EU ELECTRONIC COMMUNICATIONS CODE HANDBOOK 9781526511713, 9781526511744, 9781526511737

Table of contents :
Foreword
Preface
Table of Treaties and Conventions
Table of Regulations
Table of Directives
Table of Decisions
Table of Recommendations, Communications and Notices
Table of Cases
Chapter 1 Annotated Directive establishing the European Electronic Communications Code
Annotated Version of the European Electronic Communications Code
Chapter 2 Related Regulations
Regulation (EU) No 531/2012 (Roaming Regulation)
Commission Delegated Regulation (EU) No 305/2013 (eCall)
Regulation (EU) 2015/758 (eCall in-vehicle system – type – approval)
Regulation (EU) 2015/2120 (Open Internet Regulation)
Commission Implementing Regulation (EU) 2016/2286 (Roaming fair use policy and sustainibility)
Regulation (EU) 2018/1971 (BEREC Regulation)
Commission Delegated Regulation (EU) 2019/320 (Radio equipment support access to E112 emergency services)
Regulation (EU) 2019/881 (Cybersecurity Act)
Commission Implementing Regulation (EU) 2019/2243 (Contract summary template)
Commission Implementing Regulation (EU) 2020/1070 (Light deployment regime for small-area wireless access points)
Commission Delegated Regulation (EU) 2021/654 (Explanatory Memorandum)
Commission Delegated Regulation (EU) 2021/654 (Voice call termination rates in the EU (Eurorates)
Chapter 3 Related Directives
Directive 2000/31/EC (Directive on electronic commerce)
Directive 2002/58/EC (ePrivacy Directive)
Commission Directive 2002/77/EC (Competition in the markets for electronic communications networks and services)
Commission Directive 2008/63/EC (Fair market conditions for telephone handsets and other communication equipment)
Directive 2010/13/EU (Audiovisual Media Services Directive)
Directive 2012/19/EU (WEEE)
Directive 2014/30/EU (EMC Directive)
Directive 2014/35/EU (Low Voltage Directive)
Directive 2014/53/EU (Radio Equipment Directive)
Directive 2014/61/EU (Broadband Cost Reduction Directive)
Directive (EU) 2015/1535 (Single Market Transparency Directive)
Directive (EU) 2016/1148 (NIS Directive)
Directive (EU) 2019/770 (Digital Contents and Services Directive)
Directive (EU) 2019/882 (European Accessibility Act)
Chapter 4 Related Decisions
Decision No 676/2002/EC (Radio Spectrum Decision)
Commission Decision of 11 December 2006 (Electronic communications standards and specifications)
Commission Decision of 15 February 2007 (reserving numbering range beginning with 116)
Decision No 243/2012/EU (Radio Spectrum Policy Programme)
Decision (EU) 2017/899 (470–490 MHz frequency band)
Commission Decision of 11 June 2019 (Radio Spectrum Policy Group)
Chapter 5 Related Recommendations and Guidelines
Council Recommendation 1999/519/EC (Limitation of exposure of the general public to electromagnetic fields (0 Hz to 300 GHz))
Commission Recommendation of 20 March 2003 (Harmonisation of public R-LAN access)
Commission Recommendation 2005/698/EC (Accounting separation and cost accounting systems)
Commission Recommendation of 19 March 2010 (MCV services)
2010/572/EU Commission Recommendation of 20 September 2010
Commission Recommendation 2013/466/EU (Boosting competition and encouraging investment in NGA networks)
SMP Guidelines for electronic communications networks and services
Commission Recommendation (EU) 2020/2245 (Relevant product and service markets within the electronic communications sector)
Commission Recommendation (EU) 2021/554 (Notifications under Article 32 EECC)
Guidelines on the application of the competition rules to access agreements in the telecommunications sector
Notice on the application of the competition rules to access agreements in the telecommunications sector (Framework, relevant markets and principles)
Chapter 6 Key EEA Instruments Relevant to Non-EU Member States
Annex XI to the Agreement on the European Economic Area
Correlation Table Between EU and EFTA Notices
Annex I List of National Instruments Transposing the EECC
Annex II Timeline of Instruments and Actions Required under the EECC and the BEREC Regulation
Annex III List of technical implementing measures adopted under Decision No 676/2002/EC of the European Parliament and of the Council of 7 March 2002 on a regulatory framework for radio spectrum policy in the European Community (Radio Spectrum Decision)
Annex IV List of Relevant BEREC Documents
Index

Citation preview

EU ELECTRONIC COMMUNICATIONS CODE HANDBOOK

EU ELECTRONIC COMMUNICATIONS CODE HANDBOOK Francesco Liberatore and James D Konidaris Squire Patton Boggs

BLOOMSBURY PROFESSIONAL Bloomsbury Publishing Plc 50 Bedford Square, London, WC1B 3DP, UK 1385 Broadway, New York, NY 10018, USA 29 Earlsfort Terrace, Dublin 2, Ireland BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc © Squire Patton Boggs LLP 2021 All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2021. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN: PB 978-1-52651-171-3 ePDF 978-1-52651-173-7 ePub 978-1-52651-172-0 Typeset by Evolution Design & Digital Ltd (Kent)

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Foreword 2020 was the last year to transpose into national law in Europe, in a timely fashion, the European Electronic Communications Code (EECC) adopted in 2018, together with the new BEREC Regulation. Due to the pandemic, this process has been delayed in several Member States. For the Body of European Regulators for Electronic Communications (BEREC), which groups together the national regulators for electronic communications in Europe, the consistent and predictable application of the provisions of the EECC is a priority. Hence, BEREC’s activities have mainly been focused on meeting its obligations under the EECC, by developing Guidelines in 2019 and even more in 2020. In the light of the EECC, BEREC issued 11 Guidelines on various topics (intra-EU communications, minimum criteria for a reference offer, general authorisations notifications, identification of the network termination point, geographical surveys on network deployments, common criteria for undertakings, other than ECN/ECS to manage numbering resources, quality of service parameters, how to assess the effectiveness of public warning systems transmitted by alternative means to mobile NB-ICS, very high capacity networks, criteria for a consistent application of Article 61(3), the consistent application of the co-investment criteria) in 2019 and 2020. Those instruments help the sector to get regulatory stability and predictability, eg for the benefit of investments – private and public – in Very High Capacity Networks. The BEREC Strategy 2021–2025 is based on market developments and relates to the strategic objectives of the EECC. In addition to three high-level strategic priorities (promoting full connectivity, supporting sustainable and open digital markets, empowering end-users), the facilitation of a successful implementation and consistent application in all areas of the EECC, including spectrum, universal service and consumers protection, is a paramount horizontal principle that forms an essential part of BEREC’s high-level priorities. In 2021, much of BEREC’s work will shift from issuing Guidelines towards assessing future technological and market developments, especially related to end-user provisions within the scope of electronic communications and the digital ecosystem. The successful and consistent implementation of the EECC will remain high on the radar of each regulator’s work, as the focus on sustainability. In the future, with these Guidelines, BEREC will further monitor the impact and the effectiveness of the EECC with a view to collecting sufficient quantitative and qualitative data for future reviews (as required under Articles 122–123 of the EECC). Michel Van Bellinghen 2021 Chairman of BEREC

Preface The aim of this book is primarily to serve as a reference guide and research tool for those involved in the application of regulation in the electronic communications sector in the European Economic Area (EEA) and, in particular, in the application of the European Electronic Communications Code (EECC). Certain jurisdictions outside the EEA take the EECC as a key benchmark for the reform and application of their national regulatory frameworks (eg  the UK). Therefore, we hope that this handbook will also be useful to non-EU practitioners, in-house teams, regulators and courts. The EECC is an ambitious recast of the previous EU regulatory framework. It is aimed at promoting competition and consumer protection in electronic communications, while expanding the scope of telecom-style economic regulation to new internet-based communications services. It is unique in its contents and ambitions, but it is also a complex piece of legislation of epic length, and some of its provisions are the result of highly debated compromise amendments between the EU legislative institutions. We have tried to help interpret each of the provisions of the EECC by correlating it with its corresponding recitals, the previous legislative provisions which it recasts, and other legislative provisions to which it refers. We cite all of the relevant case law of the Court of Justice of the EU (CJEU) to date in which the Court has not only interpreted the regulatory framework but has, at times, expanded it as a driving force for harmonisation. This case law is binding on EU Member States, their national courts and government agencies. In the words of its current president, the Belgian Koen Lenaerts, ‘there is simply no nucleus of sovereignty that the Member States can invoke, as such, against the Community’. The CJEU aims at ‘the same practical outcome as one that would be obtained through a direct invalidation of Member State law.’ We also cite under each provision of the EECC the relevant guidance published by the European Commission, the Body of European Regulators for Electronic Communications (BEREC) and/or the Communications Committee (COCOM)1 which assists the Commission in carrying out its executive powers with regard to the Digital Single Market. In most cases, this guidance is non-binding; in other instances, it is either binding or the national regulatory authorities must take ‘utmost account’ of it. In all instances, however, this guidance works like ‘soft law’ which can only be departed from in justified and exceptional circumstances. The handbook also contains other useful tools, including a timeline of required instruments and expected future actions, and a list of all national measures transposing the EECC into national law, as of the date of this publication. We have stated the law as at 21 December 2020, the deadline for the transposition of the EECC into national

The guidance from COCOM appears in the form of ‘Q&A’ in the annotations. COCOM published a ‘Questions and answers on the EECC’ (Version 23 December 2020), with a disclaimer that it ‘has not been adopted or endorsed by the European Commission. It is shared with Member States solely for information purposes. Any views expressed therein are the preliminary views of the Commission services and may not in any circumstances be regarded as stating an official position of the Commission nor prejudice the Commission or its services. Moreover, the final interpretation of EU law lies with the Court of Justice of the EU.’

