Review of the Regulatory Framework for electronic communications networks and services|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 associated facilities, and 2002/20/EC on the authorisation of electronic communications networks and services|Proposal for a Directive of the European Parliament and of the Council amending Directive 2002/22/EC on universal service and users' rights relating to electronic communications networks, Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on consumer protection cooperation|Regulation of the European Parliament and of the Council establishing the Group of European Regulators in Telecoms|Proposal for a Regulation of the European Par - Hoofdinhoud

COUNCIL OF PUBLIC Brussels, 16 March 2009

THE EUROPEAN UNION

7354/09

Interinstitutional Files: 2007/0247 (COD) i

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2007/0249 (COD) i

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Subject: Review of the Regulatory Framework for electronic communications networks and services

Proposal for a Directive of the European Parliament and of the Council amending Directives 2002/21/EC i on a common regulatory framework for electronic communications networks and services, 2002/19/EC on access to and interconnection of electronic communications networks and associated facilities, and 2002/20/EC on the authorisation of electronic communications networks and services

Proposal for a Directive of the European Parliament and of the Council amending Directive 2002/22/EC i on universal service and users' rights relating to electronic communications networks, Directive 2002/58/EC i concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 i on consumer protection cooperation

Regulation of the European Parliament and of the Council establishing the Group of European Regulators in Telecoms

Proposal for a Regulation of the European Parliament and of the Council establishing the Group of European Regulators in Telecoms

• - 

  Preparation of the next trialogue

Delegations will find attached the compromise proposals from the Presidency in view of the trialogues on 18th and 24th March 2009.

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7354/09 EV/HVW/ELK/ek 1

ANNEX 1

CITIZENS' RIGHTS DIRECTIVE

COUNCIL COMMON POSITION EUROPEAN PARLIAMENT'S Draft COMPROMISE PROPOSAL 16 February 2009 Recommendation

(before tabling office verification)

1.1. RECITALS

(3a) A fundamental requirement of A fundamental requirement of universal universal service is to provide users on service is to provide users on request request with a connection to the public with a connection to the public communications network at a fixed communications network at a fixed location and at an affordable price. The location, at an affordable price. The requirement is limited to a single requirement is limited to a single network connection, the provision of network connection for the provision of which may be restricted by Member local, national and international States to the end-user's primary telephone calls, facsimile location/residence. There should be no communications and data services, the constraints on the technical means by provision of which may be restricted by which the connection is provided, Member States to the end-user's allowing for wired or wireless primary location/residence. There technologies, nor any constraints on should be no constraints on the which operators provide part or all of technical means by which the universal service obligations. connection this is provided, allowing for Connections to the public wired or wireless technologies, nor any communications network at a fixed constraints on which operators provide location should be capable of supporting part or all of universal service speech and data communications at obligations. rates sufficient for access to online services such as those provided via the Data connections to the public public internet. The speed of internet communications network at a fixed access experienced by a given user may location should be capable of supporting depend on a number of factors speech and data communications at including the provider(s) of internet rates sufficient for access to online connectivity as well as the given services such as those provided via the application for which a connection is public Internet. The speed of Internet

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being used. The data rate that can be access experienced by a given user may supported by a connection to the public depend on a number of factors communications network depends on including the provider(s) of Internet the capabilities of the subscriber's connectivity as well as the given terminal equipment as well as the application for which a connection is connection. For this reason it is not being used. The data rate that can be appropriate to mandate a specific data supported by a connection to the public or bit rate at Community level. communications network depends on Currently almost half of Europeans the capabilities of the subscriber's with access to the internet have access terminal equipment as well as the speeds above 2 Mbit/s. Broadband is connection. For this reason it is not available to 80% of the population in appropriate to mandate a specific data rural areas and use of modems to access or bit rate at Community level. the internet has decreased to 10% or Flexibility is required to allow Member less of EU households. Flexibility is States to take measures where necessary required to allow Member States to take to ensure that a data connections are is measures where necessary to ensure capable of supporting satisfactory data that connections are capable of rates which are sufficient to permit supporting satisfactory data rates, while functional internet access, as defined by allowing Member States, where the Member States, taking into account relevant, to, for example, exploit the the prevailing bandwidth used by the capabilities of wireless technologies majority of subscribers in that Member (including cellular wireless networks) to State, and technological feasibility. deliver universal service to a higher Where such measures result in an proportion of the population. This may unfair burden on a designated be of particular importance in some undertaking, taking due account of the Member States where household costs and revenues as well as the penetration of traditional connections intangible benefits resulting from the remains relatively low. In specific cases provision of the services concerned, this where the connection to the public may be included in any net cost communications network at a fixed calculation of universal obligations. location is clearly insufficient to support Alternative financing of underlying satisfactory internet access, Member network infrastructure, involving States should be able to require the Community funding or national connection to be brought up to a measures in accordance with sufficient level for such access. Where Community law, may also be such specific measures produce a net implemented. cost burden for those consumers concerned, the net effect may be This is without prejudice to the need for included in any net cost calculation of the Commission to conduct a review of

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universal service obligations. (AM 1) the universal service obligations, which may include the financing of such

obligations, in accordance with Article 15 of Directive 2002/22/EC i, and if appropriate, present proposals for reform to meet public interest objectives.

(6) Member States should introduce (6) Member States should introduce measures to promote the creation of a measures to promote the creation of a market for widely available products and market for widely available products and services incorporating facilities for services incorporating facilities for disabled end-users. One way among others disabled users. One way among others of of achieving this is, with reference to achieving this is, with reference This can European standards, introducing electronic be achieved inter alia by referring to accessibility (eAccessibility) requirements European standards, by introducing for public procurement procedures and electronic accessibility (eAccessibility) tendering services in accordance with requirements for public procurement legislation upholding the rights of the procedures and tendering services in disabled end-users. accordance with the provision of services relating to calls for tender, and by implementing legislation upholding the rights of the disabled. (AM 2) (??) When an undertaking designated to provide universal service as identified in Article 4 of Directive 2002/22/EC i (Universal Service) chooses to dispose of a substantial part, viewed in light of its universal service obligation, or all, of its local access network assets in the national territory to a separate legal entity under different ultimate ownership, the national regulatory authority should assess the effects of the transaction in order to ensure the continuity of universal service obligations in all or parts of the national territory. To this end, the national regulatory authority which imposed the universal service obligations should

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be informed by the undertaking in advance of the disposal. The assessment of the national regulatory authority should not prejudice the completion of the transaction. (AM 3) (XX) The provisions of this Directive should apply without prejudice to Community rules on consumer protection, in particular Directives 93/13/EEC i, 97/7/EC i and 2005/29/EC, and national rules in conformity with Community law. (AM 4)

(22) Given the increasing importance of (22) End-users should decide what electronic communications for consumers content they want to be able to send and and businesses, users should be fully receive, and which services, informed of the traffic management applications, hardware and software policies of the service and/or network they want to use for such purposes, provider with which they conclude the without prejudice to the need to contract. Where there is a lack of effective preserve the integrity and security of competition, national regulatory networks and services. A competitive authorities should use the remedies market with transparent offerings as available to them under Directive provided for in Directive 2002/22/EC i 2002/19/EC (Access Directive) to ensure should ensure that end-users are able to that users' access to particular types of access and distribute any content and to content or application is not unreasonably use any applications and/or services of restricted. their choice, as stated in Article 8 of Directive 2002/21/EC i. Given the increasing importance of electronic communications for consumers and businesses, users should in any case be fully informed of the traffic management policies of the service and/or network provider with which they conclude the contract. Where there is a lack of effective competition, national regulatory authorities should use the remedies available to them under Directive 2002/19/EC i (Access Directive) to ensure that users' access to particular types of

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content or application is not unreasonably restricted. any limitations imposed on the use of electronic communications services by the service and/or network provider. Such information should, at the option of the provider, specify the type of content, application or service concerned, individual applications or services, or both. Depending on the technology used and the type of limitation, such limitations may require user consent under Directive 2002/58/EC i. (AM 5) (??) Directive 2002/22/EC i does not require providers to monitor information transmitted over their networks or to bring legal proceedings against their customers on grounds of such information, nor does it make providers liable for that information. Responsibility for punitive action or criminal prosecution remains with the relevant law enforcement authorities. (AM 6)

(24) The availability of transparent, up-to(24) The availability of transparent, up-to See in relation to Art. 21.4 date and comparable information on offers date and comparable information on offers and services is a key element for and services is a key element for consumers in competitive markets where consumers in competitive markets where several providers offer services. End-users several providers offer services. End-users and consumers of electronic and consumers of electronic communications services should be able to communications services should be able to easily compare the prices of various easily compare the prices of various services offered on the market based on services offered on the market based on information published in an easily information published in an easily accessible form. In order to allow them to accessible form. In order to allow them to make price comparisons easily, national make price comparisons easily, national regulatory authorities should be able to regulatory authorities should be able to require from undertakings providing require from undertakings providing electronic communications networks electronic communications networks and/or services greater transparency as and/or services better transparency on

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regards information (including tariffs, information (including tariffs, consumption patterns and other relevant consumption patterns, and other relevant statistics) and to ensure that third parties statistics) and to ensure that third parties have the right to use, without charge, have the right to use, without charge, publicly available information published publicly available information published by such undertakings. National regulatory by such undertakings. National regulatory authorities should also be able to make authorities should also be able to make price guides available, in particular where price guides available, in particular where the market has not provided them free of the market has not provided them free of charge or at a reasonable price. charge or at a reasonable price. Undertakings should not be entitled to any Undertakings should not be entitled to any remuneration for the use of information remuneration for the use of information where it has already been published and which had already been published and thus thus belongs in the public domain. In belongs in the public domain. In addition, addition, end-users and consumers should end-users and consumers should be be adequately informed of the price and adequately informed of the price and the the type of service offered before they type of service offered before they purchase a service, in particular if a purchase a service, in particular if a freephone number is subject to additional freephone number is subject to additional charges. National regulatory authorities charges. National regulatory authorities should be able to require that such should be able to require that such information is provided generally, and, for information is provided generally, and, for certain categories of services determined certain categories of services determined by them, immediately prior to connecting by them, immediately prior to connecting the call, unless otherwise provided for by the call, unless it is otherwise provided for national law. When determining the by national law. When determining the categories of call requiring pricing categories of call requiring pricing information prior to connection, national information prior to connection, national regulatory authorities should take due regulatory authorities should take due account of the nature of the service, the account of the nature of the service, the pricing conditions which apply to it and pricing conditions which apply to it and whether it is offered by a provider who is whether it is offered by a provider who is not a provider of electronic not a provider of electronic communications services. Without communications services. Without prejudice to Directive 2000/31/EC i prejudice to Directive 2000/31/EC i on (Directive on electronic commerce), electronic commerce, undertakings should undertakings should also, if required by also, if required by Member States, Member States, provide subscribers with provide subscribers with public interest public interest information produced by information produced by the relevant the relevant public authorities regarding, public authorities, inter alia, on the most

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inter alia, the most common infringements common acts of infringements and their

and their legal consequences. legal consequences. Dissemination of

such information should however not

create an excessive burden on

undertakings and should therefore be

subject to agreement on reimbursement

of significant additional costs by the

public authorities in the event that those

authorities require recourse to means of

communications other than those used

by the undertakings in their ordinary

course of business for their

communications with subscribers.

(MODIFIED AM 7 - AM 112)

(??) The Member States should

introduce single information points for

all user queries. These information

points, which could be administered by

the national regulatory authorities

together with consumer associations,

should also be able to provide legal

assistance in case of disputes with

operators. Access to these information

points should be free of charge and

users should be informed of their

existence by regular information

campaigns. (AM 8)

(26) A competitive market should (26) A competitive market should ensure

ensure that users enjoy the quality of that users receive the quality of service

service they require, but in particular cases they require, but in particular cases it may

it may be necessary to ensure that public be necessary to ensure that public

communications networks attain minimum communications networks attain minimum

quality levels so as to prevent degradation quality levels so as to prevent degradation

of service, the blocking of access and the of service, the blocking of access and the

slowing of traffic over networks. slowing of traffic over networks. Since

inconsistent remedies will significantly

impair the achievement of the internal

market, the Commission should assess

any requirements set by national

regulatory authorities for possible

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regulatory intervention across the Community and, if necessary, adopt technical implementing measures in order to achieve consistent application throughout the Community. (AM 9)

(27) In future IP networks, where (27) In future IP networks where provision provision of a service may be separated of a service may be separated from from provision of the network, Member provision of the network, Member States States should determine the most should determine the most appropriate appropriate steps to be taken to ensure the steps to be taken to ensure the availability availability of publicly available telephone of publicly available telephone services services provided using public provided using public communications communications networks and networks and uninterrupted access to uninterrupted access to emergency emergency services in the event of services in the event of catastrophic catastrophic network breakdown or in network breakdown or in cases of force cases of force majeure taking into account majeure, taking into account the priorities the priorities of different types of of different types of subscriber and subscriber and technical limitations. (AM technical limitations. 10) (31) End-users should be able to call and (31) End-users should be able to call and access the emergency services using any access the emergency services provided telephone service capable of originating using any telephone service capable of voice calls through a number or numbers originating voice calls through a number in national telephone numbering plans. or numbers in national telephone Emergency authorities should be able to numbering plans. Emergency authorities handle and answer calls to the number should be able to handle and answer calls "112" at least as expeditiously and to the number "112" at least as effectively as calls to national emergency expeditiously and effectively as calls to numbers. It is important to increase other national emergency numbers. It is awareness of "112" in order to improve the important to increase awareness of "112" level of protection and security of citizens in order to improve the level of protection travelling in the European Union. To this and security of citizens travelling in the end, citizens should be made fully aware, European Union. To this end, citizens when travelling in any Member State, in should be made fully aware, in particular particular through information provided in through information provided in international bus terminals, train stations, international bus terminals, train stations, ports or airports and in telephone ports or airports and in telephone directories, payphone kiosks, subscriber directories, payphone kiosks, subscriber and billing material, that "112" can be and billing material, that "112" can be used as a single emergency number used as a single emergency number

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throughout the Community. This is throughout the Community. This is primarily the responsibility of the primarily the responsibility of the Member States, but the Commission Member States, but the Commission should continue both to support and to should continue both to support and to supplement initiatives of the supplement initiatives of the Member States to heighten awareness of Member States to heighten awareness of "112" and periodically to evaluate the "112" and periodically to evaluate the public's awareness of it. The obligation to public's awareness of "112". The provide caller location information should obligation to provide caller location be strengthened so as to increase the information should be strengthened so as protection of citizens of the European to increase the protection of citizens of the Union. In particular, undertakings should European Union. In particular, make caller location information available undertakings should make available caller to emergency services as soon as the call location information to emergency as soon reaches that service, independently of the as the call reaches that service technology used. independently of the technology used. In order to respond to technological developments, including those leading to increasingly precise accuracy of location information, the Commission should be able to adopt technical implementing measures in order to ensure the effective implementation of “112” in the Community for the benefit of citizens of the European Union. (AM 11) (32) Member States should ensure that (32) Member States should ensure that undertakings providing end-users with an undertakings providing end-users with an electronic communications service electronic communications service for designed for originating calls through a originating calls through a number or number or numbers in a national telephone numbers in a national telephone numbering plan provide access to numbering plan provide access to emergency services with such accuracy emergency services with the accuracy and and reliability as is technically feasible for reliability that is technically feasible for that electronic communications service. that electronic communications service. Network-independent service providers Network-independent undertakings may may not have control over networks and not have control over networks and may may not be able to ensure that emergency not be able to ensure that the emergency calls made through their service are routed calls made through their service are routed with the same reliability as traditional with the same reliability as traditional integrated telephone service providers, as integrated telephone service providers, as

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they may not be able to guarantee service they may not be able to guarantee service

availability, given that problems related to availability, given that problems related to

infrastructure are not under their control. the infrastructure are not under their the

Once internationally-recognised standards direct control of these undertakings. If

ensuring accurate and reliable routing and such undertakings prove to the national

connection to the emergency services are regulatory authority that it is

in place, network-independent service technically impossible for them to

providers should also fulfil the obligations provide caller location information to

related to access to emergency services at the authority handling emergency calls

a level comparable to that required of other and services as soon as the call reaches

undertakings. that authority, the national regulatory

authority should be able to impose the

lower level of caller location information

that is technically possible. Once

internationally recognized standards are in

place ensuring accurate, reliable routing

and connection to the emergency services

are in place, all network-independent

service providers undertakings should

also fulfil the obligations related to access

to emergency services at a level

comparable to that required of other

undertakings. provide caller location

information at the same level as

traditional integrated telephone service

providers. (AM 12)

(33a) Development of the international

code “3883” (the European Telephony

Numbering Space (ETNS)) is currently

hindered by insufficient awareness,

overly bureaucratic procedural

requirements and, in consequence, lack of

demand. In order to foster the

development of ETNS, the countries to

which the International

Telecommunications Union has assigned

the international code “3883” should

delegate responsibility for its

management, number assignment and

promotion either to the Body of

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European Regulators in Telecom (BERT) or, following the example of the implementation of the “.eu” top-level domain, to a separate organisation, designated by the Commission on the basis of an open, transparent and nondiscriminatory selection procedure, and with operating rules which form part of Community law. (AM 13) (??) Considering the particular aspects related to reporting missing children and the currently limited availability of that service, Member States should not only reserve a number, but also ensure that a service for reporting missing children is actually available in their territories under the number 116000. (AM 14)

(36) A single market implies that end(36) A single market implies that endusers are able to access all numbers users are able to access all numbers included in the national numbering plans included in the national numbering plans of other Member States and to access of other Member States, and to access services using non-geographic numbers services using non-geographic numbers within the Community, including, among within the Community including, among others, freephone and premium rate others, freephone and premium rate numbers. End-users should also be able to numbers. End-users should also be able to access numbers from the European access numbers from the European Telephone Numbering Space (ETNS) and Telephone Numbering Space (ETNS) and Universal International Freephone Universal International Freephone Numbers (UIFN). Cross-border access to Numbers (UIFN). Cross-border access to numbering resources and associated numbering resources and to its associated services should not be prevented, except in service should not be prevented except in objectively justified cases, for example to objectively justified cases, for example to combat fraud or abuse (e.g. in connection combat fraud, and abuse (e.g. in with certain premium-rate services), when connection with certain premium-rate the number is defined as having a national services) when the number is defined as scope only (e.g. a national short code) or having a national scope only (e.g. national when it is technically or economically short code), or when technically or unfeasible. Users should be fully informed economically unfeasible. Users should be in advance and in a clear manner of any fully informed in advance in a clear

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charges applicable to freephone numbers, manner of any charges applicable to

such as international call charges for freephone numbers, such as international

numbers accessible through standard call charges for numbers accessible

international dialling codes. through standard international dialling

codes. In order to ensure that end-users

have effective access to numbers and

services in the Community, the

Commission should be able to adopt

implementing measures. End-users

should also be able to connect to other

end-users (especially via IP numbers) in

order to exchange data, regardless of

the operator they choose. (AM 15)

(37) In order to take full advantage of the (37) In order to take full advantage of the

competitive environment, consumers competitive environment, consumers

should be able to make informed choices should be able to make informed choices

and to change providers when it is in their and to change providers when it is in their

interests. It is essential to ensure that they interest. It is essential to ensure that they

can do so without being hindered by legal, can do so without being hindered by legal,

technical or practical obstacles, including technical or practical obstacles, including

contractual conditions, procedures, charges contractual conditions, procedures, charges

and so on. This does not preclude the etc. This does not preclude imposing

imposition of reasonable minimum reasonable minimum contractual periods

contractual periods in consumer contracts. in consumer contracts. Number portability

Number portability is a key facilitator of is a key facilitator of consumer choice and

consumer choice and effective competition effective competition in competitive

in competitive markets for electronic markets for electronic communications, It

communications. It should be implemented and should be implemented with the

with the minimum delay. In any case, the minimum of delay In any case, the

technical transfer of the number should not technical transfer of the number should not

exceed one day. Competent national exceed one day., so that the number is

authorities may establish the global available for use with the new

process of the porting of numbers, taking undertaking within one working day of

into account national provisions on the request of the consumer. Competent

contracts and technical feasibility, and, national authorities may prescribe the

where necessary, appropriate measures global process of the porting of numbers,

ensuring that consumers are protected taking into account national provisions on

throughout the switching process. This contracts and technological feasibility and,

protection may include the limitation of where necessary, appropriate

porting abuse and the setting of speedy development. Experience in certain

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corrective action. Member States has shown that there is a risk of consumers being switched

without consent. While that is a matter that should primarily be addressed by law-enforcement authorities, Member States should be able to impose such minimum proportionate measures regarding the switching process as are necessary to minimise such risks and to guarantee that consumers are protected throughout the switching process, without making the process less attractive for consumers. This protection may include the limitation of porting abuse and the setting of speedy corrective action. (AM 16)

(39) In order to overcome existing (39) In order to overcome existing shortcomings in terms of consumer shortcomings in terms of consumer consultation and to appropriately address consultation and to appropriately address the interests of citizens, Member States the interests of citizens, Member States should put in place an appropriate should put in place an appropriate consultation mechanism. Such a consultation mechanism. Such a mechanism could take the form of a body mechanism could take the form of a body which would, independently of the which would, independently from the national regulatory authority and service national regulatory authority and from providers, carry out research into service providers, carry out research on consumer-related issues, such as consumer consumer-related issues such as consumer behaviour and mechanisms for changing behaviour and mechanisms for changing suppliers, and which would operate in a suppliers, and which would operate in a transparent manner and contribute to the transparent manner and contribute to the existing mechanisms for stakeholder existing mechanisms for stakeholders' consultation. Furthermore, a mechanism consultations. Furthermore, a mechanism could be established for the purpose of could be established for the purpose of enabling appropriate cooperation on issues enabling appropriate cooperation on issues relating to the promotion of lawful content. relating to the promotion of lawful content. Any cooperation procedures agreed Any cooperation procedures agreed pursuant to such a mechanism should, pursuant to such a mechanism should, however, not allow for the systematic however, not allow for the systematic surveillance of internet usage. surveillance of internet usage. Where there is a need to address the facilitation

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of the access to and use of electronic communications services and terminal equipment for disabled users, and without prejudice to Directive 1999/5/EC i and in particular the disability requirements pursuant to Article 3(3)(f) thereof, the Commission should be able to adopt implementing measures. (AM 17) (??) The procedure for out-of-court dispute resolution should be strengthened by ensuring that independent dispute resolution bodies are used, and that the procedure conforms at least to the minimum principles established by Commission Recommendation 98/257/EC of 30 March 1998 on the principles applicable to the bodies responsible for out-ofcourt

settlement of consumer disputes 1 .

Member States may either use existing dispute resolution bodies for that purpose, provided those bodies meet the applicable requirements, or establish new bodies. Furthermore, when dealing with out-of-court procedures, Member States should make every effort to ensure that those procedures are transparent and exercised impartially, in particular in view of Recommendation 98/257/EC, so that the effectiveness, fairness and legality of the procedure is safeguarded. (AM 18) (??) Directive 2002/58/EC i provides for the harmonisation of the provisions of the Member States required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and the right to confidentiality, with respect

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to the processing of personal data in the electronic communications sector, and to ensure the free movement of such data and of electronic communications equipment and services in the Community. Where measures aiming to ensure that terminal equipment is constructed so as to safeguard the protection of personal data and privacy are adopted pursuant to Directive 1999/5/EC i or Council Decision 87/95/EEC i, such measures should respect the principle of technology neutrality. (AM 19) (??) When defining the implementing measures on the security of processing, in accordance with the regulatory procedure with scrutiny, the Commission should consult all relevant European authorities and organisations (ENISA, the European Data Protection Supervisor and the Article 29 Working Party) as well as all other relevant stakeholders, particularly in order to be informed of the best available technical and economic methods for improving the implementation of Directive 2002/58/EC i. (AM 20) (??) IP addresses are essential to the working of the Internet. They identify network participating devices, such as computers or mobile smart devices, by a number. Given the variety of scenarios in which IP addresses are used, and the related technologies which are rapidly evolving, questions have arisen about the use of such addresses as personal data in certain circumstances. The Commission should therefore, on the basis of a study regarding IP addresses

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and their uses, present such proposals as may be. (AM 21)

(43) In line with the objectives of the (43) In line with the objectives of the EU regulatory framework for electronic electronic communications regulatory communications networks and services framework, with the principles of and with the principles of proportionality proportionality and subsidiarity, and for and subsidiarity, and for the purposes of purposes of legal certainty and efficiency legal certainty and efficiency for European for European businesses and national businesses and national regulatory regulatory authorities alike, this Directive authorities alike, this Directive focuses on focuses on public electronic public electronic communications communications networks and services, networks and services, and does not apply i.e. services normally provided for to closed user groups and corporate remuneration and consisting wholly or networks. mainly in the conveyance of signals on electronic communications networks, if those services are available to the public, and does therefore not apply to services made available to limited groups of identifiable individuals such as in the case of closed user groups and corporate networks. (AM 22) (45) The provider of a publicly available (45) The provider of a publicly available electronic communications service should electronic communications service or an take appropriate technical and information society service should take organisational measures to ensure the appropriate technical and organisational security of its services. Without prejudice measures to ensure the security of its to Directive 95/46/EC i of the European services. Without prejudice to Directive Parliament and of the Council of 24 95/46/EC, such measures should ensure October 1995 on the protection of that personal data can be accessed only by individuals with regard to the processing authorised personnel for legally authorised of personal data and on the free movement purposes, and that the personal data stored

of such data 1 , such measures should ensure or transmitted, as well as the network and

that personal data can be accessed only by services, are protected. Moreover, a authorised personnel for legally authorised security policy with respect to the purposes, and that the personal data stored processing of personal data and or transmitted, as well as the network and appropriate to the operations of the services, are protected. Moreover, a provider should be established in order to

7354/09 EV/ek 17

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security policy with respect to the identify vulnerabilities in the system, and

processing of personal data should be monitoring and preventive, corrective and

established in order to identify mitigating action should be regularly

vulnerabilities in the system, and carried out. (AM 23)

monitoring and preventive, corrective and

mitigating action should be regularly

carried out.

(??) Competent national authorities

should promote the interests of the

citizens of the European Union by, inter

alia, contributing to ensuring a high

level of protection of personal data and

privacy. To this end, they must have the

necessary means to perform their

duties, including comprehensive and

reliable data about actual security

incidents that have led to the personal

data of individuals being compromised.

They should monitor measures taken

and disseminate best practices among

providers of publicly available

electronic communications services.

Providers should therefore keep and

maintain comprehensive records

detailing all personal data breaches to

enable further analysis and evaluation

by the competent national authorities

and should inform those authorities of

all personal data breaches. (AM 24)

(47) A breach of security resulting in the (47) A personal data breach of security

loss or compromising of personal data of resulting in the loss or compromising of

an individual subscriber may, if not personal data of an individual subscriber

addressed in an adequate and timely may, if not addressed in an adequate and

manner, result in substantial economic loss timely manner, result in substantial

and social harm, including identity fraud. economic loss and social harm , including

Therefore, as soon as the provider of identity fraud to the subscriber or

publicly available electronic individual concerned. Therefore, as soon

communications service becomes aware as the provider of publicly available

that such a breach has occurred, it should electronic communications services

assess the risks associated with it, e.g. by becomes aware that such a breach has

ANNEX 1 DG C II B LIMITE EN

establishing the type of data affected by occurred, it or information society the breach (including their sensitivity, services should assess the possible context and the security measures in adverse effects of a breach, such as, place), the cause and extent of the breach, inter alia, identity theft, fraud, financial the number of subscribers affected and the loss, loss of business or employment possible harm for subscribers as a result of opportunities, physical harm, significant the breach (e.g. identity theft, financial humiliation or damage to reputation, and loss, loss of business or employment access to emails and other opportunities or physical harm). The communications, as soon as the provider subscribers concerned by security becomes aware of the breach. The incidents that could result in a serious risk assessment should be conducted to their privacy (e.g. identity theft or fraud, promptly with all care reasonable, and physical harm, significant humiliation or should assume that any identified damage to reputation) should be notified adverse effects are about to materialise. without delay in order to allow them to For the purpose of notification to take the necessary precautions. The subscribers or individuals of a personal notification should include information data breach likely to have an adverse about measures taken by the provider to effects on them, the requirement to address the breach, as well as notify without undue delay should be recommendations for the users affected. taken to mean that they should be Notification of a security breach to a notified in such time as to enable them subscriber should not be required if the to take the necessary precautions. The provider has demonstrated to the notification should include information competent authority that it has about measures taken by the provider to implemented appropriate technological address the breach, as well as protection measures, and that those recommendations for the subscriber or measures were applied to the data individual concerned to prevent or concerned by the security breach. Such minimise the likely adverse effects of the technological protection measures should breach. Notification of a security breach render the data unintelligible to any person to a subscriber or individual should who is not authorised to access it. however not be required if the provider has demonstrated to the competent authority that it has implemented appropriate technological protection measures, rendering the data unintelligible to any person who is not authorized to access the data and those measures were applied to the data concerned by the security breach. Such technological protection measures should

ANNEX 1 DG C II B LIMITE EN

render the data unintelligible to any person who is not authorised to access it. (AM 25)

(50) Provision should be made for the (50) Provision should be made for the Commission to adopt recommendations on Commission to adopt recommendations on the means to achieve an adequate level of the means the adoption of implementing privacy protection and security of personal measures to establish a common set of data transmitted or processed in requirements to achieve an adequate level connection with the use of electronic of privacy protection and security of communications networks in the internal personal data transmitted or processed in market. connection with the use of electronic communications networks in the internal market. (AM 26) (51) In setting detailed rules concerning (51) In setting detailed rules concerning the format and procedures applicable to the format and procedures applicable to the notification of personal data breaches, the notification of personal data breaches, due consideration should be given to the due consideration should be given to the circumstances of the breach, including circumstances of the breach, including whether or not personal data had been whether or not the personal data had been protected by encryption or other means protected by encryption or other means effectively limiting the likelihood of with appropriate technical protection identity fraud or other forms of misuse. measures, effectively limiting the Moreover, such rules and procedures likelihood of identity fraud or other forms should take into account the legitimate of misuse. Moreover, such rules and interests of law enforcement authorities in procedures should take into account the cases where early disclosure could legitimate interests of law enforcement unnecessarily hamper the investigation of authorities in cases where early disclosure the circumstances of a breach. could unnecessarily hamper the investigation of the circumstances of a breach. (AM 27) (??) The Commission should be empowered to adopt measures on the security of processing. When adopting such measures, it should consult all relevant European authorities and organisations, such as ENISA, the European Data Protection Supervisor and the Article 29 Working Party, as well as all other relevant stakeholders, in order particularly to be informed of the best available technical and

ANNEX 1 DG C II B LIMITE EN

economic methods for improving the implementation of Directive 2002/58/EC i. Since those measures are of general scope and are designed to amend non-essential elements of Directive 2002/58/EC i by supplementing it with new non-essential elements, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC i. (AM 28)

(52) Software that surreptitiously (52) Software that surreptitiously monitors monitors the actions of the user or subverts actions of the user and/or subverts the operation of the user's terminal operation of the user’s terminal equipment equipment to the benefit of a third party for the benefit of a third party (so-called (so-called "spyware") poses a serious “spyware”) poses a serious threat to users’ threat to the privacy of users. A high and privacy, as can viruses. A high and equal equal level of protection of the private level of protection of the private sphere of sphere of users needs to be ensured, users needs to be ensured, regardless of regardless of whether unwanted spying whether unwanted spy programmes or programmes are inadvertently downloaded viruses are inadvertently downloaded via via electronic communications networks or electronic communications networks or are are delivered and installed hidden in delivered and installed hidden in software software distributed on other external data distributed on other external data storage storage media, such as CDs, CD-ROMs or media, such as CDs, CD-ROMs or USB USB keys. Member States should keys. Member States should inform endencourage end-users to take the necessary users about available precautions and steps to protect their terminal equipment encourage them to take the necessary against viruses and spyware. steps to protect their terminal equipment against viruses and spyware. (AM 29) (??) Safeguards provided for subscribers against the intrusion of their privacy by unsolicited communications for direct marketing purposes by means of electronic mail are also applicable to SMS, MMS and similar applications. (AM 30) (57) The measures necessary for the (57) The measures necessary for the implementation of Directive 2002/22/EC i implementation of Directives 2002/22/EC i

ANNEX 1 DG C II B LIMITE EN

(Universal Service Directive) should be and 2002/58/EC should be adopted in adopted in accordance with Council accordance with Council Decision Decision 1999/468/EC i of 28 June 1999 1999/468/EC of 28 June 1999 laying down laying down the procedures for the the procedures for the exercise of exercise of implementing powers implementing powers conferred on the conferred on the Commission Commission. (AM 31) (57a) The Commission should, if and when a new legal basis is available, present to the European Parliament and to the Council a new legislative proposal on privacy and data security in electronic communications, based on such new legal basis. (AM 32) (58) In particular, the Commission (58) In particular, the Commission should should be empowered to adapt the be empowered to adopt implementing Annexes to technical progress or changes measures on tariff transparency, in market demand. Since those measures minimum quality of service are of general scope and are designed to requirements, effective implementation amend non-essential elements of Directive of “112” services, effective access to 2002/22/EC (Universal Service Directive) numbers and services, and improvement by supplementing it with new nonof accessibility by disabled end-users, as essential elements, they must be adopted in well as amendments to adapt the Annexes accordance with the regulatory procedure to technical progress or changes in market with scrutiny provided for in Article 5a of demand. It should also be empowered to Decision 1999/468/EC i. adopt implementing measures concerning information and notification requirements as well as cross-border cooperation. Since those measures are of general scope and are designed to amend non-essential elements of Directive 2002/22/EC i (Universal Service Directive)by supplementing it with new non-essential elements, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC i. Given that the conduct of the regulatory procedure with scrutiny within the normal time limits could, in certain exceptional situations, impede the timely

ANNEX 1 DG C II B LIMITE EN

adoption of implementing measures, the European Parliament, the Council and the Commission should act speedily in order to ensure the timely adoption of those measures. (AM 33)

(60) In accordance with point 34 of the (60) In accordance with point 34 of the

Interinstitutional Agreement on better Interinstitutional agreement on better lawlaw-making

2 , Member States are making, Member States are encouraged to

encouraged to draw up, for themselves and should draw up, for themselves and in the in the interests of the Community, their interest of the Community, their own own tables illustrating, as far as possible, tables illustrating, as far as possible, the the correlation between Directives correlation between this Directive and the 2002/22/EC i (Universal Service Directive) transposition measures, and to make them and 2002/58/EC (Directive on privacy and public. (AM 34) electronic communications) and the transposition measures, and to make them public, Article 1 Subject-matter and scope 3. The provisions of this 3. The provisions of this Directive Keep common position. Directive concerning end-users' rights concerning end-users' rights shall apply shall apply without prejudice to without prejudice to Community rules on Community rules on consumer protection, consumer protection, in particular in particular Directives 93/13/EEC i and Directives 93/13/EEC i, 97/7/EC i and 97/7/EC, and national rules in conformity 2005/29/EC, and national rules in with Community law. conformity with Community law. (AM 35) Article 2 Definitions (e) Deleted (ea) "Traffic management policies" means the procedures put in place by the provider of a public electronic communications service or network in order to measure and control traffic on a network link so as to avoid filling the link to capacity or overfilling the link, which might result in network congestion and poor performance. (AM

7354/09 EV/ek 23

ANNEX 1 DG C II B LIMITE EN

124)

New Recital 22a: Traffic management policies should be defined for the purposes of disclosure under this Directive. The practices embodied in them are fully subject to competition scrutiny. (AM 108)

Article 4

Provision of access at a fixed location and provision of telephone services 3. Member States shall ensure that all 3. Member States shall ensure that all 3. Member States shall ensure that all reasonable requests for the provision of a reasonable requests for provision of a reasonable requests for the provision of a publicly available telephone service over publicly available telephone service over publicly available telephone service over the network connection referred to in the network connection referred to in the network connection referred to in paragraph 1 that allows for originating and paragraph 1, that allows for allowing paragraph 1 that allows for allowing for receiving of national and international originating and receiving of national and originating and receiving of national and calls are met by at least one undertaking. international calls and calls to emergency international calls are met by at least one

services via the number “112” as well as undertaking via any other national emergency number, are met by at least one undertaking. (AM 36)

Article 6

Public pay telephones Public pay telephones and other Keep common position telecommunication access points (AM

• 37) 

  Council had made no changes to this 1. Member States shall ensure that national Keep common position Article. regulatory authorities can impose

obligations on undertakings in order to ensure that public pay telephones or other telecommunication access points are provided to meet the reasonable needs of end-users in terms of the geographical coverage, the number of telephones or other telecommunications access points, accessibility of such telephones to disabled users and the quality of services. (AM 38)

Article 7

Measures for disabled end-users 1. Unless requirements have been 1. Member States shall, unless 1. Unless requirements have been

ANNEX 1 DG C II B LIMITE EN

specified under Chapter IV which achieve requirements have been specified under specified under Chapter IV which achieve the equivalent effect, Member States shall Chapter IV which achieve the equivalent the equivalent effect, Member States shall take specific measures to ensure access to, effect, take specific measures to ensure take specific measures to ensure access to, and affordability of, the services identified access to, and affordability of, the services and affordability of, the services identified in Article 4(3) and Article 5 for disabled identified in Articles 4(3) and 5 for in Article 4(3) and Article 5 for disabled end-users which is comparable to that disabled end-users comparable equivalent end-users which is comparable equivalent enjoyed by other end-users. to that enjoyed by other end-users. in functionality to that enjoyed by other Member States may oblige national Member States may oblige national end-users. Member States may oblige regulatory authorities to assess the general regulatory authorities to assess the general national regulatory authorities to assess the need and the specific requirements, need and the specific requirements, general need and the specific including the extent and concrete form of including the extent and concrete form of requirements, including the extent and such specific measures for disabled endsuch specific measures for disabled endconcrete form of such specific measures users. users. (AM 39) for disabled end-users. 3. In taking the measures referred to 3. In taking the measures referred to above, Member States shall encourage above, Member States shall encourage compliance with the relevant standards compliance with the relevant standards or specifications published in or specifications published in accordance with Articles 17, 18 and 19 accordance with Articles 17, 18 [and 19] of Directive 2002/21/EC i (Framework of Directive 2002/21/EC i (Framework Directive). (AM 40) Directive). Article 10 Control of expenditure Council did not change this Article. 2. Member States shall ensure that Keep common position designated undertakings with obligations under Articles 4, 5, 6, 7 and 9(2) offering telecommunication services as defined in Article 2 of Directive 2002/21/EC i (Framework Directive) provide the specific facilities and services set out in Annex I, Part A of this Directive, in order that subscribers can monitor and control expenditure and avoid unwarranted disconnection of service. (AM 41) Article 20 Contracts

ANNEX 1 DG C II B LIMITE EN

• 1. 

  Member States shall ensure that, when 1. Member States shall ensure that, when subscribing to services providing subscribing to services providing connection to a public communications connection to a public communications network and/or publicly available network and/or publicly available electronic communications services, electronic communications services, consumers, and other end-users so consumers, and other end-users so requesting, have a right to a contract with requesting, have a right to a contract with an undertaking or undertakings providing an undertaking or undertakings providing such connection and/or services. The such connection and/or services. The contract shall specify in a clear, contract shall specify in a clear, comprehensive and easily accessible form comprehensive and easily accessible form at least: at least:

(a) the identity and address of the supplier; (a) the identity and address of the supplier (a) the identity and address of the supplier undertaking; (AM 42) undertaking

(b) the services provided, including in (b) the services provided, including in (b) the services provided, including in particular, particular, particular

• - 

  whether or not access to emergency - whether or not access to emergency services and caller location information services and caller location information are being provided and/or any are being provided and/or any limitations limitations for provision of emergency for provision of emergency services under services under Article 26; Article 26.

• - 

  information on the provider's traffic - information on the provider's traffic - information on any limitations management policies, management policies any other regarding access to and/or use of services limitations regarding access to and/or and applications, where allowed under use of services and applications, where national law, including information on allowed under national law, any traffic management policies and on how these may impact on the delivery of - the minimum service quality levels the service. offered, namely the time for the initial connection and, where appropriate, other New recital quality of service parameters, as defined Traffic management policies are the by the national regulatory authorities, procedures put in place by the provider in order to measure and control traffic on a - the types of maintenance service offered network link so as to avoid filling the link and customer support services provided, as to capacity or overfilling the link, which well as the means of contacting these would result in network congestion and

ANNEX 1 DG C II B LIMITE EN

services, poor performance.

• - 

  any restrictions imposed by the provider These policies are deemed appropriate on the use of terminal equipment supplied; and reasonable as long as they are not anti-competitive.

  • - 

    the minimum service quality levels - the minimum service quality levels offered, namely the time for the initial offered, namely the time for the initial connection and, where appropriate, other connection and, where appropriate, other quality of service parameters, as defined quality of service parameters, as defined by the national regulatory authorities, by the national regulatory authorities,

  • - 

    information on any traffic management policies and on how these may impact on service quality,

  • - 

    the types of maintenance service offered - the types of maintenance service offered and customer support services provided, as and customer support services provided, well as the means of contacting these as well as the means of contacting these services, services,

  • - 

    any restrictions imposed by the provider - any restrictions imposed by the provider on the use of terminal equipment supplied; on the use of terminal equipment supplied;

  (MODIFIED AM 43 - MA 128)

(e) the duration of the contract and the (e) the duration of the contract and the conditions for renewal and termination of conditions for renewal and termination of services and of the contract, including: services and of the contract, including:

• - 

  conditions regarding minimum contract - any conditions regarding minimum - any minimum usage required to duration related to promotions, usage required to benefit from benefit from promotional terms, promotional terms contract duration - any charges related to portability of related to promotions, - any charges related to portability of numbers and other identifiers, numbers and other identifiers, (AM 44) - any charges due on termination of the - any charges due on termination of the contract, including cost recovery with contract, including cost recovery with

ANNEX 1 DG C II B LIMITE EN

respect to terminal equipment; respect to terminal equipment; (h) the type of action that might be taken (h) the type of action that might be taken Keep common position by the undertaking in reaction to security by the undertaking providing connection to or integrity incidents or threats and a public communications network and/or vulnerabilities. publicly available electronic communications services in reaction to security or integrity incidents or threats and vulnerabilities, as well as any compensation arrangements which apply if security or integrity incidents occur. (AM 45)

• 2. 

