Telecoms Package Framework ECON Opinion

Telecoms Package: Directive on a common regulatory framework for electronic communications networks and services (Framework 2002/21/EC) − European Parliament Committee on Economic and Monetary Affairs Opinion − 2008-06-03

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 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.

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;

(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 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.

4a.The national regulatory authorities shall aim at creating the proper regulatory environment for competitive investment in new access networks, which constitutes a unique opportunity for innovation and for platform-based competition paving the way to deregulation. Such a regulatory environment should, inter alia:

(a) be predictable for a period consistent with the time needed for the profitability of heavy investments;

(b) aim at the maximum geographical reach of platform-based competition;

(c) enable competitive advantage to be derived from faster geographical roll out; thus encouraging network deployments;

(d) attract resources from financial markets for high upfront investments in new access networks; and

(e) allow flexible commercial agreements on investments and risk-sharing between new access networks operators.

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

1. 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. In so doing, Member States shall respect international agreements and may take public policy considerations into account.

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, which can contribute to realisation of economy scales and the interoperability of services for the consumer benefit and in accordance with Decision No 676/2002/EC (Radio Spectrum Decision).

3. Unless otherwise provided in the second subparagraph or in the measures adopted pursuant to Articles 9c and 9d, Member States shall, insofar as possible, facilitate the use of all types of radio network or wireless access technology in the radio frequency bands allocated to electronic communications services, in accordance with their respective national frequency plan and the ITU Radio Regulations.

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) comply with an obligation under an international agreement relating to the use of frequencies or the ITU Radio Regulations,

(ca) safeguard efficient use of spectrum, or

(d) comply with a restriction in accordance with paragraph 4 below.

4. Unless otherwise provided in the second subparagraph, Member States shall, insofar as possible, facilitate the use of all types of electronic communications services in the radio frequency bands open to electronic communications, in accordance with their respective national frequency plan and the ITU Radio Regulations. 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 an electronic communications 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 provision of universal or public services, the promotion of social, regional or territorial cohesion, the efficient use of radio frequencies and the effective management of spectrum to take into account international commitments and practices or the promotion of cultural and linguistic diversity and media pluralism.

A restriction 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 or to ensure the fulfilment of a general interest as defined in national legislation in conformity with Community law, such as the promotion of cultural and linguistic diversity and media pluralism.

5. Member States shall regularly review the necessity of the restrictions referred to in paragraphs 3 and 4. It lies within the competence of the Member States to define the scope and nature of any exception.

6. Paragraphs 3 and 4 shall apply to allocation and assignment of radio frequencies after 31 December 2009.

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 this Article, the Commission may adopt appropriate implementing measures to:

(a) identify and recommend the bands for which usage rights may be transferred or leased between undertakings, including frequencies planned by Member States for certain services which, as a result of technological development, will make full use of the digital dividend but excluding frequencies planned by Member States for broadcasting services;

(d) create an exception to the principle of service or technology neutrality, as well as to harmonise the scope and nature of any exceptions to the principle of service or technology neutrality in accordance with paragraphs Article 9(3) and (4) other than those aimed at ensuring the promotion of cultural and linguistic diversity and media pluralism including broadcasting services and having regard to the need for better access to the information society for all citizens.

(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.).