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EECC Handbook

laws. However, we have also incorporated later important developments at proof stage, wherever possible. We are grateful to a number of our colleagues at Squire Patton Boggs who have assisted with the research and preparation of this handbook, including Chloe Rankin, Francesca Bexon, Milena Bohn, Dannielle Jones, Philip Mulhall, Christina Economides, Philip Duffy, Paul Dovey, Roia McHugh, Julie Smith, Kelly Underwood and Philip Uttley, and all of our colleagues for their encouragement in the preparation of this work. We also thank Anja Ruggli for her assistance with Chapter 6, and the editorial team at Bloomsbury for their support and work in turning our manuscripts into the finished work. Thank you to Gerasimos Sofianatos, Head of Sector, European Commission, Directorate-General for Communications Networks, Content and Technology, for clarifying our questions. We are also grateful to Michel Van Bellinghen, current Chairman of BEREC, for kindly agreeing to write the Foreword. Finally, we would like to express our deep gratitude to our families for their continued support, patience and tolerance throughout the preparation of this handbook, in a period like no other, which has seen a global pandemic and other major challenges and difficulties. Francesco Liberatore thanks his wife, Bea, daughter, Greta, and son, Luca; James Konidaris also thanks his family and dearest friends. Francesco Liberatore James D Konidaris April 2021

Contents Forewordv Prefacevii Table of Treaties and Conventions xiii Table of Regulations xv Table of Directives xxiii Table of Decisions xli Table of Recommendations, Communications and Notices xliii Table of Cases xlvii Chapter 1 Annotated Directive establishing the European Electronic Communications Code

1

Annotated Version of the European Electronic Communications Code

1

Chapter 2 Related Regulations

447

Regulation (EU) No 531/2012 (Roaming Regulation)

447

Commission Delegated Regulation (EU) No 305/2013 (eCall)

488

Regulation (EU) 2015/758 (eCall in-vehicle system – type – approval)

494

Regulation (EU) 2015/2120 (Open Internet Regulation)

509

Commission Implementing Regulation (EU) 2016/2286 (Roaming fair use policy and sustainibility)

534

Regulation (EU) 2018/1971 (BEREC Regulation)

554

Commission Delegated Regulation (EU) 2019/320 (Radio equipment support access to E112 emergency services)

593

Regulation (EU) 2019/881 (Cybersecurity Act)

596

Commission Implementing Regulation (EU) 2019/2243 (Contract summary template)662 Commission Implementing Regulation (EU) 2020/1070 (Light deployment regime for small-area wireless access points)

669

Commission Delegated Regulation (EU) 2021/654 (Explanatory Memorandum)

674

Commission Delegated Regulation (EU) 2021/654 (Voice call termination rates in the EU (Eurorates)

681

Chapter 3 Related Directives

691

Directive 2000/31/EC (Directive on electronic commerce)

691

Directive 2002/58/EC (ePrivacy Directive)

714

Commission Directive 2002/77/EC (Competition in the markets for electronic communications networks and services)

734

x

Contents

Commission Directive 2008/63/EC (Fair market conditions for telephone handsets and other communication equipment)

742

Directive 2010/13/EU (Audiovisual Media Services Directive)

749

Directive 2012/19/EU (WEEE)

792

Directive 2014/30/EU (EMC Directive)

827

Directive 2014/35/EU (Low Voltage Directive)

859

Directive 2014/53/EU (Radio Equipment Directive)

879

Directive 2014/61/EU (Broadband Cost Reduction Directive)

922

Directive (EU) 2015/1535 (Single Market Transparency Directive)

941

Directive (EU) 2016/1148 (NIS Directive)

956

Directive (EU) 2019/770 (Digital Contents and Services Directive)

989

Directive (EU) 2019/882 (European Accessibility Act)

1022

Chapter 4 Related Decisions

1077

Decision No 676/2002/EC (Radio Spectrum Decision)

1077

Commission Decision of 11 December 2006 (Electronic communications standards and specifications)

1086

Commission Decision of 15 February 2007 (reserving numbering range beginning with 116)

1098

Decision No 243/2012/EU (Radio Spectrum Policy Programme)

1102

Decision (EU) 2017/899 (470–490 MHz frequency band)

1118

Commission Decision of 11 June 2019 (Radio Spectrum Policy Group)

1126

Chapter 5 Related Recommendations and Guidelines

1133

Council Recommendation 1999/519/EC (Limitation of exposure of the general public to electromagnetic fields (0 Hz to 300 GHz))

1133

Commission Recommendation of 20 March 2003 (Harmonisation of public R-LAN access)

1145

Commission Recommendation 2005/698/EC (Accounting separation and cost accounting systems)

1148

Commission Recommendation of 19 March 2010 (MCV services)

1155

2010/572/EU Commission Recommendation of 20 September 2010

1160

Commission Recommendation 2013/466/EU (Boosting competition and encouraging investment in NGA networks)

1178

SMP Guidelines for electronic communications networks and services

1204

Commission Recommendation (EU) 2020/2245 (Relevant product and service markets within the electronic communications sector)

1224

Commission Recommendation (EU) 2021/554 (Notifications under Article 32 EECC)1233

Contents xi

Guidelines on the application of the competition rules to access agreements in the telecommunications sector

1247

Notice on the application of the competition rules to access agreements in the telecommunications sector (Framework, relevant markets and principles)

1280

Chapter 6 Key EEA Instruments Relevant to Non-EU Member States

1311

Annex XI to the Agreement on the European Economic Area

1311

Correlation Table Between EU and EFTA Notices

1344

Annex I  List of National Instruments Transposing the EECC

1345

Annex II  Timeline of Instruments and Actions Required under the EECC and the BEREC Regulation

1349

Annex III  List of technical implementing measures adopted under Decision No 676/2002/EC of the European Parliament and of the Council of 7 March 2002 on a regulatory framework for radio spectrum policy in the European Community (Radio Spectrum Decision)

1365

Annex IV  List of Relevant BEREC Documents

1371

Index1377

Table of Treaties and Conventions [All references are to page number]

Amsterdam Treaty on European Union [1997] OJ C340/110..................... 108 Consolidated version of the Treaty on European Union [2012] OJ C 326/13 Art 1.................................................165 Art 5.................................................118 European Convention on the Protection of Human Rights and Fundamental Freedoms (Rome, November 4, 1950) (Cmnd 8969)...................... 106 Treaty establishing the European Economic Community (Rome, 25  March 1957 (February 7) (Cmnd 5179) Art 28............................................. 123, 124 Art 49......................................121, 122, 214 Art 50...............................................122 Art 55...............................................122 Art 59............................................  121, 122 Art 60...............................................121 Art 66...............................................121 Art 95............................................. 125, 126 Art 95(1)...........................................126 Art 108.............................................86 Art 100a...........................................108 Treaty on European Union 1992 (Treaty of Maastricht) [1992]  OJ C191 Art 4(2).............................................318 Art 16(4), (5)....................................405 Treaty on the Functioning of the European Union (TFEU) [2008] OJ C115/47....................... 152

Treaty on the Functioning of the European Union (TFEU) [2008] OJ C115/47 – contd Art 15...............................................165 Art 34............................................. 123, 124 Art 52(1)...........................................3 Art 56....................... 43, 121, 122, 214, 400 Art 57...............................................9 Art 62...............................................122 Art 101............................................. 56, 275 Art 102............................. 56, 233, 238, 244 Art 103–109.....................................56 Art 105.............................................29 Art 107.............................................85 Art 108.............................................86 Art 114................................... 108, 109, 125 Art 114(1).........................................126 Art 169.............................................77 Art 191(2).........................................37 Art 238(3).........................................405 Art 259.............................................29 Art 260.............................................29 Art 263.............................................187 Art 267.............................................182 Art 288........................................... 118, 224 Art 290........................................... 115, 403 Art 291.............................................403 Art 339.............................................165 Art 345............................................. 13, 163 United Nations Convention on the Rights of Persons with Disabilities................................... 106 Art 4.................................................108

Table of Regulations [References are to page number, those in bold indicate where material is set out in part or in full]

Regulations Regulation 1968/259 (EEC, Euratom, ECSC) laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission [1968] OJ L 56/1.....574 Regulation 1996/2185 (EC, Euratom) concerning on-the-spot checks and inspections carried out by the Commission in order to protect the European Communities’ financial interests against fraud and other irregularities [1996] OJ L 292/2...................... 586, 640 Regulation 2001/45 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and the free movement of such data [2001] OJ L 8/1.......... 499, 518 Regulation 2001/1049 regarding public access to European Parliament, Council and Commission documents [2001] OJ L 145/43....583, 608 Regulation 2003/1059 establishment of a common classification of territorial units for statistics (NUTS) [2003]OJ L 1541............22 Regulation 2004/139 on the control of concentrations between undertakings [2004] OJ L 24/1....544 Regulation 2004/460 establishing the European Network and Information Security Agency [2004] OJ L 77/1..........................598

Regulation 2004/2006 on cooperation between national authorities responsible for the enforcement of consumer protection laws (the Regulation on consumer protection cooperation) [2004] OJ L 364/1........................558 Regulation 2007/715 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information [2007] OJ L 171/1....496 Regulation 2008/593 on the law applicable to contractual obligations (Rome I) [2008] OJ L 177/6....................................18 Regulation 2008/764 laying down procedures relating to the application of certain national technical rules to products lawfully marketed in another Member State and repealing Decision No  3052/95/EC[2008] OJ L 218/21..................................124 Regulation 2008/765 setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93 [2008] OJ L 218/30....608 Regulation 2008/1007 amending Regulation (EC) No  460/2004 establishing the European Network and Information Security Agency as regards its duration [2008] OJ L 293/1..........599

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Table of Regulations

Regulation 2009/544 amending Regulation (EC) No  717/2007 on roaming on public mobile telephone networks within the Community and Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services [2009] OJ L 167/12..................................456 Regulation 2009/1211 establishing the Body of European Regulators for Electronic Communications(BEREC) and the Office [2009] OJ L 337/1....... 2, 450, 555 Regulation 2010/912 on setting up the European GNSS  Agency, repealing Council Regulation (EC) No 1321/2004 on the establishment of structures for the management of the European satellite radio navigation programmes and amending Regulation (EC) No  683/2008 of the European Parliament and of the Council [2010] OJ L 276/11.......................558 Regulation 2010/1094 establishing a European Supervisory Authority (European Insurance and Occupational Pensions Authority), amending Decision No  716/2009/EC and repealing Commission Decision 2009/79/ EC [2010] OJ L 331/ 48...............403 Regulation 2011/182 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers [2011] OJ L 55/13......................... 116, 403, 499, 517, 618 Art 3.................................................405 Art 3(2).............................................405 Art 3(7).............................................406 Art 4............................................... 405, 406 Art 5.................................................406 Art 7............................................... 405, 406 Art 8.................................................407 Regulation 2011/1093 establishing a European Supervisory Authority (European Banking Authority),amending Decision No  716/2009/EC and repealing Commission Decision 2009/78/ EC [2011] OJ L 331/12................403

Regulation 2011/1095 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No  716/2009/EC and repealing Commission Decision 2009/77/ EC [2011] OJ L 331/84................403 Regulation 2011/580 amending Regulation (EC) No  460/2004 establishing the European Network and Information Security Agency as regards its duration [2011] OJ L 165/3..........599 Regulation 2012/531 on roaming on public mobile communications networks within the Union [2012] OJ L 172/10............. 15, 364, 447, 514, 554 Recital 1–5....................................... 448 Recital 6–10..................................... 449 Recital 11–14................................... 450 Recital 15–21................................... 451 Recital 22–25................................... 452 Recital 26–30................................... 453 Recital 31–36................................... 454 Recital 37–40................................... 455 Recital 41–45................................... 456 Recital 46–50................................... 457 Recital 51–56................................... 458 Recital 57–63................................... 459 Recital 64–72................................... 460 Recital 73–76................................... 461 Recital 77–83................................... 462 Recital 84–88................................... 463 Recital 89–94................................... 464 Recital 95–199................................. 465 Art 1................................................. 466 Art 2................................................. 467 Art 3.............................................. 364, 468 Art 4, 5............................................. 471 Art 6................................................. 472 Art 6a....................................... 91, 364, 472 Art 6b....................................... 90, 365, 473 Art 6c............................................... 473 Art 6d............................................... 474 Art 6e............................................... 475 Art 6e(3)...........................................91 Art 6f................................................ 476 Art 7...............................................364, 476 Art 9...............................................364, 477 Art 11............................................... 477 Art 12........................................... 364, 478 Art 14........................................... 365, 478 Art 15........................................... 365, 479 Art 16............................................... 482 Art 17–19......................................... 483 Art 20–22......................................... 485



