Explanatory Memorandum to COM(2000)393 - Common regulatory framework for electronic communications networks and services - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2000)393 - Common regulatory framework for electronic communications networks and services. |
|---|---|
| source | COM(2000)393  |
| date | 12-07-2000 |
This is one of six proposals that together create a new framework for the regulation of electronic communications network and services. The six proposals are as follows:
- Directive on a common regulatory framework for electronic communications networks and services - sets out the horizontal provisions of the new electronic communications regulatory framework of the European Union.
- Directive on the authorisation of electronic communications networks and services - aims at a single European market for electronic communications services by harmonising the rules for authorising provision of such services.
- Directive on access to, and interconnection of, electronic communications networks and associated facilities - establishes a framework for access and interconnection agreements across the EU.
- Directive on universal service and users' rights relating to electronic communications networks and services - sets out the rights that users have in respect of electronic communications services, in particular in respect of universal service.
- Directive on the processing of personal data and the protection of privacy in the electronic communications sector - updates the current Directive to ensure it is technologically neutral and can cover new communications services.
- Regulation on unbundled access to the local loop - introduces a requirement for local loop unbundling, designed to enter into force by 31 December 2000, in advance of the entry into force of the rest of the package.
In addition to the above package of measures, the Commission has also adopted a proposal for a European Parliament and Council Decision on a regulatory framework for radio spectrum policy in the Community i, which establishes a policy and legal framework in the Community in order to achieve the harmonisation of the use of the radio spectrum.
These proposals are the outcome of extensive public consultation, including the Green Paper on the convergence of the telecommunications, media and information technology sectors, and the implications for regulation towards an Information Society approach (COM(97) 623) i, the Green Paper on radio spectrum policy in the context of European Community policies such as telecommunications, broadcasting, transport, and R&D (COM(98) 596) i, as well as the 1999 Communications Review i of the existing regulatory framework and the public consultation that followed. The Communication i reporting on the results of the latter consultation was published in April this year, and contained a number of key orientations for the six proposals.
The existing legislative framework was primarily designed to manage the transition from monopoly to competition and was therefore focused on the creation of a competitive market and the rights of new entrants. It has been successful in achieving those aims. But in part because of the success of liberalisation at European level, the market is now changing with ever-increasing speed. This was foreseen by the current legislative framework, which required the Commission to review the operation of the Directives making up the regulatory framework in the light of developments in the market, the evolution in technology and the changes in user demand.
The new policy framework needs to take account of these developments, in particular the convergence between telecommunications, broadcasting and IT sectors. It seeks to reinforce competition in all market segments, while ensuring that the basic rights of consumers continue to be protected. It is therefore designed to cater for new, dynamic and largely unpredictable markets with many more players than today.
The Lisbon European Council of 23-24 March 2000 has highlighted the potential for growth, competitiveness and job creation of the shift to a digital, knowledge-based economy. In particular, it has emphasised the importance for Europe's businesses and citizens of access to an inexpensive, world-class communications infrastructure and a wide range of services. It also highlighted the dynamism of technological and market change in the sector, illustrated by the technological convergence of the telecommunications, media and information technology sectors, and the emergence of the Internet.
In order to ensure legal certainty in the transition from the current framework to the new regulatory framework, it is anticipated that the five new Directives in the above list (Framework, Access, Authorisations, Universal Service and Data Protection) would enter into force on the same date. At this point, the corresponding existing Directives would be repealed.
Contents
This proposed Directive aims to establish a harmonised regulatory framework for electronic communications networks and services across the EU. It seeks to respond to the convergence phenomenon by covering all electronic communications networks and services within its scope. It sets out a number of principles and objectives for regulators to follow, as well as a series of tasks in respect of management of scarce resources such as radio spectrum and numbering. Finally, it contains a number of horizontal provisions common to more than one measure in the package.
Chapter I - Scope, aim and definitions
Article 1 sets out the aim and scope of the new framework: to establish a harmonised framework for regulation of electronic communications networks and services; i.e. covering all satellite and terrestrial networks, including both fixed and wireless (i.e. the public switched telephone network, networks using internet protocol (IP), cable TV, mobile and terrestrial broadcast networks). It clarifies that the proposed Directive does not cover services such as broadcast content, or electronic commerce services. It also clarifies that telecommunications terminal equipment is not within the scope of the new framework.
Article 2 sets out the definitions for the new framework. Electronic communications network, electronic communications service and associated facilities are the key new definitions.
This Chapter covers Articles 3 to 6, which set out principles for the establishment of national regulatory authorities (NRAs), as well as establishing certain procedures to which they are subject (e.g. of consultation, publication of information).
Article 3 (National Regulatory Authorities) sets out a requirement for independence of NRAs, publication of which body is responsible for which tasks under the Directives. This requirement does not differ greatly from the obligations already imposed on NRAs under the existing telecommunications framework. It also imposes a requirement for impartiality of decision-making.