  Member States shall ensure that where Deleted EP AM acceptable (see 20.1.b 1 st indent).

contracts are concluded between (AM 46) subscribers and undertakings providing electronic communications services that allow voice communication, subscribers are clearly informed as to whether or not access to emergency services and caller location information is provided. Providers of electronic communications services shall ensure that customers are clearly informed in advance of the conclusion of a contract of any limitation on access to emergency services, and of any change to access to emergency services. Article 21 Transparency and publication of information 1.´Member States shall ensure that 1. Member States shall ensure that national 1. Member States shall ensure that national national regulatory authorities are able to regulatory authorities are able to oblige regulatory authorities are able to oblige oblige undertakings providing electronic undertakings providing connection to a undertakings providing public electronic communications networks and/or services public electronic communications communications networks and/or publicly to publish transparent, comparable, networks and/or electronic available electronic communications adequate and up-to-date information, as set communications services publish services publish transparent, comparable, out in Annex II, on applicable prices and transparent, comparable, adequate and upadequate and up-to-date information as set tariffs and standard terms and conditions to-date information as set out in Annex II out in Annex II on applicable prices and in respect of access to, and use of, services on applicable prices and tariffs, any tariffs, any charges due on termination provided by them to end-users and charges due on termination of a of a contract and information on consumers. National regulatory authorities contract and information on standard standard terms and conditions, in respect may specify additional requirements terms and conditions, in respect of access of access and use of their services regarding the form in which such and use of their services provided to endprovided to end-users and consumers in

ANNEX 1 DG C II B LIMITE EN

information is published to ensure users and consumers in accordance with accordance with Annex II. Such transparency, comparability, clarity and Annex II. Such information shall be information shall be published in a accessibility for the benefit of consumers. published in a clear, comprehensive and clear, comprehensive and easily easily accessible form. National accessible form. National regulatory regulatory authorities may specify authorities may specify additional additional requirements regarding the form requirements regarding the form in which in which such information is to be such information is to be published to published to ensure transparency, ensure transparency, comparability, clarity comparability, clarity and accessibility for and accessibility for the benefit of the benefit of consumers. (AM 47) consumers. 2. National regulatory authorities shall 2. National regulatory authorities shall 2. National regulatory authorities shall encourage the provision of comparable encourage the provision of comparable encourage the provision of comparable information to enable end-users and information to enable end-users and information to enable end-users and consumers to make an independent consumers to make an independent consumers to make an independent evaluation of the cost of alternative usage evaluation of the cost of alternative usage evaluation of the cost of alternative usage patterns, for instance by means of patterns, for instance by means of patterns, for instance by means of interactive guides or similar techniques. interactive guides or similar techniques. interactive guides or similar techniques. Member States shall ensure that national Member States shall ensure that national Member States shall ensure that national regulatory authorities may make such regulatory authorities make such guides or regulatory authorities are able to make guides or techniques available, in techniques available in particular where such guides or techniques available in particular where they are not available, on themselves or through third party particular where themselves or through the market free of charge or at a procurement, when they are not available third party procurement, where they are reasonable price. Third parties shall have a on the market free of charge or at a not available on the market free of charge right to use, free of charge, the information reasonable price. Third parties shall have a or at a reasonable price. Third parties shall published by undertakings providing right to use free of charge the information have a right to use free of charge the electronic communications networks published by undertakings providing information published by undertakings and/or services for the purposes of selling electronic communications networks providing public electronic or making available such guides or and/or services, for the purposes of selling communications networks and/or publicly techniques. or making available such interactive available elcetronic communications guides or similar techniques. services, for the purposes of selling or making available such interactive guides or similar techniques. 3. Member States shall ensure that national 3. Member States shall ensure that national 3. Member States shall ensure that regulatory authorities are able to oblige regulatory authorities are able to oblige national regulatory authorities are able to undertakings providing electronic undertakings providing connection to a oblige undertakings providing public communications services to inter alia: public electronic communications electronic communications network network and/or electronic and/or publicly available electronic communications services to inter alia: communications services to inter alia:

(a) provide applicable tariff information to (a) provide applicable tariff information to (a) provide applicable tariff information to

ANNEX 1 DG C II B LIMITE EN

subscribers regarding any number or subscribers regarding any number or subscribers regarding any number or service subject to particular pricing service subject to particular pricing service subject to particular pricing conditions; with respect to individual conditions; with respect to individual conditions; with respect to individual categories of services, national regulatory categories of services, national regulatory categories of services, national regulatory authorities may require such information authorities may require such information authorities may require such information to be provided immediately prior to to be provided immediately prior to to be provided immediately prior to connecting the call; connecting the call; connecting the call;

(b) regularly remind subscribers of any lack of reliable access to emergency services or caller location information in the service they have subscribed to;

(b) inform subscribers of any change to the provider's traffic management policies; (c) inform subscribers of any change to the (b) inform subscribers of any change to provider's traffic management policies the limitations regarding access to and/or limitations regarding access to and/or use of services and applications, where use of services and applications, where allowed under national law, including allowed by national law, information on any traffic management policies (ca) information on any traffic (c) inform subscribers of their right to management policies and on how these determine whether or not to include their may impact on service quality, personal data in a directory, and of the types of data concerned, in accordance (d) inform subscribers of their right to (c) inform subscribers of their right to with Article 12 of Directive 2002/58/EC i determine whether or not to include their determine whether or not to include their (Directive on privacy and electronic personal data in a directory, and of the personal data in a directory, and of the communications); and types of data concerned, in accordance types of data concerned, in accordance with Article 12 of Directive 2002/58/EC i with Article 12 of Directive 2002/58/EC i (d) regularly inform disabled subscribers (Directive on privacy and electronic (Directive on privacy and electronic of details of products and services communications); and communications); and designed for them. (e) regularly inform disabled subscribers (d) regularly inform disabled subscribers If deemed appropriate, national regulatory of details of products and services of details of products and services authorities may promote self- or designed for them. designed for them. co-regulatory measures prior to imposing any obligation. If deemed appropriate, national regulatory If deemed appropriate, national regulatory authorities may promote self- or authorities may promote self- or co-regulatory measures prior to imposing co-regulatory measures prior to imposing any obligation. any obligation.

ANNEX 1 DG C II B LIMITE EN

(MODIFIED AM 49 - AM 130) 4. Member States may require that 4. Member States may require that Keep common position undertakings referred to in paragraph 3 undertakings referred to in paragraph 3 See in relation to modified recital 24 distribute public interest information free distribute public interest information free of charge to existing and new subscribers, of charge to existing and new subscribers, where appropriate. In such a case, that where appropriate, through the same information shall be provided by the means as those ordinarily used by relevant public authorities in a undertakings for their communications standardised format and shall, inter alia, with subscribers and free of charge. In cover the following topics: such a case, that information shall be (a) the most common uses of electronic provided by the relevant public authorities communications services to engage in in a standardised format and shall, inter unlawful activities or to disseminate alia, cover the following topics: harmful content, particularly where it may (a) the most common uses of electronic prejudice respect for the rights and communications services to engage in freedoms of others, including unlawful activities or to disseminate infringements of copyright and related harmful content, particularly where it may rights, and their legal consequences; and prejudice respect for the rights and (b) the means of protection against risks to freedoms of others, including personal security, privacy and personal infringements of copyright and related data when using electronic rights, and their legal consequences; and communications services. (b) the means of protection against risks to

personal security, privacy and personal data when using electronic communications services.

 (MODIFIED AM 50 - AM 134) Article 22

Quality of service 1. Member States shall ensure that national 1. Member States shall ensure that national 1. Member States shall ensure that national regulatory authorities are, after taking regulatory authorities are, after taking regulatory authorities are, after taking account of the views of interested parties, account of the views of interested parties, account of the views of interested parties, able to require undertakings that provide able to require undertakings that provide able to require undertakings that provide publicly available electronic publicly available electronic publicly available electronic communications networks and/or services communications networks and/or services communications networks and/or services to publish comparable, adequate and upto publish comparable, adequate and upto publish comparable, adequate and upto-date information for end-users on the to-date information for end-users on the to-date information for end-users on the quality of their services and measures quality of their services and measures quality of their services and measures taken to ensure comparable access for taken to ensure comparable equivalent taken to ensure comparable equivalent disabled end-users. That information shall, access for disabled end-users. That access in functionality for disabled

ANNEX 1 DG C II B LIMITE EN

on request, be supplied to the national information shall, on request, be supplied end-users. That information shall, on regulatory authority in advance of its to the national regulatory authority in request, be supplied to the national publication. advance of its publication. (AM 51) regulatory authority in advance of its publication. 2. National regulatory authorities may 2. National regulatory authorities may 2. National regulatory authorities may specify, inter alia, the quality of service specify, inter alia, the quality of service specify, inter alia, the quality of service parameters to be measured and the content, parameters to be measured and the content, parameters to be measured and the content, form and manner of the information to be form and manner of the information to be form and manner of the information to be published, including possible quality published, including possible quality published, including possible quality certification mechanisms, in order to certification mechanisms, in order to certification mechanisms, in order to ensure that end-users have access to ensure that end-users, including disabled ensure that end-users, including disabled comprehensive, comparable, reliable and end-users, have access to comprehensive, end-users, have access to comprehensive, user-friendly information. Where comparable, reliable and user-friendly comparable, reliable and user-friendly appropriate, the parameters, definitions information. Where appropriate, the information. Where appropriate, the and measurement methods set out in parameters, definitions and measurement parameters, definitions and measurement Annex III may be used. methods set out in Annex III may be used. methods set out in Annex III may be used (AM 52) 3. In order to prevent the degradation of 3. In order to prevent the degradation of 3. In order to prevent the degradation of service and the hindering or slowing down service and the hindering or slowing down service and the hindering or slowing down of traffic over networks, Member States of traffic over networks, Member States of traffic over networks, Member States shall ensure that national regulatory shall ensure that national regulatory shall ensure that national regulatory authorities are able to set minimum quality authorities are able to set minimum quality authorities are able to set minimum quality of service requirements on an undertaking of service requirements on an undertaking of service requirements on an undertaking or undertakings providing public or undertakings providing public or undertakings providing public communications networks. communications networks. communications networks.

The Commission may, having examined The Commission may, having examined such requirements and consulted the such requirements and consulted the Body of European Regulators in GERT adopt guidelines in that regard if Telecom (BERT), adopt technical it considers that the requirements may implementing measures in that regard if create a barrier to the internal market. it considers that the requirements may create a barrier to the internal market. Those measures designed to amend nonessential elements of this Directive by supplementing it shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 37(2). (AM 53)

ANNEX 1 DG C II B LIMITE EN

Article 23a Article 23a Article 23a Ensuring comparable access and choice Ensuring comparable equivalent access Ensuring comparable equivalent access in

for disabled end-users and choice for disabled end-users functionality and choice for disabled endusers

• 1. 

  Member States shall enable relevant 1. Member States shall enable relevant national authorities to specify, where national authorities to specify, where 1. Member States shall enable relevant appropriate, requirements to be met by appropriate, requirements to be met by national authorities to specify, where undertakings providing publicly available undertakings providing publicly available appropriate, requirements to be met by electronic communication services to electronic communication services to undertakings providing publicly available ensure that disabled end-users: ensure that disabled end-users: electronic communication services to ensure that disabled end-users: (a) have access to electronic (a) can have access to electronic communications services comparable to communications services comparable (a) can have access to electronic that enjoyed by the majority of end-users; equivalent to that enjoyed by the majority communications services comparable and of end-users; and equivalent in functionality to that enjoyed by the majority of end-users; and (b) benefit from the choice of undertakings (b) benefit from the choice of undertakings and services available to the majority of and services available to the majority of (b) benefit from the choice of undertakings end-users. end-users. and services available to the majority of (AM 54) end-users.

  Article 25 Telephone directory enquiry services Telephone directory enquiry services Keep common position.

   (AM 55) 1. Member States shall ensure that 1. Member States shall ensure that all end Keep common position. subscribers to publicly available telephone users of electronic communications services have the right to have an entry in networks and subscribers to publicly the publicly available directory referred to available telephone services have the right in Article 5(1)(a) and to have their to have an entry in the publicly available information made available to providers of directory referred to in Article 5(1)(a) and directory enquiry services and/or to have their information made available to directories in accordance with paragraph 2 providers of directory enquiry services and of this Article. directories in accordance with the

  provisions of paragraph 2 of this Article. (AM 56)

• 3. 

  Member States shall ensure that all end 3. Member States shall ensure that all end Keep common position. users provided with a publicly available users of an electronic communications telephone service can access directory provided with a publicly available enquiry services. National regulatory telephone service can access directory authorities shall be able to impose enquiry services and that operators

ANNEX 1 DG C II B LIMITE EN

obligations and conditions on undertakings controlling access to such services that control access of end-users for the provide it on terms which are fair, costprovision of directory enquiry services in oriented, National regulatory authorities accordance with the provisions of Article 5 shall be able to impose obligations and of Directive 2002/19/EC i (Access conditions on undertakings that control Directive). Such obligations and access of end-users for the provision of conditions shall be objective, directory enquiry services in accordance proportionate, non-discriminatory and with the provisions of Article 5 of transparent. Directive 2002/19/EC i (Access Directive). Such obligations and conditions shall be objective, proportionate, nondiscriminatory and transparent. (AM 57) 4. Member States shall not maintain any 4. Member States shall not maintain any Keep common position. regulatory restrictions which prevent regulatory restrictions which prevent end-users in one Member State from end-users in one Member State from accessing directly the directory enquiry accessing directly the directory enquiry service in another Member State by voice service in another Member State by voice call or SMS, and shall take measures to call or SMS, and shall take measures to ensure such access in accordance with ensure such access in accordance with Article 28. Article 28. (AM 58) Article 26 Emergency services and the single European emergency call number 2. Member States shall ensure that 2. Member States, in cooperation with Keep common position. undertakings providing end-users with an national regulatory authorities, electronic communications service for emergency services and providers, shall originating national calls to a number or ensure that undertakings providing numbers in a national telephone end-users with an electronic numbering plan provide access to communications service for originating emergency services. national and/or international calls through to a number or numbers in a national or international telephone numbering plan provide reliable access to emergency services. (AM 59) 4. Member States shall ensure that access 4. Member States shall ensure that access 4. Member States shall ensure that access for disabled end-users to emergency for disabled end-users have access to for disabled end-users to emergency services is comparable to that enjoyed by emergency services is comparable services is comparable equivalent in other end-users. Measures taken to ensure equivalent to that enjoyed by other endfunctionality to that enjoyed by other that disabled end-users are able to access users. The measures taken to ensure that end-users. Measures taken to ensure that emergency services whilst travelling in disabled end-users are able to access disabled end-users are able to access other Member States shall be based to the emergency services whilst while travelling emergency services whilst travelling in

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greatest extent possible on in other Member States shall be based to other Member States shall be based to the European standards or specifications the greatest extent possible on include greatest extent possible on published in accordance with the ensuring compliance with relevant European standards or specifications provisions of Article 17 of European standards or specifications published in accordance with the Directive 2002/21/EC i (Framework published in accordance with the provisions of Article 17 of Directive), and they shall not prevent provisions of Article 17 of Directive Directive 2002/21/EC i (Framework Member States from adopting additional 2002/21/EC (Framework Directive) and Directive), and they shall not prevent requirements in order to pursue the they shall not prevent Member States from Member States from adopting additional objectives set out in this Article. adopting additional requirements in order requirements in order to pursue the to pursue the objectives set out in this objectives set out in this Article. Article. (AM 60) 5. Member States shall ensure that, to the 5. Member States shall ensure that, to the 5. Member States shall ensure that, to the extent technically feasible, undertakings extent technically feasible, undertakings extent technically feasible, undertakings concerned make caller location concerned make caller location concerned make caller location information available free of charge to the information available free of charge to the information available free of charge to the authority handling emergency calls as soon authority handling emergency calls as soon authority handling emergency calls as soon as the call reaches that authority. This as the call reaches that authority. This as the call reaches that authority. This applies to all calls to the single European applies to all calls to the single European applies to all calls to the single European emergency call number "112". emergency call number "112". emergency call number "112". Member States may extend this obligation Member States may extend this obligation Member States may extend this obligation to cover calls to national emergency to cover calls to national emergency to cover calls to national emergency numbers. Where undertakings referred to numbers. Where undertakings referred to numbers. Where undertakings referred to in paragraph 2 wish to claim that providing in paragraph 2 wish to claim that providing in paragraph 2 wish to claim that providing caller location information is not caller location information is not caller location information is not technically feasible, they shall bear the technically feasible, they shall bear the technically feasible, they shall bear the burden of proving this. burden of proving this to the competent burden of proving this to the competent national authority. (AM 61) national authority. 7a. In order to ensure the effective 7a. In order to ensure the effective implementation of “112” services in the access to “112” services in the Member Member States, the Commission, having States, the Commission, having consulted BERT, may adopt technical consulted the GERT, may adopt implementing measures. technical implementing measures.

Those measures, designed to amend Those measures, designed to amend non-essential elements of this Directive non-essential elements of this Directive by supplementing it, shall be adopted in by supplementing it, shall be adopted in accordance with the regulatory accordance with the regulatory procedure with scrutiny referred to in procedure with scrutiny referred to in Article 37(2). (AM 62) Article 37(2).

Article 27

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European telephone access codes 1a. A legal entity, established within the Keep common position Community and designated by the Commission, shall have sole responsibility for the management, including number assignment, and promotion of the European Telephony Numbering Space. The Commission shall lay down the necessary implementing rules. (AM 63)

• 2. 

  Member States shall ensure that all 3. Member States shall ensure that all 3. Member States shall ensure that all undertakings that provide publicly undertakings that provide publicly undertakings that provide publicly available telephone services allowing available telephone services allowing available telephone services handle all international calls handle all calls to and international calls handle all calls to and calls to and from the ETNS, at rates from the European Telephone Numbering from the European Telephone Numbering similar to those applied for calls to and Space (ETNS), without prejudice to the Space ETNS, without prejudice to the from other Member States. need for undertakings to recover their need for undertakings to recover their costs. costs. at rates that do not exceed the maximum rate they apply for calls to and from other Member States. (AM 64) Article 27a

Harmonised numbers for harmonised services of social value, including the missing children hotline number 2. Member States shall facilitate access by 2. Member States shall facilitate access by Keep common position disabled end-users to services provided ensure that disabled end-users are able to

under the "116" numbering range. access services provided under the '116' Measures taken to facilitate disabled numbering range. Measures taken to end-users' access to such services whilst facilitate In order to ensure that disabled travelling in other Member States may end-users are able to access to such include ensuring compliance with relevant services whilst while travelling in other standards or specifications published in Member States may, measures taken accordance with the provisions of shall include ensuring compliance with Article 17 of Directive 2002/21/EC i relevant standards or specifications (Framework Directive). published in accordance with the provisions of Article 17 of Directive 2002/21/EC i (Framework Directive). (AM 65 -part I) 4. Member States shall, in addition to 4. Member States shall, in addition to 4. Member States shall, in addition to measures of general applicability to all measures of general applicability to all measures of general applicability to all numbers in the "116" numbering range numbers in the "116" numbering range numbers in the "116" numbering range taken pursuant to paragraphs 1, 2, and 3, taken pursuant to paragraphs 1, 2, and 3, taken pursuant to paragraphs 1, 2, and 3,

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facilitate citizens' access to a service facilitate ensure citizens' access to a facilitate citizens' access to a service operating a hotline to report cases of service operating a hotline to report cases operating a hotline to report cases of missing children. The hotline shall be of missing children. The hotline shall be missing children. The hotline shall be available on the number 116000. available on the number 116000. (AM 65 - available on the number 116000. part II) 5. In order to ensure the effective deleted implementation of the '116' numbering range, in particular the missing children hotline number 116000, in the Member States, including access for disabled end-users when travelling in other Member States, the Commission, having consulted BERT, may adopt technical implementing measures.

Those 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 37(2). (AM 65 - part III)

Article 28 Access to numbers and services 1. Member States shall ensure that, where 1. Member States shall ensure that, where 1. Member States shall ensure that, where technically and economically feasible, and technically and economically feasible, and technically and economically feasible, and except where a called subscriber has except where a called subscriber has except where a called subscriber has chosen for commercial reasons to limit chosen for commercial reasons to limit chosen for commercial reasons to limit access by calling parties located in specific access by calling parties located in specific access by calling parties located in specific geographical areas, relevant national geographical areas, relevant national geographical areas, relevant national authorities take all necessary steps to authorities take all necessary steps to authorities take all necessary steps to ensure that end-users are able to: ensure that end-users are able to: ensure that end-users are able to:

(a) access and use services using (a) access and use services using (a) access and use services using non-geographic numbers within the non-geographic numbers within the non-geographic numbers within the Community; and Community; and Community; and

(b) access all numbers provided in the (b) access all numbers provided in the (b) access all numbers provided in the Community, including those in the Community, regardless of the technology Community, regardless of the technology national numbering plans of and devices used by the operator, and devices used by the operator, Member States, those from the ETNS and including those in the national numbering including those in the national numbering

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Universal International Freephone plans of Member States, those from the plans of Member States, those from the Numbers (UIFN). ETNS and Universal International ETNS and Universal International Freephone Numbers (UIFN); and Freephone Numbers (UIFN).

(c) access and use services through text telephones, video telephones and products which help to enable elderly people or people with disabilities to communicate, at least as regards emergency calls. (AM 66) 2. In order to ensure that end users have Keep common position effective access to numbers and services in the Community, the Commission may adopt technical implementing measures. Those 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 37(2).

Any such technical implementing measure may be periodically reviewed to take account of market and technological developments. (AM 67)

Article 29 Provision of additional facilities 3. Without prejudice to Article 10(2), 3. Without prejudice to Article 10(2), 1. Without prejudice to Article 10(2), Member States may impose the obligations Member States may impose the obligations Member States shall ensure that national set out in points (a) and (e) of Part A of set out in points (a) and (e) of Part A of in regulatory authorities are able to require Annex I as a general requirement on all Annex I, Part A, point (e), concerning all undertakings that provide publicly undertakings providing access to public disconnection as a general requirement on available telephone services and/or access communications networks and/or publicly all undertakings providing access to public to public communications networks to available telephone services. communications networks and/or publicly make available all or part of the

available telephone services. (AM 68) additional facilities listed in Annex I, Part B, subject to technical feasibility and

economic viability and all or part of the additional facilities listed in Annex I, Part A.

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• 2. 

  A Member State may decide to waive paragraph 1 in all or part of its territory if it considers, after taking into account the veiws of interested parties, that there is sufficient access to these facilities.

  Delete para 3. Article 30

Facilitating change of provider 2. National regulatory authorities shall 2. National regulatory authorities shall 2. National regulatory authorities shall ensure that pricing between operators ensure that pricing between operators ensure that pricing between operators and/or service providers related to the and/or service providers related to the and/or service providers related to the provision of number portability is costprovision of number portability is costprovision of number portability is costoriented, and that direct charges to oriented, and that direct charges to oriented, and that direct charges to subscribers, if any, do not act as a subscribers, if any, do not act as a subscribers, if any, do not act as a disincentive for subscribers against disincentive for subscribers against disincentive for subscribers against changing service provider. changing them to change service changing them to change service

provider. (AM 69) provider. 4. Porting of numbers and their subsequent 4. Porting of numbers and their subsequent 4. Porting of numbers and their subsequent activation shall be carried out within the activation shall be executed within the activation shall be carried out within the shortest possible time. In any case, the shortest possible delay. In any case, the shortest possible time. In any case, the time taken for the technical transfer of the time taken for the technical transfer of time taken for the technical transfer of the number shall not exceed one day. subscribers wishing to port a number to number shall not exceed one day.

a new undertaking shall have the number Competent national authorities may shall not exceed activated within one Competent national authorities may establish the global process of porting of working day from their initial request. establish the global process of porting of numbers, taking into account national numbers, taking into account national provisions on contracts and technical Competent national authorities may provisions on contracts and technical feasibility, including where necessary establish the global process of porting of feasibility, including where necessary measures ensuring that subscribers are numbers, taking into account national measures ensuring that subscribers are protected throughout the switching provisions on contracts and technical protected throughout the switching process process. feasibility, including where necessary and not switched against their will.

measures ensuring that subscribers are Member States shall ensure that protected throughout the switching process appropriate sanctions on undertakings and not switched against their will. are provided for, including an National regulatory authorities shall be obligation to compensate subscribers in able to impose appropriate sanctions on case of delay in porting or abuse of undertakings, including an obligation to porting by them or on their behalf. compensate subscribers in case of delay

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in porting or abuse of porting by them Modified recital: or on their behalf. (AM 70) (37)In order to take full advantage of the competitive environment, consumers should be able to make informed choices and to change providers when it is in their interests. It is essential to ensure that they can do so without being hindered by legal, technical or practical obstacles, including contractual conditions, procedures, charges and so on. This does not preclude the imposition of reasonable minimum contractual periods in consumer contracts. Number portability is a key facilitator of consumer choice and effective competition in competitive markets for electronic communications. It should be implemented with the minimum delay, so that the availability of the number is ensured throughout the process to the maximum extent possible. In any case, the technical transfer of the number should not exceed one day.

Experience in certain Member States has shown that there is a risk of consumers being switched without consent. While that is a matter that should primarily be addressed by lawenforcement authorities, national regulatory authorities may amend the one day period for particular services and impose minimum proportionate measures regarding the switching process to minimise such risks, or where necessary for reasons of technical feasibility, without making the process less attractive for consumers.

Competent national authorities may

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establish the global process of the porting of numbers, taking into account national provisions on contracts and technical feasibility, and, where necessary, appropriate measures ensuring that consumers are protected throughout the switching process. This protection may include the limitation of porting abuse and the setting of speedy corrective action.

• 5. 

  Member States shall ensure that 5. Member States shall ensure that 5. Member States shall ensure that contracts concluded between users and contracts concluded between users and contracts concluded between users undertakings providing electronic undertakings providing electronic consumers and undertakings providing communications services do not mandate communications services do not mandate electronic communications services do not an initial commitment period that exceeds an initial commitment period that exceeds mandate an initial commitment period that 24 months. 24 months. They shall also ensure that exceeds 24 months. Member States shall undertakings offer users the possibility also ensure that undertakings offer to subscribe to a contract with a users the possibility to subscribe to a maximum duration of 12 months for all contract with a maximum duration of types of service and terminal 12 months. equipment. (AM 71) Article 32 a Keep common position Access to content, services and applications

  Member States shall ensure that any restrictions on the rights of users to access content, services and applications, if such restrictions are necessary, are implemented by appropriate measures, in accordance with the principles of proportionality, effectiveness and dissuasiveness. Those measures shall not have the effect of hindering the development of the information society, in compliance with Directive 2000/31/EC i 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

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Internal Market (Directive on electronic commerce)*, and shall not conflict with the fundamental rights of citizens, including the right to privacy and the right to due process. (AM 72)

Article 33 Consultation with interested parties

• 4. 

  Without prejudice to the application Keep common position of Directive 1999/5/EC i and in particular of disability requirements pursuant to its Article 3(3)(f), and in order to improve accessibility to electronic communications services and equipment by disabled end-users, the Commission may take the appropriate technical implementing measures, following a public consultation and after having consulted BERT. Those 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 37(2). (AM 73)

  Article 34 Out-of-court dispute resolution 1. Member States shall ensure that 1. Member States shall ensure that 1. Member States shall ensure that transparent, simple and inexpensive transparent, non-discriminatory, simple transparent, non-discriminatory, simple out-of-court procedures are available for and inexpensive out-of-court procedures and inexpensive out-of-court procedures dealing with unresolved disputes between are available for dealing with unresolved are available for dealing with unresolved consumers and undertakings providing disputes between consumers and disputes between consumers and electronic communications networks undertakings providing electronic undertakings providing electronic and/or services arising under this Directive communications networks and/or services communications networks and/or services and relating to the contractual conditions arising under this Directive and relating to arising under this Directive and relating to and/or performance of contracts the contractual conditions and/or the contractual conditions and/or concerning the supply of those networks performance of contracts concerning the performance of contracts concerning the and/or services. Member States shall adopt supply of those networks and/or services. supply of those networks and/or services. measures to ensure that such procedures Member States shall adopt measures to Member States shall adopt measures to enable disputes to be settled fairly and ensure that such procedures enable ensure that such procedures enable promptly and may, where warranted, adopt disputes to be settled fairly and promptly disputes to be settled fairly and promptly

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a system of reimbursement and/or and may, where warranted, adopt a system and may, where warranted, adopt a system compensation. Member States may extend of reimbursement and/or compensation. of reimbursement and/or compensation. these obligations to cover disputes Such procedures shall enable disputes to Such procedures shall enable disputes to involving other end-users. be settled impartially and shall not be settled impartially and shall not deprive the consumer of the legal deprive the consumer of the legal protection afforded by the national law. protection afforded by the national law. Member States may extend these Member States may extend these obligations to cover disputes involving obligations to cover disputes involving other end-users. other end-users.

Member States shall ensure that the bodies in charge of dealing with such disputes, which can be single points of contact, provide relevant information for statistical purposes to the Commission and the authorities.

With specific regard to the interaction of audiovisual and electronic communications, Member States shall encourage reliable out-of-court procedures. (AM 74)

Annexes I, II, III and VI shall be replaced Annexes I, II, III and VI shall be replaced by the text appearing in Annexes I and II by the text appearing in Annexes I and , II This amendment is a 'faute de frappe' to be to this Directive; and VI to this Directive; (AM 75) checked.

ANNEX I DESCRIPTION OF FACILITIES AND SERVICES REFERRED TO IN ARTICLE 10 (CONTROL OF EXPENDITURE), ARTICLE 29 (ADDITIONAL FACILITIES) AND ARTICLE 30 (FACILITATING CHANGE OF PROVIDER)

Part A Facilities and services referred to in Article 10 (a) Itemised billing (a) Itemised billing (a) Itemised billing

Member States are to ensure that national Member States are to ensure that national Member States are to ensure that national

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regulatory authorities, subject to the regulatory authorities, subject to the regulatory authorities, subject to the requirements of relevant legislation on the requirements of relevant legislation on the requirements of relevant legislation on the protection of personal data and privacy, protection of personal data and privacy, protection of personal data and privacy, may lay down the basic level of itemised may lay down the basic level of itemised may lay down the basic level of itemised bills which are to be provided by bills which are to be provided by bills which are to be provided by designated undertakings (as established in designated undertakings (as established in designated undertakings (as established in Article 8) to consumers free of charge in Article 8) to consumers end-users free of Article 8) to subscribers free of charge in order that they can: charge in order that they can: (AM 98) order that they can: (b) Selective barring for outgoing calls (b) Selective barring for outgoing calls (b) Selective barring for outgoing calls or premium SMS or MMS, free of charge or premium SMS or MMS, free of charge or premium SMS or MMS, or, where i.e. the facility whereby the i.e. the facility whereby the technically feasible, other kinds of subscriber can, on request to a designated subscriber can, on request to a designated similar applications free of charge, undertaking that provides telephone undertaking that provides telephone i.e. the facility whereby the services, bar outgoing calls or premium services, bar outgoing calls or premium subscriber can, on request to the a SMS or MMS of defined types or to SMS or MMS or other kind of designated undertaking that provides defined types of numbers free of charge. communication of defined types or to telephone services, bar outgoing calls or defined types of numbers free of charge. premium SMS or MMS or other kind of (AM 99) similar applications of defined types or to defined types of numbers free of charge. (e) Non payment of bills (e) Non payment of bills Keep common position.

Member States are to authorise specified Member States are to authorise specified measures, which are to be proportionate, measures, which are to be proportionate, non-discriminatory and published, to cover non-discriminatory and published, to cover non-payment of telephone bills issued by non-payment of telephone bills issued by undertakings designated in accordance undertakings of operators designated in with Article 8. These measures are to accordance with Article 8. These measures ensure that due warning of any consequent are to shall ensure that due warning of any service interruption or disconnection is consequent service interruption or given to the subscriber beforehand. Except disconnection is given to the subscriber in cases of fraud, persistent late payment beforehand. Except in cases of fraud, or non-payment, these measures are to persistent late payment or non-payment, ensure, as far as is technically feasible that these measures are to ensure, as far as is any service interruption is confined to the technically feasible that any service service concerned. Disconnection for interruption is confined to the service non-payment of bills should take place concerned. Disconnection for only after due warning is given to the non-payment of bills should take place subscriber. Member States may allow a only after due warning is given to the period of limited service prior to complete subscriber. Member States may allow a disconnection, during which only calls that period of limited service prior to complete

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do not incur a charge to the subscriber disconnection, during which only calls that

(e.g. "112" calls) are permitted. do not incur a charge to the subscriber

(e.g. "112" calls) are permitted. Access to

emergency services through “112” may

be blocked in case of repeated misuse by

the user. (AM 100)

(eb) Best advice

i.e. the facility whereby an undertaking

at least once a year clearly

communicates to subscribers who have

requested the facility and censented to

the undertaking retaiing the data

necessary to provide it, alternative

lower-cost tariffs, if available, on the

basis of usage patterns for the previous

twelve months. (MODIFIED AM 102-

AM 152)

(f) Cost control (f) Cost control

Member States shall ensure that i.e. the facility whereby undertakings

national regulatory authorities require offer other means, if so determined as

all undertakings providing electronic appropriate by national regulatory

communication services to offer means authorities, to control the costs of

for subscribers to control the costs of publicly available telephone services,

telecommunication services, including including free of charge alerts to

free of charge alerts to consumers in consumers in case of abnormal and

case of abnormal consumption patterns. excessive consumption patterns.

(AM 101)

Part B

Facilities referred to in Article 29

(c) Services in the event of theft Keep common position

Member States shall ensure that a

freephone number common to all

mobile telephony service providers is set

up for reporting the theft of a terminal

and immediately suspending the

services associated with the

subscription. It must also be possible for

disabled users to access this service.

Users must be regularly informed of the

existence of this number, which must be

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easy to remember. (AM 103) (d) Protection software Keep common position Member States shall ensure that national regulatory authorities are able to require operators to make available free of charge to their subscribers reliable, easy-to-use and freely and fully configurable protection and/or filtering software to prevent access by children or vulnerable persons to content unsuitable to them.

Any traffic monitoring data that this software may collect is for the use of the subscriber only. (AM 104)

ePRIVACY DIRECTIVE

Article 1

Scope and aim 1. This Directive provides for the 1. This Directive provides for the 1. This Directive provides for the harmonisation of the national provisions harmonisation of the national provisions of harmonisation of the national provisions of required to ensure an equivalent level of the Member States required to ensure an the Member States required to ensure an protection of fundamental rights and equivalent level of protection of equivalent level of protection of freedoms, and in particular the right to fundamental rights and freedoms, and in fundamental rights and freedoms, and in privacy, with respect to the processing of particular the right to privacy and particular the right to privacy and personal data in the electronic confidentiality, with respect to the confidentiality, with respect to the communication sector and to ensure the processing of personal data in the processing of personal data in the free movement of such data and of electronic communication sector and to electronic communication sector and to electronic communication equipment and ensure the free movement of such data and ensure the free movement of such data and services in the Community. of electronic communication equipment of electronic communication equipment

and services in the Community. (AM 76) and services in the Community. 2. The provisions of this Directive 2. The provisions of this Directive particularise and complement Directive particularise and complement Directive 95/46/EC i on the protection of 95/46/EC on the protection of individuals with regard to the individuals with regard to the processing of personal data and on the processing of personal data and on the free movement of such data for the free movement of such data for the purposes mentioned in paragraph 1. purposes mentioned in paragraph 1. Moreover, they provide for protection Moreover, they provide for protection

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of the legitimate interests of subscribers of the legitimate interests of subscribers who are legal persons. (AM 77) who are legal persons.

Article 2

Definitions (h) "personal data breach" means a breach (h) "personal data breach" means a breach Keep common position of security leading to the accidental or of security leading to the accidental or unlawful destruction, loss, alteration, unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, unauthorised disclosure of, or access to, personal data transmitted, stored or personal data transmitted, stored or otherwise processed in connection with the otherwise processed in connection with the provision of a publicly available electronic provision of a publicly available electronic communications service in the Community communications service or information

society service in the Community. (AM 78)

Article 4

Security of processing The Council had not modified this 1. The provider of a publicly available Keep common position paragraph. electronic communications service or of

an information society service must take appropriate technical and organisational measures to safeguard security of its services, if necessary in conjunction with the provider of the public communications network with respect to network security. Having regard to the state of the art and the cost of their implementation, these measures shall ensure a level of security appropriate to the risk presented. (AM 79) 1a. Without prejudice to the provisions 1a. Without prejudice to the provisions of Directive 95/46/EC i, these measures of Directive 95/46/EC i, these measures shall at least: shall at least: - ensure that personal data can be - ensure that personal data can be accessed only by authorised personnel accessed only by authorised personnel for legally authorised purposes; for legally authorised purposes; - protect personal data stored or - protect personal data stored or transmitted against accidental, or transmitted against accidental, or unlawful destruction, accidental loss or unlawful destruction, accidental loss or alteration, or unauthorised or unlawful alteration, or unauthorised or unlawful storage, processing, access or disclosure; storage, processing, access or disclosure; and; and;

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• - 

  implement a security policy with - implement a security policy with respect to the processing of personal respect to the processing of personal data; data;

1b. National regulatory authorities shall 1b. Relevant national authorities shall be able to audit the measures taken by be able to audit the measures taken by providers of publicly available providers of publicly available electronic communication services and electronic communication services and information society services and to issue to issue recommendations about best recommendations about best practices practices concerning the level of security concerning the level of security which which these measures should achieve. these measures should achieve. (AM 80)

• 3. 

  In the case of a personal data breach, the 3. In the case of a personal data breach, the 3. In the case of a personal data breach, the provider of publicly available electronic provider of publicly available electronic provider of publicly available electronic communications services shall assess the communications services or information communications services concerned shall, scope of the personal data breach, evaluate society services concerned shall assess without undue delay, notify the personal its seriousness and consider whether it is the scope of the personal data breach, data breach to the competent national necessary to notify the personal data evaluate its seriousness and consider authority. breach to the competent national authority whether it is necessary to, without undue and subscriber concerned, taking into delay, notify the personal data breach to When the personal data breach is likely account the relevant rules set by the the competent national authority and to adversely affect a subscriber’s data competent national authority in accordance subscriber concerned, taking into account and privacy, the provider shall also with paragraph 4. the relevant rules set by the competent notify the subscriber or individual national authority in accordance with concerned of the breach without undue paragraph 4. delay.

When the personal data breach represents When the personal data breach represents Notification of a personal data breach to a serious risk for the subscriber's privacy, a serious risk for the is likely to adversely a subscriber or individual concerned the provider of publicly available affect a subscriber's or individual's shall not be required if the provider has electronic communications services shall personal data and privacy, the provider demonstrated to the satisfaction of the notify the competent national authority and of publicly available electronic competent authority that it has the subscriber of the breach without undue communications services shall notify the implemented appropriate technological delay. competent national authority and the protection measures, and those subscriber or individual concerned of the measures were applied to the data breach without undue delay. concerned by the security breach. Such technological protection measures shall If the provider has not already notified render the data unintelligible to any the subscriber or individual of the person who is not authorized to access personal data breach, the competent the data. national authority, having considered

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the likely adverse effects of the breach, may require it to do so. The notification to the subscriber or individual concerned shall at least

The notification to the subscriber shall at The notification to the subscriber or describe the nature of the personal data least describe the nature of the personal individual shall at least describe the breach and the contact points where more data breach and the contact points where nature of the personal data breach and the information can be obtained, and shall more information can be obtained, and contact points where more information can recommend measures to mitigate the shall recommend measures to mitigate the be obtained, and it shall recommend possible negative effects of the personal possible negative effects of the personal measures to mitigate the possible negative data breach. The notification to the data breach. The notification to the adverse effects of the personal data competent national authority shall, in competent national authority shall, in breach. The notification to the competent addition, describe the consequences of, addition, describe the consequences of, national authority shall, in addition, and the measures proposed or taken by the and the measures proposed or taken by the describe the consequences of and the provider to address, the personal data provider to address, the personal data measures proposed or taken by the breach. breach. provider to address the personal data breach. (AM 81) Modified recital 29: A breach resulting in the loss comprising personal data of an individual subscriber or individual concerned may, if not addressed in an adequate and timelu manner, result in substantial economic loss and social harm, including identity fraud. Therefore, as soon as the provider of publicly available electronic communications service becomes aware that such breach has occurred it should notify the breach to the competent national authority. The subscribers or individuals whose privacy could be adversely effected by such breaches, should be notified without delay in order to be able to take the necessary precautions. A breach should be considered as adversly affecting the subscriber’s or individual´s data and privacy where it entails a serious risk to the subscriber´s or individuals´s privacy (e.g. identify theft or fraud, physical harm, significant humiliation or damage of reputation) in connection with the

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provision of publicly available communications services in the Community. The notification should include information about measures taken by the provider to address the breach, as well as recommendations for the users or individuals affected.

• 4. 

  Member States shall ensure that the 4. Subject to any technical competent national authority is able to set implementing measures adopted under detailed rules and, where necessary, issue paragraph 4, Member States shall ensure instructions concerning the circumstances that the competent national authorities is in which notification of personal data able to set detailed rules may adopt breaches by providers of a publicly guidelines and, where necessary, issue available electronic communications instructions concerning the circumstances service is necessary, the format applicable in which when notification of personal to such notification and the manner in data breaches by providers of a publicly which the notification is to be made. available electronic communications service of personal data breaches is necessary required, the format applicable to of such notification and the manner in which the notification is to be made notification procedures. They shall also monitor whether providers have complied with their notification obligations under this paragraph and impose appropriate sanctions in the event of a failure to do so.

  Providers shall maintain an inventory of personal data breaches, comprising the facts surrounding such breaches, their effects and the remedial action taken, sufficient for the purpose of enabling the competent national authorities to verify compliance with the provisions of paragraph 3. The inventory sahll only include the information necessary for this purpose. (MODIFIED AM 82 - AM 149)

• 5. 