Table of Regulations

Regulation 2012/531 on roaming on public mobile communications networks within the Union [2012] OJ L 172/10 – contd Annex I............................................. 485 Annex II........................................... 486 Regulation 2012/1025 on European standardisation, amending Council Directives 89/686/EEC and 93/15/ EEC and Directives 94/9/EC, 94/25/EC, 95/16/EC, 97/23/EC, 98/34/EC, 2004/22/EC, 2007/23/ EC, 2009/23/EC and 2009/105/ EC of the European Parliament and of the Council and repealing Council Decision 87/95/EEC and Decision No 1673/2006/EC of the European Parliament and of the Council [2012] OJ L 316/12...... 502, 594, 611 Art 2(1)(c)........................................194 Regulation 2013/526 concerning the European Union Agency for Network and Information Security (ENISA) and repealing Regulation (EC) No  460/2004 [2013] OJ L 165/41....................  194, 557, 597 Regulation 2013/883 (EU  Euratom) concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No  1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No  1074/1999 [2013] OJ L 248/1.................................  586, 639 Regulation 2013/1285 on the implementation and exploitation of European satellite navigation systems and repealing Council Regulation (EC) No 876/2002 and Regulation (EC) No 683/2008 of the European Parliament and of the Council [2013] OJ L 347/1....495, 593 Regulation 2013/1315 on Union guidelines for the development of the trans-European transport network and repealing Decision No  661/2010/EU  [3013]  OJ  L 348/1 Art 2(1), (2)......................................205 Annex I.............................................205

xvii

Regulation 2014/910 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC  [2014] OJ L 257/73..................................623 Regulation 2015/758 concerning type–approval requirements for the deployment of the eCall in– vehiclesystem based on the 112 service and amending Directive 2007/46/EC [2015] OJ L 123/77...10, 494, 594 Recital 1–7....................................... 494 Recital 8–11..................................... 495 Recital 12–16................................... 496 Recital 17–22................................... 497 Recital 23–28................................... 498 Recital 29–32................................... 499 Art 1, 2............................................. 499 Art 3................................................. 500 Art 3(2).............................................103 Art 3(3), (4)...................................... 11, 103 Art 3(5).............................................103 Art 4, 5............................................. 501 Art 6................................................. 503 Art 7................................................. 504 Art 8–10........................................... 505 Art 11–14......................................... 506 Annex............................................... 507 Regulation 2015/2120 laying down measures concerning open internet access and amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services and Regulation (EU) No  531/2012 on roaming on public mobile communications networks within the Union [2015] OJ L 310/1......... 7, 355, 509, 554, 664 Recital 1–4....................................... 509 Recital 5, 6................................... 229, 510 Recital 7......................... 349, 428, 429, 510 Recital 8........................................... 510 Recital 9........................................... 510 Recital 10–12................................... 511 Recital 13....................................... 391, 511 Recital 14, 15................................... 512 Recital 16....................... 352, 353, 354, 512 Recital 17......................................354, 513 Recital 18......................................... 513 Recital 19–21................................... 514 Recital 22–24................................... 515 Recital 25–28................................... 516 Recital 29–34................................... 517

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Table of Regulations

Regulation 2015/2120 laying down measures concerning open internet access and amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services and Regulation (EU) No  531/2012 on roaming on public mobile communications networks within the Union [2015]  OJ  L  310/1 – contd Recital 35......................................... 518 Art 1................................................. 518 Art 2................................................. 518 Art 2(2)............................................. 8, 136 Art 3........................................348, 427, 518 Art 3(1).......................... 136, 228, 229, 330, 349, 354, 427, 429, 430, 431 Art 3(2).......................... 136, 348, 349, 354, 427 Art 3(3).......................... 136, 349, 350, 351, 354, 391, 427, 428 Art 3(3)(a)...................................... 229, 391 Art 3(4).............................................354 Art 3(5)........................... 137, 352, 353, 354, 431 Art 4....................................... 348, 353, 520 Art 4(1)............................ 95, 331, 332, 333, 350, 431 Art 4(1)(a).............................. 330, 331, 332 Art 4(1)(b).............................. 330, 331, 332 Art 4(1)(c).............................. 330, 331, 333 Art 4(1)(d).............................. 330, 331, 333 Art 4(1)(e).............................. 330, 331, 336 Art 4(2).................................. 330, 332, 336, 431 Art 4(3).............................................332 Art 4(4)........................................... 332, 357 Art 5...............................................348, 521 Art 5(1).................................. 334, 335, 336, 350, 429 Art 5(2)........................................... 353, 429 Art 5a............................................... 521 Art 6................................................. 522 Art 7................................................. 523 Art 9, 10........................................... 532 Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC [2016] OJ L 119/1........ 7, 542, 557, 599, 662 Art 4(1).............................................8

Regulation 2018/1046 (EU, Euratom) on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No  1296/2013, (EU) No  1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No  1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No  283/2014, and Decision No  541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 [2018  OJ L 193/1.. 580, 638 Regulation 2018/1725 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No  45/2001 and Decision No  1247/2002/ EC [2018] OJ L 295/39.............. 557, 609 Regulation 2018/1971 establishing the Body of European Regulators for Electronic Communications (BEREC) and the Agency for Support for BEREC (BEREC Office), amending Regulation (EU) 2015/2120 and repealing Regulation (EC) No 1211/2009..... 164, 554 Recital 1–3....................................... 554 Recital 4–9....................................... 555 Recital 10–16................................... 556 Recital 17–19................................... 557 Recital 20–23................................... 558 Recital 24–31................................... 559 Recital 32–37................................... 560 Recital 38–43................................... 561 Recital 44–46................................... 562 Recital 47–51................................... 563 Recital 52, 53................................... 564 Art 1, 2............................................. 564 Art 3, 4............................................. 565 Art 5–7a........................................... 569 Art 8, 9............................................. 570 Art 10–12......................................... 571 Art 13............................................... 572 Art 14–16......................................... 573 Art 17–19......................................... 575 Art 20............................................... 576 Art 21–23......................................... 577 Art 24............................................... 578 Art 25, 26......................................... 579 Art 27–29......................................... 580 Art 30–32......................................... 581 Art 33–35......................................... 582



Table of Regulations

Regulation 2018/1971 establishing the Body of European Regulators for Electronic Communications (BEREC) and the Agency for Support for BEREC (BEREC  Office), amending Regulation (EU) 2015/2120 and repealing Regulation (EC) No 1211/2009 – contd Art 36–38......................................... 583 Art 39............................................... 584 Art 40............................................. 167, 584 Art 41, 42......................................... 585 Art 43, 44......................................... 586 Art 45–48......................................... 587 Art 49, 50......................................... 588 Art 51, 52......................................... 590 Annex............................................... 591 Regulation 2019/515 on the mutual recognition of goods lawfully marketed in another Member State and repealing Regulation (EC) No 764/2008 [2019] OJ L 91/1 Art 2.................................................124 Regulation 2019/881 on ENISA (the European Union Agency for Cybersecurity) and on information and communications technology cybersecurity certification and repealing Regulation (EU) No 526/2013 (Cybersecurity Act) [2019] OJ L 151/15...................195, 596 Recital 1–3....................................... 596 Recital 4–8....................................... 597 Recital 9–14..................................... 598 Recital 15, 16................................... 599 Recital 17–21................................... 600 Recital 22–27................................... 601 Recital 28–31................................... 602 Recital 32–35................................... 603 Recital 36–40................................... 604 Recital 41–46................................... 605 Recital 47–52................................... 606 Recital 53–59................................... 607 Recital 60–63................................... 608 Recital 64–66................................... 609 Recital 67–72................................... 610 Recital 73–76................................... 611 Recital 77–81................................... 612 Recital 82–84................................... 613 Recital 85–88................................... 614 Recital 89–93................................... 615 Recital 94–97................................... 616 Recital 98–102................................. 617 Recital 103–106............................... 618 Recital 107–110............................... 619 Art 1................................................. 619

Regulation 2019/881 on ENISA (the European Union Agency for Cybersecurity) and on information and communications technology cybersecurity certification and repealing Regulation (EU) No 526/2013 (Cybersecurity Act) [2019] OJ L 151/15 – contd Art 2................................................. Art 3, 4............................................. Art 5................................................. Art 6................................................. Art 7................................................. Art 8, 9............................................. Art 10–12......................................... Art 13–15......................................... Art 16–18......................................... Art 19............................................... Art 20c............................................. Art 21............................................... Art 22, 23......................................... Art 24............................................... Art 25–27......................................... Art 28, 29......................................... Art 30, 31......................................... Art 32, 33......................................... Art 34–36......................................... Art 37–39......................................... Art 40–43......................................... Art 44–47......................................... Art 48, 49......................................... Art 50, 51......................................... Art 52............................................... Art 53c, 54....................................... Art 55, 56......................................... Art 57, 58......................................... Art 59............................................... Art 60............................................... Art 61, 62......................................... Art 63, 64......................................... Art 65–67......................................... Art 68, 69......................................... Annex...............................................

