Telecoms Package COD 2007 0247 IMCO Opinion

Telecoms Package: Proposal for a Directive of the European Parliament and of the Council amending Directives 2002/21/EC on a common regulatory framework for electronic communications networks and services, 2002/19/EC on access to, and interconnection of, electronic communications networks and services, and 2002/20/EC on the authorisation of electronic communications networks and services (COD/2007/0247) − Committee on the Internal Market and Consumer Protection Opinion − 2008-07-07

Article 9
Article 9 − Obligation of transparency

1. National regulatory authorities may, in accordance with the provisions of Article 8, impose obligations for transparency in relation to interconnection and/or access, requiring operators to make public specified information, such as accounting information, technical specifications, network characteristics, terms and conditions for supply and use, and prices.

2. In particular where an operator has obligations of non-discrimination, national regulatory authorities may require that operator to publish a reference offer, which shall be sufficiently unbundled to ensure that undertakings are not required to pay for facilities which are not necessary for the service requested, giving a description of the relevant offerings broken down into components according to market needs, and the associated terms and conditions including prices. The national regulatory authority shall, inter alia, be able to impose changes to reference offers to give effect to obligations imposed under this Directive.

3. National regulatory authorities may specify the precise information to be made available, the level of detail required and the manner of publication.

4. Notwithstanding paragraph 3, where an operator has obligations under Article 12 concerning unbundled access to the twisted metallic pair local loop, national regulatory authorities shall ensure the publication of a reference offer containing at least the elements set out in Annex II.

5. The Commission may adopt the necessary amendments to Annex II in order to adapt it to technological and market developments. The measures, designed to amend non-essential elements of this Directive, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 14(3). On imperative grounds of urgency, the Commission may use the urgency procedure referred to in Article 14(4). In implementing the provisions of this paragraph, the Commission may be assisted by the Authority.

Article 12
Article 12 − Obligations of access to, and use of, specific network facilities

1. A national regulatory authority may, in accordance with the provisions of Article 8, impose obligations on operators to meet reasonable requests for access to, and use of, specific network elements and associated facilities, inter alia in situations where the national regulatory authority considers that denial of access or unreasonable terms and conditions having a similar effect would hinder the emergence of a sustainable competitive market at the retail level, or would not be in the end-user's interest.

Operators may be required inter alia:

(a) to give third parties access to specified network elements and/or facilities, including unbundled access to the local loop;

(b) to negotiate in good faith with undertakings requesting access;

(c) not to withdraw access to facilities already granted;

(d) to provide specified services on a wholesale basis for resale by third parties;

(e) to grant open access to technical interfaces, protocols or other key technologies that are indispensable for the interoperability of services or virtual network services;

(f) to provide co-location or other forms of facility sharing, including the sharing of ducts, buildings or entry to buildings, antennae or masts, manholes and street cabinets;

(g) to provide specified services needed to ensure interoperability of end-to-end services to users, including facilities for intelligent network services or roaming on mobile networks;

(h) to provide access to operational support systems or similar software systems necessary to ensure fair competition in the provision of services;

(i) to interconnect networks or network facilities;

(j) to provide access to associated services such as identity, location and presence capability.

National regulatory authorities may attach to those obligations conditions covering fairness, reasonableness and timeliness.

2. When national regulatory authorities are considering whether to impose the obligations referred in paragraph 1, and in particular when assessing whether such obligations would be proportionate to the objectives set out in Article 8 of Directive 2002/21/EC (Framework Directive), they shall take account in particular of the following factors:

(a) the technical and economic viability of using or installing competing facilities, in the light of the rate of market development and of the benefits for consumers, taking into account the nature and type of interconnection and access involved, including the viability of other upstream access options;

(b) the feasibility of providing the access proposed, in relation to the capacity available;

(c) the initial investment by the facility owner, bearing in mind the risks involved in making the investment;

(d) the need to safeguard competition in the long term;

(e) where appropriate, any relevant intellectual property rights;

(f) the provision of pan-European services.

3. When imposing obligations on an operator to provide access in accordance with the provisions of this Article, national regulatory authorities may lay down technical or operational conditions to be met by the provider and/or beneficiaries of such access where necessary to ensure normal operation of the network. Obligations to follow specific technical standards or specifications shall be in compliance with the standards and specifications laid down in accordance with Article 17(1) of Directive 2002/21/EC (Framework Directive).

Annex I
A. Conditions which may be attached to a general authorisation

19. Compliance with national measures implementing Directive 2001/29/EC of the European Parliament and of the Council (OJ L 167, 22.6.2001, p. 10.) and Directive 2004/48/EC of the European Parliament and of the Council (OJ L 157, 30.4.2004, p. 45.).

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, taking State aid rules into account, in particular for the delivery of content;

(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;

(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.

(ga) ensuring the cooperation of undertakings providing electronic communications networks and services with the sectors interested in the protection and the promotion of lawful content over electronic communication networks and services.

''(60a) It is the responsibility of the Member States to encourage cooperation arrangements between the parties concerned in order to promote efficient on-line services and a high level of consumer confidence. In particular, companies supplying electronic communications networks and/or services and other stakeholders should be encouraged to cooperate so as to promote legal content and protect on-line content. Such cooperation could for example be achieved on a wider scale without prejudice to the regulatory framework, by the drafting of negotiated and agreed codes of conduct between stakeholders. The introduction of such codes of conduct has already been envisaged in numerous Community instruments, for example 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') (OJ L 178, 17.7.2000, p. 1.), Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ L 157, 30.4.2004, p. 45; corrected version in OJ L 195, 2.6.2004, p. 16.), and Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p.31. Directive as amended by Regulation (EC) No 1882/2003 (OJ L 284, 31.10.2003, p. 1).). Such cooperation between stakeholders is essential to promoting on-line content, in particular European cultural content, and to realise the potential of the information society.''

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 radiofrequencies by national regulatory authorities are based on objective, transparent, non-discriminatory and proportionate criteria and avoid distorting competition.

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 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 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,

(ba) avoid distortion of competition,

(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.

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 to electronic communications services as identified in their national allocation tables and in ITU radio broadcasting 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 a particular electronic communication service to be provided in a specific band shall be justified only 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, the promotion of cultural and linguistic diversity and media pluralism or the provision of radio and television broadcasting services.

A restriction which prohibits the provision of any other electronic communication 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, and without prejudice to Article 8a, for the achievement of the principles of this Article, the Commission may adopt appropriate technical implementing measures to:

(-a) harmonise the rules relating to the availability and efficient use of radio frequencies in accordance with the procedure set out in Annex IIa;

(-aa) ensure the coordinated and timely provision of information concerning the allocation, availability and use of radio frequencies in accordance with the procedure set out in Annex IIa;

(a) identify the bands for which usage rights may be transferred or leased between undertakings, excluding radio frequencies allocated or planned by Member States for broadcasting services;

(b) harmonise the conditions attached to such rights;

(c) harmonise the specific measures to ensure fair competition where individual rights are transferred.

These implementing measures are without prejudice to measures taken at Community or national level, in compliance with Community law, to pursue general interest objectives, and in particular those relating to the promotion of cultural and linguistic diversity and media pluralism.

Measures adopted pursuant to points (a) to (c) of the first subparagraph, 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). In the implementation of the provisions of this paragraph, the Commission may be assisted by the Radio Spectrum Policy Committee.

(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.).