  In order to ensure consistency in 5. In order to ensure consistency in 5. In order to ensure consistency in

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implementation of the measures referred to implementation of the measures referred to implementation of the measures in paragraphs 1 to 4 the Commission may, in paragraphs 1 to 4, 2, 3 and 3a, the referred to in paragraphs 2, 3 and 3a, following consultation with the European Commission may shall, following the Commission may, following Network and Information Security Agency consultation with the European Network consultation with the European (ENISA), the Article 29 Working Party and Information Security Agency (ENISA), Network and Information Security and the European Data Protection the Article 29 Working Party and the Agency (ENISA), the Article 29 Supervisor, adopt recommendations European Data Protection Supervisor, Working Party and the European Data concerning, inter alia, the circumstances, adopt recommendations technical Protection Supervisor, adopt technical format and procedures applicable to the implementing measures concerning, inter implementing measures concerning information and notification requirements alia, the circumstances, format and inter alia the circumstances, format and referred to in this Article. procedures applicable to information and procedures applicable to information notification requirements referred to in this and notification requirements referred Article. The Commission shall involve to in this Article. The Commission shall all relevant stakeholders in order involve all relevant stakeholders in particularly to be informed of the best order particularly to be informed of the available technical and economic best available technical and economic methods for the implementation of this methods for the implementation of this Article. Article.

Those measures, designed to amend Those measures, designed to amend non-essential elements of this Directive non-essential elements of this Directive by supplementing it, shall be adopted in by supplementing it, shall be adopted in accordance with the regulatory accordance with the regulatory procedure with scrutiny referred to in procedure with scrutiny referred to in Article 14a(2). On imperative grounds Article 14a(2). of urgency, the Commission may have recourse to the urgency procedure referred to in Article 14a (3). (AM 83)

Article 5

Confidentiality of the communications 3. Member States shall ensure that the 3. Member States shall ensure that the Keep common position storing of information, or access to storing of information, or gaining access information already stored, in the terminal to information already stored in the equipment of a subscriber or user is only terminal equipment of a subscriber or user allowed on condition that the subscriber or is only allowed on condition that the user concerned is provided with clear and subscriber or user concerned has given comprehensive information, in accordance his/her prior consent, which may be with Directive 95/46/EC i, inter alia about given by way of using the appropriate the purposes of the processing, and is settings of a browser or another offered the right to refuse such processing application, after having been is

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by the data controller. This shall not provided with clear and comprehensive prevent any technical storage or access for information in accordance with the sole purpose of carrying out or Directive 95/46/EC i, inter alia about the facilitating the transmission of a purposes of the processing and is offered communication over an electronic the right to refuse such processing by the communications network, or as strictly data controller. This shall not prevent any necessary in order to provide an technical storage or access for the sole information society service explicitly purpose of carrying out the transmission of requested by the subscriber or user. a communication over an electronic communications network, or as strictly necessary in order to provide an information society service explicitly requested by the subscriber or user. (AM 84) Article 6 Traffic data 1. Traffic data relating to subscribers and 1. Traffic data relating to subscribers and 1. Traffic data relating to subscribers and users processed and stored by the provider users processed and stored by the provider users processed and stored by the provider of a public communications network or of a public communications network or of a public communications network or publicly available electronic publicly available electronic publicly available electronic communications service shall be erased or communications service shall must be communications service shall be erased or made anonymous when it is no longer erased or made anonymous when it is no made anonymous when it is no longer needed for the purpose of the transmission longer needed for the purpose of the needed for the purpose of the transmission of a communication. This shall be without transmission of a communication This of a communication This shall be without prejudice to paragraphs 2, 3, 5 and 7 of shall be without prejudice to paragraphs 2, prejudice to paragraphs 2, 2a, 3 and 5 and this Article and Article 15(1). 2a, 3 and 5 and 7 of this Article and 7 of this Article and Article 15(1). Article 15(1). (AM 85 – part I)

See Council para 7. 2a. Without prejudice to compliance 2a. Traffic data may be processed by the with provisions other than Article 7 of data controller to the extent and for the Directive 95/46/EC i and Article 5 of this time strictly necessary to ensure the

Directive, traffic data may be processed in network and information security, as the legitimate interest of the data defined by Article 4(c) of Regulation controller for the purpose of (EC) 460/2004 of the European implementing technical measures to the Parliament and of the Council of 10 extent strictly necessary to ensure the March 2004 establishing the European network and information security, as Network and Information Security defined by Article 4(c) of Regulation (EC) Agency, of a public electronic No 460/2004 of the European Parliament communication service or network, or and of the Council of 10 March 2004 related terminal and electronic

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establishing the European Network and communication equipment, except Information Security Agency*, of a public where such interests are overridden by electronic communication service, a the interests of the fundamental rights public electronic communications and freedoms of the data subject. network, an information society service or related terminal and electronic communication equipment, except where such interest is overridden by those of the fundamental rights and freedoms of the data subject. Such processing shall be restricted to that which is strictly necessary for the purposes of such security activity. (AM 85 – part II)

The Council did not modify this 3. For the purpose of marketing electronic paragraph. communications services or for the provision of value added services, the provider of a publicly available electronic communications service may process the data referred to in paragraph 1 to the extent and for the duration necessary for such services or marketing, if the subscriber or user to whom the data relate has given his or her prior consent. Users or subscribers shall be given the possibility to withdraw their consent for the processing of traffic data at any time. The Council did not modify this 4. The service provider must inform the paragraph. subscriber or user of the types of traffic data which are processed and of the duration of such processing for the purposes mentioned in paragraph 2 and 2a and, prior to obtaining consent, for the purposes mentioned in paragraph 3. The Council did not modify this 5. Processing of traffic data, in accordance paragraph. with paragraphs 1, 2, 2a, 3 and 4, must be restricted to persons acting under the authority of providers of the public communications networks and publicly available electronic communications

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services handling billing or traffic management, customer enquiries, fraud detection, other network and information secuirty, marketing electronic communications services or providing a value added service, and must be restricted to what is necessary for the purposes of such activities. (AM 85 - part III)

The Council did not modify this 6. Paragraphs 1, 2, 2a, 3 and 5 shall apply 6. Paragraphs 1, 2, 2a, 3 and 5 shall apply paragraph. without prejudice to the possibility for without prejudice to the possibility for competent bodies to be informed of traffic competent bodies to be informed of traffic data in conformity with applicable data in conformity with applicable legislation with a view to settling disputes, legislation with a view to settling disputes, in particular interconnection or billing in particular interconnection or billing disputes. (AM 85 – part IV) disputes. 7. Traffic data may be processed to the 7. Traffic data may be processed to the extent strictly necessary to ensure network extent strictly necessary to ensure network and information security, as defined by and information security, as defined by Article 4(c) of Regulation (EC) Article 4(c) of Regulation (EC) No 460/2004 i of the European Parliament No 460/2004 of the European Parliament and of the Council of 10 March 2004 and of the Council of 10 March 2004 establishing the European Network and establishing the European Network and Information Security Agency. Information Security Agency. Article 13 Unsolicited communications 1. The use of automated calling systems 1. The use of automated calling and 1. The use of automated calling and without human intervention (automatic communication systems without human communication systems without human calling machines), facsimile machines intervention (automatic calling machines), intervention (automatic calling machines), (fax) or electronic mail (including short facsimile machines (fax) or electronic mail facsimile machines (fax) or electronic mail message services (SMS) and multimedia (including short message services (SMS) (including short message services (SMS) messaging services (MMS)) for the and multimedia messaging services and multimedia messaging services purposes of direct marketing may be (MMS)) for the purposes of direct (MMS)) for the purposes of direct allowed only in respect of subscribers or marketing may be allowed only in respect marketing may be allowed only in respect users who have given their prior consent. of subscribers or users who have given of subscribers or users who have given their prior consent. (AM 86) their prior consent.

New recital: “Safeguards provided for subscribers against intrusion of their privacy by

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unsolicited communications for direct marketing purposes by means of electronic mail are also applicable to SMS, MMS and other kinds of similar applications.”

Amendment 87 has been taken out of this document since its text was identical with the Council Common position.

• 4. 

  In any event, the practice of sending 4. In any event, the practice of sending 4. In any event, the practice of sending electronic mail for the purposes of direct electronic mail for purposes of direct electronic mail for purposes of direct marketing disguising or concealing the marketing disguising or concealing the marketing disguising or concealing the identity of the sender on whose behalf the identity of the sender on whose behalf the identity of the sender on whose behalf the communication is made, or in communication is made, or in communication is made, or in contravention of Article 6 of Directive contravention of Article 6 of Directive contravention of Article 6 of Directive 2000/31/EC i, or without a valid address to 2000/31/EC, or without a valid address to 2000/31/EC, or without a valid address to which the recipient may send a request that which the recipient may send a request that which the recipient may send a request that such communications cease, shall be such communications cease, or such communications cease, or prohibited. encouraging recipients to visit websites encouraging recipients to visit websites that contravene Article 6 of Directive that contravene Article 6 of Directive 2000/31/EC i, shall be prohibited. (AM 88) 2000/31/EC, shall be prohibited. 6. Without prejudice to any administrative 6. Without prejudice to any administrative 6. Without prejudice to any administrative remedy for which provision may be made, remedy for which provision may be made, remedy for which provision may be made, inter alia, under Article 15a(2), Member inter alia under Article 15 a(2), Member inter alia under Article 15 a(2), Member States shall ensure that any natural or legal States shall ensure that any individual or States shall ensure that any individual or person adversely affected by infringements legal person adversely affected by having legal person adversely affected by of national provisions adopted pursuant to a legitimate interest in combating infringements of national provisions this Article and therefore having a infringements of national provisions adopted pursuant to this Article and legitimate interest in the cessation or adopted pursuant to this Article Directive therefore having a legitimate interest in the prohibition of such infringements, and therefore having a legitimate interest cessation or prohibition of such including an electronic communications in the cessation or prohibition of such infringements, including an electronic service provider protecting its legitimate infringements, including an electronic communications service provider business interests, may bring legal communications service provider protecting its legitimate business interests, proceedings in respect of such protecting its legitimate business interests may bring legal proceedings in respect of infringements. Member States may also or the interests of its customers, may take legal action against such lay down specific rules on penalties bring legal proceedings in respect of take infringements. Member States may also applicable to providers of electronic legal action against such infringements lay down specific rules on penalties communications services which by their before the courts. Member States may applicable to providers of electronic negligence contribute to infringements of also lay down specific rules on penalties communications services which by their

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national provisions adopted pursuant to applicable to providers of electronic negligence contribute to infringements of this Article. communications services which by their national provisions adopted pursuant to negligence contribute to infringements of this Article. national provisions adopted pursuant to this Article. (AM 89) The Counicl deleted this Article. Article 14a Committee 1. The Commission shall be assisted by 1. The Commission shall be assisted by the Communications Committee set up the Communications Committee set up by Article 22 of Directive 2002/21/EC i by Article 22 of Directive 2002/21/EC i (Framework Directive). (Framework Directive).

• 2. 

  Where reference is made to this 2. Where reference is made to this paragraph, Article 5 a(1) to (4) and paragraph, Article 5 a(1) to (4) and Article 7 of Decision 1999/468/EC i shall Article 7 of Decision 1999/468/EC i shall apply, having regard to the provision of apply, having regard to the provision of Article 8 thereof. Article 8 thereof.

• 3. 

  Where reference is made to this 3. Where reference is made to this paragraph, Article 5 a(1), (2), (4) and (6) paragraph, Article 5 a(1), (2), (4) and (6) and Article 7 of Decision 1999/468/EC i and Article 7 of Decision 1999/468/EC i shall apply, having regard to the shall apply, having regard to the provisions of Article 8 thereof. (AM 90) provisions of Article 8 thereof.

  Article 15 Application of certain provisions of Directive 95/46/EC i

1b. Providers shall establish internal Keep common position procedures for responding to requests for access to users’ personal data based on national provisions adopted pursuant to paragraph 1 of this Article. They shall provide the competent national authority, on demand, with information on those procedures, the number of requests received, the legal jsutification invoked and the reponse by the provider. (MODIFIED AM 91 - AM 151)

Article 15a

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Implementation and enforcement 1. Member States shall lay down the rules 1. Member States shall lay down the rules 1. Member States shall lay down the rules on penalties applicable to infringements of on penalties, including penal sanctions on penalties, including sanctions where the national provisions adopted pursuant to where appropriate, applicable to appropriate, applicable to infringements this Directive and shall take all measures infringements of the national provisions of the national provisions adopted pursuant necessary to ensure that they are adopted pursuant to this Directive and to this Directive and shall take all implemented. The penalties provided for shall take all measures necessary to ensure measures necessary to ensure that they are must be effective, proportionate and that they are implemented. The penalties implemented. The penalties provided for dissuasive and may be applied to cover the provided for must be effective, must be effective, proportionate and period of any breach, even where the proportionate and dissuasive and may be dissuasive and may be applied to cover the breach has subsequently been rectified. applied to cover the period of any breach, period of any breach, even where the The Member States shall notify those even where the breach has subsequently breach has subsequently been rectified.

provisions to the Commission by ... + , and been rectified. The Member States shall The Member States shall notify those shall notify it without delay of any notify those provisions to the Commission provisions to the Commission by ... + , and subsequent amendment affecting them. by ... + , and shall notify it without delay of shall notify it without delay of any

any subsequent amendment affecting subsequent amendment affecting them. them. (AM 92)

• 2. 

  Member States shall ensure that the 2. Without prejudice to any judicial 2. Without prejudice to any judicial competent national authority and, where remedy which might be available, remedy which might be available, relevant, other national bodies have the Member States shall ensure that the Member States shall ensure that the power to order the cessation of the competent national authority and, where competent national authority and, where infringements referred to in paragraph 1. relevant, other national bodies have the relevant, other national bodies have the power to order the cessation of the power to order the cessation of the infringements referred to in paragraph 1. infringements referred to in paragraph 1. (AM 93) 3. Member States shall ensure that the 3. Member States shall ensure that the 3. Member States shall ensure that the competent national authority and, where competent national regulatory authorities competent national regulatory authorities relevant, other national bodies have all and, where relevant, other national bodies and, where relevant, other national bodies necessary investigative powers and have all necessary investigative powers have all necessary investigative powers resources, including the power to obtain and resources, including the power and resources, including the power to any relevant information they might need possibility to obtain any relevant obtain any relevant information they might to monitor and enforce national provisions information they might need to monitor need to monitor and enforce national adopted pursuant to this Directive. and enforce national provisions adopted provisions adopted pursuant to this pursuant to this Directive. (AM 94) Directive. 4. In order to ensure effective cross-border 4. In order to ensure effective cross-border Keep common position.

+ The date referred to in Article 4(1).

+ The date referred to in Article 4(1).

+ The date referred to in Article 4(1).

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cooperation in the enforcement of the cooperation in the enforcement of the national laws adopted pursuant to this national laws adopted pursuant to this Directive and to create harmonised Directive and to create harmonised conditions for the provision of services conditions for the provision of services involving cross-border data flows, the involving cross-border data flows, the Commission may adopt recommendations, Commission may adopt recommendations following consultation with ENISA, the techncial implementation measures, Article 29 Working Party and the relevant following consultation with ENISA, the regulatory authorities. Article 29 Working Party and the relevant regulatory authorities.

Those 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 14a(2). On imperative grounds of urgency, the Commission may have recourse to the urgency procedure referred to in Article 14 a(3). (AM 95)

The Council had no such Article. Article 18 Review

Not later than three years after <time Not later than three years after <time limit for implementation of the limit for implementation of the amending act>, the Commission shall amending act>, the Commission shall submit to the European Parliament and submit to the European Parliament and the Council, having consulted the the Council, having consulted the Working Party on the Protection of Working Party on the Protection of Personal Data instituted by Article 29 of Individuals with regard to the Directive 95/46/EC i and the European Processing of Personal Data established Data Protection Supervisor, a report on by Article 29 of Directive 95/46/EC i and the application of Directive 2002/58/EC i the European Data Protection and its impact on economic operators Supervisor, a report on the application and consumers, in particular as regards of Directive 2002/58/EC i and its impact the provisions on unsolicited on economic operators and consumers, communications, and breach in particular as regards the provisions notifications, taking into account the on unsolicited communications, and international environment. For this breach notifications, taking into account purpose, the Commission may request the international environment. For this information from the Member States, purpose, the Commission may request

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which shall be supplied without undue information from the Member States, delay. Where appropriate, the which shall be supplied without undue Commission shall submit proposals to delay. Where appropriate, the amend this Directive, taking account of Commission shall submit proposals to the results of that report, any changes in amend this Directive, taking account of the sector, and any other proposal it the results of that report, any changes in may deem necessary in order to the sector and any other proposal it may improve the effectiveness of this deem necessary in order to improve the Directive. effectiveness of this Directive.

No later than ... + , the Commission shall, New recital:

following consultation of the European Developments concerning the use of IP Data Protection Supervisor, the Article addresses should be followed closely, 29 Working Party and other taking into consideration the work stakeholders, including industry already done by, among others, the representatives, submit to the European Working Party on the Protection of Parliament, the Council and the Individuals with regard to the European Economic and Social Processing of Personal Data established Committee a report, based on an inby Article 29 of Directive 95/46/EC i, and depth study, with recommendations on in the light of such proposals as may be standard uses of IP addresses and the appropriate. application of the ePrivacy and Data Protection Directives as regards the collection and further processing of IP addresses. (AM 96)

Article 4

Transposition 1. Member States shall adopt and publish 1. Member States shall adopt and publish

by … * the laws, regulations and by […] the laws, regulations and

administrative provisions necessary to administrative provisions necessary to comply with this Directive. They shall comply with this Directive. They shall forthwith communicate to the Commission forthwith communicate to the European the text of those measures. Parliament and the Commission the text of those measures provisions and a correlation table between those provisions and this Directive.

• * 

  …

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They shall apply those measures from They shall apply those provisions from

…... ** . […].

When Member States adopt those When Member States adopt those measures, they shall contain a reference to measures provisions, they shall contain a this Directive or be accompanied by such a reference to this Directive or be reference on the occasion of their official accompanied by such a reference on the publication. The methods of making such occasion of their official publication. The reference shall be laid down by the methods of making such reference shall be Member States. laid down by the Member States. Member States shall determine how such reference is to be made. (AM 97)

** …

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ANNEX 2

First three columns:

Blank cells mean not amended text by the respective Institution

Bold italics means text amended by EP;

Italics means linguistic amendment

Bold text means text amended by Council

Bold underlined text means amended by the Commission

[...] means deleted text

Fourth column:

Bold underlined text is text added by the presidency to the common position

Crossed text is text deleted by the presidency from the common position

Amendments to Directive 2002/21/EC i (Directive on a common regulatory FRAMEWORK for electronic communications)

COMMISSION'S Amended Proposal EUROPEAN PARLIAMENT'S 2nd COUNCIL'S Common Position Compromise options 6 November 2008 Reading Recommendation 16 February 2009

Article 1 Article 1 Article 1 Article 1 Scope and aim Scope and aim Scope and aim Scope and aim 1. This Directive establishes a 1. This Directive establishes a harmonised 1. This Directive establishes a 1. This Directive establishes a harmonised framework for the regulation framework for the regulation of electronic harmonised framework for the regulation harmonised framework for the regulation of electronic communications services, communications services, electronic of electronic communications services, of electronic communications services, electronic communications networks, communications networks, associated electronic communications networks, electronic communications networks, associated facilities and associated facilities and associated services, and associated facilities and associated associated facilities and associated services, and certain aspects of terminal certain aspects of terminal equipment to services. It lays down tasks of national services, and certain aspects of terminal equipment. It lays down tasks of national facilitate access for disabled users. It lays regulatory authorities and establishes a set equipment to facilitate access for regulatory authorities and establishes a set down tasks of national regulatory of procedures to ensure the harmonised disabled end-users. It lays down tasks of of procedures to ensure the harmonised authorities and establishes a set of application of the regulatory framework national regulatory authorities and application of the regulatory framework procedures to ensure the harmonised throughout the Community. The establishes a set of procedures to ensure throughout the Community. application of the regulatory framework framework also includes provisions on the harmonised application of the

throughout the Community. certain aspects of terminal equipment to regulatory framework throughout the facilitate access for disabled users. Community. The framework also includes provisions on certain aspects of terminal equipment to facilitate access for disabled users.

Article 2 Article 2 Article 2 Article 2

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Definitions Definitions Definitions Definitions (a) "electronic communications network" (a) "electronic communications network" Keep common position means transmission systems and, where means transmission systems and, where (acceptable for EP) applicable, switching or routing equipment applicable, switching or routing equipment and other resources which permit the and other resources, including network conveyance of signals by wire, by radio, elements which are not active, which by optical or by other electromagnetic permit the conveyance of signals by wire, means, including satellite networks, fixed by radio, by optical or by other

(circuit- and packet-switched, including electromagnetic means, including satellite

Internet) and mobile terrestrial networks, networks, fixed (circuit- and packetelectricity cable systems, to the extent that switched, including Internet) and mobile they are used for the purpose of terrestrial networks, electricity cable transmitting signals, networks used for systems, to the extent that they are used for radio and television broadcasting, and the purpose of transmitting signals, cable television networks, irrespective of networks used for radio and television the type of information conveyed; broadcasting, and cable television

networks, irrespective of the type of information conveyed;

(b) “transnational markets” means (b) "transnational markets" means markets Keep common position markets covering the Community or a identified in accordance with Article (acceptable for EP) substantial part thereof located in more 15(4) covering the Community or a than one Member State; substantial part thereof located in more

than one Member State; (d) “public communications network” (d) "public communications network" Keep common position means an electronic communications means an electronic communications (acceptable for EP) network used wholly or mainly for the network used wholly or mainly for the provision of electronic communications provision of electronic communications services available to the public which services available to the public which support the transfer of information support the transfer of information between network termination points, between network termination points [...]; including network elements which are not active;

(da) "network termination point" (NTP) (da) "network termination point" (NTP) Keep common position means the physical point at which a means the physical point at which a (acceptable for EP) subscriber is provided with access to a subscriber is provided with access to a public communications network; in the public communications network; in the case of networks involving switching or case of networks involving switching or routing, the NTP is identified by means routing, the NTP is identified by means of a specific network address, which of a specific network address, which may be linked to a subscriber number may be linked to a subscriber number

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or name; or name;

(e) “associated facilities” means those (e) "associated facilities" means those (e) "associated facilities" means those […] (e) "associated facilities" means those facilities associated with an electronic physical infrastructures and other facilities physical infrastructures and other associated services, physical communications network and/or an or elements associated with an electronic facilities or elements associated with an infrastructures and other facilities or electronic communications service which communications network and/or an electronic communications network and/or elements associated with an electronic enable and/or support the provision of electronic communications service which an electronic communications service communications network and/or an services via that network and/or service or enable and/or support the provision of which enable and/or support the provision electronic communications service which have the potential to do so, and include services via that network and/or service or of services via that network and/or service enable and/or support the provision of number or address translation systems, have the potential to do so, and include or have the potential to do so, and include services via that network and/or service or conditional access systems and electronic inter alia buildings or entries to buildings, inter alia […] buildings or entries to have the potential to do so, and include programme guides, as well as physical building wiring, antennae, towers and buildings, antennae, towers and other inter alia buildings or entries to buildings, infrastructure such as ducts, masts, street other supporting constructions, ducts, supporting constructions, ducts, building wiring, antennae, towers and cabinets, and buildings; conduits, masts, manholes, and cabinets; conduits, masts, manholes, and cabinets. other supporting constructions, ducts,

conduits, masts, manholes, and cabinets.

(ea) "associated services" means those Keep common position services associated with an electronic (acceptable for EP) 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 inter alia number translation or systems offering equivalent functionality, conditional access systems and electronic programme guides, as well as other services such as identity, location and presence service;

(q) “allocation” means the designation (q) "spectrum allocation" means the Keep common position of a given frequency band or number range designation of a given frequency band […] (acceptable for EP) for use by one or more types of services, for use by one or more types of where appropriate, under specified radiocommunications services, where conditions; appropriate, under specified conditions; (r) “assignment” means the deleted Keep common position authorisation given by a national (acceptable for EP) 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);

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(s) “harmful interference” means no AM (s) "harmful interference" means Keep common position interference which endangers the interference which endangers the (identical) functioning of a radionavigation service or functioning of a radionavigation service or of other safety services or which otherwise of other safety services or which otherwise seriously degrades, obstructs or repeatedly seriously degrades, obstructs or repeatedly interrupts a radiocommunications service interrupts a radiocommunications service operating in accordance with the operating in accordance with the applicable Community or national applicable international, Community or regulations. national regulations.

(sa) "call" means a connection Keep common position established by means of a publicly (acceptable for EP) available electronic communications service allowing two-way voice communication.

Article 3 Article 3 Article 3 Article 3 National regulatory authorities National regulatory authorities National regulatory authorities National regulatory authorities 3. Member States shall ensure that 3. Member States shall ensure that national 3. Member States shall ensure that Keep common position national regulatory authorities exercise regulatory authorities exercise their powers national regulatory authorities exercise their powers independently, impartially independently, impartially, transparently their powers […] impartially, transparently and transparently. National regulatory and in a timely manner. National and in a timely manner. Member States authorities shall not seek or take regulatory authorities shall not seek or shall ensure that national regulatory instructions from any other body in take instructions from any other body in authorities have adequate financial and relation to the day-to-day performance of relation to the day-to-day performance of human resources to carry out the task the tasks assigned to them under national the tasks assigned to them under national assigned to them. law implementing Community law. Only law implementing Community law. Only appeal bodies set up in accordance with appeal bodies established in accordance

Article 4 or national courts shall have the with Article 4 or national courts shall power to suspend or overturn decisions by have the power to suspend or overturn the national regulatory authorities. decisions by the national regulatory

authorities.

3a. Member States shall ensure that the 3a. Without prejudice to the Keep common position head of a national regulatory authority or provisions of paragraphs 4 and 5, (not acceptable for EP so far) his/her replacement may be dismissed national regulatory authorities only if he no longer fulfils the conditions responsible for ex ante market required for the performance of his duties regulation or for resolution of disputes which are laid down in advance in national between undertakings in accordance law, or if he has been guilty of serious with Article 20 or 21 of this Directive misconduct. The decision to dismiss the shall act independently and shall not head of the national regulatory authority seek or take instructions from any other

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shall contain a statement of reasons and body in relation to exercising these tasks shall be made public at the time of assigned to them under national law dismissal. implementing Community law. This shall not prevent supervision in accordance with national constitutional law. Only appeal bodies set up in accordance with Article 4 shall have the power to suspend or overturn decisions by the national regulatory authorities.

Member States shall ensure that the head no AM Member States shall ensure that the head Keep common position of a national regulatory authority or his/her of, or where applicable members of the (acceptable for EP) replacement may be dismissed only if he collegiate body fulfilling that function no longer fulfils the conditions required for within, a national regulatory authority the performance of his duties laid down in referred to in the first subparagraph or advance in national law, or if he has been his/her/their replacement may be dismissed guilty of serious misconduct. The decision only if he/she/they no longer fulfils the to dismiss the head of the national conditions required for the performance of regulatory authority shall contain a his/her/their duties which are laid down in statement of reasons and be made public at advance in national law. The decision to the time of dismissal. dismiss the head of, or where applicable

members of the collegiate body fulfilling that function within, the national regulatory authority concerned shall [...] be made public at the time of dismissal. The dismissed head of, or where applicable members of the collegiate body fulfilling that function within, the national regulatory authority shall receive a statement of reasons and shall have the right to request its publication, where this would not otherwise take place, in which case it shall be published.

Member States shall ensure Member States shall ensure that national Member States shall ensure that Member States shall ensure that national that national regulatory authorities have regulatory authorities referred to in the first national regulatory authorities referred regulatory authorities referred to in the first adequate financial and human resources to subparagraph have adequate financial and to in the first subparagraph have subparagraph have separate annual carry out the tasks assigned to them and to human resources to carry out the tasks separate annual budgets. The budgets budgets. The budgets shall be made public. enable them to actively participate in and assigned to them and to enable them to shall be made public. Member States shall also ensure contribute to BERT [the actively participate in and contribute to that national regulatory authorities have Body]. National regulatory authorities BERT. National regulatory authorities adequate financial and human resources

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shall have separate annual budgets and shall have separate annual budgets and to enable them to actively participate in those budgets shall be made public. those budgets shall be made public. and contribute to BEREC.

3a. Member States shall ensure that no AM 3b. Member States shall ensure that the 3b. Member States shall ensure that the the goals of BERT [the Body] of goals of the GERT in promoting greater goals of the BEREC in of promoting promoting greater regulatory regulatory coordination and coherence are greater regulatory coordination and coordination and coherence are actively actively supported by the respective coherence are actively supported by the supported by the national regulatory authorities. respective national regulatory authorities. national regulatory authorities.

no AM 3c. Member States shall ensure that Keep common position national regulatory authorities take (only name of the entity) utmost account of opinions and common

positions issued by the GERT when adopting their own decisions for their national markets.

Article 4 Article 4 Article 4 Article 4 Right of appeal Right of appeal Right of appeal Right of appeal 1. Member States shall ensure that 1. Member States shall ensure that 1. Member States shall ensure that 1. Member States shall ensure that effective mechanisms exist at national effective mechanisms exist at national effective mechanisms exist at national effective mechanisms exist at national level under which any user or undertaking level under which any user or undertaking level under which any user or undertaking level under which any user or undertaking providing electronic communications providing electronic communications providing electronic communications providing electronic communications networks and/or services who is affected networks and/or services who is affected networks and/or services who is affected networks and/or services which is affected by a decision of a national regulatory by a decision of a national regulatory by a decision of a national regulatory by a decision of a national regulatory authority has the right of appeal against the authority has the right of appeal against the authority has the right of appeal against the authority has the right of appeal against the decision to an appeal body that is decision to an appeal body that is decision to an appeal body that is decision to an appeal body that is independent of the parties involved. This independent of the parties involved. This independent of the parties involved. This independent of the parties involved. This body, which may be a court, shall have the body, which may be a court, shall have the body, which may be a court, shall have the body, which may be a court, shall have appropriate expertise available to it to appropriate expertise to enable it to carry appropriate expertise available to it to available to it the appropriate expertise to enable it to carry out its functions out its functions effectively. Member enable it to carry out its functions enable it to carry out its functions effectively. Member States shall ensure States shall ensure that the merits of the effectively. Member States shall ensure effectively. Member States shall ensure that the merits of the case are duly taken case are duly taken into account, that there that the merits of the case are duly taken that the merits of the case are duly taken into account and that there is an effective is an effective appeal mechanism and that into account and that there is an effective into account, that there is an effective appeal mechanism and that proceedings proceedings before the appeal body are appeal mechanism. appeal mechanism. before the appeal body are not unduly not unduly lengthy. Recital (10) lengthy. Member States shall set time limits for consideration of such appeals..

Pending the outcome of any appeal, the Pending the outcome of the appeal, the Pending the outcome of […] the appeal, Keep common position decision of the national regulatory decision of the national regulatory the decision of the national regulatory authority shall stand, unless interim authority shall stand, unless interim authority shall stand, unless interim recital (10): measures are granted. Interim measures measures are granted in accordance with measures are granted in accordance with In order to ensure legal certainty for

ANNEX 2 DG C II B LIMITE EN

may be granted if there is an urgent need to national law. Interim measures as defined national law. market players, appeal bodies should carry suspend the effect of the decision in order in national legislation in conformity with out their functions effectively; in to prevent serious and irreparable damage Community law may be granted if there is particular, appeals proceedings should not to the party applying for those measures an urgent need to suspend the effect of be unduly lengthy. Interim measures and the balance of interests so requires. the decision in order to prevent serious suspending the effect of the decision of a

and irreparable damage to the party national regulatory authority should be applying for those measures and the granted only in exceptional cases by balance of interests so requires. fully respecting the principle of proportionality and need to ensure balance of interests, and in particular in order to prevent serious and irreparable damage to the party applying for those

measures.

2a. Appeal bodies shall be entitled to 2a. Appeal bodies shall be entitled to deleted Keep common position request the opinion of BERT [the Body] request the opinion of BERT before (not acceptable for EP so far) on matters related to the sector before reaching a decision in the course of an reaching a decision in the course of an appeal proceeding. appeal proceeding.

• 3. 

  Member States shall collect 3. Member States shall collect information 3. Member States shall collect 3. Member States shall collect information on the subject of appeals, the on the subject of appeals, the number of information on [...] the number of requests information on the general subject of number of requests for appeal, the duration requests for appeal, the duration of the for appeal, the duration of the appeal appeals, the number of requests for appeal, of the appeal proceedings, the number of appeal proceedings, the number of proceedings and the number of decisions the duration of the appeal proceedings and decisions to grant interim measures taken decisions to grant interim measures taken to grant interim measures taken [...]. the number of decisions to grant interim in accordance with paragraph 1 and the in accordance with paragraph 1 and the Member States shall provide such measures taken . Member States shall reasons for such decisions. Member States reasons for such decisions. Member States information to the Commission and the provide such information to the shall make available such information to shall make available such information to GERT after a reasoned request from Commission and the BEREC after a the Commission and the European the Commission and BERT on an annual either. reasoned request from either. Communications Market Authority basis.

(hereinafter referred to as 'the Authority') on an annual basis

Article 5 Article 5 Article 5 Article 5 Provision of information Provision of information Provision of information Provision of information 1. Member States shall ensure that 1. Member States shall ensure that 1. Member States shall ensure that 1. Member States shall ensure that undertakings providing electronic undertakings providing electronic undertakings providing electronic undertakings providing electronic communications networks and services communications networks and services communications networks and services communications networks and services provide all the information, including provide all the information, including provide all the information, including provide all the information, including financial information, necessary for financial information, necessary for financial information, necessary for financial information, necessary for national regulatory authorities to ensure national regulatory authorities to ensure national regulatory authorities to ensure national regulatory authorities to ensure conformity with the provisions of, or conformity with the provisions of, or conformity with the provisions of, or conformity with the provisions of, or

ANNEX 2 DG C II B LIMITE EN

decisions made in accordance with, this decisions made in accordance with, this decisions made in accordance with, this decisions made in accordance with, this Directive and the Specific Directives. Directive and the Specific Directives. In Directive and the Specific Directives. In Directive and the Specific Directives. In Those undertakings shall also be required particular, national regulatory authorities particular those undertakings may also be particular national regulatory authority to submit information concerning future shall have the power to require those required to submit information concerning shall have a power to require those network or service developments that undertakings to submit information future network or service developments undertakings may also be required to could have an impact on the wholesale concerning future network or service that could have an impact on the wholesale submit information concerning future services made available to competitors. . developments that could have an impact on services that they make available to network or service developments that

the wholesale services that they make competitors. [...] Undertakings with could have an impact on the wholesale available to competitors. Undertakings significant market power on wholesale services that they make available to with significant market power on markets may also be required to submit competitors. [...] Undertakings with wholesale markets may also be required to accounting data on the retail markets significant market power on wholesale submit accounting data on the retail that are associated with those wholesale markets may also be required to submit markets that are associated with those markets. accounting data on the retail markets wholesale markets. that are associated with those wholesale markets.

These undertakings shall provide such no AM Undertakings shall provide such Keep common position information promptly on request and to the information promptly on request and to (acceptable for EP) timescales and level of detail required by the timescales and level of detail the national regulatory authority. The required by the national regulatory information requested by the national authority. The information requested by regulatory authority shall be proportionate the national regulatory authority shall to the performance of that task. The be proportionate to the performance of national regulatory authority shall give the that task. The national regulatory reasons justifying its request for authority shall give the reasons information justifying its request for information

and shall treat the information in accordance with paragraph 3 of this Article.

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• 3. 

  Where information is considered no AM 3. Where information is considered (identical) confidential by a national regulatory confidential by a national regulatory authority in accordance authority in accordance with Community and national rules on with Community and national rules on business confidentiality, the Commission business confidentiality, the Commission and the national and the national regulatory authorities concerned shall regulatory authorities concerned shall ensure such confidentiality. ensure such confidentiality.

  Article 6 Article 6 Article 6 Article 6 Consultation and transparency Consultation and transparency Consultation and transparency Consultation and transparency

  mechanism mechanism mechanism mechanism

Except in cases falling within no AM Except in cases falling within Articles Keep common position

Articles 7(10), 20, or 21, and unless 7(9), 20 or 21, and unless otherwise (acceptable for EP) otherwise provided in the implementing provided in the implementing measures measures adopted pursuant to Article 9c, adopted pursuant to Article 9c, Member

Member States shall ensure that, where States shall ensure that, where national national regulatory authorities intend to regulatory authorities intend to take take measures in accordance with this measures in accordance with this Directive

Directive or the Specific Directives which or the Specific Directives […], or where have a significant impact on the relevant they intend to provide for restrictions in market, or where they intend to provide for accordance with Article 9(3) and 9(4), and restrictions in accordance with Article 9(3) which have a significant impact on the and 9(4), they give interested parties the relevant market, they give interested opportunity to comment on the draft parties the opportunity to comment on the measure within a reasonable period. draft measure within a reasonable period.

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The results of the consultation procedure no AM The results of the consultation procedure Keep common position shall be made publicly available by the shall be made publicly available by the (acceptable for EP) national regulatory authority, except in the national regulatory authority, except in the case of confidential information in case of confidential information in accordance with Community and national accordance with Community and national law on business confidentiality. law on business confidentiality.

Article 7 Article 7 Article 7 Article 7 Consolidating the internal market for Consolidating the internal market for Consolidating the internal market for Consolidating the internal market for

electronic communications electronic communications electronic communications electronic communications 1. ...

• 2. 

  National regulatory authorities shall 2. National regulatory authorities shall 2. National regulatory authorities shall 2. National regulatory authorities shall contribute to the development of the contribute to the development of the contribute to the development of the contribute to the development of the internal market by working with the internal market by working with the Internal Market by […] cooperating with Internal Market by cooperating working Commission and [the Body] BERT in a Commission and BERT in a transparent each other and with the Commission and with each other and with the Commission transparent manner so as to ensure the manner so as to ensure the consistent the GERT all in a transparent manner so and the BEREC all in a transparent manner consistent application, in all Member application, in all Member States, of the as to ensure the consistent application, in so as to ensure the consistent application, States, of the provisions of this Directive provisions of this Directive and the all Member States, of the provisions of this in all Member States, of the provisions of and the Specific Directives. To this end, Specific Directives. To this end, they shall, Directive and the Specific Directives. To this Directive and the Specific Directives. they shall, in particular, work with the in particular, work with the Commission this end, they shall, in particular, […] To this end, they shall, in particular, Commission and [the Body] BERT to and BERT to identify the types of cooperate with the Commission and the cooperate work with the Commission and identify the types of instruments and instruments and remedies best suited to GERT to identify the types of instruments the BEREC to identify the types of remedies best suited to address particular address particular types of situations in the and remedies best suited to address instruments and remedies best suited to types of situations in the marketplace. marketplace. particular types of situations in the address particular types of situations in the

  marketplace. marketplace.

• 3. 

  Except where otherwise provided in 3. Except where otherwise provided in 3. Except where otherwise provided in Keep common position implementing provisions adopted pursuant recommendations or guidelines adopted recommendations and/or guidelines (acceptable for EP) to Article 7a, upon completion of the pursuant to Article 7a upon completion of adopted pursuant to Article 7a, upon consultation referred to in Article 6, where the consultation referred to in Article 6, completion of the consultation referred to a national regulatory authority intends to where a national regulatory authority in Article 6, where a national regulatory take a measure which: intends to take a measure which: authority intends to take a measure which:

(a) falls within the scope of Articles 15 (a) falls within the scope of Articles 15 or (a) falls within the scope of Articles 15 or (a) falls within the scope of Articles 15 or 16 of this Directive, or Articles 5 or 8 of 16 of this Directive, or Articles 5 or 8 of 16 of this Directive, Articles 5 or 8 of or 16 of this Directive, or Articles 5 or 8 of

ANNEX 2 DG C II B LIMITE EN

Directive 2002/19/EC i (Access Directive), Directive 2002/19/EC i (Access Directive), Directive 2002/19/EC i (Access Directive), Directive 2002/19/EC i (Access Directive), and and and and

(b) would affect trade between Member (b) would affect trade between Member (b) would affect trade between Member (b) would affect trade between Member States, States, States, States,

it shall make the draft measure accessible it shall make the draft measure accessible it shall make the draft measure accessible it shall make the draft measure accessible to the Commission, [the Body] BERT, and to the Commission, BERT and the national to the Commission, the GERT, and the to the Commission, the BEREC, and the the national regulatory authorities in other regulatory authorities in other Member national regulatory authorities in other national regulatory authorities in other Member States, at the same time, together States, at the same time, together with the Member States, together with the Member States, at the same time, with the reasoning on which the measure is reasoning on which the measure is based, reasoning on which the measure is based, together with the reasoning on which the based, in accordance with Article 5(3), and in accordance with Article 5(3), and in accordance with Article 5(3), and measure is based, in accordance with inform the Commission, the [Body] BERT inform the Commission, BERT and other inform the Commission, the GERT and Article 5(3), and inform the Commission, and other national regulatory authorities national regulatory authorities thereof. other national regulatory authorities the BEREC and other national regulatory thereof. National regulatory authorities, National regulatory authorities, BERT and thereof. National regulatory authorities, authorities thereof. National regulatory BERT, and the Commission may make the Commission may make comments to the GERT and the Commission may make authorities, the BEREC and the comments to the national regulatory the national regulatory authority concerned comments to the national regulatory Commission may make comments to the authority concerned only within one only within one month. The one-month authority concerned only within one national regulatory authority concerned month. The one-month period may not be period may not be extended. month. The one-month period may not be only within one month. The one-month extended. extended. period may not be extended.

• 4. 