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620 621 622 623 624 626 627 628 630 631 632 633 634 635 636 637 638 639 640 641 642 643 644 645 646 647 649 651 653 654 655 656 657 658 658

Commission Regulations Regulation 2012/1203 on the separate sale of regulated retail roaming services within the Union [2012] OJ L 347/1........................533 Regulation 2013/305 supplementing Directive 2010/40/EU of the European Parliament and of the Council with regard to the harmonised provision for an interoperable EU–wide eCall [2013] OJ L 91/1..........................10, 488 Recital 1–6....................................... 488

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Regulation 2013/305 supplementing Directive 2010/40/EU of the European Parliament and of the Council with regard to the harmonised provision for an interoperable EU–wide eCall [2013] OJ L 91/1 – contd Recital 7–13..................................... 489 Art 1................................................. 489 Art 2................................................. 490 Art 2(a).............................................11 Art 3................................................. 491 Art 4................................................. 491 Art 5–8............................................. 492 Art 9................................................. 493 Regulation 2013/1271 on the framework financial regulation for the bodies referred to in Article  208 of Regulation (EU, Euratom) No  966/2012 of the European Parliament and of the Council[2013] OJ L 328/42....... 560, 635 Regulation 2016/2286 laying down detailed rules on the application of fair use policy and on the methodology for assessing the sustainability of the abolition of retail roaming surcharges and on the application to be submitted by a roaming provider for the purposes of that assessment....90, 365, 534 Recital 1–4....................................... 534 Recital 5–10..................................... 535 Recital 11–13................................... 536 Recital 14, 15................................... 537 Recital 16–18................................... 538 Recital 19–23................................... 539 Recital 24–28................................... 540 Recital 29–34................................... 541 Recital 35–40................................... 542 Art 1, 2............................................. 542 Art 3, 4............................................. 544 Art 5................................................. 546 Art 6................................................. 547 Art 7................................................. 548 Art 8, 9............................................. 549 Art 10............................................... 550 Art 11–13......................................... 551 Annex I............................................. 551 Annex II........................................... 552 Regulation 2019/305 amending the Annexes to Regulation (EC) No  1059/2003 of the European Parliament and of the Council on the establishment of a common classification of territorial units for statistics (NUTS) [2019] OJ L 270/1.10

Regulation 2019/320 supplementing of Directive 2014/53/EU of the European Parliament and of the Council with regard to the application of the essential requirements referred to in Article 3(3)(g) of that Directive in order to ensure caller location in emergency communications from mobile devices [2019] OJ L 55/1. 593 Recital 1–5....................................... 593 Recital 6–13..................................... 594 Recital 14, 15................................... 595 Art 1, 2............................................. 595 Art 3(3)(g)........................................384 Regulation 2019/2243 establishing a template for the contract summary to be used by providers of publicly available electronic communications services pursuant to Directive (EU) 2018/1972 of the European Parliament and of the Council [2019] OJ L 336/274............. 94, 95, 330, 337, 338, 378, 662 Recital 1–4....................................... 662 Recital 5–11..................................... 663 Recital 12–17................................... 664 Recital 18–20................................... 665 Art 1–3............................................. 665 Annex............................................... 666 Regulation 2020/1070 on specifying the characteristics of small-area wireless access points pursuant to Article  57 paragraph  2 of Directive (EU) 2018/1972 of the European Parliament and the Council establishing the European Electronic Communications Code [2020] OJ L 234/11..........230, 669 Recital 1–5....................................... 669 Recital 6–11..................................... 670 Recital 12–18................................... 671 Art 1................................................. 671 Art 2–4............................................. 672 Annex............................................... 673 Regulation 2021/654 supplementing Directive (EU) 2018/1972 of the European Parliament and of the Council by setting a single maximum Union-wide mobile voice termination rate and a single maximum Union-wide fixed voice termination rate [2021] OJ L 321/36................... 268, 681 Recital 1–6....................................... 681 Recital 7–11..................................... 682



Table of Regulations

Regulation 2021/654 supplementing Directive (EU) 2018/1972 of the European Parliament and of the Council by setting a single maximum Union-wide mobile voice termination rate and a single maximum Union-wide fixed voice termination rate [2021] OJ L 321/36 – contd Recital 12–14................................... Recital 15–22................................... Recital 23–27................................... Art 1, 2.............................................

683 684 685 686

Regulation 2021/654 supplementing Directive (EU) 2018/1972 of the European Parliament and of the Council by setting a single maximum Union-wide mobile voice termination rate and a single maximum Union-wide fixed voice termination rate [2021] OJ L 321/36 – contd Art 3, 4............................................. Art 5................................................. Art 6................................................. Annex...............................................

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687 688 689 689

Table of Directives [All references are to page number, those in bold indicate where material is set out in part or in full] Directives Directive 77/388 on the harmonisation of the laws of the Member States relating to turnover taxes Common system of value added tax: uniform basis of assessment [1977] OJ L145/1......................... 198 Art 4(1), (2)...................................... 198 Directive 90/387 on the establishment of the internal market for telecommunications services through the implementation of open network provision [1990] OJ L192/1..................................... 125 Art 2(2)............................................. 138 Directive 90/388 on competition in the markets for telecommunications services [1990] OJ L192/10......... 125 Art 3c............................................... 123 Directive 93/13 on unfair terms in consumer contracts [1993] OJ L 95/29........................................ 332, 662 Art 21............................................... 92 Annex............................................... 332 Directive 95/46 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L 281/31...... 51, 497, 519, 542 Art 23(1)........................................... 321 28(1)........................................... 16 Directive 97/13 on a common framework for general authorizations and individual licences in the field of telecommunications services [1997] OJ L 117/15 Recital 5........................................... 138 Art 1(1)............................................. 138 7(2)............................................. 138 9(2)............................................. 213 11.............................................. 159, 413 (1).......................................... 159, 413 (2).......................................... 213, 311 Annex.............................................. 156, 157

Directive 97/33 on interconnection in Telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP) [1997] OJ L 199/32...................... 412 Recital 5........................................... 138 Directive 97/51 for the purpose of adaptation to a competitive environ­ ment in telecommunications [1997] OJ L 295/23......................... 138 Directive 1998/10 on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment [1998] OJ L 101/24...................... 412 Art 16............................................... 412 17............................................... 412 18(1), (2).................................... 412 Directive 98/34 laying down a procedure for the provision of information in the field of technical standards and regulations [1998] OJ L 204/37... 48 Art 1(2)............................................. 48 Directive 98/48 laying down a procedure for the provision of information in the field of technical standards and regulations [1998] OJ L 217/18... 48 Directive 99/5 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity [1999] OJ L 91/10....................... 160, 194 Art 6(1)............................................. 123 7(1), (2)...................................... 123 8................................................. 160 (1)............................................. 123 Directive 2000/31 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market [2000] (OJ L 178/1.... 48, 53, 54, 328, 691

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Directive 2000/31 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market [2000] (OJ L 178/1 – contd Recital 1–6.......................................  692 7–11.....................................  693 12–14...................................  694 15–18...................................  695 19–24...................................  696 25–30...................................  697 31–39...................................  698 40–46...................................  699 47.................................... 54, 54, 700 48–55...................................  700 56–65...................................  701 Art 1.................................................  702 2.................................................  703 (a)............................................. 53 (h)............................................. 154 3.................................................  704 4................................................ 155, 705 5................................................ 155, 705 6–8.............................................  706 9, 10...........................................  707 11...............................................  708 12............................. 48, 53, 54, 97, 228, 417, 708 (1)...........................................  48, 49 (3)........................................... 49 13............................ 49, 53, 54, 417, 709 14............................ 50, 53, 54, 417, 709 (1)........................................... 50 15.......................... 50, 98, 228, 417, 710 16, 17.........................................  710 18–20.........................................  711 21–24.........................................  712 Annex...............................................  712 Directive 2001/29 on the harmonisation of certain aspects of copyright and related rights in the information society [2001] OJ L 167/10.................................... 49, 50, 51 Directive 2002/19 on access to, and interconnection of, electronic communications networks and associated facilities [2002] OJ L 108/7.........................................  1, 675 Recital 5, 6, 8, 19............................. 233 20......................................... 266 Art 1(1), (2)...................................... 120 2(a)............................................ 132, 253 (b)............................................ 132, 265 (c), (e)...................................... 132 3................................................. 233 4................................................. 233 Art 4(1)............................................. 233

Directive 2002/19 on access to, and interconnection of, electronic communications networks and associated facilities [2002] OJ L 108/7 – contd Art 5........................................ 233, 238, 269 (1)............................................. 313 6................................................. 244 7................................................. 411 (1)............................................. 412 8................................ 183, 233, 253, 266 (1)............................................. 254 (2).................................... 254, 265, 266 (3)............................................ 254, 313 (4)............................................ 251, 266 9................................................. 258 10............................................... 260 11............................................... 261 12.............................................. 253, 263 13..................... 183, 254, 264, 266, 313 (1)................  251, 254, 265, 266, 267 (2).......................................... 251, 266 (3).................................. 251, 266, 267 13a............................................ 277, 278 13b............................................ 277, 278 15............................................... 408 16(2)........................................... 408 20............................................... 413 Annex I............................................. 418 Directive 2002/20 on the authorisation of electronic communications networks and services [2002] OJ L 108/21.......................................  1, 153 Art 1................................................. 120 2(2)............................................. 132 3........................................ 152, 153, 206 (1)............................................. 152 (2), (3)..................................... 135, 152 5................................................. 206 (1)............................................ 208, 214 (2)............................ 212, 213, 214, 215 (3)............................................ 212, 213 (4), (5)...................................... 305 (6).................................... 183, 221, 222 6................................................. 199 (1)–(4)...................................... 156 7................................................ 206, 226 (1)............................................ 214, 215 (3).................................... 214, 226, 227 (a)........................................ 265 8................................................. 190 (2)............................................. 254 9................................................ 157, 254 10.............................................. 181, 254 Art 11...................................... 159, 167, 254 12............................. 152, 158, 159, 160, 198, 199, 254



Table of Directives

Directive 2002/20 on the authorisation of electronic communications networks and services [2002] OJ L 108/21 – contd Art 12(1)(a)...................................... 159 13............................. 159, 160, 197, 198, 199, 213, 254, 311 14(1)........................................... 162 (2)........................................... 163 15............................................... 408 20............................................... 413 Directive 2002/21 on a common regulatory framework for electronic communications networks and services [2002] OJ L 108/33................. 1, 500, 511, 551, 188 Recital 15......................................... 251 27......................................... 251 Art 1(1)–(5)...................................... 120 2(a), (b)...................................... 132 (c)..................  132, 133, 134, 135, 136 (d)............................................. 132 (e)............................................. 132 (ea).......................................... 132, 134 (f)............................................ 132, 134 (g)............................................. 132 (h)............................................. 132 (i)............................................. 132 (m).......................................... 132, 140 (n)–(s)...................................... 132 3(1)............................................. 146 (2)............................................ 146, 148 (3)............................................. 148 (3a).......................................... 149, 150 (3b)........................................... 150 (3c)........................................... 150 (4)............................................. 146 (5)............................................ 146, 150 (6)............................................. 146 4................................................ 182, 183 (1)............................................ 182, 183 5................................................. 165 6........................................ 174, 313, 314 7................................ 186, 266, 313, 314 (3).................................... 186, 187, 265 7a.............................................. 188, 313 8........................183, 184, 267, 313, 314 (1)............................................ 142, 253 (2)............................................ 142, 206 (a), (b)................................. 251 (3)............................................ 142, 206 Art 8(4)............................................ 142, 206 (5)............................................. 142 8a(1), (3).................................... 145 9................................................. 206 (1)................... 160, 205, 214, 226, 227 (3), (4)..................................... 205, 210

