to undertakings
providing public communications networks or publicly available electronic communications services in order to implement
Article 13a.

2. Member States shall ensure that national regulatory authorities have the power to require undertakings providing public
communications networks or publicly available electronic communications services to:
(a) provide information needed to assess the security of their services and networks, including documented security policies;
and
(b) instruct a qualified independent body to carry out a security audit and make the results thereof available to the national
regulatory authority.
3. Member States shall ensure that national regulatory authorities have all the powers necessary to investigate cases of non-
compliance.
4. These provisions shall be without prejudice to Article 3 of this Directive.

CHAPTER IV
GENERAL PROVISIONS 
Article 14
Undertakings with significant market power 
Where the Specific Directives require national regulatory authorities to determine whether operators have significant market power
in accordance with the procedure referred to in Article 16, paragraphs 2 and 3 of this Article shall apply.
An undertaking shall be deemed to have significant market power if, either individually or jointly with others, it enjoys a position
equivalent to dominance, that is to say a position of economic strength affording it the power to behave to an appreciable extent

independently of competitors, customers and ultimately consumers.
In particular, national regulatory authorities shall, when assessing whether two or more undertakings are in a joint dominant
position in a market, act in accordance with Community law and take into the utmost account the guidelines on market analysis and
the assessment of significant market power published by the Commission pursuant to Article 15.
~~Criteria to be used in making~~
~~such an assessment are set out in Annex II.~~
3.
~~Where an undertaking has significant market power on a specific market, it may also be deemed to have significant market power~~
~~on a closely related market, where the links between the two markets are such as to allow the market power held in one market to~~

~~be leveraged into the other market, thereby strengthening the market power of the undertaking.~~

Article 15
~~Market definition p~~
P
rocedure
 for identification and definition of markets

After public consultation and consultation with
~~national~~
the
~~regulatory a~~
A
uthorit
y
~~ies~~
;

the Commission shall adopt a
r
R
ecommendation on
r
R
elevant
p

P
roduct and
S
s
ervice
m
M
arkets (hereinafter "the

r
R
ecommendation"). The
r
R
ecommendation
shall identify
~~in accordance with Annex I hereto~~

those product and service markets within the electronic communications sector
,

the characteristics of which may be such as to justify the imposition of regulatory obligations set out in the Specific Directives,
without prejudice to markets that may be defined in specific cases under competition law. The Commission shall define markets in
accordance with the principles of competition law.
The Commission shall regularly review the recommendation.
The Commission shall publish, at the latest on the date of entry into force of this Directive, guidelines for market analysis and the
assessment of significant market power (hereinafter "the guidelines") which shall be in accordance with the principles of

competition law.
National regulatory authorities shall, taking the utmost account of the
r
R
ecommendation and the
g
G
uidelines, define relevant
markets appropriate to national circumstances, in particular relevant geographic markets within their territory, in accordance with

the principles of competition law. National regulatory authorities shall follow the procedures referred to in Articles 6 and 7 before
defining the markets that differ from those defined in the
r
R
ecommendation.
~~After consultation with national regulatory authorities t~~
T
he Commission may,
taking the utmost account of the opinion of the

Authority submitted in accordance with Article 7 of Regulation […/EC],
~~acting in accordance with the procedure referred to in~~
~~Article 22(3),~~
adopt a Decision identifying transnational markets.

This Decision, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with
the regulatory procedure with scrutiny referred to in Article 22(3). On imperative grounds of urgency, the Commission may use the
urgency procedure referred to in Article 22(4).

Article 16
Market analysis procedure 
~~As soon as possible after the adoption of the recommendation or any updating thereof, n~~
N
ational regulatory authorities shall carry
out an analysis of the relevant markets,
listed in the Recommendation,
taking the utmost account of the
g

G
uidelines. Member
States shall ensure that this analysis is carried out, where appropriate, in collaboration with the national competition authorities.
Where a national regulatory authority is required under
paragraphs 3 or 4,
Article
~~s 16,~~
17

~~, 18 or 19~~

of Directive 2002/22/EC
(Universal Service Directive), or Article
s

~~7 or~~
maintain, amend or withdraw obligations on undertakings, it shall determine on the basis of its market analysis referred to in
paragraph 1 of this Article whether a relevant market is effectively competitive.

Where a national regulatory authority concludes that the market is effectively competitive, it shall not impose or maintain any of
the specific regulatory obligations referred to in paragraph 2 of this Article. In cases where sector specific regulatory obligations
already exist, it shall withdraw such obligations placed on undertakings in that relevant market. An appropriate period of notice
shall be given to parties affected by such a withdrawal of obligations.
Where a national regulatory authority determines that a relevant market is not effectively competitive, it shall identify undertakings
with significant market power on that market in accordance with Article 14 and the national regulatory authority shall on such
undertakings impose appropriate specific regulatory obligations referred to in paragraph 2 of this Article or maintain or amend such
obligations where they already exist.
In the case of transnational markets identified in the Decision referred to in Article 15(4), the

~~national regulatory a~~
Commission
shall request the A
uthorit
y
~~ies~~

~~concerned shall jointly~~

to
conduct the market analysis taking the utmost account of the
g
G
uidelines
and
~~decide~~
deliver an opinion
on any imposition, maintenance, amendment or withdrawal of regulatory obligations referred to in

paragraph 2 of this Article
~~in a concerted fashion~~
.

The Commission, taking the utmost account of the opinion of the Authority, may issue a decision designating one or more
undertakings as having significant market power on that market, and imposing one or more specific obligations under Articles 9 to
the Commission shall pursue the policy objectives set out in Article 8.

Measures taken according to the provisions of paragraphs

3
and
,
4
~~and 5~~

of this Article shall be subject to the procedures referred
to in Articles 6 and 7.

National regulatory authorities shall carry out an analysis of the relevant market:
(a) within two years from a previous notification of a draft measure relating to that market;
(b) for markets not previously notified to the Commission, within one year from the adoption of a revised Recommendation on
relevant markets, or;
(c) for Member States that have newly joined the Union, within one year from their accession.
7.

Where a national regulatory authority has not completed its analysis of a relevant market identified in the Recommendation within
the time limit laid down in Article 16(6), the Commission may request the Authority to issue an opinion, including a draft measure,
the analysis of the specific market and the specific obligations to be imposed. The Authority shall carry out a public consultation on
the draft measure concerned.
The Commission, taking the utmost account of the opinion of the Authority issued in accordance with Article 6 of Regulation
[…./EC], may adopt a decision requiring the national regulatory authority to designate certain undertakings as having significant
pursue the same policy objectives as set out for national regulatory authorities in Article 8.

Article 17

Standardisation 
The Commission, acting in accordance with the procedure referred to in Article 22(2), shall draw up and publish in the Official
Journal of the European Communities a list of standards and/or specifications to serve as a basis for encouraging the harmonised
provision of electronic communications networks, electronic communications services and associated facilities and services.