  Where an intended measure covered 4. Where an intended measure covered by 4. Where an intended measure covered Keep common position by paragraph 3 aims at: paragraph 3 aims at: by paragraph 3 aims at: (identical)

(a) defining a relevant market which (a) defining a relevant market which (a) defining a relevant market which Keep common position differs from those defined in the differs from those defined in the differs from those defined in the (identical)

Recommendation in accordance with Recommendation in accordance with Recommendation in accordance with

Article 15(1); or Article 15(1); or Article 15(1); or

(b) deciding whether or not to (b) deciding whether or not to designate an (b) deciding whether or not to designate an (b) deciding whether or not to designate an designate an undertaking as having, either undertaking as having, either individually undertaking as having, either individually undertaking as having, either individually individually or jointly with others, or jointly with others, significant market or jointly with others, significant market or jointly with others, significant market significant market power, under power, under Article 16(3), (4) or (5), power, under Article 16(3), (4) or (5); or power, under Article 16(3), (4) or (5); or Article 16(3), (4) or (5),

(c) imposing, amending or withdrawing deleted (c) imposing, amending or withdrawing (c) imposing, amending or withdrawing an obligation on an operator in application an obligation on an operator in an obligation on an operator in of Article 16 in conjunction with Articles 5 application of Article 16 in conjunction application of Article 16 in conjunction and 9 to 13 of Directive 2002/19/EC i with Articles 5 and 9 to 13 of Directive with Articles 5 and 9 to 13 of Directive (Access Directive), and Article 17 of 2002/19/EC (Access Directive), and 2002/19/EC (Access Directive), and Directive 2002/22/EC i (Universal Service Article 17 of Directive 2002/22/EC i Article 17 of Directive 2002/22/EC i Directive), (Universal Service Directive), (Universal Service Directive), and would affect trade between Member and would affect trade between Member and would affect trade between Member Keep common position

ANNEX 2 DG C II B LIMITE EN

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

inform other national regulatory authorities of its reservations in such a case.

• 5. 

  Within the two month period 5. Within the two month period referred to 5. Within the two-month period 5. Within the two-month period referred to in paragraph 4, the Commission in paragraph 4, the Commission may take referred to in paragraph 4, the Commission referred to in paragraph 4, the Commission may take a decision requiring the national a decision requiring the national may may regulatory authority concerned to withdraw regulatory authority concerned to (a) take a decision [...] in relation to (a) take a decision [...] in relation to the draft measure. The Commission shall withdraw the draft measure. The the draft measure referred to in the draft measure referred to in take the utmost account of the opinion of Commission shall take the utmost paragraph 4(a) and 4(b) requiring the paragraph 4(a) and 4(b) requiring the the [Body] BERT submitted in accordance account of the opinion of BERT national regulatory authority concerned to national regulatory authority concerned to with Article 5 of Regulation [……/EC] submitted in accordance with Article 5 of withdraw the draft measure, and/or° withdraw the draft measure, and/or° before issuing a decision. The decision Regulation (EC) No.../2009 of the (b) issue an opinion in relation to the (b) issue an opinion in relation to the shall be accompanied by a detailed and European Parliament and of the Council draft measure referred to in paragraph draft measure referred to in paragraph objective analysis of why the Commission of ... [establishing the Body of European 4(c), or 4(c), or considers that the draft measure should not Regulators in Telecom (BERT)] before (c) take a decision to lift its (b) take a decision to lift its be adopted together with specific proposals issuing a decision. The decision shall be reservations in relation to the draft reservations in relation to the draft for amending the draft measure. accompanied by a detailed and objective measure referred to in paragraph 4. measure referred to in paragraph 4.

  analysis of why the Commission considers The Commission shall take utmost The Commission shall take utmost that the draft measure should not be account of the opinion of the GERT account of the opinion of the BEREC adopted together with specific proposals before issuing a decision and/or issuing before issuing a decision and/or issuing for amending the draft measure. an opinion. […] The decision and/or an opinion. […] The decision and/or opinion shall be accompanied by a opinion shall be accompanied by a detailed and objective analysis of why the detailed and objective analysis of why the Commission considers that the draft Commission considers that the draft measure should not be adopted together measure should not be adopted together with specific proposals for amending the with specific proposals for amending the draft measure. draft measure.

• 6. 

  Within three months of the no AM 6. Within six months of the 6. Within six months of the

Commission issuing a decision in Commission issuing a decision in Commission issuing a decision in accordance with paragraph 5 requiring the accordance with paragraph 5(a) requiring accordance with paragraph 5(a) requiring

ANNEX 2 DG C II B LIMITE EN

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

• 7. 

  The national regulatory authority 7. The national regulatory authority 7. The national regulatory authority 7. The national regulatory authority concerned shall take the utmost account of concerned shall take the utmost account of concerned shall take the utmost account of concerned shall take the utmost account of comments of other national regulatory comments of other national regulatory comments of other national regulatory comments of other national regulatory authorities, BERT [the Body], and the authorities, BERT and the Commission authorities, the GERT and the authorities, the BEREC and the

Commission and may, save as otherwise and may, except in cases covered by Commission and may, except in cases Commission and may, except in cases provided except in cases covered by paragraph 4, adopt the resulting draft covered by paragraph 4(a) and (b), adopt covered by paragraph 4(a) and (b), adopt paragraph 4 or Article 7a, adopt the measure and, where it does so, shall the resulting draft measure and, where it the resulting draft measure and, where it resulting draft measure and, where it does communicate it to the Commission. Any does so, shall communicate it to the does so, shall communicate it to the so, shall communicate it to the other national body exercising functions Commission. [...] Commission. [...]

Commission. Any other national body under this Directive or the Specific exercising functions under this Directive or Directives shall also take the utmost the Specific Directives shall also take the account of the comments of the utmost account of the comments of the Commission.

Commission. deleted Where the national regulatory authority Where the national regulatory authority decides to amend the draft measure decides to amend the draft measure according to the opinion issued under according to the opinion issued under paragraph 5(b), it shall, within six paragraph 5(b), it shall, within six months of the Commission issuing the months of the Commission issuing the opinion, undertake a public consultation opinion, undertake a public consultation in accordance with the procedures in accordance with the procedures referred to in Article 6 and referred to in Article 6 and communicate the amended measure to communicate the amended measure to the Commission. the Commission.

Where the national regulatory authority Where the national regulatory authority decides not to amend the draft measure decides not to amend the draft measure on the basis of the opinion issued under on the basis of the opinion issued under paragraph 5(b), it shall also publish the paragraph 5(b), it shall also publish the

ANNEX 2 DG C II B LIMITE EN

reasons justifying its decision and shall reasons justifying its decision and shall communicate them to the Commission communicate them to the Commission within six months. within six months.

• 8. 

  Where a draft measure has been deleted deleted Keep common position amended in accordance with paragraph 6, (identical) 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 i

(Access Directive), and Article 17 of

Directive 2002/22/EC i (Universal Service

Directive) within a given time-limit.

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 deleted 8. The national regulatory authority 8. The national regulatory authority shall communicate to the Commission all shall communicate to the Commission shall communicate to the Commission and final measures which fall under conditions and the GERT all final measures which theBEREC all adopted final measures a) and b) in Article 7(3). fall under conditions a) and b) in Article which fall under conditions a) and b) in

  7(3). Article 7(3). 10. In exceptional circumstances, where no AM 9. In exceptional circumstances, where Keep common position a national regulatory authority considers a national regulatory authority considers (only name of the entity) that there is an urgent need to act, by way that there is an urgent need to act, by way of derogation from the procedure set out in of derogation from the procedure set out in paragraphs 3 and 4 and Article 7a, in paragraphs 3 and 4, in order to safeguard order to safeguard competition and protect competition and protect the interests of the interests of users, it may immediately users, it may immediately adopt adopt proportionate and provisional proportionate and provisional measures. It measures. It shall, without delay, shall, without delay, communicate those communicate those measures, with full measures, with full reasons, to the reasons, to the Commission, the other Commission, the other national regulatory national regulatory authorities, and [the authorities, and the GERT. A decision by

Body] BERT. A decision by the national the national regulatory authority to render

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regulatory authority to render such such measures permanent or extend the measures permanent or extend the time for time for which they are applicable shall be which they are applicable shall be subject subject to the provisions of paragraphs 3 to the provisions of paragraphs 3 and 4 and 4. and/or Article 7a.

Article -7a Article -7a Article -7a Article -7a Procedure for the consistent application Procedure for the consistent application Procedure for the consistent application Procedure for the consistent application

of remedies of remedies of remedies of remedies 1. Where an intended measure covered 1. Where an intended measure covered by Council rejects this new Article and 1. Where an intended measure covered by Article 7(3) aims at imposing, Article 7(3) aims at imposing, amending includes its amendments in Article 7 by Article 7(3) aims at imposing, amending or withdrawing a national or withdrawing an obligation on an amending or withdrawing an obligation regulatory authority intends to adopt a operator in application of Article 16 in on an operator in application of Article measure to impose, amend or withdraw conjunction with Articles 5 and 9 to 13a 16 in conjunction with Articles 5 and 9 an obligation on an operator in of Directive 2002/19/EC i (Access to 13a of Directive 2002/19/EC i (Access application of Article 16 in conjunction Directive), and Article 17 of Directive Directive), and Article 17 of Directive with Articles 5 and 9 to 13a of Directive 2002/22/EC i (Universal Service Directive 2002/22/EC i (Universal Service Directive 2002/19/EC i (Access Directive), and the Commission may, within the period of the Commission may, within the period Article 17 of Directive 2002/22/EC i one month provided for by Article 7(3), of one month provided for by Article (Universal Service Directive)the notify the national regulatory authority 7(3), notify the national regulatory Commission and the national regulatory concerned and BERT of the reasons why authority concerned and BEREC of the authorities of the other Member States it considers that the draft measure would reasons why it considers that the draft shall have a period of one month from the create a barrier to the single market or measure would create a barrier to the date of notification of the draft measure that it has serious doubts as to its single market or that it has serious in which to make comments to the compatibility with Community law. In doubts as to its compatibility with national regulatory authority concerned. such a case, the draft measure shall not Community law. In such a case, the

be adopted for a further three months draft measure shall not be adopted for a following the Commission's notification. further three months following the

Commission's notification. 2. If the draft measure concerns the no AM imposition, amendment or withdrawal of an obligation other than the obligation laid down in Article 13a of Directive

2002/19/EC (Access Directive), the

Commission may, within the same period of one month provided for by Article

7(3), notify the national regulatory authority concerned and [the Body]

BERT of the reasons why that it considers that the draft measure would create a barrier to the single market or

ANNEX 2 DG C II B LIMITE EN

that why it has serious doubts as to its compatibility with Community law. In such case, the draft measure shall not be adopted for a further three two months following the Commission's notification.

In the absence of such notification, the In the absence of such notification, the In the absence of such notification, the national regulatory authority concerned national regulatory authority concerned national regulatory authority concerned may adopt the draft measure, taking may adopt the draft measure, taking may adopt the draft measure, taking utmost account of any comments made by utmost account of any comments made by utmost account of any comments made the Commission, [the Body] or by any the Commission, BERT or any other by the Commission, BEREC or any other national regulatory authority. national regulatory authority. other national regulatory authority. 2 3. Within the three two-month period 2 Within the three month period referred 2 Within the three month period referred to in paragraph 1 2, the to in paragraph 1, the Commission, referred to in paragraph 1, the Commission, [the Body] BERT and the BERT and the national regulatory Commission, BEREC and the national national regulatory authority concerned authority concerned shall cooperate regulatory authority concerned shall shall cooperate closely with the objective closely with the objective of identifying cooperate closely with the objective of of identifying the most appropriate and the most appropriate and effective identifying the most appropriate and effective measure in the light of the measure in the light of the objectives laid effective measure in the light of the objectives laid down in Article 8, whilst down in Article 8, whilst taking due objectives laid down in Article 8, whilst taking due account of the views of market account of the views of market taking due account of the views of participants and the need to ensure the participants and the need to ensure the market participants and the need to development of consistent regulatory development of consistent regulatory ensure the development of consistent practice. practice. regulatory practice.

• 3. 

  Within one month from the beginning 3. Within one month from the beginning 3. Within 6 weeks from the beginning of of the same three two-month period of the three month period referred to in the three month period referred to in referred to in paragraph 1, [the Body] paragraph 1, BERT shall, acting by a paragraph 1, BEREC shall, acting by a BERT shall, acting by an absolute majority of its component members, issue majority of its component members, majority, issue in accordance with an opinion confirming the issue an opinion on the Commission's Article [X] of Regulation [……/EC] appropriateness and effectiveness of the notification referred to in paragraph 1, adopt an opinion on the question draft measure or indicating that the draft indicating whether it considers that the whether confirming the appropriateness measure would create a barrier to the draft measure should be amended or and effectiveness of the draft measure single market or be incompatible with withdrawn and, where appropriate, would create a barrier to the single Community law and in particular the providing specific proposals to that end. market or be incompatible with objectives referred to in Article 8, This opinion shall be reasoned and made Community law and in particular the indicating whether it considers that the public. objectives referred to in Article 8, or draft measure should be amended or indicating whether it considers that the withdrawn and, where appropriate, draft measure should be amended or providing specific proposals to that end. withdrawn and (where appropriate) This opinion shall be reasoned and made providing specific proposals to that end. public.

ANNEX 2 DG C II B LIMITE EN

This opinion shall be reasoned and made public.

If BERT has confirmed the If BERT has confirmed the appropriateness and effectiveness of the appropriateness and effectiveness of the draft measure, the national regulatory draft measure, the national regulatory authority concerned may adopt the draft authority concerned may adopt the draft measure, taking utmost account of any measure, taking utmost account of any comments made by the Commission and comments made by the Commission and

BERT. The national regulatory authority BERT. The national regulatory authority shall make public how it has taken these shall make public how it has taken these comments into account. comments into account.

• 4. 

  If [the Body] BERT has indicated in its 4. If BERT has indicated in its opinion 4. Before the end of the three month opinion that the draft measure should be that the draft measure should be amended period referred to in paragraph 1 the amended or withdrawn, the Commission or withdrawn, the Commission may, Commission may, taking the utmost may, taking utmost account of the taking utmost account of the opinion of account of the opinion of BEREC: opinion of [the Body] BERT's , adopt a BERT, adopt a decision before the end of (a) issue a recommendation requiring decision before the end of the three the three month period referred to in the national regulatory authority month period referred to in paragraph paragraph 1, requiring the national concerned to amend or withdraw the 1, requiring the national regulatory regulatory authority concerned to amend draft measure and providing reasons authority concerned to amend or or withdraw the draft measure and and specific proposals to that end, in withdraw the draft measure and providing reasons and specific proposals particular if BEREC has indicated in its providing reasons and specific proposals to that end. opinion that the draft measure should be to that end. amended or withdrawn.

(b) take a decision to lift its reservations indicated in accordance

with paragraph 1. 4. If the draft measure concerns the no AM imposition, amendment or withdrawal of the obligation laid down in Article 13a of

Directive 2002/19/EC i (Access Directive), the draft measure shall not be adopted for a further two-month period starting at the end of the one-month period referred to in paragraph 1.

Within the two-month period referred to no AM in the first subparagraph, the

Commission, BERT and the national regulatory authority concerned shall cooperate closely with the objective of determining whether the proposed draft

ANNEX 2 DG C II B LIMITE EN

measure complies with the provisions of

Article13a of Directive 2002/19/EC i

(Access Directive), and, in particular, whether it is the most appropriate and effective measure. To that end, due account shall be taken of the views of market participants and of the need to ensure the development of consistent regulatory practice. At the reasoned request of BERT or the Commission, this two-month period shall be extended by up to a further two months.

Within the maximum period set out in the no AM second subparagraph, BERT shall, acting by an absolute majority, adopt an opinion confirming the appropriateness and effectiveness of the draft measure or indicating that the draft measure should not be adopted. This opinion shall be reasoned and made public.

• 5. 

  In all other cases the Commission 5. In all other cases the Commission may, 5. Within one month of the Commission may, taking utmost account of any taking utmost account of any opinion of issuing the recommendation in opinion of [the Body] and in accordance BERT and in accordance with the accordance with paragraph 4 the with the procedure referred to in Article procedure referred to in Article 22(2a) national regulatory authority concerned 22(2) (advisory committee procedure), (regulatory committee procedure), submit shall communicate to the Commission adopt a reasoned decision before the end a draft decision requiring the national and BEREC whether the draft measure of the three month period referred to in regulatory authority concerned to amend will be amended or not. paragraph 1, requiring the national or withdraw the draft measure and regulatory authority concerned to providing specific proposals to that end. This period may be extended to allow amend or withdraw the draft measure the national regulatory authority to and providing specific proposals to that undertake a public consultation in end. accordance with Article 6. 6. Only If the Commission has not taken 6. If the Commission has not taken a 6. The national regulatory authority a decision pursuant to paragraphs 4 or 5 decision pursuant to paragraph 4 or concerned may adopt the draft measure, by the end of the three month period submitted a draft decision pursuant to taking utmost account of the referred to in paragraph 1 and BERT paragraph 5 by the end of the three recommendation of the Commission or, have confirmed the appropriateness and month period referred to in paragraph 1, in absence thereof, of any comments effectiveness of the draft measure, the the national regulatory authority made by the Commission and BEREC. national regulatory authority concerned concerned may adopt the draft measure, may adopt the draft measure, taking taking utmost account of any comments

ANNEX 2 DG C II B LIMITE EN

utmost account of any comments made by made by the Commission and BERT. The the Commission and [the Body] BERT. national regulatory authority shall make

The national regulatory authority shall public how it has taken these comments make public how it has taken these into account. comments into account.

• 75. 

  Within three months of the adoption 7. Within six months of the adoption by 7. The national regulatory authority by the Commission in accordance with the Commission of a reasoned decision, shall communicate to the Commission the fourth subparagraph of paragraph 3 in accordance with paragraphs 4 or 5, and the BEREC the adopted final of a reasoned decision, in accordance requiring a national regulatory authority measure. Where the national regulatory with paragraphs 4 or 5 paragraph 3, to amend or withdraw the draft measure, authority decides not to amend the draft subparagraph 4 of this Article, requiring the national regulatory authority measure on the basis of the a national regulatory authority to amend concerned shall amend or withdraw the recommendation issued under or withdraw the draft measure, the draft measure in accordance with that paragraph 4, the communication shall national regulatory authority concerned decision. If the draft measure is to be include the reasons justifying its shall amend or withdraw the draft amended, the national regulatory decision. measure in accordance with that authority shall undertake a public decision. If the draft measure is to be consultation in accordance with the amended, the national regulatory consultation and transparency procedure authority shall undertake a public referred to in Article 6, and re-notify the consultation in accordance with the amended draft measure to the consultation and transparency procedure Commission in accordance with Article 7. referred to in Article 6, and re-notify the amended draft measure to the

Commission in accordance with Article 7.

• 86. 

  The national regulatory authority may 8. The national regulatory authority may 8. The national regulatory authority withdraw the proposed draft measure at withdraw the proposed draft measure at may withdraw the proposed draft any stage of the procedure. any stage of the procedure. measure at any stage of the procedure.

  Article 7a Article 7a Article 7a Article 7a Implementing provisions Implementing provisions Notifications Implementing provisions Notifications Implementing provisions

• 1. 

  The Commission may lay down no AM 1. After public consultation and Keep common position. implementing provisions in relation to consultation with national regulatory (acceptable for EP)

Article 7 that define the form, content and authorities and taking utmost account of level of details to be given in the the opinion of the GERT, the notifications required in accordance with Commission may adopt

Article 7(3), the circumstances in which recommendations and/or guidelines in notifications would not be required, and relation to Article 7 that define the form, the calculation of the time limits. content and level of details to be given in

the notifications required in accordance with Article 7(3), the circumstances in

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which notifications would not be required, and the calculation of the time limits.

• 2. 

  The measures referred to in deleted 2. The measures referred to in Keep common position paragraph 1, designed to amend nonparagraph 1 [...] shall be adopted in (not acceptable for EP so far) essential elements of this Directive by accordance with the advisory procedure supplementing it, shall be adopted in [...] referred to in Article 22(2). [...] 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 8 Article 8 Article 8 Article 8 Policy objectives and regulatory Policy objectives and regulatory Policy objectives and regulatory Policy objectives and regulatory

principles principles principles principles 1. […] 1. […] 1. […] Keep common position.

Unless otherwise provided in Article 9 Unless otherwise provided in Article 9

regarding radio frequencies, Member Unless otherwise provided in Article 9 regarding radio frequencies, Member

States shall take the utmost account of the regarding radio frequencies or unless States shall take the utmost account of the desirability of making regulations otherwise required in order to fulfil the desirability of making regulations technologically neutral and shall ensure objectives laid down in paragraphs 2 to 4, technologically neutral and shall ensure that, in carrying out the regulatory tasks Member States shall take the utmost that, in carrying out the regulatory tasks specified in this Directive and the Specific account of the desirability of making specified in this Directive and the Specific

Directives, in particular those designed to regulations technologically neutral and Directives, in particular those designed to ensure effective competition, national shall ensure that, in carrying out the regulatory authorities do likewise. regulatory tasks specified in this Directive

ensure effective competition, national

and the Specific Directives, in particular regulatory authorities do likewise.

those designed to ensure effective competition, national regulatory authorities do likewise.

• 2. 

  […] 2. […] 2. […] 2. […]

(a) ensuring that users, including no AM (a) ensuring that users, including Keep common position. disabled users, elderly users, and users disabled users, elderly users, and users (acceptable for EP) with special social needs derive maximum with special social needs derive maximum benefit in terms of choice, price, and benefit in terms of choice, price, and quality; quality;

(b) ensuring that there is no distortion (b) ensuring that there is no (b) ensuring that there is no distortion (b) ensuring that there is no distortion or restriction of competition in the distortion or restriction of competition or restriction of competition in the or restriction of competition in the electronic communications sector, in in the electronic communications sector, electronic communications sector […]; electronic communications sector, with

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particular for the delivery of content; in particular for the delivery of and particular attention to the provision of access to content and services across all wholesale services,

networks; (c) encouraging efficient investment in no AM deleted Keep common position infrastructure, and promoting innovation; (acceptable for EP) and

• 3. 

  […] 3. […] 3. […] Keep common position

  (identical) (c) ensuring that, in similar circumstances, no AM deleted there is no discrimination in the treatment of undertakings providing electronic communications networks and services

(d) working with the Commission and (d) cooperating with the Commission and (d) cooperating with each other, with Keep common position

[the Body] so as to ensure the BERT so as to ensure the development of the Commission and the GERT so as to development of consistent regulatory consistent regulatory practice and the ensure the development of consistent practice and the consistent application of consistent application of this Directive and regulatory practice and the consistent this Directive and the Specific Directives. the Specific Directives. application of this Directive and the

Specific Directives. 4. […] 4. […] 4. […] 4. […]

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

(fb) applying the principle that no Keep common position. restriction may be imposed on the (not acceptable for EP so far) fundamental rights and freedoms of endusers, without a prior ruling by 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 no AM 4a. The national regulatory Keep common position shall, in pursuit of the policy objectives authorities shall, in pursuit of the policy (acceptable for EP)

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referred to in paragraphs 2, 3 and 4, objectives referred to in paragraphs 2, 3 apply objective, transparent, nonand 4, apply objective, transparent, nondiscriminatory and proportionate discriminatory and proportionate regulatory principles by, inter alia: regulatory principles by inter alia: (a) promoting regulatory predictability (a) promoting regulatory predictability by (a) promoting regulatory (a) promoting regulatory predictability through the continuity of remedies over ensuring a consistent regulatory predictability; in particular by ensuring a consistent several market reviews as appropriate, by approach over successive review periods; regulatory approach over sufficient ensuring a consistent regulatory period of time successive review periods; approach over successive review periods;

(b) ensuring that, in similar no AM (b) ensuring that, in similar Keep common position circumstances, there is no discrimination circumstances, there is no (acceptable for EP) in the treatment of undertakings discrimination in the treatment of providing electronic communications undertakings providing electronic networks and services; communications networks and services; (c) safeguarding competition to the (c) safeguarding competition to the benefit (c) safeguarding competition to the Keep common position benefit of consumers and promoting of consumers and promoting, wherever benefit of consumers and promoting (accpetable for EP) infrastructure-based competition possible, infrastructure-based competition; where appropriate infrastructure-based wherever possible; competition;

New recital: Competition can best be supported through an economically efficient level of investment in new and existing infrastructure complemented by regulation wherever necessary to achieve effective competition in retail services. An efficient level of infrastructure-based competition is the degree of duplication of infrastructure with which investors can reasonably be expected to make a fair return based on reasonable expectations about the evolution of market shares.

(d) promoting market driven investment (d) promoting market driven investment (d) promoting efficient investment (d) promoting efficient investment and and innovation in new and enhanced and innovation in new and enhanced and innovation in new and enhanced innovation in new and enhanced infrastructures including by encouraging infrastructures including by encouraging infrastructures including by taking into infrastructures including by taking into sharing of investment and by ensuring sharing of investment and by ensuring account investment risks ensuring that any access obligation takes that the cost of access to facilities takes appropriate sharing of risk between appropriate account of the investment appropriate account of the risks investors and those undertakings enjoying risk incurred by the investing incurred by appropriate -sharing of risk access to the new facilities; undertakings;

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between the investors and those undertakings enjoying access to the new New Recital: facilities; When imposing obligations for access to

new and enhanced infrastructures national regulatory authorities should ensure that access conditions reflect the circumstances underlying the investment decision, taking into account inter alia the roll-out costs, the expected rate of take up of the new products and services and the expected retail price levels. Moreover, national regulatory authorities should be able to set, if applicable, terms and conditions for access which are consistent over successive review periods to provide planning certainty to investors. These terms and conditions may include pricing arrangements which depend on volumes or length of contract in accordance with Community law. Any access conditions imposed should respect the need to preserve effective competition in services to consumers and businesses.

In view of the size of investments needed for new and enhanced infrastructures, cooperation agreements between market players are likely to accelerate and strengthen the roll-out of next generation networks to the benefit of consumers, provided that competition is safeguarded, including by access obligations where appropriate.

(e) taking due account of the variety of no AM (e) taking due account of the variety Keep common position conditions relating to competition and of conditions relating to competition and (identical) consumers that exist in the different consumers that exist in the various geographic areas within a Member State; geographic areas within a Member

State;

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

Article 8a Article 8a Article 8a Article 8a Radio Spectrum Policy Committee Radio Spectrum Policy Committee Radio Spectrum Policy Committee Radio Spectrum Policy Committee 1. A Radio Spectrum Policy Committee 1. A Radio Spectrum Policy Committee Council rejects this new Article Keep common position

("RSPC") is hereby created in order to ("RSPC") is hereby created in order to contribute to the fulfilment of the contribute to the fulfilment of the objectives set out in paragraphs 1, 3 and 5 objectives set out in paragraphs 1, 3 and 5 of Article 8b. of Article 8b.

The RSPC shall provide advice to the The RSPC shall provide advice to the

European Parliament, the Council and European Parliament, the Council and the Commission on radio spectrum policy the Commission on radio spectrum policy issues. issues.

The RSPC shall be composed of high The RSPC shall be composed of highlevel representatives from the competent level representatives from the competent national authorities responsible for radio national authorities responsible for radio spectrum policy in each Member State. spectrum policy in each Member State.

Each Member State shall have one vote Each Member State shall have one vote and the Commission shall not vote. and the Commission shall not vote.

• 2. 

  At the request of the European 2. At the request of the European

Parliament, the Council or the Parliament, the Council or the

Commission or on its own initiative, the Commission or on its own initiative, the

RSPC, acting by an absolute majority, RSPC, acting by an absolute majority, shall adopt opinions. shall adopt opinions.

• 3. 

  The RSPC shall submit an annual 3. The RSPC shall submit an annual activity report to the European activity report to the European

Parliament and to the Council. Parliament and to the Council.

Article 8b Article 8b Article 8a Article 8a Strategic planning and coordination of Strategic planning and coordination of Strategic planning and coordination of Strategic planning and coordination of radio spectrum policy in the European radio spectrum policy radio spectrum policy in the Union radio spectrum policy in the Union

Union Community 1. Member States shall contribute to the 1. Member States shall cooperate with 1. Member States shall cooperate 1. Member States shall cooperate with development of the internal market by each other and with the Commission in the with each other and with the each other and with the Commission in the cooperating with each other and with the strategic planning, coordination and Commission in the strategic planning, strategic planning, coordination and Commission in the strategic planning, harmonisation of the use of radio spectrum coordination and harmonisation of the harmonisation of the use of radio spectrum coordination and harmonisation of the in the European Community. To this end, use of radio spectrum in the European in the EuropeanUnion Community. To

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use of radio spectrum in the European they shall take into consideration, inter Union. To this end, they shall take into this end, they shall take into consideration Union Community. To this end In so alia, the economic, safety, health, public consideration inter alia economic, safety, inter alia economic, safety, health, public doing, they shall take into consideration interest, freedom of expression, cultural, health, public interest, freedom of interest, freedom of expression, cultural, inter alia, economic, safety, health, public scientific, social and technical aspects of expression, cultural, scientific, social scientific, social and technical aspects of interest, freedom of expression, cultural, EU policies as well as the various interests and technical aspects of the EU policies the EUEC policies as well as the various scientific, social and technical aspects of of radio spectrum user communities with as well as the various interests of radio interests of radio spectrum user the EUC policies as well as the various the aim of optimising the use of radio spectrum user communities with the aim communities with the aim of optimising interests of radio spectrum user spectrum and avoiding harmful of optimising the use of radio spectrum the use of radio spectrum and of avoiding communities with the aim of optimising interference. and of avoiding harmful interference. harmful interference. the use of radio spectrum and of avoiding harmful interference.

• 2. 

  Radio spectrum policy activities in the no AM deleted Keep common position

European Union shall be without (acceptable for EP) prejudice to:

(a) measures taken at Community or no AM deleted Keep common position national level, in compliance with (acceptable for EP) Community law, to pursue general interest objectives, in particular with regard to content regulation and audiovisual and media policies,

(b) the provisions of Directive no AM deleted Keep common position

1999/5/EC 3 ; and (acceptable for EP)

new Recital AM 15 - new Recital related to ART 8b new Recital

Radio spectrum policy activities in the (19a) Radio spectrum policy activities in Radio spectrum policy activities in the European Community should be without the European Community should be European Community should be prejudice to measures taken at without prejudice to measures taken at without prejudice to measures taken at Community or national level, in Community or national level, in Community or national level, in compliance with Community law, to compliance with Community law, to compliance with Community law, to pursue general interest objectives, in pursue general interest objectives, in pursue general interest objectives, in particular with regard to content particular with regard to content particular with regard to content regulation and audio-visual and media regulation and audio-visual and media regulation and audio-visual and media policies, the provisions of Directive policies, the provisions of Directive policies, the provisions of Directive

1999/5/EC 4 and the right of Member 1999/5/EC and the right of Member 1999/5/EC5 and the right of Member

States to organise and use their radio States to organise and use their radio States to organise and use their radio spectrum for the purposes of public order, spectrum for the purposes of public order, spectrum for the purposes of public

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public security and defence. public security and defence. order, public security and defence.

(c ) the right of Member States to (c) the right of Member States to organise deleted Keep common position organise and use their radio spectrum for and use their radio spectrum for the (acceptable for EP) the purposes of public order, public purposes of public order, public security security and defence. and defence. 32. By cooperating with each other and 2. By cooperating with each other and 3. Member States shall promote the 2. By cooperating with each other and with the Commission, Member States with the Commission, Member States shall coordination of radio spectrum policy with the Commission, Member States shall ensure contribute to the promote the coordination of radio approaches in the European Union and, shall promote the coordination of radio coordination of radio spectrum policy spectrum policy approaches in the where appropriate, harmonised spectrum policy approaches in the approaches in the European Union and, European Community and, where conditions with regard to the availability European Community Union and, where where appropriate, harmonised appropriate, harmonised conditions with and efficient use of radio spectrum appropriate, harmonised conditions with conditions with regard to the availability regard to the availability and efficient use necessary for the establishment and regard to the availability and efficient use and efficient use of radio spectrum of radio spectrum necessary for the functioning of the internal market in of radio spectrum necessary for the necessary for the establishment and establishment and functioning of the electronic communications. establishment and functioning of the functioning of the internal market in EU internal market. internal market in electronic policy areas such as electronic communications communications, transport and research and development.

34 The Commission taking due account 3. Whenever necessary for ensuring the 4. The Commission, taking utmost 3. The Commission, taking utmost account of the opinion of the RSPC, may submit a effective coordination of the interests of account of the opinion of the RSPG, may of the opinion of the Radio Spectrum legislative proposal for establishing a the European Community in international submit legislative proposals for Policy Group (RSPG), may, in radio spectrum action programme with organisations competent in radio spectrum establishing multiannual radio spectrum accordance with Article 251 of the regard to the strategic planning and matters, the Commission, taking utmost policy programs. Treaty, submit legislative proposal for harmonisation of the use of radio account of the opinion of the RSPC, may establishing multiannual radio spectrum spectrum in the European Union or other propose common policy objectives to the policy programmes. Such programmes legislative measures with the aim of European Parliament and the Council. shall set out the policy orientations and optimising the use of radio spectrum and objectives for the strategic planning and of avoiding harmful interference. The harmonisation of the use of radio Commission may submit a legislative spectrum in accordance with the proposal for establishing a radio provisions of this Directive and the spectrum policy programme. The Specific Directives. programme shall set out the policy orientations for the strategic planning and harmonisation of the use of radio spectrum in accordance with the provisions of this Directive and the Specific Directives.

Amended recital (-2021) Although spectrum management

(-2021) Although spectrum management remains within the competence of the Member States, strategic planning,

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remains within the competence of the coordination and, where appropriate, Member States, strategic planning, harmonisation of the use of radio coordination and, where appropriate, spectrum at Community level can help harmonisation at Community level can ensure that spectrum users derive the help ensure that spectrum users derive the full benefits of the internal market and full benefits of the internal market and that that EU interests can be effectively EU interests can be effectively defended defended globally. For this purposes, globally. For this purposes, legislative where appropriate legislative multiannual radio spectrum policy multiannual radio spectrum policy programmes should be established to set programmes should be established to set out the policy orientations and objectives out the policy orientations and for the strategic planning, coordination objectives for the strategic planning, and harmonisation of the use of radio coordination and harmonisation of the spectrum in the Community. These policy use of radio spectrum in the orientations and objectives may refer, Community. These policy orientations inter alia, to the harmonisation of and objectives for the strategic planning conditions with regard to the availability of and harmonisation of the use radio and efficient use of radio spectrum spectrum should be in accordance with necessary for the establishment and the provisions of this directive and the functioning of the internal market and to specific directives. the harmonisation of procedures for the granting of general authorisations or individual rights of use for radio frequencies to undertakings providing pan-European electronic communications networks or services.

(-20a) The Commission has indicated its intention to amend Commission Decision 2002/622/EC i establishing a Radio Spectrum Policy Group so that it provides a mechanism for the European Parliament and the Council to request opinions or reports, either orally or in written form, from the RSPG on spectrum policy relating to electronic communications, and so that the Group advises the Commission on the proposed content of the radio spectrum policy programmes.

ANNEX 2 DG C II B LIMITE EN

• 45. 

  Member States shall ensure the 4. The Commission, taking utmost account 5. Member States shall promote the 4. Member States shall promote Whenever effective coordination of the interests of of the opinion of the RSPC, shall submit, effective coordination of the EU necessary for ensuring the effective the European Union in international in accordance with the Article 251 of the interests in international organisations coordination of the EU interests of the organisations competent in radio Treaty, legislative proposals for competent in radio spectrum matters. European Community in international spectrum matters. Whenever necessary establishing multiannual radio spectrum Whenever necessary for promoting this organisations competent in radio spectrum for ensuring such the effective policy programmes. Such programmes effective coordination, the Commission, matters, Whenever necessary for coordination of the interests of the shall set out the policy orientations and taking utmost account of the opinion of promoting this effective coordination, the European Community in international objectives for the strategic planning, the Radio Spectrum Policy Group Commission, taking utmost account of the organisations competent in radio coordination and harmonisation of the (RSPG), may propose to the European opinion of the Radio Spectrum Policy spectrum matters, the Commission, use of radio spectrum in the Community Parliament and the Council common Group (RSPG), may propose to the taking due account of the opinion of the in accordance with the provisions of this policy objectives. European Parliament and the Council RSPC, may propose to the European Directive and the Specific Directives. common policy objectives. Parliament and the Council common policy objectives including, if necessary, a negotiation mandate."

  4a. The Commission may adopt appropriate implementing measures to apply the multiannual radio spectrum policy programmes referred to in paragraph 4. These measures, designed to amend nonessential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 22(3).

  Article 9 Article 9 Article 9 Article 9 Management of radio frequencies for Management of radio frequencies for Management of radio frequencies for Management of radio frequencies for electronic communications services electronic communications services electronic communications services electronic communications services 1. Taking due account of the fact that 1. Taking due account of the fact that radio 1. Taking due account of the fact 1. Taking due account of the fact that radio frequencies are a public good that frequencies are a public good that has an that radio frequencies are a public good radio frequencies are a public good that has an important social, cultural and important social, cultural and economic that has an important social, cultural has an important social, cultural and economic value, Member States shall value, Member States shall ensure the and economic value, Member States shall economic value, Member States shall ensure the effective management of radio effective management of radio frequencies ensure the effective management of radio ensure the effective management of radio frequencies for electronic communications for electronic communication services in frequencies for electronic communication frequencies for electronic communication services in their territory in accordance their territory in accordance with Articles 8 services in their territory in accordance services in their territory in accordance with Articles 8 and 8b. They shall ensure and 8a. They shall ensure that spectrum with Article 8. They shall ensure that […] with Articles 8 and 8a. They shall ensure that the allocation and assignment of such allocation used for electronic spectrum allocation used for electronic that […] spectrum allocation used for radio frequencies by national regulatory communications services and issuing communications services and […] issuing electronic communications services and authorities are based on objective, general authorisations or individual rights general authorisations or individual […] issuing general authorisations or

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transparent, non discriminatory and of use of such radio frequencies by rights of use of such radio frequencies by individual rights of use of such radio proportionate criteria. In so doing, they competent national authorities are based on competent national […] authorities are frequencies by competent national […] shall act in accordance with their objective, transparent, non-discriminatory based on objective, transparent, nonauthorities are based on objective, obligations under the Treaty and, where and proportionate criteria. In doing so, they discriminatory and proportionate criteria. transparent, non-discriminatory and applicable, corresponding international shall respect relevant international In doing so, they respect international proportionate criteria. agreements, and may take public policy agreements and may take public policy agreements and may take public policy considerations into account as set out considerations into account. considerations into account. In doing so, they applying this Article, below. Member States shall respect international

agreements, including the ITU Radio Regulations, and may take public policy

considerations into account.

• 2. 

  Member States shall promote the 2. Member States shall promote the 2. Member States shall promote the 2. Member States shall promote the harmonisation of use of radio frequencies harmonisation of use of radio frequencies harmonisation of use of radio frequencies harmonisation of use of radio frequencies across the Community, consistent with the across the Community, consistent with the across the Community, consistent with the across the Community, consistent with the need to ensure effective and efficient use need to ensure effective and efficient use need to ensure effective and efficient use need to ensure effective and efficient use thereof and in pursuit of benefits for the thereof and in pursuit of benefits for the thereof and in pursuit of benefits for the thereof and in pursuit of benefits for the consumer such as economies of scale and consumer such as economies of scale and consumer such as economies of scale and consumer such as economies of scale and interoperability of services. In so doing, interoperability of services. In so doing, interoperability of services. In so doing, interoperability of services. In so doing, they shall act in accordance with Articles they shall act in accordance with Article 8a they shall act in accordance with the they shall act in accordance with Article 8b and 9c of this Directive, and Decision of this Directive and with the Decision No Decision No 676/2002/EC (Radio 8a of this Directive and with the Decision No 676/2002/EC (Radio Spectrum 676/2002/EC (Radio Spectrum Decision). Spectrum Decision). No 676/2002/EC (Radio Spectrum Decision). Decision).

• 3. 

  Unless otherwise provided in the 3. Unless otherwise provided in the second 3. Unless otherwise provided in the 3. Unless otherwise provided in the second subparagraph or in the measures subparagraph, Member States shall ensure second subparagraph [...], Member States second subparagraph [...], Member States adopted pursuant to Article 9c, Member that all types of technology used for shall ensure that all types of technology shall ensure that all types of technology States shall, ensure that all types of electronic communications services may used for electronic communications used for electronic communications technology used for electronic be used in the radio frequency bands services may be used in the radio services may be used in the radio communications services may be used in declared available for electronic frequency bands, available for electronic frequency bands declared available for the radio frequency bands open to communications services by Member communications services in accordance electronic communications services in available for electronic communications States in conformity with Community law. with their National Frequency accordance with their National Frequency services in accordance with the ITU Allocation Plan and the ITU Radio Allocation Plan and the ITU Radio Radio Regulations. Regulations. Regulations in conformity with

  Community law. Member States may, however, provide for no AM Member States may, however, provide for Keep common position. proportionate and non-discriminatory proportionate and non-discriminatory (identical) restrictions to the types of technology used restrictions to the types of technology used for electronic communication services for electronic communications services where this is necessary to: where this is necessary to:

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(a) avoid the possibility of harmful no AM (a) avoid harmful interference, Keep common position. interference notably to ensure technical (acceptable for EP) quality of service and the efficient use of radio frequencies,

(b) protect public health against no AM (b) protect public health against Keep common position. electromagnetic fields, electromagnetic fields, (identical)

(ba) ensure technical quality of service, no AM (ba) ensure technical quality of Keep common position. service, (identical)

(c) ensure maximisation of radio no AM (c) ensure maximisation of radio Keep common position. frequency sharing where the use of frequencies sharing, (identical) frequencies is subject to a general authorisation,

(ca) safeguard the efficient use of radio no AM (ca) safeguard efficient use of Keep common position. frequencies, spectrum, or; (identical)

(d) fulfil a general interest objective in no AM (d) fulfil a general interest objective Keep common position accordance with paragraph 4. in accordance with paragraph 4 below. (identical)

• 4. 