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Directive 2002/21 on a common regulatory framework for electronic communications networks and services [2002] OJ L 108/33 – contd Art 9b............................................... 183 (1)–(3).................................... 220 10(1).......................................... 146, 305 (2)–(4).................................... 305 11............................................... 200 12(1)........................................... 201 (3)........................................... 238 (5)........................................... 201 13............................................... 161 13a(1)–(3).................................. 195 13b(1)–(4).................................. 196 14............................................... 244 15.............................................. 250, 296 (1)–(3).................................... 245 16.............................. 182, 250, 254, 296 (3)........................................... 182 (4).................................. 251, 265, 266 17.............................................. 193, 396 18............................................... 398 19............................................... 192 20...................................... 177, 186, 238 21(1), (2), (4)............................. 178 21a............................................. 180 22(1)–(3).................................... 405 23............................................... 407 24............................................... 408 25............................................... 409 26.............................................. 411, 413 27............................................... 411 28(1).......................................... 411, 413 29............................................... 413 30............................................... 413 Directive 2002/22 on universal service and users’ rights relating to electronic communications networks and services [2002] OJ L 108/51............... 1, 287, 296, 341, 500, 512, 539, 593 Art 1................................................. 120 (1)............................................. 127 (4)............................................. 341 2(c).............................................  7, 132 (d), (f)....................................... 132 3................................................. 295 4................................................. 295 Art 5................................................ 295, 394 6................................................. 295 7................................................. 295 8(1)–(3)...................................... 295 9................................................. 293 (2)............................................. 295 Art 10............................................... 296

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Directive 2002/22 on universal service and users’ rights relating to electronic communications networks and services [2002] OJ L 108/51 – contd Art 11.............................................. 289, 446 12.............................................. 298, 299 (1)........................................... 298 13.............................................. 299, 300 (1).......................................... 293, 298 14............................................... 302 15............................................... 409 16.............................................. 411, 412 (1)........................................... 412 17............................................... 296 20............................................... 260 (1).......................................... 325, 340 (2)........................................... 362 21............................................... 345 22...................................... 348, 355, 358 (2)........................................... 360 23............................................... 381 23a............................................. 392 (2)......................................... 110 24............................................... 395 25............................................... 393 (2).......................................... 393, 394 (3)........................................... 394 26............................................... 382 (5).................................. 384, 385, 387 27a............................................. 312 28..................... 186, 238, 254, 312, 313 (2).......................................... 314, 315 29............................................... 401 30(1)–(4).................................... 374 (5)........................................... 362 31............................................... 399 (1).......................................... 399, 400 32...................................... 293, 293, 302 33............................................... 175 34............................................... 176 35............................................... 401 36(1)........................................... 408 40............................................... 413 Annex I............................................. 421 II........................................... 424 III.......................................... 432 IV.......................................... 423 VI.......................................... 433 Directive 2002/58 concerning the processing of personal data and the protection of privacy in the electronic communications sector [2002] OJ L 201/37.......... 2, 50, 497, 519, 538, 599, 714 Recital 1–4.......................................  714 Recital 5–11.....................................  715

Directive 2002/58 concerning the processing of personal data and the protection of privacy in the electronic communications sector [2002] OJ L 201/37 – contd Recital 12–19...................................  716 20–23...................................  717 24–27...................................  718 28–34...................................  719 35–38...................................  720 39–45...................................  721 46–49...................................  722 Art 1.................................................  722 (3)............................................. 318 2.................................................  723 3........................................ 318, 416, 724 4................................ 196, 416, 417, 724 5................................................ 416, 725 6................................................ 416, 726 7................................ 114, 416, 423, 726 8........................................ 416, 423, 727 9................................ 106, 416, 423, 727 10..................... 106, 114, 416, 423, 728 11.............................................. 416, 728 12.............................. 393, 416, 431, 728 13.............................................. 416, 729 14.............................................. 416, 729 14a............................................ 416, 730 15...................................... 196, 416, 730 (1)................  318, 319, 320, 321, 416 15a............................................ 416, 731 16–18.........................................  732 19.............................................. 411, 732 20, 21.........................................  733 Annex............................................... 416 Directive 2002/92 on insurance mediation [2002] OJ L9/3............ 329 Directive 2003/98 on the re-use of public sector information [2003] OJ L 345/90.................................. 22, 169 Recital 9........................................... 169 Art 3(1)............................................. 169 Directive 2004/48 on the enforcement of intellectual property rights [2004] OJ L157/45.................... 49, 50, 51 Directive 2005/29 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/ EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council [2005] OJ L 149/22......297, 331, 341, 662 Art 2................................................. 327



Table of Directives

Directive 2005/29 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/ EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council [2005] OJ L 149/22 – contd Art 3(4)............................................. 147 5(1)............................................. 329 Annex I............................................ 147, 340 Directive 2006/24 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/ EC [2006] OJ L 105/54............... 318, 542 Art 5................................................. 318 6................................................. 318 Directive 2006/43 on statutory audits of annual accounts and consolidated accounts, amending Council Directives 78/660/EEC and 83/349/EEC and repealing Council Directive 84/253/EEC (Text with EEA relevance) [2006] OJ L 157/87.161 Directive.2006/112 on the common system of value added tax............ 198 Art 9(1)............................................. 198 Directive 2006/123 on services in the internal market [2006] OJ L 376/36... 316, 328 Directive 2007/46 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (Framework Directive) [2007] OJ L 263/1....... 494 Directive 2009/136 amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services, 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 cooperation between national authorities responsible for the enforcement of consumer protection laws [2009] OJ L 337/11..................................... 539

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Directive 2009/136 amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services, 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 cooperation between national authorities responsible for the enforcement of consumer protection laws [2009] OJ L 337/11 – contd Art 4(2)............................................. 287 Directive 2010/13 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) [2010] OJ L 95/1.... 4, 557, 749 Recital 1–5.......................................  749 6–12.....................................  750 13–17...................................  751 18–23...................................  752 24–31...................................  753 32–40...................................  754 41–44...................................  755 45–48...................................  756 49–55...................................  757 56–60...................................  758 61–66...................................  759 67–76...................................  760 77–82...................................  761 83–90...................................  762 91–96...................................  763 97–104.................................  764 Art 1.................................................  765 2.................................................  767 3.................................................  769 4.................................................  771 4a...............................................  772 5.................................................  773 6, 6a.......................................... 417, 773 7–7b...........................................  774 8.................................................  775 9................................................ 417, 775 10, 11........................................ 417, 776 13...............................................  777 14...............................................  778 15, 16.........................................  779 17–20.........................................  780 21...............................................  781 22.............................................. 417, 781 23–26.........................................  781

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Directive 2010/13 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) [2010] OJ L 95/1 – contd Art 28, 28a.......................................  782 28b............................................ 417, 783 29...............................................  786 30...............................................  787 30a, 30b, 31...............................  788 32–36.........................................  789 Annex I.............................................  789 II...........................................  790 Directive 2011/83 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC [2016] OJ L 119/1........ 92, 331, 343, 662, 380 Art 2(10)........................................... 94, 328 5................................... 92, 93, 326, 329, 330, 341 (1)............................................. 328 6................................... 92, 93, 328, 329, 330, 341 8(7)............................................. 329 9................................................ 329, 365 10–16......................................... 365 18(2)........................................... 379 Directive 2012/19 on waste electrical and electronic equipment (WEEE) [2012] OJ L 197/38...................... 395, 792 Recital 1–4.......................................  792 5–8.......................................  793 9–14.....................................  794 15–18...................................  795 19–23...................................  796 24–31...................................  797 32–36...................................  798 Art 1.................................................  798 2.................................................  799 3.................................................  800 4.................................................  802 5.................................................  802 (2)............................................. 395 6, 7.............................................  803 8.................................................  805 9–11...........................................  806 12...............................................  807 13, 14.........................................  808 15, 16.........................................  809 16a.............................................  810 17–20.........................................  811

Directive 2012/19 on waste electrical and electronic equipment (WEEE) [2012] OJ L 197/38 – contd Art 21–23.........................................  812 24...............................................  813 25–27.........................................  814 Annex I, II........................................  814 III, IV....................................  817 V...........................................  818 VI..........................................  819 VII.........................................  821 VIII.......................................  822 IX, X.....................................  823 XI, XII..................................  824 Directive 2013/11 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR) [2013] OJ L 16563....................... 24 Art 13(1), (2).................................... 176 20(1), (2).................................... 176 Directive 2013/34 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC [2013] OJ L 182/19...................... 316 Directive 2014/24 on public procurement and repealing Directive 2004/18/EC [2014] OJ L 94/65......................................... 615 Directive 2014/30 on the harmonisation of the laws of the Member States relating to electromagnetic compatibility [2014] OJ L 96/79... 32, 417, 827 Recital 1–5.......................................  827 6–15.....................................  828 16–25...................................  829 26–32...................................  830 33–42...................................  831 43–51...................................  832 52–59...................................  833 Art 1, 2.............................................  834 3.................................................  835 4.................................................  836 5–7.............................................  837 8.................................................  838 9.................................................  839 10–12.........................................  840 13–17.........................................  841



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Directive 2014/30 on the harmonisation of the laws of the Member States relating to electromagnetic compatibility [2014] OJ L 96/79 – contd Art 18, 19.........................................  842 20–23.........................................  843 24...............................................  844 25–28.........................................  846 29–31.........................................  847 32–34.........................................  848 35–38.........................................  849 39...............................................  850 40–42.........................................  851 43–47.........................................  852 Annex I.............................................  852 II...........................................  853 III..........................................  854 IV..........................................  856 V, VI......................................  857 Directive 2014/35 on the harmonisation of the laws of the Member States relating to the making available on the market of electrical equipment designed for use within certain voltage limits [2014] OJ L 96/357............ 32, 859 Recital 1–5.......................................  859 6–14.....................................  860 15–23...................................  861 24–32...................................  862 33–39...................................  863 Art 1.................................................  863 2, 3.............................................  864 4–6.............................................  865 7.................................................  866 8.................................................  867 9–11...........................................  868 12–15.........................................  869 16–19.........................................  870 20, 21.........................................  872 22, 23.........................................  873 24–29.........................................  874 Annex I, II........................................  875 III..........................................  876 IV, V......................................  877 VI..........................................  878 Directive 2014/45 on periodic roadworthiness tests for motor vehicles and their trailers and repealing Directive 2009/40/EC [2014] OJ L 127/51..... 497 Directive 2014/53 on the harmonisation of the laws of the Member States relating to the making available on the market of radio equipment and repealing Directive 1999/5/ EC [2014] OJ L 153/62.......... 4, 209, 396, 669, 879

