Telecoms Package Framework Commission Amended Proposal

Telecoms Package: Directive on a common regulatory framework for electronic communications networks and services (Framework 2002/21/EC) − European Commission Amended Proposal − 2008-11-06

Article 8
Article 8 − Policy objectives and regulatory principles

1. 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 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.

2. 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 and access to content and services across all networks;

(c) encouraging and facilitating efficient market-driven investment in infrastructure, and promoting innovation; and

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

3. 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;

(d) working with the Commission and the Authority so as to ensure the development of consistent regulatory practice and the consistent application of this Directive and the Specific Directives.

4. 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;

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

(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 and for this purpose contributing to the promotion of lawful content in accordance with Article 33 of Directive 2002/22/EC (Universal Service Directive).

(ga) applying the principle that no restriction may be imposed on the fundamental rights and freedoms of end-users without a prior ruling of the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened, in which case the ruling may be subsequent.

4a. The national regulatory authorities shall, in pursuit of the policy objectives referred to in paragraphs 2, 3 and 4, apply objective, transparent, non-discriminatory and proportionate regulatory principles by, inter alia:

(a) promoting regulatory predictability by ensuring a consistent regulatory approach over successive review periods;

(b) ensuring that, in similar circumstances, there is no discrimination in the treatment of undertakings providing electronic communications networks and services;

(c) safeguarding competition to the benefit of consumers and promoting infrastructure-based competition wherever possible;

(d) promoting market driven investment and innovation in new and enhanced infrastructures including by ensuring that the cost of access to facilities takes appropriate account of the risks incurred by the investors and those undertakings enjoying access;

(e) taking due account of the variety of conditions relating to competition and consumers that exist in the different geographic areas within a Member State;

(f) imposing ex-ante regulatory obligations only where there is no effective and sustainable competition, and relaxing or lifting such obligations as soon as that condition is fulfilled.

Article 9
Article 9 − Management of radio frequencies for electronic communications services

1. Taking due account of the fact that radio frequencies are a public good that has an important social, cultural and economic value, Member States shall ensure the effective management of radio frequencies for electronic communications services in their territory in accordance with Articles 8 and 8b. 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. In so doing, they shall act in accordance with their obligations under the Treaty and, where applicable, corresponding international agreements, and may take public policy considerations into account as set out below.

2. 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 pursuit of benefits for the consumer such as economies of scale and interoperability of services. In so doing, they shall act in accordance with Articles 8b and 9c of this Directive and Decision No 676/2002/EC (Radio Spectrum Decision).

3. Unless otherwise provided in the second subparagraph or in the measures adopted pursuant to Article 9c, Member States shall, ensure that all types of technology used for electronic communications services may be used in the radio frequency bands available for electronic communications services.

Member States may, however, provide for proportionate and non-discriminatory restrictions to the types of technology used for electronic communications services where this is necessary to:

(a) avoid harmful interference, notably to ensure technical quality of service and the efficient use of radio frequencies,

(b) protect public health against electromagnetic fields,

(c) ensure maximisation of radio frequency sharing where the use of frequencies is subject to a general authorisation,

(d) fulfil a general interest objective in accordance with paragraph 4.

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 available for electronic communications services as identified in their national frequency allocation plans. The Member States may, however, provide for proportionate and non discriminatory restrictions to the types of electronic communications services to be provided.

Measures that require an electronic communications service to be provided in a specific band available for electronic communications services shall be justified in order to ensure the fulfilment of a general interest objective as defined in national legislation 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 the promotion of cultural and media policy objectives such as cultural and linguistic diversity and media pluralism.

A measure which prohibits the provision of any other electronic communications 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 and measures referred to in paragraphs 3 and 4 and shall make the results of these reviews public.

6. Paragraphs 3 and 4 shall apply to the allocation and assignment of radio frequencies from [The date of transposition of this Directive].

Article 9c
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 Articles 8b, 9, 9a and 9b, the Commission may adopt appropriate measures to:

(-a) apply the radio spectrum policy programme established pursuant to Article 8b(4);

(a) identify the bands for which usage rights may be transferred or leased between undertakings;

(b) harmonise the conditions attached to such rights;

(c) avoid the distortions of competition that may arise where individual rights are transferred;

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).

(26) Given the effect of the exceptions on the development of the internal market for electronic communications services, the Commission should be able to harmonise the scope and nature of any exceptions to the principles of technology and service neutrality other than those aimed at ensuring the promotion of cultural and linguistic diversity and media pluralism, having regard to harmonised technical conditions for the availability and efficient use of radio frequencies under 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”) (OJ L 108, 24.4.2002, p. 1.).