  Unless otherwise provided in the 4. Unless otherwise provided in the second 4. Unless otherwise provided in the 4. Unless otherwise provided in the second subparagraph or in the measures subparagraph, Member States shall ensure second subparagraph, Member States shall second subparagraph, Member States shall adopted pursuant to Article 9c, Member that all types of electronic communications ensure that all types of electronic ensure that all types of electronic States shall ensure that all types of services may be provided in the radio communications services may be provided communications services may be provided electronic communications services may frequency bands declared available for in the radio frequency bands, available for in the radio frequency bands declared be provided in the radio frequency bands electronic communications services by electronic communications services in available for electronic communications available for electronic communications Member States in conformity with accordance with their National services in accordance with their National services in accordance with as identified Community law. The Member States may, Frequency Allocation Plan and the ITU Frequency Allocation Plan in conformity in their national frequency allocation however, provide for proportionate and Radio Regulations. The Member States with Community law.and the ITU Radio plans and with the ITU Radio non discriminatory restrictions to the types may, however, provide for proportionate Regulations. The Member States may, Regulations. The Member States may, of electronic communications services to and non-discriminatory restrictions to the however, provide for proportionate and however, provide for proportionate and be provided, including, where necessary, types of electronic communications non discriminatory restrictions to the types non discriminatory restrictions to the types to fulfil a requirement under the ITU services to be provided. of electronic communications services to of electronic communications services to Radio Regulations. be provided, including, where necessary, be provided. to fulfil a requirement under the ITU

  Radio

  New Recital (16b) The provisions of this Directive relating to spectrum management should be consistent with the work of international and regional organisations dealing with radio spectrum management, such as the International

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Telecommunications Union (ITU) and the European Conference of Postal and Telecommunications Administrations (CEPT), so as to ensure the efficient management and harmonisation of the use of spectrum across the Community and between Member States and other

members of the ITU Regulations. Measures that require an electronic no AM Measures that require an electronic Keep common position communications service to be provided in communications service to be provided in (acceptable for EP) a specific band available for electronic a specific band available for electronic communications services shall be justified communications services shall be justified in order to ensure the fulfilment of a in order to ensure the fulfilment of a general interest objective as defined in general interest objective as defined by national legislation in conformity with Member States in conformity with

Community law, such as safety of life, the Community law, such as and not limited promotion of social, regional or territorial to: 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.

no AM (a) safety of life, Keep common position (acceptable for EP)

(b) the promotion of social, regional or territorial cohesion,

(c) the avoidance of inefficient use of radio frequencies, or

(d) the promotion of cultural and linguistic diversity and media pluralism, for example by the provision of radio and television broadcasting services.

A measure which prohibits the provision A measure which prohibits the provision of A measure which prohibits the provision A measure which prohibits the provision of of any other electronic communications any other electronic communications of any other electronic communications any other electronic communications service in a specific band may only be service in a specific band may only be service in a specific band may only be service in a specific band may only be provided for where justified by the need to provided for where justified by the need to provided for where justified by the need to provided for where justified by the need to protect safety of life services. protect safety of life services. Member protect safety of life services. Member

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protect safety of life services. states may also extend such measure in States may exceptionally also extend such order to fulfil other general interest measure in order to fulfil other general objectives. interest objectives as defined by Member States in conformity with Community law.

• 5. 

  Member States shall regularly no AM 5. Member States shall regularly Keep common position review the necessity of the restrictions and review the necessity of the restrictions and (identical) measures referred to in paragraphs 3 and 4 measures referred to in paragraphs 3 and 4, and shall make the results of these and shall make the results of these reviews public. reviews public.

• 6. 

  Paragraphs 3 and 4 shall apply to no AM 6. Paragraphs 3 and 4 shall apply to Keep common position the allocation and assignment of radio spectrum allocated to be used for (identical) frequencies from [date of transposition of electronic communications services, this Directive]. general authorisations issued and

  individual rights of use of radio frequencies granted after [subject to the date of transposition].

  no AM Spectrum allocations, general Keep common position authorisations and individual rights of (acceptable for EP)

  use which existed at the date of [subject to the date of transposition] shall be subject to Article 9a.

  no AM 7. Without prejudice to the Keep common position provisions of the Specific Directives and

  taking into account the relevant national (acceptable for EP) circumstances, Member States may lay down rules in order to prevent spectrum hoarding, in particular by setting out strict deadlines for the effective exploitation of the rights of use by the holder of the rights and by applying sanctions, including financial penalties or withdrawal of the rights of use in case of non-compliance with the deadlines. These rules shall be established and applied in a proportionate, nondiscriminatory and transparent manner.

  Article 9a Article 9a Article 9a Article 9a Review of restrictions to existing rights Review of restrictions to existing rights Review of restrictions to existing rights Review of restrictions to existing rights 1. For a period of five years starting no AM 1. For a period of five years starting 1. For a period of five years starting

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on [date of transposition of this on [subject to the date of transposition], on [date of transposition of this Directive] Directive], Member States may ensure that Member States may ensure that holders of Member States may ensure allow holders allow holders of rights to use radio rights to use radio frequencies which were of rights to use radio frequencies which frequencies which were granted before that granted before that date and which will were granted before that date and which date and which will remain valid for a remain valid for a period of not less that will remain valid for a period of not less period of not less than five years after that five years after that date, may submit an than five years after that date to submit an date may to submit an application to the application to the competent national application to the competent national competent national authority for a authority for a reassessment of the authority for a reassessment of the reassessment of the restrictions to their restrictions to their rights in accordance restrictions to their rights in accordance rights in accordance with Article 9(3) and with Article 9(3) and (4). with Article 9(3) and (4). (4).

• 2. 

  Where the right holder mentioned no AM deleted Keep common position in paragraph 1 is a provider of radio or (acceptable for EP) television broadcast content services, and the right to use radio frequencies has been granted for the fulfilment of a specific general interest objective, including the delivery of broadcasting services, the right to use the part of the radio frequencies which is necessary for the fulfilment of that objective shall remain unchanged.

The part of the radio frequencies which becomes unnecessary for the fulfilment of that objective shall be subject to a new assignment procedure in line accordance with Article 9(3) and (4) of this Directive and in conformity with Article 7(2) of the

Authorisation Directive.

• 3. 

  After the five-year period referred no AM 3. After the five-year period referred Keep common position to in paragraph 1, Member States shall take to in paragraph 1, Member States shall take (acceptable for EP) all appropriate measures to ensure that all appropriate measures to ensure that

Article 9(3) and (4) apply to all remaining Article 9(3) and (4) apply to all remaining assignments and allocations of radio general authorisations/individual rights frequencies which existed at the date of of use and spectrum allocations used for entry into force of this Directive. electronic communications services

which existed at the date of [subject to the date of transposition].

deleted 5. Measures adopted in applying this 5. Measures adopted in applying this Article do not constitute the granting of Article do not constitute the granting of new rights of use and therefore are not new rights of use and therefore are not

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subject to the relevant provisions of subject to the relevant provisions of Article Article 5(2) of Directive 2002/20/EC i 5(2) of Directive 2002/20/EC i (Authorisation Directive). (Authorisation Directive). However, where an existing right was granted to fulfil a general interest objective and is no longer required for fulfilling that objective, or a related general interest objective, then any changes to the rights of use shall be subject to the relevant provisions of Article 5(2) of Directive 2002/20/EC i (Authorisation Directive).

Article 9b Article 9b Article 9b Article 9b Transfer of Individual Rights to Use radio Transfer of Individual Rights to Use radio Transfer of Individual Rights to Use radio Transfer of Individual Rights to Use radio

frequencies frequencies frequencies frequencies 1. Member States shall ensure that 1. Member States shall ensure that 1. Member States may […] make 1. Member States may […] make undertakings may transfer or lease to other undertakings may transfer or lease to other provision for undertakings to transfer or provision for shall ensure that undertakings individual rights to use radio undertakings in accordance with national lease individual rights to use radio undertakings to may transfer or lease, in frequencies in the bands for which this is procedures individual rights to use radio frequencies to other undertakings in accordance with conditions attached to provided in the implementing measures frequencies in the bands for which this is accordance with national procedures. the rights of use of radio frequencies adopted pursuant to Article 9c, provided provided in the implementing measures and with national procedures individual that such transfer or lease is in adopted pursuant to Article 8a(4a). These rights to use radio frequencies in the accordance with national procedures and implementing measures may also provide bands for which this is provided in the national frequency allocation plans. for the harmonisation of the conditions implementing measures adopted

attached to such rights. pursuant to paragraph 3.

In other bands, Member States may also In other bands, Member States may also […] In other bands, Member States may also make provision for undertakings to transfer make provision for undertakings to make provision for undertakings to or lease individual rights to use radio transfer or lease individual rights to use transfer or lease individual rights to use frequencies to other undertakings in radio frequencies to other undertakings radio frequencies to other undertakings accordance with national procedures. in accordance with national procedures. in accordance with national procedures.

no AM Conditions attached to individual rights Keep common position to use radio frequencies shall continue to (acceptable for EP)

apply after the transfer or lease unless otherwise specified by the competent national authority. Member states may also determine that the provisions of paragraph one shall

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not apply where the license of the undertaking was initially obtained free of charge.

• 2. 

  Member States shall ensure that an no AM 2. Member States shall ensure that an Keep common position undertaking’s intention to transfer rights to undertaking’s intention to transfer rights to (acceptable for EP) use radio frequencies, as well as the use radio frequencies, as well as the effective transfer thereof, is notified to the effective transfer thereof is notified in competent national regulatory authority accordance with national procedures to responsible for granting individual rights the competent national authority to use radio frequencies and that it is responsible for granting individual rights made public. Where radio frequency use of use and is made public. Where radio has been harmonised through the frequency use has been harmonised application of Article 9c and the Radio through the application of the Radio

Spectrum Decision or other Community Spectrum Decision or other Community measures, any such transfer shall comply measures, any such transfer shall comply with such harmonised use. with such harmonised use.

3 new. The Commission may adopt appropriate technical implement measures to identify the bands for which usage rights may be transferred or leased between undertakings, excluding rights of use granted by Member States for broadcasting services.

Article 9c Article 9c Article 9c Article 9c Radio Frequency Management Radio Frequency Management Radio Frequency Management Radio Frequency Management

Harmonisation Measures Harmonisation Measures Harmonisation Measures Harmonisation Measures In order to contribute to the development no AM deleted Keep common position of the internal market, for the achievement (full deletion of harmonisation measures of the principles of Articles 8b, 9, 9a and not acceptable for EP so far)

9b, the Commission may adopt appropriate technical implementing measures to:

(–a) apply the radio spectrum action no AM deleted policy programme established pursuant to

Article 8b(4);

(a) identify the bands for which usage no AM deleted rights may be transferred or leased between undertakings;

(b) harmonise the conditions attached no AM deleted

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to such rights;

(c) avoid the distortions of no AM deleted competition that may arise where individual rights are transferred;

(d) identify the bands for which the no AM deleted principle of service neutrality applies.

These measures designed to amend nonno AM deleted 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 Article 10 Article 10 Article 10 Numbering, naming and addressing Numbering, naming and addressing Numbering, naming and addressing Numbering, naming and addressing 1. Member States shall ensure that no AM 1. Member States shall ensure that Keep common position national regulatory authorities control the national regulatory authorities control the (acceptable for EP) assignment of all national numbering granting of rights of use of all national resources and the management of the numbering resources and the management national numbering plans. Member States of the national numbering plans. Member shall ensure that adequate numbers and States shall ensure that adequate numbers numbering ranges are provided for all and numbering ranges are provided for all publicly available electronic publicly available electronic communications services. National communications services. National regulatory authorities shall establish regulatory authorities shall establish objective, transparent and nonobjective, transparent and nondiscriminatory assignment procedures for discriminatory […] procedures for national numbering resources. granting rights of use for national

numbering resources. 2. National regulatory authorities shall 2. National regulatory authorities shall 2. National regulatory authorities shall Keep common position ensure that numbering plans and ensure that numbering plans and ensure that national numbering plans and procedures are applied in a manner that procedures are applied in a manner that procedures are applied in a manner that gives equal treatment to all providers of gives equal treatment to all providers of gives equal treatment to all providers of

ANNEX 2 DG C II B LIMITE EN

publicly available electronic publicly available electronic publicly available electronic communications services and more communications services and users of communications services. In particular, generally to users of numbers across the numbers across the European Union. In Member States shall ensure that an European Union. In particular, Member particular, Member States shall ensure that undertaking to which the right of use for States shall ensure that an undertaking an undertaking assigned a range of a range of numbers has been granted does assigned a range of numbers does not numbers does not discriminate against not discriminate against other providers of discriminate against other providers of other providers of electronic electronic communications services as electronic communications services and communications services and users as regards the number sequences used to give users as regards the number sequences regards the number sequences used to give access to their services. used to give access to their services. access to their services.

• 4. 

  Member States shall support 4. Member States shall support 4. Member States shall support the Keep common position harmonisation of specific numbers or harmonisation of specific numbers or harmonisation of specific numbers or (not acceptable for EP so far) numbering ranges within the Community numbering ranges within the Community numbering ranges within the Community where that promotes the functioning of the where it promotes the functioning of the where that promotes both the functioning internal market or supports the internal market or supports the of the internal market and supports the development of pan-European services. development of pan-European services. development of pan-European services. The Commission may take appropriate The Commission may take appropriate The Commission may take appropriate technical implementing measures on this technical implementing measures on this technical implementing measures on this matter which may include establishing matter which may include ensuring matter […]. tariff principles for specific numbers or appropriate cross-border access to numbering ranges and ensuring national numbering by end-users and appropriate cross-border access to electronic communications service national numbering used for essential providers. The implementing measures services such as directory enquiries. The may grant BERT specific responsibilities implementing measures may grant BERT in the application of those measures.

[the Body] specific responsibilities in the application of those measures.

Those measures, designed to amend non These measures designed to amend non The measures designed to amend non These measures designed to amend nonessential elements of this Directive by essential elements of this Directive by essential elements of this Directive by essential elements of this Directive by supplementing it, shall be adopted in supplementing it, shall be adopted in supplementing it, shall be adopted in supplementing it, shall be adopted in accordance with the regulatory procedure accordance with the regulatory procedure accordance with the regulatory procedure accordance with the regulatory procedure with scrutiny referred to in Article 22(3). with scrutiny referred to in Article 22(3). with scrutiny referred to in Article 22(3). with scrutiny referred to in Article 22(3).

Article 11 Article 11 Article 11 Article 11 Rights of way Rights of way Rights of way Rights of way 1. […] no AM 1. […] 1. […]

• - 

  acts on the basis of simple, - acts on the basis of efficient, transparent - acts on the basis of simple, efficient, transparent and publicly available and publicly available procedures, applied transparent and publicly available

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procedures, applied without discrimination without discrimination and without delay, procedures, applied without discrimination and without delay, and in any event makes and in any event makes its decision within and without delay, and in any event makes its decision within four months of the six months of the application, except in its decision within six months of the application, and cases of expropriation, and application, except in cases of

expropriation, and 2. Member States shall ensure that no AM 2. Member States shall ensure that Keep common position. where public or local authorities retain where public or local authorities retain (acceptable for EP) ownership or control of undertakings ownership or control of undertakings operating electronic communications operating public electronic networks and/or services, there is effective communications networks and/or publicly structural separation of the function available electronic communications responsible for granting the rights referred services, there is effective structural to in paragraph 1 from activities associated separation of the function responsible for with ownership or control. granting the rights referred to in paragraph

1 from activities associated with ownership or control.

Article 12 Article 12 Article 12 Article 12 Co-location and sharing of network Co-location and sharing of network Co-location and sharing of network Co-location and sharing of network elements and associated facilities for elements and associated facilities for elements and associated facilities for elements and associated facilities for providers of electronic communications providers of electronic communications providers of electronic communications providers of electronic communications

networks networks networks networks

• 1. 

  Where an undertaking providing 1. Where an undertaking providing 1. Where an undertaking providing 1. Where an undertaking providing electronic communications networks has electronic communications networks has electronic communications networks has electronic communications networks has the right under national legislation to the right under national legislation to the right under national legislation to the right under national legislation to install facilities on, over or under public or install facilities on, over or under public or install facilities on, over or under public or install facilities on, over or under public or private property, or may take advantage of private property, or may take advantage of private property, or may take advantage of private property, or may take advantage of a procedure for the expropriation or use of a procedure for the expropriation or use of a procedure for the expropriation or use of a procedure for the expropriation or use of property, national regulatory authorities property, national regulatory authorities property, national regulatory authorities property, national regulatory authorities shall, taking full account of the principle shall, taking full account of the principle shall be able to impose the sharing of such shall, taking full account of the principle of proportionality, be able to impose the of proportionality, be able to impose the facilities or property, including inter alia of proportionality, be able to impose the sharing of such facilities or property, sharing of such facilities or property, buildings or entries to buildings, masts, sharing of such facilities or property, including entries to buildings, building including inter alia buildings or entries to antennae, towers and other supporting including inter alia buildings or entries to wiring, masts, antennae, towers and other buildings, building wiring, masts, constructions, ducts, conduits, manholes, buildings, building wiring, masts, supporting constructions, ducts, conduits, antennae, towers and other supporting cabinets, as well as network elements antennae, towers and other supporting manholes and cabinets and all other constructions, ducts, conduits, manholes, which are not active. constructions, ducts, conduits, masts, network elements which are not active. cabinets, and network elements which are manholes, and cabinets, as well as network

  not active. elements which are not active.

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• 2. 

  Member States may require that the 2. Member States may require that the 2. Member States may require holders Keep common position holders of the rights referred to in holders of the rights referred to in of the rights referred to in paragraph 1 to (acceptable for EP) paragraph 1 share facilities or property paragraph 1 share facilities or property share facilities or property (including

(including physical co-location) or take (including physical co-location) or take physical co-location) or take measures to measures to facilitate the coordination of measures to facilitate the coordination of facilitate the coordination of public works public works in order to protect the public works in order to protect the in order to protect the environment, public environment, public health, public security environment, public health, public security health, public security or to meet town and or to meet town and country planning or to meet town and country planning country planning objectives only after an objectives only after an appropriate period objectives only after an appropriate period appropriate period of public consultation, of public consultation, during which all of public consultation, during which all during which all interested parties shall be interested parties shall be given an interested parties are given an opportunity given an opportunity to express their opportunity to express their views. Such to express their views. Such sharing or views. Such sharing or coordination sharing or coordination arrangements may coordination arrangements may include arrangements may include rules for include rules for apportioning the costs of rules for apportioning the costs of facility apportioning the costs of facility or facility or property sharing. or property sharing. property sharing.

2a. Member States shall ensure that 2a. Member States, after an appropriate (rec.35) Keep common position national regulatory authorities have the period of public consultation during recital (35) powers to require, after an appropriate which all interested parties are given the (not acceptable for EP) period of public consultation during opportunity to state their views, the which all interested parties are given the holders of the rights referred to in opportunity to state their views, the paragraph 1 to share facilities or holders of the rights referred to in property, including by means of physical paragraph 1 to share facilities or co-location, in order to encourage property, including by means of physical efficient investment in infrastructure and co-location, in order to encourage the promotion of innovation. Such efficient investment in infrastructure and sharing or coordination arrangements the promotion of innovation. Such may include rules for apportioning the sharing or coordination arrangements costs of facility or property sharing and may include rules for apportioning the shall ensure that there is an adequate costs of facility or property sharing sharing of risks between the undertakings adjusted for risk where appropriate and concerned. shall ensure that there is an adequate sharing of risks between the undertakings concerned.

2b. Member States shall ensure that 3. Member States shall ensure that 3. Member States may, where 3. Member States shall may, where national regulatory authorities establish a undertakings provide the necessary appropriate, ensure that undertakings appropriate, ensure that competent detailed inventory of the nature, information, if requested by the competent provide the necessary information, if national authorities may require availability and geographical location of authorities, in order for these authorities, in requested by the competent authorities, undertakings to provide the necessary the facilities referred to in paragraph 1 conjunction with national regulatory in order for these authorities, in information, if requested by the competent based on information provided by the authorities, to be able to establish a conjunction with national regulatory authorities, in order for these authorities, in

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holders of the rights referred to in that detailed inventory of the nature, authorities, to be able to establish a conjunction with national regulatory paragraph, and that they make that availability and geographical location of detailed inventory of the nature, authorities, to be able to establish a inventory available to interested parties. the facilities referred to in paragraph 1 and availability and geographical location of detailed inventory of the nature,

make it available to interested parties. the facilities referred to in paragraph 1 availability and geographical location of and make it available to interested the facilities referred to in paragraph 1 and parties. make it available to interested parties.

2c. Member States shall ensure that the 3a. Member States shall ensure that the Keep common position competent authorities establish competent authorities establish Recital (35) appropriate coordination procedures, in appropriate coordination procedures, in (acceptable for EP) cooperation with national regulatory cooperation with national regulatory authorities, with respect to the public authorities, with respect to the public works referred to in paragraph 2 and to works referred to in paragraph 2 and to other appropriate public facilities or other appropriate public facilities or property. These procedures may include property. Those procedures may include procedures that ensure that interested procedures that ensure that interested parties have information concerning parties have information concerning appropriate public facilities or property appropriate public facilities or property and on-going and planned public works, and on-going and planned public works, that they are notified in a timely manner that they are notified in a timely manner of such works, and that sharing is of such works, and that sharing is facilitated to the maximum extent facilitated to the maximum extent possible. possible.

• 3. 

  Measures taken by a national 4. Measures taken by a national regulatory 4. Measures taken by a national 4. Measures taken by a national regulatory authority in accordance with authority in accordance with this Article regulatory authority in accordance with regulatory authority in accordance with this Article shall be objective, transparent, shall be objective, transparent, nonparagraph 1 shall be objective, paragraph 1 this Article shall be objective, non-discriminatory and proportionate. discriminatory, and proportionate. transparent, non-discriminatory, and transparent, non-discriminatory and

  proportionate. proportionate.

  Article 13a Article 13a Article 13a Article 13a Security and integrity Security and integrity Security and integrity Security and integrity 1. Member States shall ensure that no AM 1. Member States shall ensure that Keep common position. undertakings providing public undertakings providing public (identical) communications networks or publicly communications networks or publicly available electronic communications available electronic communications services take appropriate technical and services take appropriate technical and organisational measures to safeguard the organisational measures to appropriately security of their networks or services. manage risk to security of networks and

Having regard to the state of the art, these services. Having regard to the state of the measures shall ensure a level of security art, these measures shall ensure a level of appropriate to the risk presented. In security appropriate to the risk presented.

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particular, measures shall be taken to In particular, measures shall be taken to prevent and minimise the impact of prevent and minimise the impact of security incidents on users and on security incidents on users and on interconnected networks. interconnected networks.

• 2. 

  Member States shall ensure that no AM 2. Member States shall ensure that Keep common position. undertakings providing public undertakings providing public (recital acceptable for EP) acceptable for communications networks take communications networks take all EP so far) appropriate steps to ensure the integrity of appropriate steps to ensure the integrity their networks so as to ensure the of their networks, and thus ensure the continuity of supply of services provided continuity of supply of services provided new recital: over those networks. The competent over those networks. Member States should allow for an nNational regulatory authorities shall appropriate period of public consult with electronic communications consultation before the adoption of services providers prior to adopting specific measures to ensure that specific measures for the security and undertakings providing public integrity of electronic communications communications networks or publicly networks. available electronic communications

services take appropriate technical and organisational measures to appropriately manage risk to security of networks and services or to ensure the

integrity of their networks.

• 3. 

  Member States shall ensure that 3. no AM 3. Member States shall ensure that Keep common position. undertakings providing public undertakings providing public (identical) communications networks or publicly communications networks or publicly available electronic communications available electronic communications services notify the competent national services notify the competent national regulatory authority of a breach of regulatory authority of a breach of security security or loss of integrity that had a or loss of integrity that had a significant significant impact on the operation of impact on the operation of networks or networks or services. services.

Where appropriate, the competent national Where appropriate, the competent The national regulatory authority Where appropriate, the national regulatory authority concerned shall national authority concerned shall inform concerned shall inform the national regulatory authority concerned shall inform the competent national regulatory the competent national regulatory regulatory authorities in other Member inform the national regulatory authorities authorities in other Member States and authorities in other Member States and the States and the European Network and in other Member States and the European ENISA. Where disclosure of the breach is European Network and Information Information Security Agency (ENISA) if Network and Information Security Agency in the public interest, the competent Security Agency (ENISA). Where other Member States could be or have (ENISA) if other Member States could national regulatory authority may inform disclosure of the breach is in the public been affected. The national regulatory be or have been affected. The national the public. interest, the competent national authority authority concerned may inform the regulatory authority concerned may inform

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may inform the public. public or require the undertakings to do the public or require the undertakings to do so, where it determines that disclosure so, where it determines that disclosure of of the breach is in the public interest. the breach is in the public interest.

Once a year, the competent national no AM Once a year, the national regulatory Keep common position. regulatory authority shall submit a authority concerned shall submit a (acceptable for EP) summary report to the Commission on the summary report to the Commission and notifications received and the action taken ENISA on the notifications received and in accordance with this paragraph. the action taken in accordance with this

paragraph. 4. The Commission, taking the utmost no AM 4. The Commission, taking the utmost Keep common position. account of the opinion of after consulting account of the opinion of ENISA, may (acceptable for EP) ENISA, may adopt appropriate technical adopt appropriate technical implementing implementing measures with a view to measures with a view to harmonising the harmonising the measures referred to in measures referred to in paragraphs 1, 2, paragraphs 1, 2, and 3, including measures and 3, including measures defining the defining the circumstances, format and circumstances, format and procedures procedures applicable to notifications. The applicable to notification requirements. adoption of such technical implementing These technical implementing measures measures shall not prevent Member will be based on European and States from adopting additional international standards to the greatest requirements in order to pursue the extent possible, and they shall not prevent objectives set out in paragraphs 1 and 2. Member States from adopting additional

requirements in order to pursue the objectives set out in paragraphs 1 and 2.

Technical implementing measures no AM Keep common position. relating to notifications shall comply with (acceptable for EP) the provisions of Directive 2002/58/EC i of the European Parliament and of the

Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic

communications sector 6 .

These implementing measures, designed to no AM These implementing measures, designed to Keep common position. amend non-essential elements of this amend non-essential elements of this (acceptable for EP) Directive by supplementing it, shall be Directive by supplementing it, shall be

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adopted in accordance with the procedure adopted in accordance with the procedure referred to in Article 22(3). On imperative referred to in Article 22(3). […] grounds of urgency, the Commission may use the urgency procedure referred to in

Article 22(4).

Article 13b Article 13b Article 13b Article 13b Implementation and enforcement Implementation and enforcement Implementation and enforcement Implementation and enforcement 1. Member States shall ensure that the 1. Member States shall ensure that the 1. Member States shall ensure that 1. Member States shall ensure that competent national regulatory authorities competent national regulatory authorities competent national regulatory authorities competent national regulatory authorities have the power to issue binding have the power to issue binding have the power to issue binding have the power to issue binding instructions to undertakings providing instructions to undertakings providing instructions to undertakings providing instructions to undertakings providing public communications networks or public communications networks or public communications networks or public communications networks or publicly available electronic publicly available electronic publicly available electronic publicly available electronic communications services in order to communications services in order to communications services in order to communications services in order to implement the provisions of Article 13a. implement the provisions of Article 13a. implement Article 13a. implement Article 13a,

These binding instructions shall be These binding instructions shall be including time limits for proportionate and economically and proportionate and shall be implemented implementation. technically sustainable and shall be within a reasonable timeframe. implemented within a reasonable timeframe.

• 2. 

  Member States shall ensure that no AM 2. Member States shall ensure that Keep common position. national regulatory authorities have the competent national regulatory authorities (identical) power to require undertakings providing have the power to require undertakings public communications networks or providing public communications publicly available electronic networks or publicly available electronic communications services to: communications services to:

(a) provide the information needed to no AM (a) provide information needed to (a) provide information needed to assess the security and/or integrity of their assess the security and integrity of their assess the security and/or integrity of their services and networks, including services and networks, including services and networks, including documented security policies; and documented security policies; and documented security policies; and (b) instruct a qualified independent no AM (b) submit to a security audit carried Keep common position. body to carry out a security audit and make out by a qualified independent body or a (acceptable for EP) the results thereof available to the national competent national authority and make regulatory authority. results thereof available to the national

regulatory authority. The cost of the audit shall be paid by the undertaking.

• 3. 

  Member States shall ensure that the 3. Member States shall ensure that national 3. Member States shall ensure that 3. Member States shall ensure that competent national regulatory authorities regulatory authorities have all the powers national regulatory authorities have all the national regulatory authorities have all the have all the powers necessary to necessary to investigate cases of nonpowers necessary to investigate cases of powers necessary to investigate cases of investigate cases of non-compliance and compliance and their effects on the non-compliance. non-compliance and their effects on the

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their effects on the security and integrity security and integrity of the networks. security and integrity of the networks. of the networks.

Article 14 Article 14 Article 14 Article 14 Undertakings with significant market Undertakings with significant market Undertakings with significant market Undertakings with significant market

power power power power 2. […] no AM 2. […] Keep common position.

(identical) In particular, national regulatory In particular, national regulatory authorities shall, when assessing whether authorities shall, when assessing whether two or more undertakings are in a joint two or more undertakings are in a joint dominant position in a market, act in dominant position in a market, act in accordance with Community law and take accordance with Community law and take into the utmost account the guidelines on into the utmost account the guidelines on market analysis and the assessment of market analysis and the assessment of significant market power published by the significant market power published by the

Commission pursuant to Article 15. Commission pursuant to Article 15.

Criteria to be used in making such an Criteria to be used in making such an assessment are set out in Annex II. assessment are set out in Annex II.

• 3. 

  Where an undertaking has 3. Where an undertaking has significant 3. Where an undertaking has 3. Where an undertaking has significant market power on a specific market power on a specific market significant market power on a specific significant market power on a specific market, it may also be deemed to have (hereafter referred to as" the first market, it may also be deemed to have market (hereafter referred to as the first significant market power on a closely market"), it may also be designated as significant market power on a closely market), it may also be deemed to have related market, where the links between having significant market power on a related market, where the links between designated as having significant market the two markets are such as to allow the closely related market (hereafter referred the two markets are such as to allow the power on a closely related market market power held in one market to be to as "the second market"), where the market power held in one market to be (hereafter referred to as the second leveraged into the other market, thereby links between the two markets are such as leveraged into the other market, thereby market), where the links between the two strengthening the market power of the to allow the market power held in the first strengthening the market power of the markets are such as to allow the market undertaking. market to be leveraged into the second undertaking. Consequently, remedies power held in one the first market to be

  market, thereby strengthening the market aimed at preventing such leverage may leveraged into the other second market, power of the undertaking. Consequently, be applied in the linked market thereby strengthening the market power of remedies aimed at preventing such pursuant to Articles 9, 10, 11 and 13 of the undertaking. leverage may be imposed in the second Directive 2002/19 i/21 (Access directive), market pursuant to Articles 9, 10, 11 and and where such remedies prove to be Consequently, remedies aimed at 13 of Directive 2002/19/EC i (Access insufficient, remedies pursuant to preventing such leverage may be applied in Directive), and where such remedies prove Article 17 of Directive 2002/22/EC i the linked second market pursuant to to be insufficient, remedies pursuant to (Universal Service Directive) may be Articles 9, 10, 11 and 13 of Directive Article 17 of Directive 2002/22/EC i imposed. 2002/19/21 (Access directive), and where (Universal Service Directive) may be such remedies prove to be insufficient,

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imposed. remedies pursuant to Article 17 of Directive 2002/22/EC i (Universal Service Directive) may be imposed.

New Recital: For the purposes of ensuring that there is no distortion or restriction of competition in the electronic communications sector the national regulatory authorities should be able to impose remedies aimed at preventing leverage of significant market power from one market to another, closely related, market. It should be clear that the undertaking which has significant market power on the first market may be designated as having significant market power on the second market only if the links between the two markets are such as to allow the market power held in the first market to be leveraged into the second market and if the second market is susceptible to ex ante regulation in accordance with the criteria defined in the Recommendation on Relevant Product and Service

Article 15 Article 15 Article 15 Article 15 Procedure for identification and Procedure for identification and Procedure for identification and Procedure for identification and

definition of markets definition of markets definition of markets definition of markets 1. After public consultation and 1. After public consultation and 1. After public consultation and 1. After public consultation including consultation with the Authority, the consultation with BERT, the Commission consultation with national regulatory with national regulatory authorities, Commission shall adopt a shall adopt a Recommendation on authorities and taking the utmost and consultation with national regulatory Recommendation on Relevant Product and Relevant Product and Service Markets account of the opinion of the GERT, the authorities and taking the utmost Service Markets (hereinafter “the (hereinafter “the Recommendation”). Commission shall in accordance with the account of the opinion of the BEREC, Recommendation”). The Recommendation The Recommendation shall identify those procedure referred to in Article 22(2) the Commission shall in accordance with shall identify those product and service product and service markets within the adopt a Recommendation on Relevant the procedure referred to in Article markets within the electronic electronic communications sector the Product and Service Markets (hereinafter 22(2) adopt a Recommendation on communications sector the characteristics characteristics of which may be such as to "the Recommendation"). The Relevant Product and Service Markets of which may be such as to justify the justify the imposition of regulatory Recommendation shall identify those (hereinafter "the Recommendation"). The imposition of regulatory obligations set out obligations set out in the Specific product and service markets within the Recommendation shall identify those

ANNEX 2 DG C II B LIMITE EN

in the Specific Directives, without Directives, without prejudice to markets electronic communications sector the product and service markets within the prejudice to markets that may be defined in that may be defined in specific cases under characteristics of which may be such as to electronic communications sector the specific cases under competition law. The competition law. The Commission shall justify the imposition of regulatory characteristics of which may be such as to Commission shall define markets in define markets in accordance with the obligations set out in the Specific justify the imposition of regulatory accordance with the principles of principles of competition law. Directives, without prejudice to markets obligations set out in the Specific competition law. that may be defined in specific cases under Directives, without prejudice to markets

competition law. The Commission shall that may be defined in specific cases under

define markets in accordance with the competition law. The Commission shall

principles of competition law. define markets in accordance with the

principles of competition law.

no AM Keep common position.

(acceptable for EP)

• 4. 

  The Commission may, taking the 4. The Commission may, taking the utmost 4. After consultation with national 4. After consultation including with

utmost account of the opinion of the account of the opinion of BERT submitted regulatory authorities the Commission national regulatory authorities the

Authority submitted in accordance with in accordance with Article 7 of may, taking the utmost account of the Commission may, taking the utmost

Article 7 of Regulation […/EC], adopt a Regulation […/EC], adopt a Decision opinion of the GERT, […] adopt a account of the opinion of the BEREC,

Decision identifying transnational markets. identifying transnational markets, acting in Decision identifying transnational markets, adopt a Decision identifying transnational

accordance with the procedure referred to acting in accordance with the procedure markets, acting in accordance with the

in Article 22(3). referred to in Article 22(2a). procedure referred to in Article 22(2a).

This Decision, designed to amend nonno AM deleted Keep common position.

essential elements of this Directive by (accepted by EP)

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 Article 16 Article 16 Article 16 Market analysis procedure Market analysis procedure Market analysis procedure Market analysis procedure 1. National regulatory authorities shall no AM 1. National regulatory authorities shall Keep common position. carry out an analysis of the relevant carry out an analysis of the relevant (identical) markets, taking account of the markets markets taking into account the markets listed in the Recommendation and taking identified in the Recommendation, and the utmost account of the Guidelines. taking the utmost account of the

Member States shall ensure that this Guidelines. Member States shall ensure analysis is carried out, where appropriate, that this analysis is carried out, where in collaboration with the national appropriate, in collaboration with the competition authorities. national competition authorities.

ANNEX 2 DG C II B LIMITE EN

• 4. 

  Where a national regulatory no AM 4. Where a national regulatory Keep common position. authority determines that a relevant market authority determines that a relevant market (acceptable for EP) is not effectively competitive, it shall is not effectively competitive, it shall identify undertakings with a significant identify undertakings which individually market power on that market in accordance or jointly with others have a significant with Article 14 and the national regulatory market power on that market in accordance authority shall on such undertakings with Article 14 and the national regulatory impose appropriate specific regulatory authority shall on such undertakings obligations referred to in paragraph 2 of impose appropriate specific regulatory this Article or maintain or amend such obligations referred to in paragraph 2 of obligations where they already exist. this Article or maintain or amend such

  obligations where they already exist. 5. In the case of transnational markets 5. In the case of transnational markets 5. In the case of transnational markets Keep common position. identified in the Decision referred to in identified in the Decision referred to in identified in the Decision referred to in (not acceptable for EP so far – linked to Article 15(4), the Commission shall Article 15(4), the Commission shall Article 15(4), the national regulatory tasks of BERT) request the Authority to conduct the request BERT to conduct the market authority concerned shall [...] jointly market analysis taking the utmost account analysis taking the utmost account of the conduct the market analysis taking the of the Guidelines and deliver an opinion on Guidelines and deliver an opinion on any utmost account of the Guidelines and any imposition, maintenance, amendment imposition, maintenance, amendment or decide on any imposition, maintenance, or withdrawal of regulatory obligations as withdrawal of regulatory obligations as amendment or withdrawal of regulatory referred to in paragraph 2 of this Article. referred to in paragraph 2 of this Article. obligations as referred to in paragraph 2 of

  this Article in a concerted fashion. The Commission, taking the utmost The Commission, taking the utmost deleted Keep common position. account of the opinion of [the Body], may account of the opinion of BERT, may (not acceptable for EP so far) issue a decision designating one or more issue a decision designating one or more undertakings as having significant market undertakings as having significant power on that market, and imposing one or market power on that market, and more specific obligations under Articles 9 imposing one or more specific obligations to 13a of Directive 2002/19/EC i (Access under Articles 9 to 13a of

Directive) and Article 17 of Directive Directive 2002/19/EC i (Access Directive)

2002/22/EC (Universal Service Directive). and Article 17 of Directive 2002/22/EC i

In so doing, the Commission shall pursue (Universal Service Directive). In so doing, the policy objectives set out in Article 8. the Commission shall pursue the policy

objectives set out in Article 8. 6. Measures taken according to the 6. Measures taken in accordance with the 6. Measures taken according to the Keep common position except for letter a) provisions of paragraphs 3 and 4 of this provisions of paragraphs 3 and 4 shall be provisions of paragraphs 3, and 4 of this Article shall be subject to the procedures subject to the procedures referred to in Article shall be subject to the procedures a) within three years from the referred to in Articles 6 and 7. National Articles 6 and 7. National regulatory referred to in Articles 6 and 7. National adoption of a previous measure relating to regulatory authorities shall carry out an authorities shall carry out an analysis of regulatory authorities shall carry out an that market. analysis of the relevant market: the relevant market and notify the analysis of the relevant market and notify However, exceptionally, that period may

ANNEX 2 DG C II B LIMITE EN

corresponding draft measure in accordance the corresponding draft measure in be extended beyond three years for up to

with Article 7: accordance with Article 7: three additional years, where the NRA

(a) within two years from a previous a) within three years from the adoption of a a) within three years from the has notified a reasoned proposed extension

notification of a draft measure relating to previous measure relating to that market. adoption of a previous measure relating to to the Commission and the Commission

that market; However, exceptionally, that period may that market; has not objected within one month of the

be extended for up to two additional years, However, exceptionally, that period may notified extension;

(b) for markets not previously notified where the national regulatory authority has be extended beyond three years, where

to the Commission, within one year from notified a reasoned proposed extension to the NRA has notified a reasoned

the adoption of a revised Recommendation the Commission and the Commission has proposed extension to the Commission

on relevant markets, or; not objected within one month of the and the Commission has not objected

notified extension; within one month of the notified

(c) for Member States that have newly b) within two years from the adoption of a extension

joined the Union, within one year from revised Recommendation on relevant

their accession. markets, for markets not previously b) for markets not previously notified

notified to the Commission, or; to the Commission, within two years from

(c) within two years from their accession, the adoption of a revised Recommendation

for Member States which have newly on relevant markets, or;

joined the Union.

• c) 

  for Member States which have

newly joined the Union, within two years

from their accession.

• 7. 

  Where a national regulatory 7. Where a national regulatory authority 7. Where a national regulatory Keep common position.

authority has not completed its analysis of has not completed its analysis of a relevant authority has not completed its analysis of (not acceptable for EP so far)

a relevant market identified in the market identified in the Recommendation a relevant market identified in the

Recommendation within the time limit laid within the time limit laid down in Article Recommendation within the time limit laid

down in Article 16(6), the Commission 16(6), the Commission may request BERT down in Article 16(6), [...] the GERT [...]

may request [the Body] to issue an to issue an opinion, including a draft shall provide assistance to the national

opinion, including a draft measure, on the measure, the analysis of the specific regulatory authority concerned on its

analysis of the specific market and the market and the specific obligations to be request in completing the analysis of the

specific obligations to be imposed. The imposed. BERT shall carry out a public specific market and the specific obligations

Authority shall carry out a public consultation on the draft measure to be imposed. With this assistance, the

consultation on the draft measure concerned. national regulatory authority concerned

concerned. shall within six months notify the draft

measure to the Commission in

accordance with Article 7.

The Commission, taking the utmost no AM deleted Keep common position.

account of the opinion of [the Body] (identical)

issued in accordance with Article 6 of

Regulation […./EC], may adopt a decision

requiring the national regulatory authority

ANNEX 2 DG C II B LIMITE EN

to designate certain undertakings as having significant market power and to impose specific obligations under Articles 8, 9 to

13a of Directive 2002/19/EC i (Access

Directive) and Article 17 of Directive

2002/22/EC (Universal Service Directive) on those undertakings so designated. In so doing, the Commission shall pursue the same policy objectives as set out for national regulatory authorities in Article 8.

Article 17 Article 17 Article 17 Article 17 Standardisation Standardisation Standardisation Standardisation 1. The Commission, acting in 1. The Commission, acting in 1. The Commission, acting in 1. The Commission, acting in accordance with the procedure referred to accordance with the procedure referred to accordance with the procedure referred to accordance with the procedure referred to in Article 22(2), shall draw up and publish in Article 22(3), shall draw up and publish in Article 22(2), shall draw up and publish in Article 22(2), shall draw up and publish in the Official Journal of the European in the Official Journal of the European in the Official Journal of the European in the Official Journal of the European Communities a list of standards and/or Communities a list of standards and/or Communities a list of standards and/or Communities a list of non compulsory specifications to serve as a basis for specifications to serve as a basis for specifications to serve as a basis for standards and/or specifications to serve as encouraging the harmonised provision of encouraging the harmonised provision of encouraging the harmonised provision of a basis for encouraging the harmonised electronic communications networks, electronic communications networks, electronic communications networks, provision of electronic communications electronic communications services and electronic communications services and electronic communications services and networks, electronic communications associated facilities and services. Where associated facilities and services. Where associated facilities and services. Where services and associated facilities and necessary, the Commission may take necessary, the Commission may, acting in necessary, the Commission may, acting in services. Where necessary, the appropriate implementing measures and accordance with the procedure referred accordance with the procedure referred Commission may, acting in accordance following consultation of the Committee to in Article 22(2a) and following to in Article 22(2a) and following with the procedure referred to in Article established by Directive 98/34/EC i, request consultation of the Committee established consultation of the Committee established 22(2a) and following consultation of the that standards be drawn up by the by Directive 98/34/EC i, request that by Directive 98/34/EC i, request that Committee established by Directive European standards organisations standards be drawn up by the European standards be drawn up by the European 98/34/EC, request that standards be drawn (European Committee for Standardisation standards organisations (European standards organisations (European up by the European standards (CEN), European Committee for Committee for Standardisation (CEN), Committee for Standardisation (CEN), organisations (European Committee for Electrotechnical Standardisation European Committee for Electrotechnical European Committee for Electrotechnical Standardisation (CEN), European (CENELEC), and European Standardisation (CENELEC), and Standardisation (CENELEC), and Committee for Electrotechnical Telecommunications Standards Institute European Telecommunications Standards European Telecommunications Standards Standardisation (CENELEC), and (ETSI)) Institute (ETSI)) Institute (ETSI)) European Telecommunications Standards

Institute (ETSI))

• 2. 