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Directive 2014/53 on the harmonisation of the laws of the Member States relating to the making available on the market of radio equipment and repealing Directive 1999/5/ EC [2014] OJ L 153/62 – contd Recital 1–4.......................................  879 5–11.....................................  880 12–19...................................  881 20–24...................................  882 25–32...................................  883 33–40...................................  884 41–47...................................  885 48–56...................................  886 57–63...................................  887 64–73...................................  888 74, 75...................................  889 Art 1................................................. 5, 889 2................................................. 5, 889 (1), (18).................................... 194 3...............................................194, 230, 891 (2)............................................. 396 4................................................. 5, 892 5.................................................  892 6................................................ 123, 893 7............................... 6, 54, 55, 123, 209, 417, 893 8................................................ 194, 893 9........................................ 123, 160, 893 10...............................................  894 11...............................................  895 12...............................................  896 13...............................................  897 14...............................................  898 15...............................................  898 16.............................................. 194, 898 17...............................................  898 18–20.........................................  899 21–23.........................................  900 24–26.........................................  901 27, 28.........................................  903 29, 30.........................................  904 31–34.........................................  905 35–37.........................................  906 38–40.........................................  907 41...............................................  908 42, 43.........................................  909 44, 45.........................................  910 46, 47.........................................  911 48–52.........................................  912 Annex I.............................................  912 II...........................................  913 III..........................................  914 IV..........................................  916 V, VI......................................  919 VII, VIII................................  920

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Directive 2014/61 on measures to reduce the cost of deploying highspeed electronic communications networks [2014] OJ L 155/1.. 16, 58, 133, 165, 671, 922 Recital 1–4.......................................  922 5–10.....................................  923 11, 12...................................  924 13.................................. 55, 230, 924 14.........................................  924 15–17...................................  925 18–20...................................  926 21, 22.................................. 165, 927 23, 24...................................  927 25.........................................  928 26........................................ 165, 928 27.........................................  928 28–31...................................  929 32–36...................................  930 37........................................ 165, 930 38, 39...................................  931 Art 1, 2.............................................  931 3................................. 36, 55, 58, 65, 69, 74, 230, 933 4................................. 36, 55, 58, 65, 69, 74, 230, 934 (2)-(4)....................................... 165 5................................ 36, 65, 69, 74, 935 6................................ 36, 65, 69, 74, 936 (2), (3)...................................... 165 7............................... 36, 65, 69, 74, 230, 937 (1), (2)...................................... 165 8................................ 36, 65, 69, 74, 938 9................................. 36, 58, 65, 69, 74, 938 10...............................................  939 (4)........................................... 165 11–15.........................................  940 Directive 2015/1535 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services [2015] OJ L 241/1.......... 5, 154, 398, 616, 941 Recital 1–6.......................................  941 7–17.....................................  942 18, 19...................................  943 Art 1................................................ 154, 943 (b)............................................. 5 2, 3............................................ 945, 194 4.................................................  946 5.............................. 29, 38, 70, 232, 946 6.............................. 29, 38, 70, 232, 948 7.............................. 29, 38, 70, 232, 949 8–12...........................................  950

Directive 2015/1535 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services [2015] OJ L 241/1 – contd Annex I............................................. 5, 950 II...........................................  951 III, IV....................................  952 Directive 2016/1148 concerning measures for a high common level of security of network and information systems across the Union [2016] OJ L 194/1...... 34, 599, 956 Recital 1–4.......................................  956 5–9.......................................  957 10–13...................................  958 14–18...................................  959 19–23...................................  960 24–29...................................  961 30–35...................................  962 36–40...................................  963 41–47...................................  964 48–53...................................  965 54–60...................................  966 61–66...................................  967 67–72...................................  968 73–75...................................  969 Art 1.................................................  969 2.................................................  970 3, 4.............................................  971 5.................................................  972 6.................................................  973 7.................................................  974 8.................................................  974 (1)............................................. 196 9, 10...........................................  975 11...............................................  976 12...............................................  977 13, 14.........................................  978 15...............................................  979 16...............................................  980 17...............................................  981 18–20.........................................  982 21–24.........................................  983 25–27.........................................  984 Annex I.............................................  984 (2)........................................ 196 II.......................................... 196, 985 III......................................... 196, 988 Directive 2018/1972 establishing the European Electronic Communications Code (EECC) [2018] OJ L321/36... 1, 95, 133, 238, 246, 518, 554, 599, 674 Recital 1.............................. 1, 120, 411, 445 2, 3.......................................  2, 120



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Directive 2018/1972 establishing the European Electronic Communications Code (EECC) [2018] OJ L321/36 – contd Recital 4...................................... 2, 411, 445 5.............................. 3, 120, 152, 317 6...................................... 3, 120, 317 7.............................. 4, 120, 132, 175 8.............................. 4, 120, 193, 230 9............................. 4, 120, 142, 175, 293, 392, 399 10............................ 5, 132, 154, 311 11.........................................  5, 132 12............................ 5, 132, 142, 144 13............................ 6, 132, 283, 284 14............................ 6, 132, 152, 338 15.........................................  7, 132 16.........................................  8, 132 17.................................... 9, 132, 137 18......................................... 10, 132 19.................................. 10, 132, 237 20......................................... 10, 132 21.......................... 11, 142, 144, 150 22, 23................................... 11, 142 24.......................... 11, 142, 173, 283 25–29................................... 12, 142 30.......................... 13, 142, 144, 205 31.................................. 13, 144, 251 32.......................... 13, 144, 177, 197 33.......................... 14, 144, 193, 205 34.................................. 14, 148, 149 35......................... 14, 127, 146, 148, 149, 150 36.................................. 15, 120, 146 37......................... 15, 148, 149, 150, 300, 356 38......................................... 15, 149 39......................................... 16, 149 40......................................... 16, 146 41......................... 17, 152, 153, 205, 208 42, 43............................ 17, 152, 153 44......................................... 153 45, 46................................... 18, 156 47.................................. 18, 156, 416 48.......................... 18, 152, 156, 158 49......................................... 18, 158 50.................................. 18, 142, 156 51......................................... 19, 156 52......................................... 19, 157 53, 54................................... 19, 158 55......................................... 20, 162 56.................................. 20, 162, 163 57.................................. 20, 165, 166 58.......................... 21, 161, 165, 167 59......................................... 21, 167 60......................................... 21, 165

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Directive 2018/1972 establishing the European Electronic Communications Code (EECC) [2018] OJ L321/36 – contd Recital 61.................................. 21, 150, 165 62......................... 22, 150, 169, 172, 283 63......................... 23, 169, 172, 173, 283 64.......................... 23, 169, 172, 180 65......................................... 23, 169 66.................................. 24, 174, 186 67......................................... 24, 175 68......................... 24, 176, 287, 293, 296, 315, 316, 330, 362, 379 69......................................... 26, 177 70......................................... 26, 178 71.................................. 26, 150, 178 72.................................. 27, 179, 405 73.................................. 27, 144, 179 74.................................. 28, 180, 181 75......................................... 28, 156 76–78................................... 28, 182 79......................................... 29, 186 80.................................. 29, 186, 282 81–83............................ 29, 186, 188 84......................................... 30, 189 85......................... 30, 150, 186, 188, 300 86.......................... 30, 150, 186, 188 87.................................. 31, 186, 188 88.......................... 31, 186, 190, 297 89.......................... 31, 186, 190, 300 90.......................... 31, 186, 191, 300 91......................................... 32, 192 92......................................... 32, 193 93......................................... 32, 193 94......................................... 32, 196 95–97................................... 33, 196 98......................................... 33, 196 99.................................. 34, 197, 311 100....................... 34, 144, 190, 197, 200, 231, 305, 310 101, 102............................... 35, 197 103, 104............................... 35, 200 105........................ 36, 201, 280, 370 106....................... 36, 201, 205, 207, 280 107................................ 37, 205, 280 108, 109............................... 37, 205 110................................ 38, 205, 232 111................................ 38, 193, 205 112–115............................... 39, 205 116................................ 40, 174, 205 117....................................... 40, 205 118........................ 40, 179, 205, 208

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Directive 2018/1972 establishing the European Electronic Communications Code (EECC) [2018] OJ L321/36 – contd Recital 119................................ 40, 205, 208 120....................................... 41, 208 121................................ 41, 208, 209 122................................ 41, 208, 209 123....................... 41, 190, 192, 205, 208 124................................ 42, 208, 209 125....................... 42, 156, 167, 205, 212, 226 126....................................... 42, 212 127................................ 43, 212, 217 128....................................... 44, 217 129–131............................... 44, 218 132....................................... 45, 220 133....................................... 45, 221 134....................................... 45, 224 135................................ 46, 224, 410 136....................................... 47, 226 137....................................... 47, 228 138.................................. 48, 98, 228 139....................... 54, 230, 231, 232, 232 140....................................... 55, 230 141, 142............................... 55, 233 143....................................... 56, 233 144, 145............................... 56, 237 146....................................... 57, 237 147................................ 57, 233, 237 148................................ 57, 193, 237 149, 150............................... 57, 237 151–152............................... 58, 237 153....................................... 58, 418 154, 155............................... 59, 237 156–158............................... 60, 237 159........................ 61, 237, 244, 418 160....................................... 61, 244 161, 162............................... 61, 244 163................................ 62, 244, 250 164................................ 62, 244, 245 165................................ 62, 245, 250 166....................................... 63, 247 167................................ 63, 150, 248 168....................................... 64, 250 169....................................... 64, 250 170................................ 64, 250, 253 171....................................... 64, 250 172....................................... 65, 250 173........................ 65, 142, 250, 253 174, 175............................... 66, 250 176........................ 66, 186, 192, 250 177....................................... 66, 250 178....................................... 67, 253 179................................ 67, 245, 253

Directive 2018/1972 establishing the European Electronic Communications Code (EECC) [2018] OJ L321/36 – contd Recital 180....................................... 67, 264 181....................................... 67, 271 182....................................... 68, 258 183................................ 68, 150, 258 184....................................... 68, 260 185....................................... 68, 260 186....................................... 69, 261 187....................................... 69, 261 188....................................... 69, 263 189–191............................... 70, 263 192, 193............................... 71, 264 194................................ 71, 264, 286 195....................................... 72, 268 196................................ 72, 268, 418 197................................ 72, 268, 418 198....................................... 72, 271 199................................ 73, 271, 420 200........................ 73, 271, 274, 420 201................................ 74, 188, 271 202....................................... 74, 277 203....................................... 75, 277 204................................ 75, 278, 291 205, 206............................... 75, 278 207, 208...............................  76 209....................................... 76, 283 210–212........................ 77, 287, 293 213....................................... 78, 287 214................................ 78, 287, 293 215........................ 78, 150, 287, 421 216................................ 79, 287, 296 217........................ 79, 287, 293, 296 218–220............................... 79, 293 221................................ 80, 293, 295 222........................ 80, 293, 295, 423 223....................................... 80, 293 224................................ 80, 293, 298 225–227............................... 81, 293 228................................ 81, 293, 295 229................................ 81, 295, 300 230................................ 82, 291, 295 231–233............................... 82, 295 234....................................... 83, 295 235................................ 83, 295, 296 236........................ 83, 295, 297, 423 237................................ 84, 296, 423 238....................... 84, 298, 300, 423, 424 239........................ 84, 298, 300, 423 240....................... 86, 298, 300, 301, 423, 424 241........................ 86, 298, 423, 424 242................................ 86, 300, 423 Recital 243............... 87, 300, 301, 423, 424



