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Regulatory framework for electronic communications
The opening-up of the telecommunications market to competition has acted as a catalyst on a sector previously reserved for oligopolies. To keep up with these changes, Europe's decision-making bodies have adopted legislation in tune with technological progress and market requirements. These developments have given rise to the adoption of a new regulatory framework on electronic communications, the main aim of which is to strengthen competition by making market entry easier and by stimulating investment in the sector.
Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (“Framework Directive”) [See amending acts].
The “Framework Directive” forms part of the “Telecommunications Package” designed to recast the existing regulatory framework for telecommunications in order to make the electronic communications sector more competitive. This new regulatory framework consists of this Directive plus four specific Directives, namely the:
- Directive on the authorisation of electronic communications networks and services (the “Authorisation Directive”);
- Directive on access to, and interconnection of, electronic communications networks and associated facilities (the “Access Directive”);
- Directive on the universal service (the “Universal Service Directive”);
- Directive on the processing of personal data (the “Privacy and Electronic Communications Directive”).
Added to this list, there is also the recent Decision on a regulatory framework for radio spectrum policy (the “Radio Spectrum Decision”). The “Telecoms Package” was amended in December 2009 by the two Directives “Better law-making” and the “Citizens' rights”, as well as by a body of European regulators for electronic communications.
Scope, aim and definitions
The objective of this Directive is to establish a harmonised framework for the regulation of electronic communications networks and services. It also includes certain aspects of terminal equipment to facilitate access for disabled users. It contains horizontal provisions serving the other measures: the scope and general principles, basic definitions, general provisions on the national regulatory authorities (NRAs), the new concept of significant market power, and rules for granting certain essential resources such as radio frequencies, numbers or rights of way.
In response to the convergence of technologies and the need for horizontal regulation of all infrastructures, the new framework is no longer limited to telecommunications networks and services but covers all electronic communications networks and services. This includes fixed-line voice telephony, mobile and broadband communications and cable and satellite television. On the other hand, the content of services delivered over electronic communications networks, such as broadcasting content or financial services, is excluded, as is telecommunications terminal equipment to facilitate access for disabled users.
This Directive requires the adoption of national measures in terms of access to electronic communications with a view to respecting the fundamental rights and freedoms of natural persons.
National regulatory authorities
Member States must guarantee the independence of national regulatory authorities (NRAs) by ensuring that they are legally distinct from and independent of all organisations providing electronic communications networks, equipment or services. The NRAs, responsible for the ex ante regulation of markets, must not accept instructions from any other body.
Right of appeal
Effective national mechanisms must allow any user or provider of electronic communications networks or services the right of appeal to an independent appeal body in the event of any disputes with an NRA. Member States shall provide information related to appeals to the Commission and to BEREC.
Impartiality and transparency
Member States must ensure that national regulatory authorities exercise their powers impartially and transparently. They must also ensure that the NRAs make arrangements for consultation of the interested parties if they intend to take measures which could have a significant impact on the market. The NRAs are responsible for making the results of the consultation public.
Consolidation of the internal market
The NRAs, the Commission and BEREC must cooperate to determine the instruments, as well as the most appropriate solutions, to deal with any situation which may arise within the internal market for electronic communications. In certain cases, the Commission has the power to refuse measures proposed by the NRAs.
Obligations and tasks of national regulatory authorities
To promote competition in the provision of electronic communications networks and services, the NRAs are tasked, in particular, with:
- ensuring that users derive maximum benefit in terms of choice, price and quality;
- encouraging efficient use and management of radio frequencies and numbering resources.
The NRAs must also contribute to development of the internal market, in particular, by:
- encouraging the establishment and development of trans-European networks and the interoperability of pan-European services;
- cooperating with each other and with the European Commission to ensure the development of consistent regulatory practice and application of the new regulatory framework for the telecommunications sector.
Lastly, the NRAs must promote European public interests by:
- ensuring that all citizens have access to a universal service, as specified in the “Universal Service Directive”;
- ensuring the availability of simple and inexpensive dispute resolution procedures;
- contributing to ensuring a high level of protection of personal data and privacy (the “Privacy and Electronic Communications Directive”).
Member States shall cooperate with each other, as well as with the Commission to implement the strategic planning, coordination and harmonisation of the radio spectrum in the European Union.
Management of radio frequencies
The national regulatory authorities manage the radio frequencies for electronic communication services. Such radio frequencies must be allocated and assigned on the basis of objective, transparent, non-discriminatory and proportionate criteria. Beyond that, any undertaking intending to transfer rights to use radio frequencies must notify the national regulatory authority responsible for spectrum assignment. NRAs must ensure that competition is not distorted as a result of any such transaction.