  […] 2. […] 2. […] 2. […]

In the absence of such standards and/or In the absence of such standards and/or In the absence of such standards and/or In the absence of such standards and/or

ANNEX 2 DG C II B LIMITE EN

specifications, Member States shall specifications, Member States shall specifications, Member States shall specifications, Member States shall encourage the implementation of encourage the implementation of encourage the implementation of encourage the implementation of international standards or international standards or international standards or international standards or recommendations adopted by the recommendations adopted by the recommendations adopted by the recommendations adopted by the International Telecommunication Union International Telecommunication Union International Telecommunication Union International Telecommunication Union (ITU), the International Organisation for (ITU), the European Conference of Postal (ITU), the Electronic Communications (ITU), the European Conference of Standardisation (ISO) or the International and Telecommunications Administrations Committee (ECC), the International Postal and Telecommunications Electrotechnical Commission (IEC). (CEPT), the International Organisation for Organisation for Standardisation (ISO) or Administrations (CEPT), the Electronic

Standardisation (ISO) and the International the International Electrotechnical Communications Committee (ECC), the Electrotechnical Commission (IEC) Commission (IEC). International Organisation for Standardisation (ISO) or the International Electrotechnical Commission (IEC).

• 4. 

  Where the Commission intends to 4. Where the Commission intends to Keep common position. make the implementation of certain make the implementation of certain (acceptable for EP) standards and/or specifications standards and/or specifications compulsory, it shall publish a notice in the compulsory, it shall publish a notice in the

Official Journal of the European Official Journal of the European

Communities and invite public comment Communities and invite public comment by all parties concerned. The Commission, by all parties concerned. The Commission acting in accordance of the procedure […] shall take appropriate implementing referred to in Article 22(3) shall make measures and make implementation of the implementation of the relevant standards relevant standards compulsory by making compulsory by making reference to them reference to them as compulsory standards as compulsory standards in the list of in the list of standards and/or specifications standards and/or specifications published published in the Official Journal of the in the Official Journal of the European European Communities.

Communities.

• 5. 

  Where the Commission considers 5. Where the Commission considers that 5. Where the Commission considers 5. Where the Commission considers that standards and/or specifications standards and/or specifications referred to that standards and/or specifications that standards and/or specifications referred to in paragraph 1 no longer in paragraph 1 no longer contribute to the referred to in paragraph 1 no longer referred to in paragraph 1 no longer contribute to the provision of harmonised provision of harmonised electronic contribute to the provision of harmonised contribute to the provision of harmonised electronic communications services, or that communications services, or that they no electronic communications services, or that electronic communications services, or that they no longer meet consumers' needs or longer meet consumers' needs or are they no longer meet consumers' needs or they no longer meet consumers' needs or are hampering technological development, hampering technological development, it are hampering technological development, are hampering technological development, it shall, acting in accordance with the shall, acting in accordance with the it shall, acting in accordance with the it shall, acting in accordance with the procedure referred to in Article 22(3), procedure referred to in Article 22(3), procedure referred to in Article 22(2a), procedure referred to in Article 22(2a), remove them from the list of standards remove them from the list of standards remove them from the list of standards remove them from the list of standards and/or specifications referred to in and/or specifications referred to in and/or specifications referred to in and/or specifications referred to in

ANNEX 2 DG C II B LIMITE EN

paragraph 1. paragraph 1. paragraph 1. paragraph 1.

6a. The implementing measures 6a. The implementing measures designed 6a. The implementing measures Keep common position. referred to in paragraphs 1, 4 and 6, to amend non-essential elements of this designed to amend non-essential (acceptable for EP) designed to amend non-essential elements Directive by supplementing it, referred to elements of this Directive by of this Directive by supplementing it, shall in paragraphs 1, 4, 5 and 6, shall be supplementing it referred to in be adopted in accordance with the adopted in accordance with the regulatory paragraphs 4 and 6 shall be adopted in regulatory procedure with scrutiny referred procedure with scrutiny referred to in accordance with the regulatory to in Article 22(3). Article 22(3). procedure with scrutiny referred to in

Article 22(3). Article 19 Article 19 Article 19 Article 19 Harmonisation procedures Harmonisation procedures Harmonisation procedures Harmonisation procedures 1. Without prejudice to Article 9 of 1. Without prejudice to Article 9 of this 1. Without prejudice to Article 9 of 1. Without prejudice to Article 9 of this Directive and to Articles 6 and 8 of Directive and Articles 6 and 8 of Directive this Directive and to Articles 6 and 8 of this Directive and to Articles 6 and 8 of Directive 2002/20/EC i (Authorisation 2002/20/EC (Authorisation Directive), Directive 2002/20/EC i (Authorisation Directive 2002/20/EC i (Authorisation Directive), where the Commission finds where the Commission finds that Directive), where the Commission finds Directive), where the Commission finds that divergences in the implementation by divergences in the implementation by the that divergences in the implementation by that divergences in the implementation by national regulatory authorities of the national regulatory authorities of the the national regulatory authorities of the the national regulatory authorities of the regulatory tasks specified in this Directive regulatory tasks specified in this Directive regulatory tasks specified in this Directive regulatory tasks specified in this Directive and the Specific Directives may create and the Specific Directives may create a and the Specific Directives may create a and the Specific Directives may create a creates a barrier to the internal market, it barrier to the internal market, the barrier to the internal market, the barrier to the internal market, the may, taking the utmost account of the Commission may, taking the utmost Commission may, taking the utmost Commission may, taking the utmost opinion of BERT [the Body], if any, issue account of the opinion of GERT, if any, account of the opinion of the GERT, if account of the opinion of the BEREC if a recommendation or a decision on the issue a decision on the harmonised any, issue a recommendation [...] on the any, issue a recommendation or decision harmonised application of the provisions in application of the provisions in this harmonised application of the provisions in on the harmonised application of the this Directive and the Specific Directives Directive and the Specific Directives in this Directive and the Specific Directives provisions in this Directive and the in order to further the achievement of the order to further the achievement of the in order to further the achievement of the Specific Directives in order to further the objectives set out in Article 8. objectives set out in Article 8. objectives set out in Article 8. achievement of the objectives set out in

Article 8. 2. Where the Commission issues a deleted 2. Where the Commission, issues a Keep common position. recommendation pursuant to paragraph recommendation pursuant to paragraph 1, (acceptable for EP) 1, it shall act in accordance with the it shall act in accordance with the procedure referred to in Article 22(2). procedure referred to in Article 22(2).

Member States shall ensure that deleted Member States shall ensure that national Keep common position. national regulatory authorities take the regulatory authorities take the utmost (acceptable for EP) utmost account of those account of those recommendations in recommendations in carrying out their carrying out their tasks. Where a national tasks. Where a national regulatory regulatory authority chooses not to follow authority chooses not to follow a a recommendation, it shall inform the recommendation, it shall inform the Commission, giving the reasoning for its

ANNEX 2 DG C II B LIMITE EN

Commission, giving the reasoning for its position. position.

• 3. 

  The decision referred to in 2a. The decision referred to in paragraph deleted 2a. The decision referred to in paragraph 1 designed to amend non 1 designed to amend non-essential paragraph 1 designed to amend nonessential elements of this Directive by elements of this Directive by essential elements of this Directive by supplementing it, shall be adopted in supplementing it, shall be adopted in supplementing it, shall be adopted in accordance with the regulatory procedure accordance with the regulatory procedure accordance with the regulatory with scrutiny referred to in Article 22(3). with scrutiny referred to in Article 22(3). procedure with scrutiny referred to in

  Article 22(3). 4. Measures adopted pursuant to 2b. Measures adopted pursuant to deleted 2b. The decisions Measures adopted paragraph 1 may include the identification paragraph 1 may include the pursuant to paragraph 1 may only of a harmonised or coordinated approach identification of a harmonised or include the identification of a to deal with the following issues: coordinated approach to deal with the harmonised or coordinated approach to

  following issues: deal with the following issues: (a) the consistent implementation of (a) the consistent implementation of deleted Keep common position. regulatory approaches, including the regulatory approaches, including the (not acceptable for EP so far) regulatory treatment of new services, subregulatory treatment of new services, subnational markets and of cross-border national markets and of cross-border business electronic communications electronic communications services services provided to businesses; provided to businesses;

(b) numbering, naming and addressing (b) numbering, naming and deleted (b) numbering, naming and issues, including number ranges, addressing issues, including number addressing issues, including number portability of numbers and identifiers, ranges, portability of numbers and ranges, portability of numbers and number and address translation systems, identifiers, number and address identifiers, number and address and access to 112 emergency services; translation systems, and access to 112 translation systems, and access to 112

emergency services; emergency services;

(c) consumer issues not covered by (c) consumer issues not covered by deleted Keep common position.

Directive 2002/22/EC i (Universal Service Directive 2002/22/EC i (Universal Service (acceptable for EP)

Directive), including in particular access Directive), including in particular access to electronic communications services and to electronic communications services equipment by disabled end-users; and equipment by disabled end-users;

(d) regulatory accounting, including (d) regulatory accounting, including deleted Keep common position. the calculation of investment risk. the calculation of investment risk. (not acceptable for EP so far)

• 5. 

  [The Body] may on its own 3. GERT may on its own initiative advise 3. The GERT may on its own Keep common position. initiative advise the Commission on the Commission on whether a measure initiative advise the Commission on (acceptable for EP) whether a measure should be adopted should be adopted pursuant to paragraph 1. whether a measure should be adopted pursuant to paragraph 1. pursuant to paragraph 1.

Article 20 Article 20 Article 20 Article 20

ANNEX 2 DG C II B LIMITE EN

Dispute resolution between Dispute resolution between Dispute resolution between Dispute resolution between undertakings undertakings undertakings undertakings

• 1. 

  In the event of a dispute between no AM 1. In the event of a dispute […] Keep common position. service providers arising in connection arising in connection with existing (acceptable for EP) with existing obligations imposed under obligations […] under this Directive or the this Directive or the Specific Directives Specific Directives […] between where one of the parties is an undertaking undertakings providing electronic providing electronic communications communications networks or services, in a networks or services in a Member State, Member State, […] or between such the national regulatory authority concerned undertakings and other undertakings in shall, at the request of either party, and the Member State benefiting from without prejudice to the provisions of obligations of access and/or paragraph 2, issue a binding decision to interconnection arising under this resolve the dispute in the shortest possible Directive or the Specific Directive, the timeframe and in any case within four national regulatory authority concerned months, except in exceptional shall, at the request of either party, and circumstances. The Member State without prejudice to the provisions of concerned shall require that all parties paragraph 2, issue a binding decision to cooperate fully with the national regulatory resolve the dispute in the shortest possible authority. time frame and in any case within four

  months except in exceptional circumstances. The Member State concerned shall require that all parties cooperate fully with the national regulatory authority.

  Article 21 Article 21 Article 21 Article 21 Resolution of cross-border disputes Resolution of cross-border disputes Resolution of cross-border disputes Resolution of cross-border disputes 2. Any party may refer the dispute to 2. Any party may refer the dispute to the 2. Any party may refer the dispute to 2. Any party may refer the dispute to the national regulatory authorities national regulatory authorities concerned. the national regulatory authorities the national regulatory authorities concerned. The competent national The competent national regulatory concerned. The competent national concerned. The competent national regulatory authorities shall coordinate their authorities shall coordinate their efforts regulatory authorities shall coordinate their regulatory authorities shall coordinate their efforts, and where appropriate consult within BERT in order to bring about a efforts in order to bring about a resolution efforts and shall have the right to consult within BERT [the Body], in order to bring resolution of the dispute, as far as possible of the dispute, in accordance with the BEREC in order to bring about a about a consistent resolution of the through the adoption of a joint decision, objectives set out in Article 8. consistent resolution of the dispute, in dispute, as far as possible through the in accordance with the objectives set out in accordance with the objectives set out in adoption of a joint decision, in accordance Article 8. Any obligations imposed on Article 8. with their respective competences under undertakings by the national regulatory Any obligations imposed on national law and the objectives set out in authorities as part of the resolution of a undertakings by the national regulatory Article 8. Any obligations imposed on dispute shall comply with the provisions authorities as part of the resolution of a undertakings by the national regulatory of this Directive and the Specific dispute shall comply with the provisions

ANNEX 2 DG C II B LIMITE EN

authorities as part of the resolution of a Directives. of this Directive and the Specific dispute shall comply with the provisions Directives. of this Directive and the Specific

Directives.

Any national regulatory authority which Any national regulatory authority which Any national regulatory authority which Keep common position. has competence in such a dispute may has competence in such a dispute may has competence in such a dispute may (opinion acceptable for EP) request the Authority to issue a request BERT to issue a recommendation request the GERT to issue an opinion [...] recommendation pursuant to Article 18 of pursuant to Article 18 of Regulation (EC) as to the action to be taken in accordance

Regulation […./EC] as to the action to be No.../2009 of the European Parliament with the provisions of the Framework taken in accordance with the provisions of and of the Council of ... [establishing the Directive and/or the specific Directives to the Framework Directive and/or the Body of European Regulators in Telecom resolve the dispute. specific Directives to resolve the dispute. (BERT)] as to the action to be taken in

accordance with the provisions of the Framework Directive and/or the specific Directives to resolve the dispute.

Where such a request has been made to the Where such a request has been made to Where such a request has been made to the Keep common position.

Authority, any national regulatory BERT, any national regulatory authority GERT, any national regulatory authority (opinion acceptable for EP) authority with competence in any aspect of with competence in any aspect of the with competence in any aspect of the the dispute shall await [the Body’s] dispute shall await the BERT’s dispute shall await the GERT's opinion recommendation pursuant to Article 18 of recommendation pursuant to Article 18 of [...] before taking action to resolve the

Regulation [ /EC] before taking action to Regulation (EC) No.../2009 of the dispute, without prejudice to the possibility resolve the dispute, without prejudice to European Parliament and of the Council for national regulatory authorities to take the possibility for national regulatory of ... [establishing the Body of European urgent measures where necessary. authorities to take urgent measures where Regulators in Telecom (BERT)] before necessary. taking action to resolve the dispute. This

shall not preclude national regulatory authorities from taking urgent measures where necessary.

Any obligations imposed on an Any obligations imposed on an Any obligations imposed on an Keep common position. undertaking by the national regulatory undertaking by the national regulatory undertaking by the national regulatory (acceptable for EP) authority in resolving a dispute shall authority in resolving a dispute shall authority in resolving a dispute shall respect the provisions of this Directive or respect the provisions of this Directive or respect the provisions of this Directive or the Specific Directives and take the utmost the Specific Directives and take the utmost the Specific Directives and take the utmost account of the recommendation issued by account of the recommendation issued by account of the opinion issued by the

[the Body] in accordance with Article 18 BERT in accordance with Article 18 of GERT […]. of Regulation […/EC]. Regulation (EC) No.../2009 of the

European Parliament and of the Council of ... [establishing the Body of European

ANNEX 2 DG C II B LIMITE EN

Regulators in Telecom (BERT)].

• 3. 

  Member States may make provision 3. Member States may make provision for 3. Member States may make provision Keep common position. for the competent national regulatory the competent national regulatory for the competent national regulatory (identical) authorities jointly to decline to resolve a authorities jointly to decline to resolve a authorities jointly to decline to resolve a dispute where other mechanisms, including dispute where other mechanisms, including dispute where other mechanisms, including mediation, exist and would better mediation, exist and would better mediation, exist and would better contribute to resolution of the dispute in a contribute to resolving of the dispute in a contribute to resolution of the dispute in a timely manner in accordance with the timely manner in accordance with the timely manner in accordance with the provisions of Article 8. provisions of Article 8. provisions of Article 8

They shall inform the parties without They shall inform the parties without They shall inform the parties without Keep common position. delay. If after four months the dispute is delay. If after four months the dispute is delay. If after four months the dispute is (acceptable for EP) not resolved, if the dispute has not been not resolved, where the dispute has not not resolved, if the dispute has not been brought before the courts by the party been brought before the courts by the party brought before the courts by the party seeking redress and if either party requests seeking redress and if either party requests seeking redress and if either party requests it, the national regulatory authorities shall it, the national regulatory authorities shall it, the national regulatory authorities shall coordinate their efforts in order to bring coordinate their efforts in order to bring coordinate their efforts in order to bring about a resolution of the dispute, in about a resolution of the dispute, as far as about a resolution of the dispute, in accordance with the provisions set out in possible through the adoption of a joint accordance with the provisions set out in

Article 8 and taking the utmost account of decision, in accordance with the provisions Article 8 and taking the utmost account of any recommendation issued by [the Body] set out in Article 8 and taking the utmost any opinion issued by the GERT […]. in accordance with Article 18 of account of any recommendation issued by

Regulation […/EC]. BERT in accordance with Article 18 of

Regulation (EC) No.../2009 of the European Parliament and of the Council of ... [establishing the Body of European Regulators in Telecom (BERT)].

Article 21a Article 21a Article 21a Article 21a Penalties Penalties Penalties Penalties

Member States shall lay down the rules on Member States shall lay down the rules on Member States shall lay down the rules on Member States shall lay down the rules on penalties applicable to infringements of the penalties applicable to infringements of the penalties applicable to infringements of the penalties applicable to infringements of the national provisions adopted pursuant to national provisions adopted pursuant to national provisions adopted pursuant to national provisions adopted pursuant to this Directive and the Specific Directives this Directive and the Specific Directives this Directive and the Specific Directives this Directive and the Specific Directives and shall take all measures necessary to and shall take all measures necessary to and shall take all measures necessary to and shall take all measures necessary to ensure that they are implemented. The ensure that they are implemented. The ensure that they are implemented. The ensure that they are implemented. The penalties provided for must be effective, penalties provided for must be penalties provided for must be effective, penalties provided for must be proportionate and dissuasive. The Member appropriate, effective, proportionate and proportionate and dissuasive and may be appropriate, effective, proportionate and States shall notify those provisions to the dissuasive. The Member States shall notify applied to cover the period of any dissuasive and may be applied to cover the Commission by the [time-limit for those provisions to the Commission by ...* breach, even if the breach has period of any breach, even if the breach

ANNEX 2 DG C II B LIMITE EN

implementation of the amending act] at the and shall notify it without delay of any subsequently been rectified. The Member has subsequently been rectified. The latest and shall notify it without delay of subsequent amendment affecting them. States shall notify those provisions to the Member States shall notify those any subsequent amendment affecting them. Commission by the [time-limit for provisions to the Commission by the [timeimplementation

of the amending act] at the limit for implementation of the amending latest and shall notify it without delay of act] at the latest and shall notify it without any subsequent amendment affecting them. delay of any subsequent amendment affecting them.

Article 22 Article 22 Article 22 Article 22 Committee Committee Committee Committee

1a. By way of derogation from paragraph 1, for the adoption of measures pursuant to Article 9c, the Commission shall be assisted by the Radio Spectrum Committee established under Article 3(1) of Decision 676/2002/EC. 2a. Where reference is made to this Keep common position paragraph, Articles 5 and 7 of Decision (acceptable for EP) 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

• 4. 

  Where reference is made to this deleted Keep common position paragraph, Article 5a(1), (2), (4) and (6), (acceptable for EP) and Article 7 of Decision 1999/468/EC i shall apply, having regard to the provisions of Article 8 thereof.

  Article 3a of amending act (applies to Article 3a of amending act (applies to Article 3a of amending act (applies to Article 3a of amending act (applies to Framework, Access and Authorisation Framework, Access and Authorisation Framework, Access and Authorisation Framework, Access and Authorisation

  Directives) Directives) Directives) Directives) Review procedure Review procedure Review procedure Review procedure

  AM 106 New recital: 1. The Commission shall periodically

review the functioning of this Directive "In carrying out its reviews of the and of Directives 2002/21/EC i functioning of the Framework Directive (Framework Directive), 2002/19/EC and the Specific Directives, the (Access Directive) and 2002/20/EC Commission should be mindful to assess (Authorisation Directive) and report to whether, in the light of developments in the European Parliament and the Council the market and with regard to both no later than three years after the date of competition and consumer protection, application referred to in Article 5(1). In the provisions enabling the imposition of its report, the Commission shall assess ex ante regulation remain appropriate

ANNEX 2 DG C II B LIMITE EN

whether, in the light of developments in to the electronic communications sector.

the market and with regard to both "

competition and consumer protection

there is continued need for the provisions

on sector specific ex-ante regulation laid

down in Articles 8 to 13a of Directive

2002/19/EC (Access Directive) and Article

17 of Directive 2002/22/EC i (Universal

Service Directive) or whether they should

be amended or repealed. For this purpose,

the Commission may request information

from the national regulatory authorities

and BERT, which shall be supplied

without undue delay.

• 2. 

  If the Commission finds that the

provisions referred to in paragraph 1

need to be amended or repealed it shall

submit without undue delay a proposal to

the European Parliament and the

Council.

Annex I is deleted Annex I is deleted Annex I is deleted Annex I is deleted

ANNEX II ANNEX II ANNEX II ANNEX II

Criteria to be used by national Criteria to be used by national Criteria to be used by national Keep common position.

regulatory authorities in making an regulatory authorities in making an regulatory authorities in making an (identical)

assessment of joint dominance in assessment of joint dominance in assessment of joint dominance in

accordance with Article 14(2), second accordance with Article 14(2), second accordance with Article 14(2), second

subparagraph. subparagraph. subparagraph.

Two or more undertakings can be found Two or more undertakings can be found to Two or more undertakings can be found Two or more undertakings can be found to

to be in a joint dominant position within be in a joint dominant position within the to be in a joint dominant position within be in a joint dominant position within the

the meaning of Article 14 if, even in the meaning of Article 14 if, even in the the meaning of Article 14 if, even in the meaning of Article 14 if, even in the

absence of structural or other links absence of structural or other links absence of structural or other links absence of structural or other links

between them, they operate in a market between them, they operate in a market between them, they operate in a market between them, they operate in a market

which is characterised by a lack of which is characterised by a lack of which is characterised by a lack of which is characterised by a lack of

effective competition and in which no effective competition and in which no effective competition and in which no effective competition and in which no

single undertaking has significant market single undertaking has significant market single undertaking has significant single undertaking has significant market

power. Without prejudice to the case law power. In accordance with the applicable market power. [...]. In accordance with power. In accordance with the provisions

of the Court of Justice on joint Community law and with the case-law of the provisions on joint dominance set in applicable community law and the case

dominance, this is likely to be the case the Court of Justice of the European the Regulation (EC) N° 139/2004 of 20 law of the Court of Justice on joint

where the market is concentrated and Union on joint dominance, this is likely to January 2004, this is likely to be the case dominance on joint dominance, set in the

exhibits a number of appropriate be the case where the market is where the market is concentrated and Regulation (EC) N° 139/2004 of 20

ANNEX 2 DG C II B LIMITE EN

characteristics of which the following concentrated and exhibits a number of exhibits a number of appropriate January 2004 this is likely to be the case may be the most relevant in the context of appropriate characteristics of which the characteristics of which the following where the market is concentrated and electronic communications: following may be the most relevant in the may be the most relevant in the context exhibits a number of appropriate

context of communications: of communications: characteristics of which the following may be the most relevant in the context of

electronic communications:

no AM - deleted Keep common position no AM - deleted Keep common position

• - 

  low elasticity of demand no AM - low elasticity of demand Keep common position

  no AM - deleted Keep common position

• - 

  similar market shares no AM - similar market shares Keep common position.

  no AM - deleted Keep common position.

  no AM - deleted Keep common position.

• - 

  high legal or economic barriers to no AM - high legal or economic barriers to Keep common position.

entry entry

• - 

  vertical integration with collective no AM - vertical integration with collective Keep common position.

refusal to supply refusal to supply

• - 

  lack of countervailing buyer power no AM - lack of countervailing buyer power Keep common position.

• - 

  lack of potential competition no AM - lack of potential competition Keep common position.

  no AM - deleted Keep common position.

  no AM - deleted Keep common position.

  no AM - deleted Keep common position.

The above is not an exhaustive list, nor The above is not an exhaustive list, nor The above is an indicative list and is not Keep common position. are the criteria cumulative. Rather, the are the criteria cumulative. Rather, the exhaustive, nor are the criteria list is intended to illustrate only the sorts list is intended to illustrate only the sorts cumulative. Rather, the list is intended of evidence that could be used to of evidence that could be used to to illustrate only the sorts of evidence support assertions concerning the support assertions concerning the that could be used to support assertions existence of joint dominance. existence of joint dominance concerning the existence of joint

dominance.

______

ANNEX 2 DG C II B LIMITE EN

ANNEX 3 First three columns:

Blank cells mean not amended text by the respective Institution

Bold italics means text amended by EP;

Italics means linguistic amendment

Bold text means text amended by Council

Bold underlined text means amended by the Commission

[...] means deleted text

Fourth column:

Bold underlined text is text added by the presidency to the common position

Crossed text is text deleted by the presidency from the common position

Amendments to Directive 2002/19/EC i (Directive on ACCESS to, and interconnection of, electronic communications networks and services)

COMMISSION'S amended Proposal EUROPEAN PARLIAMENT'S 2nd COUNCIL'S Common Position Compromise options 6 November 2008 Reading Recommendation 16 February 2009

Article 2 Article 2 Article 2 Article 2 Definitions Definitions Definitions Definitions (a) “access” means the making no AM (a) "access" means the making Keep common position (acceptable for available of facilities and/or services to available of facilities and/or services, to EP). another undertaking, under defined another undertaking, under defined conditions, on either an exclusive or nonconditions, on either an exclusive or nonexclusive basis, for the purpose of exclusive basis, for the purpose of providing electronic communications providing electronic communications services, including the delivery of services, including when they are used information society services or broadcast for the delivery of information society content services. It covers inter alia: access services or broadcast content services. It to network elements and associated covers inter alia: access to network facilities, which may involve the elements and associated facilities, which connection of equipment by fixed or may involve the connection of equipment, non-fixed means (in particular this by fixed or non-fixed means (in particular includes access to the local loop and to this includes access to the local loop and to facilities and services necessary to provide facilities and services necessary to provide services over the local loop); access to services over the local loop); access to physical infrastructure including buildings, physical infrastructure including buildings,

ANNEX 3 DG C II B LIMITE EN

ducts and masts; access to relevant ducts and masts; access to relevant software systems including operational software systems including operational support systems; access to number support systems; access to information translation or systems offering equivalent systems or databases for pre-ordering, functionality; access to necessary provisioning, ordering, maintaining and subscriber information and to repair requests, and billing; access to mechanisms for paying back sums number translation or systems offering invoiced to end users to the providers of equivalent functionality; access to fixed directory services; access to fixed and and mobile networks, in particular for mobile networks, in particular for roaming; roaming; access to conditional access access to conditional access systems for systems for digital television services; digital television services; and access to access to virtual network services; virtual network services.

(e) "local loop" means the physical circuit (e) "local loop" means the physical circuit (e) "local loop" means the physical circuit (e) "local loop" means the physical circuit connecting the network termination point connecting the network termination point connecting the network termination point connecting the network termination point [...] to a distribution frame or equivalent to a distribution frame or equivalent at the subscriber's premises to the main at the subscriber's premises to a the main facility in the fixed public electronic facility in the fixed public electronic distribution frame or equivalent facility in distribution frame or equivalent facility in communications network. communications network. the fixed public electronic the fixed public electronic communications

communications network. network.

Article 4 Article 4 Article 4 Article 4 Rights and obligations for undertakings Rights and obligations for undertakings Rights and obligations for undertakings Rights and obligations for undertakings 1. Operators of public 1. Operators of public communications 1. Operators of public Keep common position. communications networks shall have a networks shall have a right and, when communications networks shall have a (not acceptable for EP so far) right and, when requested by other requested by other undertakings so right and, when requested by other undertakings so authorised in accordance authorised in accordance with Article 4 of undertakings so authorised in accordance with Article 4 of Directive 2002/20/EC i Directive 2002/20/EC i (Authorisation with Article 4 of Directive 2002/20/EC i

(Authorisation Directive), an obligation to Directive), an obligation to negotiate (Authorisation Directive), an obligation to negotiate interconnection with each other interconnection with each other for the negotiate interconnection with each other for the purpose of providing publicly purpose of providing publicly available for the purpose of providing publicly available electronic communications electronic communications services or available electronic communications services, in order to ensure provision and delivering broadcast content or services, in order to ensure provision and interoperability of services throughout the information society services, in order to interoperability of services throughout the

Community. Operators shall offer access ensure provision and interoperability of Community. Operators shall offer access and interconnection to other undertakings services throughout the Community. and interconnection to other undertakings on terms and conditions consistent with Operators shall offer access and on terms and conditions consistent with obligations imposed by the national interconnection to other undertakings on obligations imposed by the national regulatory authority pursuant to Articles 5, terms and conditions consistent with regulatory authority pursuant to Articles 5,

6, 7 and 8. obligations imposed by the national 6, 7 and 8.

ANNEX 3 DG C II B LIMITE EN

regulatory authority pursuant to Articles 5 to 8. However, the terms and conditions of interconnection shall not introduce unjustified barriers to interoperability.

Article 5 Article 5 Article 5 Article 5 Powers and responsibilities of the Powers and responsibilities of the Powers and responsibilities of the Powers and responsibilities of the national regulatory authorities with national regulatory authorities with national regulatory authorities with national regulatory authorities with regard to access and interconnection regard to access and interconnection regard to access and interconnection regard to access and interconnection 1. National regulatory authorities shall, 1. National regulatory authorities shall, 1. National regulatory authorities Keep common position. acting in pursuit of the objectives set out in acting in pursuit of the objectives set out in shall, acting in pursuit of the objectives set (not acceptable for EP so far) Article 8 of Directive 2002/21/EC i Article 8 of Directive 2002/21/EC i out in Article 8 of Directive 2002/21/EC i

(Framework Directive), encourage and (Framework Directive), encourage and (Framework Directive), encourage and where appropriate ensure, in accordance where appropriate ensure, in accordance where appropriate ensure, in accordance with the provisions of this Directive, with the provisions of this Directive, with the provisions of this Directive, adequate access and interconnection, and adequate access and interconnection, and adequate access and interconnection, and interoperability of services, exercising the interoperability of services, exercising interoperability of services, exercising their responsibility in a way that promotes their responsibility in a way that promotes their responsibility in a way that promotes efficiency, sustainable competition, efficiency, sustainable competition, efficiency, sustainable competition, investment and innovation, and gives the investment and innovation, and gives the efficient investment and innovation, and maximum benefit to end-users. maximum benefit to end-users. gives the maximum benefit to end-users.

In particular, without prejudice to (identical) measures that may be taken regarding undertakings with significant market power in accordance with Article 8, national regulatory authorities shall be able to impose:

(a) to the extent that is necessary to (a) to the extent that is necessary to (a) to the extent that is necessary to (a) to the extent that is necessary to ensure end-to-end connectivity, obligations ensure end-to-end connectivity or fair and ensure end-to-end connectivity, obligations ensure end-to-end connectivity, obligations on undertakings that control access to endreasonable access to third-party services, on undertakings that control access to endon undertakings that control access to endusers, including in justified cases the obligations on undertakings that control users, including in justified cases the users, including in justified cases the obligation to interconnect their networks access to end-users, including in justified obligation to interconnect their networks obligation to interconnect their networks where this is not already the case; cases the obligation to interconnect their where this is not already the case; where this is not already the case;

networks where this is not already the case or to make their services ab) to the extent that is necessary, on interoperable on fair, transparent and undertakings that control access to endreasonable terms; users, in justified cases the obligation to make their services interoperable.

ANNEX 3 DG C II B LIMITE EN

• 2. 

  Obligations and conditions imposed 2. Obligations and conditions imposed in 2. Obligations and conditions imposed 2. Obligations and conditions imposed in accordance with paragraph 1 shall be accordance with paragraph 1 shall be in accordance with paragraph 1 shall be in accordance with paragraph 1 shall be objective, transparent, proportionate and objective, transparent, proportionate and objective, transparent, proportionate and objective, transparent, proportionate and non-discriminatory, and shall be non-discriminatory, and shall be non-discriminatory, and shall be non-discriminatory, and shall be implemented in accordance with the implemented in accordance with the implemented in accordance with the implemented in accordance with the procedures referred to in Articles 6, 7 and procedures referred to in Articles 6, 7 and procedures referred to in Articles 6 and 7 procedures referred to in Articles 6 and 7 -7a of Directive 2002/21/EC i (Framework -7a of Directive 2002/21/EC i (Framework of Directive 2002/21/EC i (Framework and -7a of Directive 2002/21/EC i Directive). Directive). Directive). (Framework Directive).

When assessing the proportionality of the no AM (now in Article 8) When assessing the proportionality of obligations and conditions to be imposed, the obligations and conditions to be national regulatory authorities shall take imposed, national regulatory authorities into account the different competitive shall take into account the different conditions existing in the different areas competitive conditions existing in the within their Member States. different areas within their Member

States. 3. With regard to access and Keep common position (acceptable for EP) interconnection mentioned in paragraph

1, Member States shall ensure that the national regulatory authority is empowered to intervene at its own initiative where justified [...] in order to secure the policy objectives of Article 8 of Directive 2002/21/EC i (Framework Directive), in accordance with the provisions of this Directive and the procedures referred to in Articles 6 and 7, 20 and 21 of Directive 2002/21/EC i (Framework Directive).

Article 6 Article 6 Article 6 Article 6 Conditional access systems and other Conditional access systems and other Conditional access systems and other Conditional access systems and other

facilities facilities facilities facilities 2. In the light of market and 2. In the light of market and technological 2. In the light of market and Keep common position. technological developments, the developments, the Commission may adopt technological developments, the (identical)

Commission may adopt implementing implementing measures to amend Annex I. Commission may adopt implementing measures to amend Annex I. The The measures, designed to amend non measures to amend Annex I. The measures, designed to amend non-essential essential elements of this Directive, shall measures, designed to amend non-essential elements of this Directive, shall be adopted be adopted in accordance with the elements of this Directive, shall be adopted in accordance with the regulatory regulatory procedure with scrutiny referred in accordance with the regulatory

ANNEX 3 DG C II B LIMITE EN

procedure with scrutiny referred to in to in Article 14(3). procedure with scrutiny referred to in

Article 14(3). On imperative grounds of Article 14(3). [...] urgency, the Commission may use the urgency procedure referred to in Article

14(4).

In preparing the provisions referred to in In preparing the provisions referred to in Deleted Deleted this paragraph, the Commission may be this paragraph, the Commission may be assisted by the European Electronic assisted by the Body of European

Communications Market Authority Regulators in Telecom (hereinafter

(hereinafter referred to as 'the Body'). referred to as "BERT").

Article 8 Article 8 Article 8 Article 8 Imposition, amendment or withdrawal Imposition, amendment or withdrawal Imposition, amendment or withdrawal Imposition, amendment or withdrawal

of obligations of obligations of obligations of obligations 1. Member States shall ensure that (identical) national regulatory authorities are empowered to impose the obligations identified in Articles 9 to 13a.

• 2. 

  Where an operator is designated as 2. Where an operator is designated as 2. Where an operator is designated as Keep common position having significant market power on a having significant market power on a having significant market power on a (acceptable for EP) specific market as a result of a market specific market as a result of a market specific market as a result of a market analysis carried out in accordance with analysis carried out in accordance with analysis carried out in accordance with

Article 16 of Directive 2002/21/EC i Article 16 of Directive 2002/21/EC i Article 16 of Directive 2002/21/EC i

(Framework Directive), national regulatory (Framework Directive), national regulatory (Framework Directive), national regulatory authorities shall impose the obligations set authorities shall, as appropriate, impose the authorities shall impose the obligations set out in Articles 9 to 13 of this Directive as obligations set out in Articles 9 to 13a of out in Articles 9 to 13 of this Directive as appropriate. this Directive in accordance with the appropriate.

procedure laid down in Article -7a of Directive 2002/21/EC i (Framework Directive). When assessing the proportionality of the obligations and conditions to be imposed, national regulatory authorities shall take into account the different competitive conditions existing in the different areas within their Member States."

• 3. 

  [...] 3. [...]

In exceptional circumstances, when a In exceptional circumstances, when a In exceptional circumstances, when a Keep common position (acceptable for national regulatory authority intends to national regulatory authority intends to national regulatory authority intends to EP). impose on operators with significant impose on operators with significant impose on operators with significant

ANNEX 3 DG C II B LIMITE EN

market power other obligations for access market power obligations for access or market power other obligations for access or interconnection than those set out in interconnection other than those set out in or interconnection than those set out in

Articles 9 to 13 in this Directive, it shall Articles 9 to 13a in this Directive, it shall Articles 9 to 13 in this Directive, it shall submit this request to the Commission. submit this request to the Commission. submit this request to the Commission.

The Commission, acting in accordance The Commission shall take utmost account The Commission shall take utmost with Article 14(2), shall take a decision of the opinion of BERT. The Commission, account of the opinion of the Group of authorising or preventing the national acting in accordance with Article 14(2), Europeans Regulators in Telecoms regulatory authority from taking such shall take a decision authorising or (hereinafter referred to as ‘the GERT’). measures. The Commission shall take the preventing the national regulatory The Commission, acting in accordance outmost account of the opinion of the authority from taking such measures. with Article 14(2), shall take a decision

Body submitted in accordance with Article authorising or preventing the national

4(3)(m) of Regulation [/EC] regulatory authority from taking such measures.

Article 9 Article 9 Article 9 Article 9 Obligation of transparency Obligation of transparency Obligation of transparency Obligation of transparency 1. National regulatory authorities may, 1. National regulatory authorities may, in 1. National regulatory authorities may, 1. National regulatory authorities may, in accordance with the provisions of accordance with the provisions of Article in accordance with the provisions of in accordance with the provisions of Article 8, impose obligations for 8, impose obligations for transparency in Article 8, impose obligations for Article 8, impose obligations for transparency in relation to interconnection relation to interconnection and/or access, transparency in relation to interconnection transparency in relation to interconnection and/or access, requiring operators to make requiring operators to make public and/or access, requiring operators to make and/or access, requiring operators to make public specified information, such as specified information, such as accounting public specified information, such as public specified information, such as accounting information, technical information, technical specifications, accounting information, technical accounting information, technical specifications, network characteristics, network characteristics, restrictions on specifications, network characteristics, specifications, network characteristics, including any restrictions on access to access to services and applications, traffic terms and conditions for supply and use terms and conditions for supply and use services and applications, traffic management policies, terms and including traffic management policies, including any limitations on access to management policies, terms and conditions for supply and use, including terms and conditions for supply and use, services and applications, where allowed conditions for supply and use, and prices. traffic management policies, and prices. and prices. by national law, that are in place for

traffic management purposes policies, terms and conditions for supply and use,

and prices. 4. Notwithstanding paragraph 3, 4. Notwithstanding paragraph 3, where an 4. Notwithstanding paragraph 3, 4. Notwithstanding paragraph 3, where an operator has been found, in operator has been found, in accordance where an operator has obligations under where an operator has obligations under accordance with Article 14 of Directive with Article 14 of Directive 2002/21/EC i Article 12 concerning wholesale network Article 12 concerning wholesale network 2002/21/EC (Framework Directive), to (Framework Directive), to have infrastructure access, including infrastructure access, including unbundled have significant market power in a significant market power in a relevant unbundled access to the […] local loop access to the […] local loop at a fixed relevant market relating to local access at market relating to local access at a fixed at a fixed location, national regulatory location, national regulatory authorities a fixed location, national regulatory location, national regulatory authorities authorities shall ensure the publication of a shall ensure the publication of a reference authorities shall ensure the publication of a shall ensure the publication of a reference reference offer containing at least the offer containing at least the elements set reference offer containing at least the offer containing at least the elements set elements set out in Annex II. out in Annex II. elements set out in Annex II.

ANNEX 3 DG C II B LIMITE EN

out in Annex II.

• 5. 

  The Commission may adopt the no AM 5. The Commission may adopt the Keep common position (acceptable for necessary amendments to Annex II in necessary amendments to Annex II in EP). order to adapt it to technological and order to adapt it to technological and market developments. The measures, market developments. The measures, designed to amend non-essential elements designed to amend non-essential elements of this Directive, shall be adopted in of this Directive, shall be adopted in accordance with the regulatory procedure accordance with the regulatory procedure with scrutiny referred to in Article 14(3). with scrutiny referred to in Article 14(3).

On imperative grounds of urgency, the [...] In implementing the provisions of this

Commission may use the urgency paragraph, the Commission may be procedure referred to in Article 14(4). In assisted by the GERT. implementing the provisions of this paragraph, the Commission may be assisted by [the Body].

Article 12 Article 12 Article 12 Article 12 Obligations of access to, and use of, Obligations of access to, and use of, Obligations of access to, and use of, Obligations of access to, and use of,

specific network facilities specific network facilities specific network facilities specific network facilities 1. A national regulatory authority Keep common position may, in accordance with the provisions of (identical)

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 shall may be required inter alia: no AM Operators may be required inter alia: Keep common position (acceptable for EP).