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Directive 2018/1972 establishing the European Electronic Communications Code (EECC) [2018] OJ L321/36 – contd Recital 244................................ 87, 301, 423 245........................ 87, 290, 302, 423 246........................ 88, 305, 310, 423 247....................... 88, 305, 310, 416, 423 248....................... 88, 180, 305, 310, 312, 423 249........................ 88, 305, 308, 423 250................................ 89, 305, 423 251........................ 89, 305, 310, 423 252, 253........................ 89, 311, 423 254................................ 90, 312, 423 255................................ 90, 315, 423 256................................ 90, 316, 423 257................................ 91, 322, 423 258........................ 92, 325, 423, 427 259....................... 93, 325, 330, 362, 379, 423 260........................ 94, 325, 423, 427 261................................ 94, 325, 423 262........................ 95, 325, 423, 427 263....................... 95, 325, 345, 362, 423, 427, 432 264....................... 95, 325, 345, 423, 427 265....................... 95, 345, 345, 346, 423, 432 266....................... 96, 325, 345, 423, 432 267, 268............... 96, 325, 345, 345, 423 269........................ 97, 175, 345, 423 270....................... 97, 175, 345, 416, 423 271....................... 98, 348, 355, 356, 423 272....................... 98, 150, 348, 423, 433 273....................... 99, 362, 365, 370, 423 274........................ 99, 362, 367, 423 275................................ 99, 362, 423 276...................... 100, 362, 363, 423 277.............................. 100, 374, 423 278...................... 100, 374, 376, 423 279, 280.............................. 100, 374 281.............................. 101, 374, 377 282...................... 101, 359, 374, 378 283..................... 101, 363, 366, 379, 380 Recital 284..................... 102, 382, 427, 432, 433 285.............................. 102, 140, 382

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Directive 2018/1972 establishing the European Electronic Communications Code (EECC) [2018] OJ L321/36 – contd Recital 286..................... 103, 193, 382, 427, 432 287...................................... 103, 382 288–290.............................. 104, 382 291, 292.............................. 105, 382 293...................................... 105, 388 294...................... 105, 388, 390, 391 295.............................. 106, 150, 388 296.............................. 106, 317, 392 297...................................... 109, 392 298.............................. 110, 293, 392 299, 300.............................. 110, 393 301...................................... 111, 393 302..................... 111, 393, 394, 397, 435 303...................... 111, 193, 395, 434 304..................... 111, 395, 396, 397, 435 305.............................. 112, 193, 395 306, 307.............................. 112, 395 308...................................... 112, 399 309, 310.............................. 113, 399 311.............................. 113, 401, 423 312...................................... 114, 408 313, 314...................... 114, 407, 408 315..................... 114, 268, 382, 401, 402 316..................... 115, 179, 192, 193, 196, 205, 230, 245, 247, 382, 405 317...................... 116, 189, 192, 245 318, 319...............................  116 320.............................. 117, 382, 410 321.............................. 117, 411, 445 322...................... 117, 408, 410, 411 323.............................. 117, 142, 410 324...................................... 118, 410 325...................................... 119, 410 326...................... 119, 410, 411, 445 Art 1.................................................  119 (1).............................................  3, 120 (2)............................................ 2, 5, 120 (b)........................................ 127 (3)............................................ 2, 4, 120 (d)........................................  4, 15 (4)–(6)...................................... 120 2................................................. 6, 128 (1).............................................  4, 132 (2) .............................. 6, 133, 136, 283, 285, 338 (3) ............................................ 132 (4)............................... 4, 5, 8, 132, 137, 139

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Directive 2018/1972 establishing the European Electronic Communications Code (EECC) [2018] OJ L321/36 – contd Art 2(5)...................................... 8, 9, 11, 137 (6)............................................. 8 (7).............................................  8, 56 (8).................................... 132, 139, 140 (9)...................................... 10, 132, 229 (10)........................................... 132 (11)........................................... 132 (12)........................................... 132 (13)........................................... 132 (14)........................................... 11, 132 (15)........................................... 132 (16)........................................... 132 (17)........................................... 132 (18)........................................... 132 (19)........................................... 132 (20)........................................... 40, 132 (22).......................................... 132, 210 (27)........................................... 132 (28)........................................... 132 (29)........................................... 132 (30)........................................... 132 (31)........................................... 132 (32)...........................................  7, 132 (33)........................................... 132 (34)........................................... 132 (35)........................................... 7 (36)........................................... 11 (37)........................................... 11, 387 (38)........................................... 11 (39)........................................... 11 (40)........................................... 140 (42)........................................... 140 3................................. 11, 117, 127, 141, 269, 273, 371 (1).............................................  6, 142 (2).................................. 6, 11, 142, 284 (b)........................................ 12 (d)........................................  5, 12 (c)....................................... 6, 12, 13 (3)............................................. 12, 142 (4)............................................. 66, 280 (c)........................................ 12 (d)........................................ 12, 280 (e)........................................ 19 (f).........................................  13, 66 4................................... 6, 11, 13, 14, 27, 144 (1), (2)...................................... 145 (3)............................................. 35 (4)............................................. 145 5.................................. 14, 127, 145, 148 (1)............................................. 146 (d)........................................ 127

Directive 2018/1972 establishing the European Electronic Communications Code (EECC) [2018] OJ L321/36 – contd Art 5(1)(e)........................................ 15 (f)......................................... 300 (3)............................................. 146 (4)............................................. 16, 146 6.................................... 14, 15, 147, 183 (1)............................................. 93, 148 (2)............................................. 148 7.................................... 15, 16, 148, 317 (2)............................................. 149 (3)............................................ 149, 327 8.............................. 14, 15, 16, 149, 317 (1)............................................. 149 (8)............................................. 327 9................................................. 15, 150 (1), (3)...................................... 150 10.......................................... 30, 98, 150 (1)........................................... 31, 150 (2)........................... 11, 22, 26, 64, 68, 78, 106, 150 11............................. 11, 14, 22, 30, 150, 317 (1)........................................... 327 12............................................... 17, 151 (1)................................ 3, 18, 152, 153 (2).................................... 17, 152, 153 (3)............................ 17, 152, 154, 155 (4)............................ 17, 152, 153, 155 13.............................. 18, 19, 28, 42, 156 (1).................................... 18, 209, 376 (2)............................ 19, 153, 231, 232 (3)........................................... 18 14............................................... 19, 157 (3)........................................... 327 15...............................................  157 (2)(a)...................................... 18 16................................. 19, 34, 158, 197, 198, 231, 232, 327, 341 (1)........................................... 19 17............................................... 21, 161 18................................ 20, 162, 221, 222 19............................... 20, 162, 163, 221, 222 20............................... 21, 163, 165, 261, 274, 301 (1)........................................... 21, 165 (3), (4).................................... 22 21........................................ 21, 166, 167 (1)........................................... 21 (c)...................................... 42 (2)........................................... 21 22................................ 22, 167, 171, 173 (1)........................................... 22, 173



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Directive 2018/1972 establishing the European Electronic Communications Code (EECC) [2018] OJ L321/36 – contd Art 22(2)............................ 23, 171, 172, 173 (3)............................. 23, 24, 171, 172, 173 (4).................................... 23, 171, 172 (5)...........................................  22, 23 (6)...........................................  22, 24 (7)........................................... 22 23.......................................... 24, 40, 174 (2)........................................... 174 24............................................... 24, 175 (1)........................................... 5 (3)...........................................  4, 97 25........................................ 25, 175, 176 26............................................... 26, 177 27............................................... 26, 177 (1)........................................... 178 (2)–(6).................................... 26, 178 28.......................................... 27, 40, 178 (4)........................................... 116 29............................ 23, 28, 88, 179, 180 (2)........................................... 172 30........................................ 28, 180, 181 31............................... 28, 181, 182, 220, 254, 268, 317 (3)........................................... 29 32........................... 30, 31, 66, 184, 186, 251, 281, 313 (1)........................................... 29 (2)........................................ 24, 29, 30 (3)........................................ 24, 29, 31 (4)...........................................  29, 31 (b)...................................... 186 (7)........................................... 29 (8)........................................... 29 (9)–(11).................................. 29 33............................ 29, 30, 31, 187, 188 (2)........................................... 31 (5)(c)...................................... 74 34........................................ 30, 116, 188 35........................................ 31, 174, 189 36.................................... 31, 35, 42, 190 37............................................... 32, 190 38........................... 32, 42, 66, 116, 191, 192 (1)........................................... 116 39........................... 32, 38, 57, 103, 111, 112, 116, 192, 193, 395, 396, 434 (2)........................................... 14 (8)........................................... 4 40...............................................  194 (1)........................................... 33, 196 (2)........................................... 196

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Directive 2018/1972 establishing the European Electronic Communications Code (EECC) [2018] OJ L321/36 – contd Art 40(3)........................................... 33, 196 (5)...................................... 33, 34, 116 41............................................... 34, 196 (1)–(3).................................... 196 (7)........................................... 196 42................................. 34, 35, 157, 160, 161, 197, 231 (1)........................................... 14 43.......................................... 35, 36, 200 44............................................... 36, 200 (1), (2).................................... 201 45........................... 14, 36, 42, 116, 153, 202, 208 (1).............................. 37, 42, 205, 215 (2)...................................... 37, 38, 205 (a)...................................... 38 (b)...................................... 13 (c)...................................... 219 (d)...................................... 40 (e)...................................... 40 (f)....................................... 17 (g)...................................... 215 (h)...................................... 38 (3)...........................................  39, 40 (4)........................ 37, 39, 40, 205, 210 (5)........................ 37, 39, 40, 205, 210 (6)................................ 37, 39, 40, 205 (7)........................................... 39 46............................ 40, 41, 42, 153, 207 (1).............................. 17, 41, 208, 210 47.............................. 208, 209, 211, 317 (1)........................................... 41, 211 (2).................................... 42, 210, 211 48............................... 44, 197, 206, 208, 212, 226 (1)............................ 42, 212, 214, 317 (2).................................... 42, 210, 212 (3)........................................... 212 (4)........................................... 43 (5)........................................... 212 (6)........................................... 212 49........................................ 44, 215, 217 (1)–(3).................................... 44, 217 50................................. 44, 45, 215, 217, 218 (1)...................................... 44, 45, 219 (2)...........................................  44, 45 (3)........................................... 45 (4)........................................... 44 51............................................... 45, 219 (1).......................................... 210, 220 (2)........................................... 220 (4)........................................... 220