Article 4 (Right of appeal) establishes a right of appeal, making clear that any appeal must be to a body independent of government. The appeal body must be able to consider the facts of the case, rather than just the procedure that was followed, and the decision of the NRA is made binding pending the outcome of the appeal.
Article 5 (Provision of information ) establishes the right of NRAs to collect information from market players, but ensures such information-gathering is proportionate and justified. It also allows the Commission to ask NRAs to request information for the Commission's purposes, e.g. for use in trade dispute procedures. Finally, the Article allows for exchange of confidential information, as long as its confidentiality is respected.
Article 6 (Consultation and transparency mechanism) sets out obligations on NRAs to consult when they take decisions affecting third parties. It also establishes a procedure, with the possibility for the Commission to require an NRA to amend or withdraw the measure if it is not justified under the regulatory framework.
This Chapter (Articles 7 to 12) covers the tasks of NRAs in relation to the allocation and assignment of scarce resources (radio spectrum and numbers) and the granting of rights of way.
Article 7 (Policy objectives and regulatory principles) requires NRAs to follow a defined set of objectives and principles. The objectives and principles are essentially those set out in the Review Communication, and confirmed in the consultation, although two principles (on legal certainty, and on enforcement) will be achieved by Community law as a whole, rather than by regulators and are not therefore included as objectives for regulators.
Article 8 (Allocation and assignment of radio spectrum) sets out a number of obligations related to allocation and assignment of radio spectrum. In particular, it requires NRAs to manage spectrum efficiently and introduces a right for NRAs to permit the trading of frequency assignments, subject to certain safeguards.
Article 9 (Management of numbering resources) sets out obligations in respect of numbering. In particular, it maintains the existing provision which requires NRAs to ensure sufficient numbers exist for all providers of electronic communications services. It makes provision for harmonisation of numbering resources where necessary for pan-European services. It also requires NRAs to ensure that all non-geographic (e.g. freephone, premium rate) numbers can be reached by all users in the Community, except where the called party has chosen to limit access for commercial reasons. The final paragraph requires Member States to coordinate their positions in respect of numbering, naming and addressing in international organisations and fora.
Articles 10 (Rights of way) and 11 (Facility-sharing and co-location) cover the granting of rights of way, and mechanisms for facility sharing and co-location, for example where rights of way are limited for environmental, public health, public security or planning reasons.
Article 12 (Accounting separation) maintains requirements previously in the Interconnection Directive requiring undertakings with special or exclusive rights in other markets to maintain accounting separation between these activities and their activities in relation to the provision of electronic communications networks and services, and requiring all providers of public communications networks and publicly available communications services to publish audited financial accounts.
Chapter IV covers Articles 13 to 25. These are the provisions common to more than one Directive in the regulatory framework.
Article 13 (Significant market power) defines the concept of significant market power, to which both the user and access Directives refer in obliging NRAs to place defined obligations on specific undertakings. It should be noted that although the same term is used as applies in the current regulatory framework, it is modified in this section, to cover a dominant operator.
Article 14 (Market analysis) is the procedure to be used by NRAs when deciding whether to either impose, maintain or withdraw obligations on specific undertakings. The Commission will produce Guidelines to assist NRAs in defining markets and assessing the level of competition. The Commission will also adopt a Decision, on an annual basis, listing those markets whose characteristics may be such as to justify ex ante regulatory intervention. NRAs may not impose such obligations in markets not identified in the Decision without Commission agreement. It requires NRAs to assess the extent of competition in a given market, in accordance with the Guidelines and only impose or maintain obligations where competition is not effective. Otherwise obligations must be removed. Decisions taken under this procedure will have to be notified to the Commission and other NRAs in accordance with the transparency mechanism in Article 6.
Article 15 (Standardisation) takes over for the most part the provisions in the current framework which foresees standardisation as an industry-led process, including the possibility for implementation of selected standards to be made mandatory.
Article 16 (Harmonisation measures) covers two procedures concerned with harmonisation of the single market. The first relates to the production of Commission guidance (e.g. Recommendations), which aims to increase harmonisation of implementation of specific obligations in the new regulatory framework. The second allows the Commission to propose binding harmonisation measures using comitology procedures where it considers divergence of national measures constitutes a barrier to the single market.
Article 17 (Resolution of disputes between undertakings) introduces a procedure to resolve disputes between undertakings, based on the existing Interconnection Directive.
Article 18 (Dispute resolution involving parties in different Member States) establishes a procedure to deal with cross-border disputes, both for users and undertakings.
Article 19 (Committee) establishes the Communications Committee and sets out the two (advisory and regulatory) comitology procedures proposed, in accordance with the new comitology decision.
Article 20 (Exchange of Information) covers exchange of information in the framework of the Committee.
Article 21 (High-Level Communications Group) establishes the High-Level Communications Group, its composition and tasks.
Article 22 (Publication of information) requires Member States to make available information concerning the application of this Directive and the Specific Measures.
Article 23 (Review procedures) makes provision for a review of this Directive.
Article 24 (Repeal), Article 25 (Transposition), Article 26 (Entry into force) and Article 27 (Addressees) are procedural measures.