(a) to give third parties access to no AM (a) to give third parties access to Keep common position (acceptable for specified network elements and/or specified network elements and/or EP). facilities, including unbundled access to facilities, including access to network the local loop; elements which are not active and/or

unbundled access to the local loop, to inter alia allow carrier selection and/or pre

ANNEX 3 DG C II B LIMITE EN

selection and/or subscriber line resale offer;

(f) to provide co-location or other no AM (f) to provide co-location or other (f) to provide co-location or other forms of facility sharing, including the forms of associated facility sharing, forms of associated facilitiesy sharing, sharing of ducts, buildings or entry to including the sharing of ducts, buildings or including the sharing of ducts, buildings or buildings, antennae towers and other entry to buildings, antennae, towers and entry to buildings, antennae, towers and supporting constructions, masts, other supporting constructions, conduits, other supporting constructions, conduits, manholes, cabinets and other network masts, manholes, and cabinets [...]; masts, manholes, and cabinets; elements which are not active;

(fa) to provide third parties with a no AM Keep common position (acceptable for reference offer for the granting of access EP). to ducts;

(j) to provide access to associated no AM (j) to provide access to associated Keep common position services such as identity, location and services such as identity, location and presence capability. presence service .

• 2. 

  When national regulatory 2. When national regulatory Keep common position

authorities are considering whether to 2. When national regulatory authorities are authorities are considering [...] the (not acceptable for EP so far) impose the obligations referred in considering the obligations referred in obligations referred in paragraph 1, and in paragraph 1, and in particular when paragraph 1, and in particular when particular when assessing how such assessing whether such obligations would assessing whether such obligations would be proportionate to the objectives set out in be imposed proportionate to the objectives

obligations would be proportionate to the

Article 8 of Directive 2002/21/EC i set out in Article 8 of Directive

objectives set out in Article 8 of Directive

(Framework Directive), they shall take 2002/21/EC (Framework Directive), they

2002/21/EC (Framework Directive), they

account in particular of the following shall take account in particular of the

shall take account in particular of the

factors: following factors:

following factors:

(a) the technical and economic viability no AM (a) the technical and economic viability Keep common position of using or installing competing facilities, of using or installing competing facilities, (identical) in the light of the rate of market in the light of the rate of market development, taking into account the development, taking into account the nature and type of interconnection and nature and type of interconnection and/or access involved, including the viability of access involved, including the viability of other upstream access products such as other upstream access products such as access to ducts; access to ducts;

(c) the initial investment by the facility (c) the initial investment by the facility (c) the initial investment by the facility (c) the initial investment by the facility owner, bearing in mind any public owner, bearing in mind any public owner, bearing in mind the risks involved owner, bearing in mind any public investment made and the risks involved in investment made and the risks involved in in making the investment; investment made and the risks involved making the investment, including an making the investment, including an in making the investment;, as reflected appropriate risk-sharing among those appropriate risk-sharing among those when imposing pricing obligations undertakings enjoying access to these undertakings enjoying access to these pursuant to Article 13;

ANNEX 3 DG C II B LIMITE EN

new facilities when imposing pricing new facilities; New recital: obligations pursuant to Article 13; "Whereas public investment in

networks shoud be made in accordance

with the principle of nondiscrimination."

(d) the need to safeguard competition (d) the need to safeguard competition in (d) the need to safeguard competition (d) the need to safeguard competition in the long term, in particular the long term, in particular infrastructurein the long term, in particular through in the long term, in with particular infrastructure-based competition; based competition economically efficient infrastructureattention to through economically

based competition; efficient infrastructure-based competition; 3. When imposing obligations on an no AM 3. When imposing obligations on an Keep common position operator to provide access in accordance operator to provide access in accordance (identical) with the provisions of this Article, national with the provisions of this Article, national regulatory authorities may lay down regulatory authorities may lay down technical or operational conditions to be technical or operational conditions to be met by the provider and/or beneficiaries of met by the provider and/or beneficiaries of such access where necessary to ensure such access where necessary to ensure normal operation of the network. normal operation of the network.

Obligations to follow specific technical Obligations to follow special technical standards or specifications shall be in standards or specifications shall be in compliance with the standards and compliance with the standards and specifications laid down in accordance specifications laid down in accordance with Article 17 of Directive 2002/21/EC i with Article 17 of Directive 2002/21/EC i

(Framework Directive). (Framework Directive).

Article 13 Article 13 Article 13 Article 13 Price control and cost accounting Price control and cost accounting Price control and cost accounting Price control and cost accounting

obligations obligations obligations obligations 1. A national regulatory authority 1. A national regulatory authority may, in 1. A national regulatory authority 1. A national regulatory authority may, in accordance with the provisions of accordance with the provisions of Article may, in accordance with the provisions of may, in accordance with the provisions of Article 8, impose obligations relating to 8, impose obligations relating to cost Article 8, impose obligations relating to Article 8, impose obligations relating to cost recovery and price controls, including recovery and price controls, including cost recovery and price controls, including cost recovery and price controls, including obligations for cost orientation of prices obligations for cost orientation of prices obligations for cost orientation of prices obligations for cost orientation of prices and obligations concerning cost accounting and obligations concerning cost accounting and obligations concerning cost accounting and obligations concerning cost accounting systems, for the provision of specific types systems, for the provision of specific types systems, for the provision of specific types systems, for the provision of specific types of interconnection and/or access, in of interconnection and/or access, in of interconnection and/or access, in of interconnection and/or access, in situations where a market analysis situations where a market analysis situations where a market analysis situations where a market analysis indicates that a lack of effective indicates that a lack of effective indicates that a lack of effective indicates that a lack of effective competition means that the operator competition means that the operator competition means that the operator competition means that the operator concerned might sustain prices at an concerned might sustain prices at an concerned might sustain prices at an concerned might sustain prices at an excessively high level, or apply a price excessively high level, or apply a price excessively high level, or apply a price excessively high level, or apply a price

ANNEX 3 DG C II B LIMITE EN

squeeze, to the detriment of end-users. squeeze, to the detriment of end-users. To squeeze, to the detriment of end-users. To squeeze, to the detriment of end-users. To When setting an access price, Nnational encourage investments by the operator, encourage investments by the operator encourage investments by the operator regulatory authorities shall take into including in next generation networks, including in next generation networks, including in next generation networks, account the investment made by the national regulatory authorities shall take Nnational regulatory authorities shall take national regulatory authorities shall take operator and allow him a reasonable rate of into account the investment made by the into account the investment made by the into account the investment made by the return on adequate capital employed, operator, and allow him a reasonable rate operator, and allow him a reasonable rate operator, and allow him a reasonable rate including where relevant a premium to of return on adequate capital employed, of return on adequate capital employed, of return on adequate capital employed reflect the risks involved., and, without taking into account the risks involved and taking into account the risks involved. taking into account the risks involved any prejudice to Article 19(d) of Directive the appropriate sharing of risk between risks specific to a particular new 2002/21/EC (Framework Directive), take investors and those undertakings enjoying investment network project. into account the risks involved and the access to the new facilities, including appropriate sharing of risk between differentiated short-term and long-term New Recital : investors and those undertakings enjoying risk-sharing arrangements. When imposing remedies to control access to the new facilities, including prices, national regulatory authorities differentiated short-term and long-term should seek to allow a fair return for the risk-sharing arrangements. investor on a particular new investment

project. In particular there may be risks associated with the incremental investment projects specific to in new access networks which support products for which demand is uncertain at the

time the investment is made. 4a. National regulatory authorities shall Keep common position ensure that access price regulation for (not acceptable for EP so far) long-term risk-sharing contracts is in line with the long-term incremental cost of an efficient operator, taking into account the operator’s calculated rate of penetration of new markets and the risk premium included in access prices for short-term contracts. Risk premium shall be phased out as market penetration increases.

Margin squeeze tests shall not be applied to short-term contracts when a risk premium is charged. deleted 5a. Instead of imposing obligations Keep common position on cost accounting systems, national (not acceptable for EP so far) regulatory authorities may accept the use of an alternative interconnection pricing method, such as the bill and

ANNEX 3 DG C II B LIMITE EN

keep, provided that such method shall not hinder or distort competition.

Article 13a Article 13a Article 13a Article 13a Functional separation Functional separation Functional separation Functional separation 1. A national regulatory authority 1. A national regulatory authority may, 1. Where the national regulatory Keep common position may, in accordance with the provisions of in accordance with the provisions of authority concludes that the appropriate (not acceptable for EP so far - partly Article 8, and in particular the second Article 8, and in particular the second obligations imposed under Articles 9 to covered by para 2a) subparagraph of Article 8(3), impose, as subparagraph of Article 8(3), impose, as 13 have failed to achieve effective an exceptional measure, an obligation on an exceptional measure, an obligation on competition and that there are vertically integrated undertakings to place vertically integrated undertakings to place important and persisting competition activities related to the wholesale provision activities related to the wholesale provision problems/market failures identified in of fixed access products in an of fixed access products in an relation to the wholesale provision of independently operating business unit. independently operating business entity. certain access products, it may, as an

exceptional measure in accordance with the provisions of the second subparagraph of Article 8(3), impose an obligation on vertically integrated undertakings to place activities related to the wholesale provision of these access products in an independently operating business entity.

That business unit shall supply access That business entity shall supply access That business entity shall supply access (identical) products and services to all undertakings, products and services to all undertakings, products and services to all undertakings, including other business units within the including to other business entities within including to other business entities within parent company, on the same timescales, the parent company, on the same the parent company, on the same terms and conditions, including with timescales, terms and conditions, including timescales, terms and conditions, including regard to price and service levels, and by those relating to price and service levels, those relating to price and service levels, means of the same systems and processes. and by means of the same systems and and by means of the same systems and

processes. processes.

• 2. 

  When a national regulatory 2. When a national regulatory 2. When a national regulatory Keep common position authority intends to impose an obligation authority intends to impose an obligation authority intends to impose an obligation (identical) for functional separation, it shall submit a for functional separation, it shall submit a for functional separation, it shall submit a proposal request to the Commission that proposal to the Commission that includes: proposal to the Commission that includes: includes:

(a) evidence that the imposition and (a) evidence that the imposition and (a) evidence justifying the Keep common position enforcement over a reasonable period, enforcement over a reasonable period, conclusions of the national regulatory taking due account of regulatory best taking due account of regulatory best authority as referred to in paragraph 1; practice, of appropriate obligations practice, of appropriate obligations amongst those identified in Articles 9 to 13 amongst those identified in Articles 9 to

ANNEX 3 DG C II B LIMITE EN

to achieve effective competition following 13 to achieve effective competition a coordinated analysis of the relevant following a coordinated analysis of the markets in accordance with the market relevant markets in accordance with the analysis procedure set out in Article 16 of market analysis procedure set out in

Directive 2002/21/EC i (Framework Article 16 of Directive 2002/21/EC i

Directive) has failed and would fail on a (Framework Directive) has failed and persistent basis to achieve effective would fail on a persistent basis to achieve competition and that there are important effective competition and that there are and persisting competition problems and important and persisting competition market failures identified in several of the problems and market failures identified in wholesale product markets analysed; several of the wholesale product markets

analysed;

(ab) evidence that there is little or no (b) evidence that there is no or little (ab) a reasoned assessment that there Keep common position prospect of infrastructure-based prospect of infrastructure-based is no or little prospect of infrastructure(not acceptable for EP so far) competition within a reasonable competition within a reasonable based competition within a reasonable timeframe; timeframe; timeframe;

(b) an analysis of the expected impact (c) an analysis of the expected impact on (b) an analysis of the expected impact (b) an analysis of the expected impact on the regulatory authority, the the regulatory authority, on the on the regulatory authority, on the on the regulatory authority, on the undertaking, in particular its workforce, undertaking, in particular on its workforce undertaking, and on incentives to undertaking, in particular its workforce and its incentives to invest in its network, and on incentives to invest in its network, investment in a sector as a whole, in the electronic communications sector and other stakeholders, including in and on other stakeholders, including, in particularly with regard to the need to and on incentives to investment in a sector particular analysis of the expected impact particular, analysis of the expected impact ensure social and territorial cohesion as a whole, particularly with regard to the on infrastructure competition and any on infrastructure competition and any and on other stakeholders including in need to ensure social and territorial potential consequential effects on potential consequential effects on particular [...] the expected impact on [...] cohesion and on other stakeholders consumers; consumers; competition and any potential entailing including in particular the expected impact

effects on consumers; on competition and any potential entailing effects on consumers;

(ba) an analysis of the reasons (ca) an analysis of the reasons (ba) an analysis of the reasons justifying that this obligation would be the justifying that this obligation would be the justifying that this obligation would be most efficient means to enforce remedies most efficient means to enforce remedies the most efficient means to enforce aimed at addressing the competition aimed at addressing the competition remedies aimed at addressing the problems/market failures identified problems or markets failures identified; competition problems/markets failures demonstrating that this obligation would identified; satisfy the requirements of Article 8(4) of Directive 2002/19/EC i;

(c) a draft of the measure being deleted deleted Keep common position proposed. (identical)

• 3. 

  The national regulatory authority 3. The national regulatory authority shall 3. The draft measure shall include the Keep common position draft measure shall include in its include in its proposal a draft of the following elements: (not acceptable for EP so far)

ANNEX 3 DG C II B LIMITE EN

proposal a draft of the proposed measure, proposed measure, which shall include the which shall include the following following elements: elements:

Article 13b Article 13b Article 13b Article 13b Voluntary separation by a vertically Voluntary separation by a vertically Voluntary separation by a vertically Voluntary separation by a vertically

integrated undertaking integrated undertaking integrated undertaking integrated undertaking 1. Undertakings which have been no AM 1. Undertakings which have been Keep common position (acceptable for designated as having significant market designated as having significant market EP). power in one or several relevant markets in power in one or several relevant markets in accordance with Article 16 of Directive accordance with Article 16 of Directive

2002/21/EC (Framework Directive) shall 2002/21/EC (Framework Directive) shall inform the national regulatory authority in inform the national regulatory authority in advance if they intend to transfer their advance and in a timely manner, in local access network assets or a substantial order to allow the national regulatory part of them to a separate legal entity under authority to assess the effect of the different ownership, or to establish a intended transaction, when they intend to separate business entity in order to provide transfer their local access network assets or to all retail providers, including its own a substantial part of them to a separate retail divisions, fully equivalent access legal entity under different ownership, or products. to establish a separate business entity in

order to provide to all retail providers, including its own retail divisions, fully equivalent access products.

no AM Undertakings shall also inform the Keep common position (acceptable for EP) national regulatory authority of any

change of that intent as well as the final outcome of the process of the separation.

Article 14 Article 14 Article 14 Article 14 Committee Committee Committee Committee 4. Where reference is made to this no AM Deleted Keep common position paragraph, Article 5a(1), (2), (4) and (6), (identical) and Article 7 of Decision 1999/468/EC i shall apply, having regard to the provisions of Article 8 thereof.

ANNEX II ANNEX II ANNEX II ANNEX II

Minimum list of items to be included in no AM Minimum list of items to be included in Minimum list of items to be included in a a reference offer for wholesale network a reference offer for […] wholesale reference offer for wholesale network infrastructure access , including shared network infrastructure access, including infrastructure access, including shared or

ANNEX 3 DG C II B LIMITE EN

or fully unbundled access at a fixed unbundled access to the […] local loop fully unbundled access to the local loop at location, to be published by [...] at a fixed location to be published by a fixed location to be published by notified operators with significant market power notified operators operators with significant market power (SMP) (SMP)

For the purposes of this Annex the Keep common position following definitions apply: (identical)

(a) "local sub-loop" means a partial local no AM (a) "local sub-loop" means a partial Keep common position loop connecting the network termination local loop connecting the network (identical) point to a concentration point or a termination point to a concentration point specified intermediate access point in the or a specified intermediate access point in fixed public electronic communications the fixed public electronic network; communications network;

(c) "full unbundled access to the local no AM (c) "full unbundled access to the local (c) "full unbundled access to the local loop" means the provision to a beneficiary loop" means the provision to a beneficiary loop" means the provision to a beneficiary of access to the local loop or local sub-loop of access to the local loop or local sub-loop of access to the local loop or local sub-loop of the SMP operator allowing the use of of the notified operator allowing the use of of the notified SMP operator allowing the the full capacity of the network the full capacity of the network use of the full capacity of the network infrastructure; infrastructure; infrastructure;

(d) "shared access to the local loop" means no AM (d) "shared access to the local loop" (d) "shared access to the local loop" the provision to a beneficiary of access to means the provision to a beneficiary of means the provision to a beneficiary of the local loop or local sub-loop of the SMP access to the local loop or local sub-loop of access to the local loop or local sub-loop of operator allowing the use of a specified the notified operator, allowing the use of the notified SMP operator, allowing the part of the capacity of the network a specified part of the capacity of the use of a specified part of the capacity of infrastructure such as part of the network infrastructure such as a part of the network infrastructure such as a part of frequency or an equivalent; the frequency or equivalent; the frequency or equivalent;

A. Conditions for unbundled access A. Conditions for unbundled access to the Keep common position

local loop

• 1. 

  Network elements to which access is no AM 1. Network elements to which access is Keep common position offered covering in particular the following offered covering in particular the following (acceptable for EP) elements together with appropriate elements together with appropriate associated facilities: associated facilities:

(a) unbundled access to local loops no AM (a) unbundled access to local loops Keep common position and local sub-loops; (full and shared); (acceptable for EP)

(b) shared access at appropriate points (b) unbundled access to local sub-loops (b) unbundled and access to local (b) unbundled access to local sub-loops in the network permitting equivalent (full and shared), including, when relevant, subloops (full and shared), including, (full and shared), including, when relevant,

ANNEX 3 DG C II B LIMITE EN

functionality to unbundled access in access to network elements which are not when relevant, access to associated access to network elements which are circumstances where such access is not active for the purpose of roll-out of facilities such as ducts and/or optical not active for the purpose of roll-out of technically or economically feasible; backhaul networks; fibre for backhaul; backhaul networks;

(ba) duct access enabling installation of no AM (ba) when relevant, duct access Keep common position access and backhaul networks; enabling the roll out of access networks; (identical)

• 2. 

  Information concerning the no AM 2. Information concerning the Keep common position locations of physical access sites* locations of physical access sites including (acceptable for EP) including street cabinets and distribution street cabinets and distribution frames, frames, availability of local loops and subavailability of local loops, subloops and loops, ducts and backhaul in specific parts backhaul in specific parts of the access of the access network and availability network and when relevant, information

within ducts; concerning the locations of ducts and the availability within ducts;

• 3. 

  Technical conditions related to no AM 3. Technical conditions related to Keep common position access and use of local loops and subaccess and use of local loops and subloops (acceptable for EP) loops and ducts, including the technical [...], including the technical characteristics characteristics of the twisted pair, optical of the twisted pair and/or optical fibre

fibre or an equivalent, and of the cable and/or equivalent, cable distributors, distributors, ducts and associated and associated facilities and, when

facilities; relevant, technical conditions related to access to ducts;

B. Co-location services

• 1. 

  Information on the SMP operator's no AM 1. Information on the notified 1. Information on the notified SMP

existing relevant sites or equipment operator's existing relevant sites or operator's existing relevant sites or

locations and planned updates thereto*. equipment locations and planned update equipment locations and planned update thereof. thereof*.

∗ Availability of this information no AM ∗ Availability of this information

may be restricted to interested parties may be restricted to interested parties only, in order to avoid public security only, in order to avoid public security concerns. concerns.

ANNEX 3 DG C II B LIMITE EN

ANNEX 4 First three columns:

Blank cells mean not amended text by the respective Institution

Bold italics means text amended by EP;

Italics means linguistic amendment

Bold text means text amended by Council

Bold underlined text means amended by the Commission

[...] means deleted text

Fourth column:

Bold underlined text is text added by the presidency to the common position

Crossed text is text deleted by the presidency from the common position

Amendments to Directive 2002/20/EC i (Directive on the AUTHORISATION of electronic communications services)

COMMISSION'S Amended Proposal EUROPEAN PARLIAMENT'S 2nd COUNCIL'S Common Position Compromise options 6 November 2008 Reading Recommendation 16 February 2009

Article 2 Article 2 Article 2 Article 2 Definitions Definitions Definitions Definitions 2. The following definition 2. The following definition shall also Keep common position (acceptable for definitions shall also apply: apply: EP).

(a) "general authorisation" means a legal (a) "general authorisation" means a legal framework established by the Member framework established by the Member

State ensuring rights for the provision of State ensuring rights for the provision of electronic communications networks or electronic communications networks or services and laying down sector specific services and laying down sector specific obligations that may apply to all or to obligations that may apply to all or to specific types of electronic specific types of electronic communications networks and services, in communications networks and services, in accordance with this Directive; accordance with this Directive.

(aa) "pan-European wireless electronic (b) moved to Framework Directive communications network or service" means a wireless electronic communications network or service with an internal market dimension involving at least three Member States.

ANNEX 4 DG C II B LIMITE EN

Article 3 Article 3 Article 3 Article 3 General authorisation of electronic General authorisation of electronic General authorisation of electronic General authorisation of electronic communications networks and services communications networks and services communications networks and services communications networks and services 2. The provision of electronic 2. The provision of electronic 2. The provision of electronic Keep common position communications networks or the provision communications networks or the communications networks or the provision (not acceptable for EP so far) of electronic communications services provision of electronic communications of electronic communications services may, without prejudice to the specific services may, without prejudice to the may, without prejudice to the specific obligations referred to in Article 6(2) or specific obligations referred to in Article obligations referred to in Article 6(2) or rights of use referred to in Article 5, only 6(2) or rights of use referred to in Article rights of use referred to in Article 5, only be subject to a general authorisation. The 5, only be subject to a general be subject to a general authorisation. The undertaking concerned may be required to authorisation. The undertaking undertaking concerned may be required to submit a notification but may not be concerned may be required to submit a submit a notification but may not be required to obtain an explicit decision or notification but may not be required to required to obtain an explicit decision or any other administrative act by the national obtain an explicit decision or any other any other administrative act by the national regulatory authority before exercising the administrative act by the national regulatory authority before exercising the rights stemming from the authorisation. regulatory authority before exercising the rights stemming from the authorisation.

Upon notification, when required, an rights stemming from the authorisation. Upon notification, when required, an undertaking may begin activity, where Upon notification, when required, an undertaking may begin activity, where necessary subject to the provisions on undertaking may begin activity, where necessary subject to the provisions on rights of use in Articles 5, 6, 6a and 7. necessary subject to the provisions on rights of use in Articles 5, 6, [6a] and 7.

rights of use in Articles 5, 6, 6a and 7. Undertakings providing cross-border Undertakings providing cross-border Undertakings providing cross-border electronic communications services to electronic communications services to electronic communications services to undertakings located in several Member undertakings located in several Member undertakings located in several Member States shall be treated in the same way in States shall be subject to no more than States shall be subject to no more than all Member States and shall be subject to one notification per Member State one notification per Member State no more than one simplified notification concerned. concerned. per Member State concerned.

Article 5 Article 5 Article 5 Article 5 Rights of use for radio frequencies and Rights of use for radio frequencies and Rights of use for radio frequencies and Rights of use for radio frequencies and

numbers numbers numbers numbers 1. Member States shall, where 1. Member States shall, where possible, in 1. Member States shall facilitate the 1. Member States shall facilitate the possible, in particular where the risk of particular where the risk of harmful usage of radio frequencies under general usage of radio frequencies under general harmful interference is negligible, not interference is negligible, include the authorisations. Member States may authorisations. Where strictly necessary, make facilitate the usage of radio conditions for usage of radio frequencies grant individual rights in order to: Member States may grant individual rights frequencies subject to the granting of in general authorisations. Member States in order to: individual rights of use by means of may grant individual rights in order to: general authorisations. Member States

ANNEX 4 DG C II B LIMITE EN

may grant individual rights of use in order to: but shall include the conditions for usage of such radio frequencies in the general authorisation

(a) avoid the possibility of harmful – avoid harmful interference, – avoid [...] harmful interference; Keep common position interference;

(aa) ensure the technical quality of – ensure technical quality of service, – ensure technical quality of Keep common position services; service; (identical)

(ab) ensure the efficient use of – safeguard efficient use of spectrum, – safeguard efficient use of Keep common position spectrum; or spectrum; or

(b) fulfil other objectives of general – fulfil other objectives of general – fulfill other objectives of general Keep common position interest defined in national legislation in interest as defined by Member States in interest as defined by Member States in accordance with Community law; or conformity with Community law. conformity with Community law.

(ba) comply with a measure adopted (ba) comply with a measure adopted Keep common position pursuant to Article 6a. pursuant to Article 6a.

• 2. 

  Member States shall grant 2. Where it is necessary to grant individual 2. Where it is necessary to grant Keep common position individual rights of use, upon request, to rights of use for radio frequencies and individual rights of use for radio any undertaking, subject to the provisions numbers, Member States shall grant such frequencies and numbers, Member States of Articles 6, 6a, 7 and 11(1)(c) of this rights, upon request, to any undertaking for shall grant such rights, upon request, to

Directive and any other rules ensuring the the provision of networks or services under any undertaking [...] for the provision of efficient use of those resources in the general authorisation referred to in networks or services under the general accordance with Directive 2002/21/EC i Article 3, subject to the provisions of authorisation referred to in Article 3,

(Framework Directive). Articles 6, 6a, 7 and 11(1)(c) of this subject to the provisions of Articles 6, [...]

Directive and any other rules ensuring the 7 and 11(1)(c) of this Directive and any efficient use of those resources in other rules ensuring the efficient use of accordance with Directive 2002/21/EC i those resources in accordance with (Framework Directive). Directive 2002/21/EC i (Framework Directive).

Without prejudice to specific criteria and Without prejudice to specific criteria and Without prejudice to specific criteria and Keep common position procedures adopted by Member States to procedures adopted by Member States to procedures adopted by Member States to (acceptable for EP) grant rights of use of radio frequencies to grant rights of use of radio frequencies to grant rights of use of radio frequencies to providers of radio or television broadcast providers of radio or television broadcast providers of radio or television broadcast content services with a view to pursuing content services with a view to pursuing content services with a view to pursuing general interest objectives in conformity general interest objectives in conformity general interest objectives in conformity with Community law, such rights of use with Community law, the rights of use for with Community law, the rights of use for shall be granted through open, objective, radio frequencies and numbers shall be radio frequencies and numbers shall be transparent, non-discriminatory and granted through open, objective, granted through open, objective, proportionate procedures, and, in the case transparent, non-discriminatory and transparent, non-discriminatory and of radio frequencies, in accordance with proportionate procedures, and, in the case proportionate procedures, and, in the case

ANNEX 4 DG C II B LIMITE EN

the provisions of Article 9 of Directive of radio frequencies, in accordance with of radio frequencies, in accordance with

2002/21/EC (Framework Directive). The the provisions of Article 9 of Directive the provisions of Article 9 of Directive procedures may, exceptionally, not be 2002/21/EC (Framework Directive). An 2002/21/EC (Framework Directive). An open in cases where the granting of exception to the requirement of open exception to the requirement of open individual rights of use for radio procedures may apply in cases where the procedures could apply in cases where frequencies to the providers of radio or granting of individual rights of use of radio the granting of individual rights of use of television broadcast content services can frequencies to the providers of radio or radio frequencies to the providers of radio be shown to be essential to meet a television broadcast content services is or television broadcast content services is particular obligation defined and justified necessary to achieve a general interest necessary for achieving a general interest in advance by the Member State which is objective as defined by Member States in objective as defined by Member States in necessary to achieve a general interest conformity with Community law. conformity with Community law. objective in conformity with Community law.

When granting rights of use, Member When granting rights of use, Member When granting rights of use, Member When granting rights of use, Member States shall specify whether those rights States shall specify whether those rights States shall specify whether those rights States shall specify whether those rights can be transferred by the holder of the can be transferred by the holder of the can be transferred by the holder of the can be transferred by the holder of the rights, and under which conditions. In the rights, and under which conditions. In the rights, and under which conditions. In the rights, and under which conditions. In the case of radio frequencies, such provisions case of radio frequencies, such provision case of radio frequencies, such provision case of radio frequencies, such provision shall be in accordance with Articles 9 and shall be in accordance with Articles 9 and shall be in accordance with Article 9b of shall be in accordance with Article 9 and 9b of Directive 2002/21/EC i (Framework 9b of Directive 2002/21/EC i (Framework Directive 2002/21/EC i (Framework 9b of Directive 2002/21/EC i (Framework Directive). Directive). Directive). Directive).

Where Member States grant rights of use Where Member States grant rights of use Where Member States grant rights of use Where Member States grant rights of use for a limited period of time, the duration for a limited period of time, the duration for a limited period of time, the duration for a limited period of time, the duration shall be appropriate for the service shall be appropriate for the service shall be appropriate for the service shall be appropriate for the service concerned in view of the objective concerned in view of the objective concerned in view of the objective pursued concerned in view of the objective pursued pursued, taking due account of the need to pursued, taking due account of the need to and the necessary investments. and the necessary investments. taking due allow for an appropriate period for allow for an appropriate period for account of the need to allow for an amortisation of investment. amortisation of investment. appropriate period for amortisation of

investment.

Where an individual rights to use radio Where individual rights to use radio Any individual right to use radio Where Any individual rights to use radio frequencies is are granted for ten years or frequencies are granted for ten years or frequencies that is granted for more than frequencies that is are granted for more more and may not cannot be transferred more and cannot be transferred or leased ten years and that may not be transferred than ten years or more and that may not be or leased between undertakings pursuant between undertakings as allowed pursuant or leased between undertakings as allowed transferred or leased between undertakings to as allowed by Article 9b of Directive to Article 9b of Directive 2002/21/EC i by Article 9b of the Framework Directive as allowed by pursuant to Article 9b of 2002/21/EC (Framework Directive), every (Framework Directive), the competent shall [...] be subject to a review by the Directive 2002/21/EC i (Framework five years and for the first time five national authority shall ensure that the competent national authority in the light Directive) be subject to a review by, the years after its issuance, the competent criteria to grant individual rights of use of the criteria in paragraph 1, in particular competent national authority shall ensure national authority shall ensure that the apply and are complied with for the on a justified request of the holder of the that the criteria to grant individual

ANNEX 4 DG C II B LIMITE EN

criteria to grant such individual rights of duration of the license. If those criteria are right. If the criteria to grant individual rights of use apply and are complied use apply and are complied with for the no longer applicable, the individual right rights of use are no longer applicable, the with for the duration of the license, in duration of the license licence. If those of use shall be changed into a general individual right of use shall be changed particular on a justified request of the criteria are no longer applicable, the authorisation for the use of radio into a general authorisation for the use of holder of the right. If the those criteria to individual right of use shall be changed frequencies, subject to prior notice and radio frequencies [...], or made [...] grant individual rights of use are no longer into a general authorisation for the use of after a reasonable period of time, or shall transferable or leasable between applicable, the individual right of use shall radio frequencies, subject to prior notice be made freely transferable or leaseable undertakings in accordance with Article be changed into a general authorisation for and after a reasonable period of time, or between undertakings in accordance with 9b of the Framework Directive. the use of radio frequencies, subject to shall be made freely transferable or Article 9b of Directive 2002/21/EC i prior notice and after a reasonable leaseable between undertakings. (Framework Directive). period of time, or shall be made

transferable or leaseable between undertakings, in accordance with Article

9b of the Framework directive. 3. Decisions on the granting of rights no AM 3. Decisions on the granting of rights Keep common position of use shall be taken, communicated and of use shall be taken, communicated and (acceptable for EP) made public as soon as possible after made public as soon as possible after receipt of the complete application by the receipt of the complete application by the national regulatory authority, within three national regulatory authority, within three weeks in the case of numbers that have weeks in the case of numbers that have been allocated for specific purposes within been allocated for specific purposes within the national numbering plan and within six the national numbering plan and within six weeks in the case of radio frequencies that weeks in the case of radio frequencies that have been allocated for electronic have been allocated to be used by communications services within the electronic communications services within national frequency plan. The latter time the national frequency plan. The latter time limit shall be without prejudice to any limit shall be without prejudice to any applicable international agreements applicable international agreements relating to the use of radio frequencies or relating to the use of radio frequencies or of orbital positions. of orbital positions.

• 4. 

  Where it has been decided, after no AM 4. Where it has been decided, after Keep common position consultation with interested parties in consultation with interested parties in (identical) accordance with Article 6 of Directive accordance with Article 6 of Directive

2002/21/EC (Framework Directive), that 2002/21/EC (Framework Directive), that rights for use of numbers of exceptional rights for use of numbers of exceptional economic value are to be granted through economic value are to be granted through competitive or comparative selection competitive or comparative selection procedures, Member States may extend the procedures, Member States may extend the maximum period of three weeks by up to a maximum period of three weeks by up to a further three weeks. further three weeks.

• 6. 

  Competent National regulatory no AM 6. Competent national authorities 6. Competent national authorities shall

ANNEX 4 DG C II B LIMITE EN

authorities shall ensure that radio shall ensure that radio frequencies are ensure that radio frequencies are efficiently frequencies are efficiently and effectively efficiently and effectively used in and effectively used in accordance with used in accordance with Articles 8(2) and accordance with Articles 8(2) and 9(2) of Articles 8(2) and 9(2) of Directive 9(2) of Directive 2002/21/EC i (Framework Directive 2002/21/EC i (Framework 2002/21/EC (Framework Directive). They Directive). They shall also ensure Directive). They shall [...] ensure shall ensure competition is not distorted by competition is not distorted as a result of competition is not distorted by any transfer any transfer or accumulation of radio any transfer or accumulation of rights of or accumulation of radio frequencies frequencies usage rights of use of radio usage use of radio frequencies. For such usage rights. For such purposes, Member frequencies. For such purposes, Member purposes, Member States may take States may take appropriate measures such States may take appropriate measures such appropriate measures such as reducing, as mandating the sale or the lease of as mandating the sale or the lease of rights withdrawing or forcing the sale of a rights to use radio frequencies. to use radio frequencies. right to use radio frequencies.

Article 6 Article 6 Article 6 Article 6 Conditions attached to the general Conditions attached to the general Conditions attached to the general Conditions attached to the general authorisation and to the rights of use for authorisation and to the rights of use for authorisation and to the rights of use for authorisation and to the rights of use for

radio frequencies radio frequencies radio frequencies radio frequencies and for numbers, and specific obligations and for numbers, and specific obligations and for numbers, and specific obligations and for numbers, and specific obligations 1. The general authorisation for the provision of electronic communications networks or services and the rights of use for radio frequencies and rights of use for numbers may be subject only to the conditions listed respectively in parts A, B and C of the in Annex I. Such conditions shall be objectively justified in relation to the network or service concerned, nondiscriminatory, proportionate and transparent and, in the case of rights of use for radio frequencies, shall be in accordance with Article 9 of Directive

2002/21/EC (Framework Directive).

• 2. 

  Specific obligations which may be imposed on providers of electronic communications networks and services under Articles 5(1), 5(2), 6 and 8 of

Directive 2002/19/EC i (Access Directive) and Article 16, 17, 18 and 19 of Directive

2002/22/EC (Universal Service Directive) or on those designated to provide universal service under the said Directive shall be

ANNEX 4 DG C II B LIMITE EN

legally separate from the rights and obligations under the general authorisation.

In order to achieve transparency for undertakings, the criteria and procedures for imposing such specific obligations on individual undertakings shall be referred to in the general authorisation.

• 3. 

  The general authorisation shall only contain conditions which are specific for that sector and are set out in Part A of the

Annex I and shall not duplicate conditions which are applicable to undertakings by virtue of other national legislation.

Article 6a Article 6a Article 6a Article 6a Harmonisation measures Harmonisation measures Harmonisation measures Harmonisation measures 1. Without prejudice to Article 5(1) 1. Without prejudice to Article 5(1) and deleted Keep common position and (2) of this Directive and Articles 8b (2) of this Directive and Article 9 of (complete deletion not acceptable for EP and 9 of Directive 2002/21/EC i Directive 2002/21/EC i (Framework so far)

(Framework Directive), the Commission Directive), the Commission may, pursuant may adopt implementing measures: to Article 8a(4a) of Directive 2002/21/EC i

(Framework Directive), adopt implementing measures:

(a) to identify radio frequency bands, (a) to identify radio frequency bands, deleted Keep common position the use of which is to be made subject to the use of which is to be made subject to (not acceptable for EP so far) general authorisation on a harmonised general authorisation; basis;

(b) to identify the numbering ranges to (b) to hamonise procedures for the deleted Keep common position be harmonised at Community level and/or granting of general authorisations or (acceptable for EP) to harmonise the procedures for the individual rights of use for radio granting of rights of use for numbers frequencies or numbers to undertakings within such ranges, the procedures for providing pan-European electronic the selection of undertakings to which communications networks or services; such rights are to be granted and/or the conditions specified in Annex II which may be attached to such rights;

(c) to harmonise procedures for the (c) to harmonise the conditions deleted Keep common position granting to undertakings providing panspecified in Annex II relating to the (not acceptable for EP so far) European electronic communications granting to undertakings providing pannetworks or services of general European electronic communications authorisations or individual rights of use networks or services of general

ANNEX 4 DG C II B LIMITE EN

for radio frequencies or numbers for the authorisations or individual rights of use provision of pan-European wireless for radio frequencies or numbers. electronic communications networks or services and to lay down, where applicable, procedures for the selection of undertakings to which national individual rights of use for radio frequencies are to be granted for the provision of such networks or services;

(d) to harmonise the conditions no AM deleted Keep common position specified in Annex II relating to the (acceptable for EP so far) granting to undertakings providing pan

European wireless electronic communications networks or services of general authorisations or individual rights of use for radio frequencies or numbers.

(e) to provide for the amendment or no AM deleted Keep common position withdrawal of authorisations or rights of (identical) use and the procedures relating to point

(d);

(f) to lay down procedures for the no AM deleted Keep common position selection of undertakings to which (identical) individual rights of use for radio frequencies or numbers shall be granted by the national regulatory authorities, where appropriate in accordance with the provisions of Article 6b.

These measures, designed to amend non These measures, designed to amend non deleted Keep common position essential elements of this Directive by essential elements of this Directive by (not acceptable for EP so far) supplementing it, shall be adopted in supplementing it, shall be adopted in accordance with the regulatory procedure accordance with the regulatory procedure with scrutiny referred to in Article 14a(3). with scrutiny referred to in Article 8a(4a)

of Directive 2002/21/EC i (Framework Directive).

• 2. 

  The measures referred to in 2. The measures referred to in paragraph deleted Keep common position paragraph 1 may, where appropriate, 1 may, where appropriate, provide for the (not acceptable for EP so far) provide for the possibility for the Member possibility for the Member States to make

States to make a reasoned request for a a reasoned request for a partial

ANNEX 4 DG C II B LIMITE EN

partial exemption and/or a temporary exemption and/or a temporary derogation derogation from those measures. from those measures.

The Commission shall assess the The Commission shall assess the deleted Keep common position justification for the request, taking into justification for the request, taking into (not acceptable for EP so far) account the specific situation in the account the specific situation in the

Member State, and may grant a partial Member State, and may grant a partial exemption or temporary derogation or both exemption or temporary derogation or provided this does not unduly defer the both provided this does not unduly defer implementation of the implementing the implementation of the implementing measures referred to in paragraph 1 or measures referred to in paragraph 1 or create undue differences in the competitive create undue differences in the or regulatory situations between Member competitive or regulatory situations

States. between Member States.

Article 6b Article 6b

Common selection procedure for issuing Common selection procedure for issuing Article 6b Article 6b

rights rights Common selection procedure for Common selection procedure for issuing issuing rights rights

• 1. 

  The technical implementing deleted

measure referred to in paragraph 6a(1)(f) deleted

Keep common position (for whole article) (identical)

may provide for the Authority to make proposals for the selection of undertaking(s) to which individual rights of use for radio frequencies or numbers are to be granted, in accordance with Article

12 of Regulation [..].

In such cases, the measure shall specify the period within which the Authority shall complete the selection, the procedure, rules and conditions applicable to the selection, and details of any charges and fees to be imposed on the holders of rights for use of radio frequencies and/or numbers, in order to ensure the optimal use of spectrum or numbering resources. The selection procedure shall be open, transparent, nondiscriminatory and objective.

• 2. 

  Taking the utmost account of the

ANNEX 4 DG C II B LIMITE EN

opinion of the Authority, the Commission shall adopt a measure selecting the undertaking(s) to which individual rights of use for radio frequencies or numbers shall be issued. The measure shall specify the time within which such rights of use shall be issued by the national regulatory authorities. In so doing, the Commission shall act in accordance with the procedure referred to in Article 14a(2).’

Article 8 Article 8 Article 8 Article 8 Harmonised assignment of radio Harmonised assignment of radio

frequencies frequencies Harmonised granting of rights of use for Harmonised granting of rights of use for radio frequencies and harmonised radio frequencies and harmonised

conditions for pan European networks conditions or pan European electronic

communications services

Where the usage of radio spectrum has no AM Where the usage of radio frequencies

been harmonised, access conditions and has been harmonised, access conditions Keep common position

procedures have been agreed, and and procedures have been agreed, and

undertakings to which the radio undertakings to which the radio (identical)

frequencies shall be assigned have been frequencies shall be assigned have been selected in accordance with international selected in accordance with agreements and Community rules, Member international agreements and

States shall grant the right of use for such Community rules, Member States shall radio frequencies in accordance therewith. grant the right of use for such radio

Provided that all national conditions frequencies in accordance therewith. attached to the right to use the radio Provided that all national conditions frequencies concerned have been satisfied attached to the right to use the radio in the case of a common selection frequencies concerned have been procedure, Member States shall not impose satisfied in the case of a common any further conditions, additional criteria selection procedure, Member States or procedures which would restrict, alter or shall not impose any further conditions, delay the correct implementation of the additional criteria or procedures which common assignment of such radio would restrict, alter or delay the correct frequencies. implementation of the common

assignment of such radio frequencies. Article 10 Article 10 Article 10 Article 10 Compliance with the conditions of the Compliance with the conditions of the Compliance with the conditions of the Compliance with the conditions of the general authorisation or of rights of use general authorisation or of rights of use general authorisation or of rights of use general authorisation or of rights

ANNEX 4 DG C II B LIMITE EN

and with specific obligations and with specific obligations and with specific obligations of use and with specific obligations 3. The relevant authority shall have 3. The relevant authority shall have 3. The relevant authority shall have Keep common position the power to require the cessation of the the power to require the cessation of the the power to require the cessation of the 3. The relevant authority shall have breach referred to in paragraph 2 either breach referred to in paragraph 2 either breach referred to in paragraph 2 either the power to require the cessation of the immediately or within a reasonable time immediately or within a reasonable time immediately or within a reasonable time breach referred to in paragraph 2 either limit and shall take appropriate and limit and shall take appropriate and limit and shall take appropriate and immediately or within a reasonable time proportionate measures aimed at ensuring proportionate measures aimed at ensuring proportionate measures aimed at ensuring limit and shall take appropriate and compliance. compliance. compliance. proportionate measures aimed at ensuring

compliance. In this regard, Member States shall In this regard, Member States shall In this regard, Member States shall empower the relevant authorities to impose empower the relevant authorities to empower the relevant authorities to impose In this regard, Member States shall financial penalties where appropriate. The impose: financial penalties where appropriate. The empower the relevant authorities to impose measures and the reasons on which they measures and the reasons on which they financial penalties where appropriate.: are based shall be communicated to the (a) dissuasive financial penalties are based shall be communicated to the undertaking concerned without delay and where appropriate, which may include undertaking concerned without delay and (a) dissuasive financial penalties shall stipulate a reasonable period for the periodic penalties having retroactive shall stipulate a reasonable period for the where appropriate, which may include undertaking to comply with the measure. effect; and undertaking to comply with the measure. periodic penalties;and

(b) orders to cease provision of a service (b) orders to cease provision of a service or bundle of services which, if continued, or bundle of services which, if would result in significant harm to continued, would result in significant competition, pending compliance with harm to competition, pending access obligations imposed following a compliance with access obligations market analysis carried out in accordance imposed following a market analysis with Article 16 of Directive 2002/21/EC i carried out in accordance with Article (Framework Directive). 16 of Directive 2002/21/EC i (Framework

Directive).