Member States may, however, provide restrictions, where this is necessary to:
- avoid harmful interference;
- protect public health against electromagnetic fields;
- ensure technical quality of service;
- ensure maximisation of radio frequency sharing;
- safeguard efficient use of spectrum;
- ensure the fulfilment of a general interest objective (such as the safety of life or the promotion of social cohesion, in particular.
For a period of five years, holders of rights to use radio frequencies may submit an application to the NRA for a reassessment of the restrictions on their rights.
Undertakings may transfer or lease their individual rights to use radio frequencies.
Numbering, naming and addressing
Member States must ensure that NRAs control the assignment of all national numbering resources and the management of the national numbering plans. Adequate numbers must be provided for all electronic communications services. To this end, the national regulatory authorities must establish objective, transparent and non-discriminatory procedures for granting rights of use.
Rights of way
The purpose of granting rights of way is to allow an undertaking to install facilities on, over or under public or private properties. When a competent authority considers an application for the granting of rights of way it must act on the basis of transparent procedures, applied without discrimination and within six months.
Co-location and sharing of network elements and associated facilities for providers of electronic communications services
In certain cases, Member States may impose the sharing of facilities or property on an undertaking operating an electronic communications network. This type of decision is used when there is limited access to resources due to the need to protect the environment, health or public safety or when it is not possible to reproduce the infrastructures. These sharing and coordination arrangements may include rules for apportioning the costs of facility or property sharing adjusted for risk where appropriate.
Security and integrity of networks and services
Undertakings providing public communications networks or electronic communications services must ensure the security of the networks. The competent NRA must be informed of any breach of security or loss of integrity on the network. They will in turn inform the NRAs of the other Member States.
To protect network security, the NRAs have the power to issue binding instructions to undertakings providing communication networks.
Regulatory controls on undertakings with significant market power
An undertaking is considered to have significant market power if it is in a position to behave independently of competitors, customers and, ultimately, consumers.
Market identification and definition procedure
The European Commission is tasked with adopting a recommendation on relevant product and service markets in the electronic communications sector, taking into account the opinion of BEREC. The purpose of this recommendation is to identify markets displaying characteristics which may justify the imposition of the regulatory obligations set out in the specific Directives.
Following consultation with the NRAs and BEREC, the Commission may adopt a decision which identifies trans-national markets.
Market analysis procedure
After the adoption of the recommendation, the national regulatory authorities must carry out an analysis of the relevant markets, taking account of the guidelines set by the Commission. Where a national regulatory authority concludes that a market is not effectively competitive, it must identify the undertakings with significant market power and impose appropriate specific regulatory obligations on them.
The Commission shall publish a list of non-compulsory standards in the Official Journal. These standards should contribute to the provision of harmonised electronic communications networks and the associated facilities and services. In order to achieve this, Member States shall encourage the use of these standards.
However, the Commission has the power to make some of these standards compulsory, through the publication of a notice in the Official Journal.
Interoperability of digital television services
In order to promote the free flow of information, media pluralism and cultural diversity, providers of digital interactive television services are encouraged to use an open application program interface (API). Similarly, providers of enhanced digital television equipment are encouraged to comply with an open API in accordance with the minimum requirements of the relevant standards or specifications. "API" means the software interfaces between applications and the resources in the enhanced digital television equipment for digital television and radio services. Providers are also encouraged to adapt their services to the needs of disabled persons.
Disputes between providers of electronic communications networks or services in the same Member State, or between such undertakings and other undertakings benefiting from obligations of access and/or interconnection, are resolved by the national regulatory authority, which is required to issue a binding decision within four months. In the event of a cross-border dispute between parties in different Member States, any party may refer the dispute to BEREC who shall publish an opinion as to the action to be taken to resolve the dispute.
Where the Commission finds divergences with regard to regulatory tasks, it may issue a recommendation or a decision on the harmonised application of the provisions in this Directive.
Member States shall lay down rules on penalties applicable to infringements of the provisions in this Directive.
They must inform the Commission of these provisions by 25 May 2011.
|Act||Entry into force||Deadline for transposition in the Member States||Official Journal|
OJ L 108 of 24.4.2002
|Amending act(s)||Entry into force||Deadline for transposition in the Member States||Official Journal|
Regulation (EC) No 717/2007
OJ L 171 of 29.6.2007
Regulation (EC) No 544/2009
OJ L 167 of 29.6.2009
OJ L 337 of 18.12.2009
AMENDMENT TO THE ANNEXES
Annex II - Criteria to be used by national regulatory authorities in making an assessment of joint dominance in accordance with the second subparagraph of Article 14(2)
Directive 2009/140/EC [Official Journal L 337 of 18.12.2009].