The measures and the reasons on which they are based shall be communicated to the undertaking concerned without delay and shall stipulate a reasonable period for the undertaking to comply with the

measure.

• 6. 

  Irrespective of the provisions of no AM 6. Irrespective of the provisions of Keep common position (acceptable for paragraphs 2, 3 and 5, where the relevant paragraphs 2, 3 and 5, where the relevant EP). authority has evidence of a breach of the authority has evidence of a breach of the conditions of the general authorisation conditions of the general authorisation or rights of use or specific obligations rights of use or specific obligations

ANNEX 4 DG C II B LIMITE EN

referred to in Article 6(2) that represents referred to in Article 6(2) that represents an immediate and serious threat to public an immediate and serious threat to public safety, public security or public health or safety, public security or public health or will create serious economic or operational will create serious economic or operational problems for other providers or users of problems for other providers or users of electronic communications networks or electronic communications networks or services, it may take urgent interim services or other users of the radio measures to remedy the situation in spectrum, it may take urgent interim advance of reaching a final decision. The measures to remedy the situation in undertaking concerned shall thereafter be advance of reaching a final decision. The given a reasonable opportunity to state its undertaking concerned shall thereafter be views and propose any remedies. Where given a reasonable opportunity to state its appropriate, the relevant authority may views and propose any remedies. Where confirm the interim measures, which shall appropriate, the relevant authority may be valid for a maximum of 3 months. confirm the interim measures, which shall

be valid for a maximum of 3 months, but which may, in circumstances where enforcement procedures have not been completed, be extended for a further period of up to three months.

no AM Keep common position (acceptable for EP)

Article 11 Article 11 Article 11 Article 11 Information required under the general Information required under the general Information required under the general Information required under the general authorisation, for rights of use and for authorisation, for rights of use and for authorisation, for rights of use and for authorisation, for rights of use and for

the specific obligations the specific obligations the specific obligations the specific obligations (a) systematic or case-by-case no AM (a) systematic or case-by-case verification Keep common position verification of compliance with conditions of compliance with conditions 1 and 2 of (acceptable for EP)

1 and 2 of Part A, condition 6 of Part B Part A, conditions 2 and 6 of Part B and and condition 7 of Part C of the Annex I conditions 2 and 7 of Part C of the Annex and of compliance with obligations as I and of compliance with obligations as referred to in Article 6(2); referred to in Article 6(2);

no AM (fa) safeguarding the efficient use and Keep common position (acceptable for ensuring the effective management of EP).

radio frequencies. no AM (fb) evaluating future network or service Keep common position (acceptable for

developments that could have an impact EP). on wholesale services made available to competitors.

ANNEX 4 DG C II B LIMITE EN

The information referred to in points (a), no AM The information referred to in points (a), Keep common position (acceptable for

(b), (d), (e), and (f) of the first (b), (d), (e), (f), (fa) and (fb) of the first EP). subparagraph may not be required prior to subparagraph may not be required prior to or as a condition for market access. or as a condition for market access.

Article 14 Article 14 Article 14 Article 14 Amendment of rights and obligations Amendment of rights and obligations Amendment of rights and obligations Amendment of rights and obligations 1. Member States shall ensure that the 1. Member States shall ensure that the 1. Member States shall ensure that the Keep common position rights, conditions and procedures rights, conditions and procedures rights, conditions and procedures concerning general authorisations and concerning general authorisations and concerning general authorisations and New recital: rights of use or rights to install facilities rights of use or rights to install facilities rights of use or rights to install facilities Minor amendments are those may only be amended in objectively may only be amended in objectively may only be amended in objectively amendments which are mainly justified cases and in a proportionate justified cases and in a proportionate justified cases and in a proportionate administrative, do not change the manner, taking into consideration, where manner, taking into consideration, where manner, taking into consideration, where substantial nature of the general appropriate, the specific conditions appropriate, the specific conditions appropriate, the specific conditions authorisations and the individual rights applicable to transferable rights of use for applicable to transferable rights of use for applicable to transferable rights of use for of use and thus cannot cause any radio frequencies. Notice shall be given in radio frequencies. Notice shall be given in radio frequencies. Except where comparative advantage to the other an appropriate manner of the intention to an appropriate manner of the intention to proposed amendments are minor and undertakings. make such amendments and interested make such amendments and interested have been agreed with the holder of the parties, including users and consumers, parties, including users and consumers, rights or general authorisation, Nnotice shall be allowed a sufficient period of time shall be allowed a sufficient period of time shall be given in an appropriate manner of to express their views on the proposed to express their views on the proposed the intention to make such amendments amendments, which shall be no less than amendments, which shall be no less than and interested parties, including users and four weeks except in exceptional four weeks except in exceptional consumers, shall be allowed a sufficient circumstances. circumstances. period of time to express their views on the

proposed amendments, which shall be no less than four weeks except in exceptional circumstances.

• 2. 

  Member States shall not restrict or 2. Member States shall not restrict or Keep common position withdraw rights to install facilities or rights withdraw rights to install facilities or rights (acceptable for EP) of use for radio frequencies before expiry of use for radio frequencies before expiry of the period for which they were granted of the period for which they were granted except where justified and where except where justified and where applicable in conformity with relevant applicable in conformity with Annex I and national provisions regarding relevant national provisions regarding compensation for withdrawal of rights. compensation for withdrawal of rights.

Article 14a Article 14a Article 14a Article 14a

Committee Committee Committee Committee

• 1. 

  The Commission shall be assisted no AM deleted Keep common position

by the Communications Committee. (acceptable for EP)

ANNEX 4 DG C II B LIMITE EN

no AM Keep common position (acceptable for EP)

• 2. 

  Where reference is made to this no AM deleted Keep common position paragraph, Articles 3 and 7 of Decision (acceptable for EP)

1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

• 3. 

  Where reference is made to this no AM deleted Keep common position paragraph, Article 5a(1) to (4) and Article (acceptable for EP)

7 of Decision 1999/468/EC i shall apply, having regard to the provisions of Article 8 thereof.

• 4. 

  Where reference is made to this no AM deleted Keep common position paragraph, Article 5a(1), (2), (4) and (6) (acceptable for EP) and Article 7 of Decision 1999/468/EC i shall apply, having regard to the provisions of Article 8 thereof.

  Article 17 Article 17 Article 17 Article 17 Existing authorisations Existing authorisations Existing authorisations Existing authorisations 1. Without prejudice to Article 9a of 1. Without prejudice to Article 9a of 1. Without prejudice to Article 9a of Keep common position.

Directive 2002/21/EC i (Framework Directive 2002/21/EC i (Framework Directive 2002/21/EC i (Framework

Directive), Member States shall bring Directive), Member States shall bring Directive), Member States shall bring authorisations already in existence on 31 general authorisations and individual rights general authorisations and individual

December 2009 into conformity with of use already in existence on 31 rights of use already in existence on [31

Articles 5, 6, 7, and Annex I of this December 2009 into conformity with December 2009] into conformity with

Directive by [31 December 2010] at the Articles 5, 6, 7, and Annex I of this Articles 5, 6, 7, and Annex I of this latest. Directive within eighteen months from the Directive within two years from the date

date of entry into force of this Directive at of entry into force of this Directive at the the latest. latest.

• 2. 

  Where application of paragraph 1 2. Where application of paragraph 1 results 2. Where application of paragraph 1 results Keep common position. results in a reduction of the rights or an in a reduction of the rights or an extension in a reduction of the rights or an extension extension of the obligations under of the general authorisations and individual of the obligations under general authorisations already in existence, rights of use already in existence, Member authorisations and individual rights of

Member States may extend the validity of States may extend the validity of those use already in existence, Member States those rights and obligations till [30 authorisations and rights until 30 March may extend the validity of those rights and

September 2011] at the latest, provided 2012 at the latest, provided that the rights obligations till [30 September 2012] at that the rights of other undertakings under of other undertakings under Community the latest, provided that the rights of other

Community law are not affected thereby. law are not affected thereby. Member undertakings under Community law are

Member States shall notify such extensions States shall notify such extensions to the not affected thereby. Member States shall to the Commission and state the reasons Commission and state the reasons notify such extensions to the Commission therefore. therefore. and state the reasons therefor.

ANNEX 4 DG C II B LIMITE EN

ANNEX I ANNEX I ANNEX I ANNEX I

A. […]

• 4. 

  Accessibility of numbers from the no AM 4. Accessibility by end users of Keep common position national numbering plan to end users, numbers from the national numbering plan, (acceptable for EP) numbers from ETNS and UIFN, and numbers from the European Telephone conditions in conformity with Directive Numbering Space, the Universal

2002/22/EC (Universal Service Directive). International Freephone Numbers and, where technically and economically feasible, from numbering plans of other Member States, and conditions in conformity with Directive 2002/22/EC i (Universal Service Directive).

• 11. 

  Enabling of legal interception by no AM 11. Enabling of legal interception by Keep common position competent national authorities in competent national authorities in (acceptable for EP) conformity with Directive 2002/58/EC i and conformity with Directive 2002/58/EC i

Directive 95/46/EC i of the European (Directive on Privacy and electronic

Parliament and of the Council of 24 communications) and Directive 95/46/EC i

October 1995 on the protection of of the European Parliament and of the individuals with regard to the processing of Council of 24 October 1995 on the personal data and on the free movement of protection of individuals with regard to the

such data. processing of personal data and on the free movement of such data.

no AM 11a Terms of use for communications Keep common position from public authorities to the general (acceptable for EP)

public for warning the public of imminent threats and for mitigating the consequences of major catastrophes.

• 12. 

  Terms of use during major disasters no AM 12. Terms of use during major disasters Keep common position to ensure communications between or national emergencies to ensure (acceptable for EP) emergency services and authorities. communications between emergency

  services and authorities. 16. Security of public networks against no AM 16. Security of public networks against Keep common position unauthorised access according to Directive unauthorised access according to Directive (acceptable for EP) 2002/58/EC. 2002/58/EC (Directive on Privacy and

  electronic communications). 19. Compliance with national measures no AM deleted Keep common position implementing Directive 2001/29/EC i of the (acceptable for EP) European Parliament and of the Council and Directive 2004/48/EC i of the European

ANNEX 4 DG C II B LIMITE EN

Parliament and of the Council.]

19a. Transparency obligations on 19. Transparency obligations on 19. Transparency obligations on 19. Transparency obligations on public communications network providers undertakings providing electronic undertakings providing electronic undertakings providing electronic which may be imposed so as to ensure communications services available to the communications services available to the communications services available to the foster end-to-end connectivity, including public to ensure end-to-end connectivity, public to ensure end-to-end connectivity, public to ensure end-to-end connectivity, unrestricted access to content, services including unrestricted access to content, in conformity with the objectives and in conformity with the objectives and and applications, in conformity with the services and applications, in conformity principles set out in Article 8 of principles set out in Article 8 of Directive objectives and principles set out in Article with the objectives and principles set out in Directive 2002/21/EC i, disclosure 2002/21/EC, disclosure regarding 8 of Directive 2002/21/EC i, as well as Article 8 of Directive 2002/21/EC i regarding restrictions on access to limitations on access to services and disclosure obligations regarding (Framework Directive), disclosure services and applications and regarding applications, where allowed by national restrictions on access to services and regarding traffic management policies and, traffic management policies and, where law, that are in place for and regarding applications and regarding traffic where necessary and proportionate, access necessary and proportionate, access by traffic management purposes policies and, management policies and, where by national regulatory authorities to such national regulatory authorities to such where necessary and proportionate, access necessary and proportionate, access by information needed to verify the accuracy information needed to verify the by national regulatory authorities to such national regulatory authorities to such of such disclosure. accuracy of such disclosure. information needed to verify the accuracy information needed to verify the accuracy of such disclosure. of such disclosure.

B. […]

• 1. 

  Obligation to provide a service or to 1. Obligation to provide a service or Keep common position use a type of technology for which the to use a type of technology for which the rights of use for the frequency has been rights of use for the frequency has been granted, including, where appropriate, granted, including, where appropriate, coverage requirements. coverage and quality requirements.

• 2. 

  Effective and efficient use of deleted 2. Effective and efficient use of Keep common position frequencies in conformity with Directive frequencies in conformity with Directive 2002/21/EC i (Framework Directive), 2002/21/EC (Framework Directive). including, where appropriate, coverage requirements.

• 4. 

  Maximum duration in conformity no AM 4. Maximum duration in conformity Keep common position with Article 5 of this Directive. with Article 5 of this Directive, subject to

  any changes in the national frequency plan.

• 7. 

  Voluntary commitments which the 7. Any commitments which the 7. Any commitments which the Keep common position undertaking obtaining the usage right has undertaking obtaining the usage right has undertaking obtaining the usage right has (not acceptable for EP so far) made in the course of a competitive or made in the course of a competitive or made in the course of a competitive or comparative selection procedure. comparative selection procedure. If such comparative selection procedure.

  a commitment corresponds de facto to one or more of the obligations listed in Articles 9 to 13a of Directive 2002/19/EC i

ANNEX 4 DG C II B LIMITE EN

(Access Directive), that commitment shall be considered as having expired by 1 January 2010 at the latest.

C. […]

• 1. 

  Designation of service for which the 1. Designations of service for which 1. Designation of service for which the 1. Designation of service for which the number shall be used, including any the number shall be used, including any number shall be used, including any number shall be used, including any requirements linked to the provision of that requirements linked to the provision of that requirements linked to the provision of that requirements linked to the provision of that service. service and, for the avoidance of doubt, service and, for the avoidance of doubt, service and, for the avoidance of doubt,

tariff principles and maximum prices that tariff principles and maximum prices tariff principles and maximum prices that can apply to specific number ranges for that can apply in the specific number can apply in the specific number ranges for the purposes of ensuring consumer range for the purposes of ensuring the purposes of ensuring consumer protection in accordance with Article consumer protection in accordance with protection in accordance with Article 8(4)(b) of Directive 2002/21/EC i Article 8(4)(b) of Directive 2002/21/EC i 8(4)(b) of Directive 2002/21/EC i

(Framework Directive). (Framework Directive) (Framework Directive) 8. Voluntary commitments which the 8. Any commitments which the Keep common position undertaking obtaining the usage right has undertaking obtaining the usage right has (acceptable for EP) made in the course of a competitive or made in the course of a competitive or comparative selection procedure. comparative selection procedure.

ANNEX II ANNEX II ANNEX II ANNEX II

Conditions which may be harmonised in Conditions which may be harmonised in deleted Keep common position (for whole Annex) accordance with point (d) of Article 6a, accordance with point (c) of Article 6a, (not acceptable for EP so far - link to paragraph 1 paragraph 1: article 6a)

(1) Conditions attached to rights of use no AM deleted for radio frequencies

(a) the duration of the rights of use of (a) the duration of the rights of use of deleted the radio frequencies;

the radio frequencies;

(b) the territorial scope of the rights; (b) the territorial scope of the rights deleted

(c) the possibility to transfer the right (c) the possibility to transfer the right deleted to other radio frequencies users, as well

to other radio frequencies users, as well as as the conditions and procedures relating

the conditions and procedures relating thereto;

thereto;

ANNEX 4 DG C II B LIMITE EN

(d) the method of determining usage (d) the method of determining usage deleted

fees for the right, without prejudice to fees for the right, without prejudice to

systems defined by Member States where systems defined by Member States where

the obligation to pay usage fees is the obligation to pay usage fees is

replaced by the imposition on a nonreplaced by the imposition on a nondiscriminatory

basis of an obligation to discriminatory basis of an obligation to

fulfil specific general interest objectives; fulfil specific general interest objectives;

(e) the number of rights of use to be (e) the number of rights of use to be deleted granted to each undertaking;

granted to each undertaking;

(f) conditions listed in Part B of Annex (f) conditions listed in Part B of deleted Annex I.

I.

(2) Conditions attached to rights of use no AM deleted for numbers:

(g) the duration of the rights of use of no AM deleted

the number(s) concerned;

(h) the territory within which they are no AM deleted

valid;

(i) any specific services or uses for no AM deleted

which the numbers are to be reserved;

(j) the transfer and portability of the no AM deleted

rights of use;

(k) the method of determining usage no AM deleted

ANNEX 4 DG C II B LIMITE EN

fees (if any) for the rights of use for the

numbers;

(l) conditions listed in Part C of Annex no AM deleted

I.

ANNEX 4 DG C II B LIMITE EN

ANNEX 5

REGULATION (EC) No …/… OF THE EUROPEAN PARLIAMENT

AND OF THE COUNCIL

of

establishing a Body of European Regulators for Electronic Communications

(Text with EEA relevance)

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 European Economic and Social Committee,

Having regard to the Opinion of the Committee of the Regions,

Acting in accordance with the procedure laid down in Article 251 of the Treaty

CHAPTER I

ESTABLISHMENT

Article 1

Establishment

• 1. 

  The Body of European Regulators for Electronic Communications (BEREC) is hereby

established with the responsibilities laid down in this Regulation.

• 2. 

  The BEREC shall act within the scope of Directive 2002/21/EC i (Framework Directive) and

Directives 2002/19/EC i, 2002/20/EC, 2002/22/EC i and 2002/58/EC (Specific Directives).

• 3. 

  The BEREC shall carry out its tasks independently, impartially and transparently. In all its

activities, the BEREC shall pursue the same objectives as those of the National Regulatory

Authorities (NRAs), as set out in Article 8 of Directive 2002/21/EC i (Framework Directive). In

particular, the BEREC shall contribute to the development and better functioning of the internal

market for electronic communications networks and services, by aiming to ensure a consistent

application of the EU regulatory framework for electronic communications.

• 4. 

  BEREC shall draw upon expertise available in the NRAs and shall carry out its tasks in

cooperation with the NRAs and the Commission. BEREC shall promote cooperation between

NRAs, and between NRAs and the Commission. Furthermore, BEREC shall advise the

Commission, and upon request the European Parliament and the Council.

CHAPTER II

ORGANISATION OF THE BEREC

Article 2

Role of the BEREC

• 1. 

  The BEREC shall

(a) develop and disseminate among NRAs regulatory best practice, such as common approaches,

methodologies or guidelines on the implementation of the EU regulatory framework;

(b) on request, provide assistance to NRAs on regulatory issues;

(c) deliver opinions on the draft decisions, recommendations and guidelines of the Commission,

referred to in this Regulation, Directive 2002/21/EC i (Framework Directive) and the specific

directives;

(d) issue reports and provide advice, upon the reasoned request of the Commission or on its own

initiative, and deliver opinions to the European Parliament and the Council, upon reasoned request

or on its own initiative, on any matter regarding electronic communications within its competence;

(e) on request, assist the European Parliament, the Council, the Commission and the NRAs in the

relations, discussions and exchanges with third parties; and assist the Commission and NRAs in the

dissemination of regulatory best practices to third parties.

Article 2a

Task of the BEREC in the application of the EU Regulatory Framework

• 1. 

  The matters referred to in Article 2 shall be:

(a) opinions on draft measures of NRAs concerning market definition, designation of

undertakings with significant market power and imposition of remedies, in accordance with Article

7 and -7a of Directive 2002/21/EC i (Framework Directive);

(b) opinions on recommendations and/or guidelines on the form, content and level of details to be

given in notifications, in accordance with Article 7a of Directive 2002/21/EC i (Framework

Directive);

• c) 

  on request, provide assistance to NRAs on issues relating to fraud or the misuse of numbering

resources within the Community in particular for cross-border services, in accordance with Article

10 of the Directive 2002/21/EC i (Framework Directive);

(d) consultation on draft recommendations on relevant product and service markets, in

accordance with Article 15 of Directive 2002/21/EC i (Framework Directive);

(e) delivery of opinions on draft decisions on the identification of transnational markets, in

accordance with Article 15 of Directive 2002/21/EC i (Framework Directive);

(f) on request provide assistance to NRAs, in the context of the analysis of the relevant market in

accordance with article 16 of Directive 2002/21/EC i (Framework Directive);

(g) delivery of opinions on draft decisions on harmonisation, in accordance with Article 19 of

Directive 2002/21/EC i Framework Directive);

(h) delivery of opinions on cross-border disputes in accordance with Article 21 of Directive

2002/21/EC (Framework Directive);

• k) 

  assistance to the Commission in preparing the provisions referred to in Article 6 of Directive

2002/19/EC (Access Directive);

• l) 

  opinions on draft decisions authorising or preventing a NRA from taking exceptional measures, in

accordance with Article 8 of Directive 2002/19/EC i (Access Directive);

• m) 

  consultation on draft guidelines in accordance with Article 22 of Directive 2002/22/EC i

(Universal Service Directive); n) consultation on draft measures relating to the effective implementation of the emergency call

number '112', in accordance with Article 26 of Directive 2002/22/EC i (Universal Service Directive);

(o) assistance to the Commission with the updating of Annex II of Directive 2002/19/EC i (Access

Directive), in accordance with Article 9 of that Directive;

(p) opinions aiming to ensure the development of common rules and requirements for providers

of cross-border business services;

• q) 

  monitoring and reporting on the electronic communications sector, including publishing of

an annual report on the developments in the sector.

• 2. 

  BEREC may, upon request from the Commission, decide unanimously to take on other

specific tasks necessary for the accomplishment of its activities within the scope defined in

article 1, par. 2 of this regulation.

• 3. 

  NRAs and the Commission shall take the utmost account of any opinion, recommendation,

guidelines, advice or regulatory best practice adopted by the BEREC. The BEREC may, where

appropriate, consult the relevant national competition authorities before issuing its opinion to the

Commission.

Article 3

Composition and organisation of the BEREC

• 1. 

  The BEREC shall be composed of the Board of Regulators in accordance with article 4.

The Board of Regulators may request the Office to set up Expert Working Groups. In

this case, the Board of Regulators shall decide upon the mandate and the composition of

the Expert Working Groups.

• 2. 

  The Board of Regulators and the established Expert Working Groups shall receive

professional and administrative support from the Office.

Article 4

Operational Arrangements for the BEREC

• 1. 

  The Board of Regulators shall be composed of one member per Member State who shall be the

head or nominated high-level representative of the NRA established in each member state with

primary responsibility for overseeing the day-to-day operation of the markets for electronic

communications networks and services. When carrying out the tasks conferred upon it by this

Regulation, the Members of the Board of Regulators shall neither seek nor accept any

instruction from any government, from the Commission, or from any other public or private

group.

NRAs shall nominate one alternate per Member State

The Commission shall attend as observer and be represented at an appropriate level.

• 2. 

  NRAs from European Economic Area (EEA) States and from those states that are candidates for

accession to the European Union shall have observer status and shall be represented at an

appropriate level. BEREC may invite other experts and observers to attend its meetings.

• 3. 

  The Board of Regulators shall appoint its Chairperson and its Vice-Chairperson(s) from among

its members, subject to the rules of procedure. The Vice-Chairperson(s) shall automatically assume

the duties of the Chairperson if the latter is not in a position to perform his/her duties. The term of

office of the Chairperson and of the Vice-Chairperson(s) shall be one year.

• 4. 

  Without prejudice to the role of the Board of Regulators in relation to the tasks of the

Chairperson, the Chairperson shall neither seek nor accept any instruction from any government or

NRA, from the Commission, or from any other public or private group.

• 5. 

  Plenary Meetings of the Board of Regulators shall be convened by its Chairperson and shall

occur at least 4 times a year in ordinary session. Extraordinary meetings shall also be convened at

the initiative of the Chairperson, at the request of the Commission or at the request of at least one

third of its members. The agenda of the meeting shall be set by the Chairperson and made public

• 6. 

  The work of the BEREC may be organised into expert working groups of national regulatory

authority experts as appropriate.

• 7. 

  The Commission shall be invited to all plenary meetings of the Board of Regulators and may be

invited to attend meetings of the expert working groups.

• 8. 

  The Board of Regulators shall act by two-thirds majority of its all members unless otherwise

provided in the Framework Directive or Specific Directives. Each member or alternate shall have

one vote. These decisions shall be made public, and shall indicate the reservations of an NRA

at its request.

• 9. 

  The Board of Regulators shall adopt and make publicly available the rules of procedure of the

BEREC. The rules of procedure shall set out in greater detail the arrangements governing voting,

including the conditions under which one member may act on behalf of another member, the rules

governing quorums, and the notification deadlines for meetings. Furthermore, the rules of

procedure shall guarantee that the members of the Board of Regulators are always provided

with full agendas and draft proposals in advance of each meeting in order to have the chance

to propose amendments prior to the vote. The rules of procedure may, among others, also set

out urgent voting procedures.

• 10. 

  When carrying out the tasks conferred upon it by this Regulation, the BEREC shall act

independently and shall not seek or take instructions from any Member State, any NRA, the

Commission or any third party.

• 10. 

  Administrative and professional support services shall be provided to the BEREC by the Office

referred to in Article 6.

Article 5

Tasks of the Board of Regulators

• 1. 

  The Board of Regulators shall fulfil the tasks of the BEREC set out in Article 2 and take all

decisions relating to the performance of its functions.

• 2. 

  The Board of Regulators shall adopt, on behalf of the BEREC, the special provisions on right of

access to the documents of the BEREC, in accordance with Article 22.

• 3. 

  The Board of Regulators shall adopt the annual report on activities of the BEREC and shall

transmit it to the European Parliament, the Council, the Commission, the European Economic and

Social Committee and the Court of Auditors each year by 15 June at the latest. The European

Parliament may request the Chairperson of the Board of Regulators to address it on relevant issues

relating to activities of the BEREC.

Article 6

The Office

• 1. 

  In order to provide professional and administrative support services to the BEREC, the Office is

hereby established as a body of the Community with legal personality.

• 2. 

  Under the guidance of the Board of Regulators, the Office shall in particular:

• - 

  provide technical assistance to the BEREC;

• - 

  collect appropriate information and/or undertake analysis as requested by the BEREC;

• - 

  [collect, exchange and disseminate information and best practices, upon request from the

  BEREC;]

• - 

  set up the Expert Working Groups, upon request of the BEREC, in accordance with

  article 3, par. 1;

• - 

  provide logistical support services to the expert working groups to ensure the smooth

  functioning of these groups;

• - 

  assist the Chairperson in the preparation of the work of the Board of Regulators.

3 The Office shall comprise

(a) a Management Committee,

(b) an Administrative Manager.

• 3. 

  The Office shall be managed by the Administrative Manager and shall have a strictly limited

number of staff as required to carry out its duties. The number of staff shall be determined by the

Management Committee in accordance with Article 11.

• 4. 

  The seat of the Office shall be located in Brussels. Until its premises are ready, it will be

hosted on Commission premises.

Article 7

Management Committee

• 1. 

  The Management Committee shall […] be composed of one member per Member State who

shall be the head or nominated high-level representative of the independent NRA established

in each member state with primary responsibility for overseeing the day-to-day operation of

the markets for electronic communications networks and services, and 1 non voting

representative of the Commission.

Each Member shall have one vote.

Otherwise the provisions of Articles 4 shall apply, mutatis mutandis, to the Management

Committee.

• 2. 

  The Management Committee shall appoint the Administrative Manager. The Administrative

Manager designate shall not participate in the preparation of, or vote on, such a decision.

• 3. 

  The Management Committee shall provide guidance to the Administrative Manager in the

execution of the Administrative Manager’s tasks.

• 4. 

  The Management Committee shall be responsible for the appointment of the staff.

• 5. 

  The Management Committee shall assist in the work of the Expert Working groups referred to in

Article 3 (1) (b).

Article 8

The Administrative Manager

• 1. 

  The Administrative Manager shall be accountable to the Management Committee. In the

performance of his/her functions, the Administrative Manager shall not seek or accept any

instruction from any Member State, any NRA, the Commission or any third party.

• 2. 

  The Administrative Manager shall be appointed by the Management Committee on the basis of

merit as well as skills and experience relevant to electronic communications networks and services

by means of an open competition. Before appointment, the suitability of the candidate selected by

the Management Committee may be subject to a non-binding opinion of the European Parliament.

To this end, the candidate shall be invited to make a statement before the responsible committee of

the European Parliament and answer questions put by its members.

• 3. 

  The Administrative Manager’s term of office shall be three years.

• 4. 

  The Management Committee may extend the term of office of the Administrative Manager once

for not more than three years, taking into account the evaluation report undertaken by the

Chairperson and only in those cases where it can be justified by the duties and requirements of the

BEREC.

The Management Committee shall inform the European Parliament about its intention to extend the

Administrative Manager's term of office.

If the term of office is not extended, the Administrative Manager shall remain in office until the

appointment of his/her successor.

Article 9

Tasks of the Administrative Manager

• 1. 

  The Administrative Manager shall be responsible for heading the Office.

• 2. 

  The Administrative Manager shall assist with the preparation of the agenda of the Board Of

Regulators, the Management Committee and the expert working groups. He/she shall participate,

without having the right to vote, in the work of the Board of Regulators of BEREC and the

Management Committee.

• 3. 

  Each year the Administrative Manager shall assist the Management Committee with the

preparation of the draft work programme of the Office for the following year […]. The draft work

programme shall be submitted to the Management Committee before 30 June of that year […],

and shall be adopted by the Management Committee before [xxx].

• 4. 

  The Administrative Manager shall be responsible for supervising the implementation of the

annual work programme of the Office, drawing on the Expert Working Groups of BEREC, under

the guidance of the Board of Regulators.

• 5. 

  The Administrative Manager shall, under the supervision of the Management Committee, take

the necessary measures, notably the adoption of internal administrative instructions and the

publication of notices, to ensure the functioning of the Office in accordance with this Regulation.

• 6. 

  The Administrative Manager shall implement the budget of the Office pursuant to Article 13

under the supervision of the Management Committee.

• 7. 

  Each year the Administrative Manager shall assist with the preparation of the draft annual report

on the activities of BEREC referred to in Article 5(3).

Article 10

Staff

• 1. 

  The Staff Regulations of Officials of the European Communities, the Conditions of employment

of other servants of the European Communities and the rules adopted jointly by the European

Community institutions for the purpose of applying these staff regulations and conditions of

employment shall apply to the staff of the Office, including the Administrative Manager.

• 2. 

  The Management Committee , in agreement with the Commission, shall adopt the necessary

implementing measures, in accordance with the arrangements provided for in Article 110 of the

Staff Regulations of officials of the European Communities.

• 3. 

  The powers conferred on the appointing authority by the Staff Regulations of officials of the

European Communities and on the authority entitled to conclude contracts by the Conditions of

employment of other servants of the European Communities, shall be exercised by the Vicechairperson

of the Management Committee .

• 4. 

  The Management Committee may adopt provisions to allow national experts from Member States

to be appointed on secondment to the Office on a temporary basis and for a maximum of three

years.

CHAPTER III

FINANCIAL PROVISIONS

Article 11

Budget of the Office

• 1. 

  The revenues and resources of the Office shall consist notably of:

(a) a subsidy from the Community, entered under the appropriate headings of the general budget of

the European Union (Commission Section), as decided by the budgetary authority and in

accordance with point 47 of the Interinstitutional Agreement between the European Parliament, the

Council and the Commission on budgetary discipline and sound financial management;

(b) financial contributions from Member States or from their regulatory authorities which will be

used to finance specific items of expenditure. Each Member State shall ensure that NRAs have the

adequate financial resources required to participate in the work of the Office.

• 2. 

  The expenditure of the Office shall cover staff, administrative, infrastructure and operational

expenses.

• 3. 

  Revenue and expenditure shall be in balance.

• 4. 

  All revenue and expenditure shall be the subject of forecasts for each financial year, coinciding

with the calendar year, and shall be entered in its budget.

• 5. 

  The organisational and financial structure of the Office shall be reviewed 5 years from the

establishment of the Office.

Article 12

Establishment of the budget

• 1. 

  By 15 February of each year at the latest, the Administrative Manager shall assist the

Management Committee with the preparation of a preliminary draft budget covering the

expenditure anticipated for the following financial year, together with a list of provisional posts.

Each year the Management Committee shall, on the basis of the draft, make an estimate of revenue

and expenditure of the Office for the following financial year. This estimate, including a draft

establishment plan, shall be transmitted by the Management Committee to the Commission by 31

March at the latest.

• 2. 

  The estimate shall be transmitted by the Commission to the European Parliament and to the

Council (hereinafter referred to as the budgetary authority) together with the preliminary draft

general budget of the European Union.

• 3. 

  On the basis of the estimates, the Commission shall enter in the preliminary draft general budget

of the European Union the forecasts it considers necessary in respect of the establishment plan and

propose the amount of the subsidy.

• 4. 

  The budgetary authority shall adopt the establishment plan for the Office.

• 5. 

  The budget of the Office shall be drawn up by the Management Committee . It shall become final

after the final adoption of the general budget of the European Union. Where necessary, it shall be

adjusted accordingly.

• 6. 

  The Management Committee shall, without delay, notify the budgetary authority of its intention

to implement any project which may have significant financial implications for the funding of its

budget, in particular any project relating to property such as the rental or purchase of buildings. It

shall inform the Commission thereof. If either branch of the budget authority intends to issue an

opinion, it shall within two weeks after receipt of the information on the building project notify the

Management Committee of its intention to issue such an opinion. In the absence of a reply, the

Management Committee may proceed with the planned operation.

Article 13

Implementation and control of the budget

• 1. 

  The Administrative Manager shall act as authorising officer and shall implement the Office’s

budget under the supervision of the Management Committee.

• 2. 

  The Management Committee shall draw up an annual activity report for the Office, together with

a statement of assurance. Those documents shall be made public.

• 3. 

  By 1 March at the latest following the completion of each financial year, the Office accounting

officer shall forward to the Commission's accounting officer and the Court of Auditors the

provisional accounts accompanied by the report on budgetary and financial management over the

financial year. The Office accounting officer shall also send the report on budgetary and financial

management to the European Parliament and the Council by 31 March of the following year at the

latest. The Commission's accounting officer shall then consolidate the provisional accounts of the

institutions and decentralised bodies in accordance with Article 128 of Regulation (EC, Euratom)

No 1605/2002.

• 4. 

  By 31 March at the latest following the completion of each financial year, the Commission's

accounting officer shall forward the provisional accounts of the Office accompanied by the report

on the budgetary and financial management over the financial year to the Court of Auditors. The

report on budgetary and financial management over the financial year shall also be forwarded to the

European Parliament and the Council.

• 5. 

  After receiving the observations of the Court of Auditors on the provisional accounts of the

Office, in accordance with Article 129 of Regulation (EC, Euratom) No 1605/2002, the

Administrative Manager, acting on his/her own responsibility, shall draw up the final accounts of

the Office and transmit them, for opinion, to the Management Committee

• 6. 

  The Management Committee shall deliver an opinion on the final accounts of the Office.

• 7. 

  The Administrative Manager shall transmit these final accounts, accompanied by the opinion of

the Management Committee , no later than 1 July following the completion of the financial year, to

the European Parliament, the Council, the Commission and the Court of Auditors.

• 8. 

  The final accounts shall be published.

• 9. 

  The Management Committee shall reply to the Court of Auditors' observations by 15 October at

the latest. The Management Committee shall also send this reply to the European Parliament and

the Commission.

• 10. 

  The Management Committee shall submit to the European Parliament, at the latter's request,

and as provided for in Article 146(3) of Regulation (EC, Euratom) No 1605/2002, any information

necessary for the smooth running of the discharge procedure for the financial year in question.

• 11. 

  The European Parliament shall, following a recommendation from the Council acting by a

qualified majority, before 15 May of year N+2 grant a discharge to the Management Committee for

the implementation of the budget for the financial year N.

Article 14

Internal control systems

The Internal Auditor of the Commission shall be responsible for auditing the Office.

Article 15

Financial rules

Commission Regulation (EC, Euratom) No 2343/2002 of 23 December 2002 on the framework

Financial Regulation for the bodies referred to in Article 185 of Council Regulation (EC, Euratom)

No 1605/2002 on the Financial Regulation applicable to the general budget of the European

Communities 7 applies to the Office.

7354/09 ELK/ek 167

Further financial rules applicable to the Office shall be drawn up by the Management Committee

after consultation with the Commission. Those rules may deviate from Commission Regulation

2343/2002 if the specific operational needs for the functioning of the Office so require and only

with the prior agreement of the Commission.

Article 16

Anti- fraud measures

• 1. 

  For the purpose of combating fraud, corruption and other illegal acts, the provisions of

Regulation (EC) No 1073/1999 i of the European Parliament and of the Council of 25 May 1999

concerning investigations conducted by the European Anti-Fraud Office (OLAF) 8 shall apply

without any restriction.

• 2. 

  The Office shall accede to the Inter-institutional Agreement of 25 May 1999 between the

European Parliament, the Council of the European Union and the Commission of the European

Communities concerning internal investigations by the European Anti-Fraud Office (OLAF) 9 and

shall immediately adopt appropriate provisions for all staff of the Office

• 3. 

  The funding decisions and the agreements and implementing instruments resulting from them

shall explicitly stipulate that the Court of Auditors and OLAF may, if necessary, carry out on thespot

checks among the beneficiaries of monies disbursed by the Office as well as on the staff

responsible for allocating these monies.

8 OJ L 136, 31.5.1999, p. 1

7354/09 ELK/ek 168

CHAPTER IV

GENERAL PROVISIONS

Article 17

Consultation

When appropriate, the BEREC shall, before adopting opinions, regulatory best practice or reports,

consult interested parties and give them the opportunity to comment within a reasonable period. The

BEREC shall, without prejudice to Article 20, make the results of the consultation procedure

publicly available.

Article 18

Transparency and accountability

The BEREC and the Office shall carry out their activities with a high level of transparency. The

BEREC and the Office shall ensure that the public and any interested parties are given objective,

reliable and easily accessible information, in particular in relation to the results of its work.

Article 19

Provision of information to the BEREC

The Commission and NRAs shall provide information requested by the BEREC and the Office to

enable it to perform its tasks. This information shall be managed in accordance with the rules set out

in Article 5 of Directive 2002/21/EC i (Framework Directive).

Article 20

Confidentiality

Neither the BEREC nor the Office shall publish or disclose to third parties information that they

process or receive for which confidential treatment has been requested.

Members of the Board of Regulators, the Management Committee, the Administrative Manager,

external experts including the experts of the working groups, and members of the staff of the

Office shall be subject to the requirements of confidentiality pursuant to Article 287 of the Treaty,

even after their duties have ceased .

The BEREC and the Office shall lay down in their respective internal rules of procedure the

practical arrangements for implementing the confidentiality rules referred to in subparagraphs 1 and

2.

Article 21

Declaration of interests

The Office’s staff, the members of the Board of Regulators and the Management Committee and the

Administrative Manager of the Office shall make an annual declaration of commitments and a

declaration of interests indicating any direct or indirect interests, which might be considered

prejudicial to their independence. Such declarations shall be made in writing. The declaration of

interests made by the members of the Board of Regulators and the Management Committee,

as well as by the Administrative Manager shall be made public.

Article 22

Access to documents

• 1. 

  Regulation (EC) No 1049/2001 i shall apply to documents held by the BEREC and the Office.

• 2. 

  The Board of Regulators and the Management Committee shall adopt practical measures for

applying Regulation (EC) No 1049/2001 i within six months from the date of the effective start of

operations of the BEREC and the Office, respectively.

• 3. 

  Decisions taken pursuant to Article 8 of Regulation (EC) No 1049/2001 i may be the subject of a

complaint to the Ombudsman or of proceedings before the Court of Justice, in accordance with the

conditions laid down in Articles 195 and 230 of the Treaty respectively.

Article 23

Privileges and immunities

The Protocol on Privileges and Immunities of the European Communities shall apply to the Office

and its staff.

Article 24

Liability of the Office

• 1. 

  In the case of non-contractual liability, the Office shall, in accordance with the general principles

common to the laws of the Member States, make good any damage caused by it or its staff in the

performance of their duties. The Court of Justice of the European Communities shall have

jurisdiction in any dispute over the remedying of such damage.

• 2. 

  The personal financial and disciplinary liability of the Office staff towards the Office shall be

governed by the relevant provisions applying to the staff of the Office.

CHAPTER V

FINAL PROVISIONS

Article 25

Evaluation and review

Within three years of the effective start of operations, the Commission shall publish an evaluation

report on the experience acquired as a result of the operation of the BEREC and the Office. The

evaluation report shall cover the results achieved by the BEREC and the Office and their respective

working methods, in relation to their respective objectives, mandates and tasks defined in this

Regulation and in their respective annual work programmes. The evaluation report shall take into

account the views of stakeholders, at both Community and national level and shall be forwarded to

the European Parliament and to the Council. The European Parliament stall issue an opinion on the

evaluation report.

Article 26

Entry into force

This Regulation shall enter into force on the twentieth day following that of its publication in the

Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels,

For the European Parliament For the Council

THE PRESIDENT THE PRESIDENT

_____________

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