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Directive 2018/1972 establishing the European Electronic Communications Code (EECC) [2018] OJ L321/36 – contd Art 52............................... 45, 211, 215, 220, 221, 222 (1).................................. 221, 222, 317 (2)........................................... 222 (a)...................................... 211 (c)...................................... 222 (d)...................................... 223 (e)...................................... 223 53........................................ 46, 223, 224 (2)–(4).................................... 224 54........................................ 47, 224, 225 55................................. 42, 47, 206, 225, 226 (2).......................................... 174, 217 56........................................ 48, 227, 430 (6)........................................... 48 57................................ 55, 229, 231, 232 (1).......................................... 230, 231 (2).................................. 116, 230, 231 (3)........................................... 4 (4)........................................... 55, 232 (5).......................................... 231, 232 58.......................................... 38, 55, 232 59................................. 55, 56, 232, 233, 241 (1)........................................... 56 60............................. 140, 143, 233, 238, 241, 253 (1)........................................ 55, 56, 57 61............................. 140, 234, 238, 241, 269, 394 (1)....................... 56, 57, 60, 238, 241, 243 (2)......................... 56, 57, 58, 60, 237, 238, 242, 243, 269 (a)...................................... 241 (b)...................................... 241 (c)......................... 57, 58, 241, 242 (d)......................................  59, 61 (3)................................ 58, 59, 60, 243 (4)............................. 60, 61, 211, 242, 243 (5)........................................... 56, 243 (6)........................................... 60 (7)........................................... 10 62........................................ 61, 243, 244 (2)........................................... 61 63............................................... 62, 244 (2)...........................................  61, 62 64.............................................. 116, 245 (1), (2).................................... 245 (3)................................ 62, 63, 67, 245 65............................................... 63, 247

Directive 2018/1972 establishing the European Electronic Communications Code (EECC) [2018] OJ L321/36 – contd Art 65(1)........................................... 116 66............................................... 64, 247 67........................... 64, 65, 66, 248, 250, 251, 255, 273 (1)........................................... 61, 246 (2)........................................... 222 (b)...................................... 65 (3)........................................... 66 (5)...................................... 66, 67, 251 (a), (b).............................. 251, 252 (6)...........................................  66, 67 68............................... 66, 140, 143, 238, 252, 253, 255, 263, 265, 273, 274, 281 (2), (3).................................... 67 (4)............................ 67, 260, 280, 281 (6)............................. 64, 67, 255, 256, 274, 280, 281 69........................................ 68, 257, 258 (1)........................................... 68 (3)........................................... 68 (4)........................................... 68 70................................ 68, 259, 260, 265 (2)........................................... 69, 260 71............................................... 69, 261 72............................................... 69, 261 73................................ 70, 261, 262, 263 (2)........................................... 70, 261 (3)........................................... 70 74............................... 71, 144, 251, 254, 255, 263, 264, 267, 282, 283 (1)........................................... 67, 267 (4)........................................... 72 75............................... 72, 115, 267, 268, 269 (1)........................................... 72 76........................... 67, 73, 74, 270, 271, 272, 273, 280, 281 (1)............................ 73, 271, 273, 274 (d)..................................... 273, 274 (2).................................... 73, 273, 281 (3).......................................... 273, 274 77.................................. 74, 75, 276, 277 78................................ 75, 277, 278, 281 79................................ 75, 278, 280, 281 (1)........................................... 281 (a)..................................... 274, 280 (b)...................................... 280 (c)...................................... 280 (2).................................. 273, 280, 281 (3).................................... 76, 273, 281 (4)........................................... 76



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Directive 2018/1972 establishing the European Electronic Communications Code (EECC) [2018] OJ L321/36 – contd Art 80........................................ 76, 281, 282 (1)........................................... 282 (b)...................................... 282 (2)........................................... 282 81............................................... 77, 283 82................................ 6, 12, 22, 23, 283 83...............................................  286 (3)........................................... 72 84................................. 77, 81, 286, 288, 289, 290 (1)............................. 77, 78, 289, 290, 291, 446 (2)........................................... 78, 291 (3)........................... 78, 289, 290, 291, 292 (4)........................................... 79 (5)........................................... 79 85................................... 77, 80, 81, 290, 292, 297, 299, 302, 392, 445 (1)................................ 77, 79, 81, 293 (2)......................... 77, 79, 80, 81, 293, 294 (3)...................................... 79, 81, 293 (4).................................. 5, 78, 81, 110 (5)........................................... 79 (6)........................................... 79 86........................... 80, 81, 82, 290, 294, 295 (1)........................................... 82, 295 (2)........................................... 82, 295 (3)........................................... 82, 295 (4)...................................... 82, 83, 295 (5)........................................... 83, 295 87........................................ 83, 290, 295 88................................. 80, 84, 247, 251, 296, 297, 423 (1)........................................... 79 (2)...........................................  79, 84 89.......................................... 80, 84, 298 (1)........................................... 86 90........................... 82, 84, 87, 299, 300, 301 (1)(b)...................................... 301 (2)........................................... 87, 301 91.......................................... 86, 87, 301 92............................... 87, 290, 299, 301, 302 93........................................ 35, 303, 445 (1)........................................... 305 (2)............................ 89, 305, 306, 307 (3).......................................... 305, 306 (4)................... 88, 305, 306, 307, 308

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Directive 2018/1972 establishing the European Electronic Communications Code (EECC) [2018] OJ L321/36 – contd Art 93(5)........................................... 305 (6).................................... 89, 308, 309 (7)........................................... 89, 305 (8)........................................... 89, 305 94............................... 35, 153, 305, 307, 309, 376 (3)........................................... 89 (6)........................................... 88, 308 95................................. 34, 35, 310, 311, 445 (1)........................................... 311 (8)........................................... 311 96........................................ 89, 311, 312 (4)........................................... 89 97............................... 90, 143, 144, 238, 254, 265, 266, 312 (2)........................................... 88, 322 98............................................... 90, 315 99............................................... 90, 316 100................................ 3, 106, 316, 416 101............................. 91, 322, 323, 347, 357, 358, 365, 369, 371, 376, 390 (1)........................ 309, 322, 363, 373 (2)......................................... 322 102............................... 92, 95, 140, 309, 322, 323, 323, 325, 330, 332, 338, 341, 345, 354, 357, 358, 378, 431, 432 (1)........................... 94, 95, 328, 329, 337, 338, 341, 342, 343, 357 (2).......................... 93, 337, 341, 342 (3)......................... 94, 337, 338, 342, 343, 378, 380 (4).......................... 94, 338, 342, 359 (5).........................................  94, 96 (6)......................................... 96, 322 (7)......................... 96, 322, 337, 341, 343, 359 103................................... 309, 322, 323, 343, 345, 357, 358, 369, 375, 431 (1).................. 95, 96, 347, 357, 380 (2)........................... 96, 97, 345, 346, 347 (b)................................... 347, 348 (3)............................ 96, 97, 345, 346 (a)................................... 345, 346 (b)–(g)............................. 346 (h)................................... 346, 347 Art 103(4)......................................... 97

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Directive 2018/1972 establishing the European Electronic Communications Code (EECC) [2018] OJ L321/36 – contd Art 104........................... 140, 289, 322, 323, 345, 346, 347, 348, 355, 356, 357, 358, 359, 360, 369, 375, 446 (1)......................... 98, 289, 355, 356, 357, 358, 360, 446 (2).......................... 98, 357, 359, 360 105........................... 140, 322, 323, 357, 358, 360, 363, 365, 366, 367, 369, 370, 380, 445 (1).......................... 99, 362, 365, 371 (2).........................................  93, 99 (3)......................... 99, 323, 332, 345, 358, 362, 365, 366, 367, 368, 369, 370, 375 (4)......................... 99, 100, 323, 342, 345, 358, 362, 363, 364, 365, 369, 370, 372, 373, 375 (5)........................ 357, 370, 371, 372 (6)......................... 95, 100, 323, 345, 358, 365, 366, 369, 370, 371, 372, 373, 375, 431 (7).......................... 99, 100, 370, 373 106........................... 309, 322, 323, 357, 358, 359, 373, 376, 377, 378 (1)....................... 100, 323, 345, 358, 369, 375, 377, 380 (2)........................ 100, 374, 375, 376 (3)....................... 100, 374, 375, 376, 377 (4)........................ 100, 374, 375, 377 (5)......................................... 101 (6)....................... 100, 101, 375, 376, 377 (7)......................................... 101 (8)................................ 101, 359, 378 (9)......................................... 101 107........................... 102, 322, 323, 357, 358, 363, 378, 379, 380 (1)........................ 366, 369, 380, 381 (2)......................................... 370 (4)......................................... 93 108........................... 322, 323, 357, 358, 381, 391 109........................... 117, 322, 323, 357, 358, 381, 382, 385, 386, 387

Directive 2018/1972 establishing the European Electronic Communications Code (EECC) [2018] OJ L321/36 – contd Art 109(1)......................................... 115 (1)......................................... 103 (2)........................................ 102, 103 (3)......................................... 103 (4)......................................... 103 (5)................................ 103, 104, 387 (6)....................... 103, 105, 385, 386, 387 (7)......................................... 104 (8)........................................ 105, 116 110........................... 105, 322, 323, 357, 358, 387, 389, 390, 391 (1)....................... 105, 388, 389, 390, 391 (2)................................ 106, 388, 391 111........................... 106, 110, 322, 323, 357, 358, 391, 392 (1)......................................... 110 112........................... 111, 322, 323, 357, 358, 392, 393 (1)......................................... 110 (2)................................ 110, 111, 394 (3), (4)................................. 110, 111 113........................... 111, 112, 322, 323, 357, 358, 394, 395, 397, 435, 436 (1)........................ 395, 397, 398, 436 (2)........................................ 395, 396 (3)........................ 112, 397, 398, 399 114........................... 113, 322, 323, 357, 358, 399, 400 (1).........................................  5, 112 (2), (3).................................. 113 115........................... 114, 297, 322, 323, 357, 401, 423 (1), (2).................................. 322 116............................................ 115, 401 117............................................ 115, 401 118...................................... 27, 116, 404 (1)......................................... 405 (3)......................................... 405 (4)........................................ 220, 405 119............................................ 114, 407 120............................................ 114, 407 (1)–(5).................................. 408 (6)......................................... 114 121............................ 114, 117, 408, 445 (1), (2).................................. 408 (4)......................................... 408 122.................................... 106, 116, 408 (1)......................................... 409 (2)........................................ 291, 409



Table of Directives

Directive 2018/1972 establishing the European Electronic Communications Code (EECC) [2018] OJ L321/36 – contd Art 122(3)......................................... 409 123............................................ 117, 409 124........................... 117, 118, 386, 387, 410 (1)......................................... 396 (2)......................................... 47, 224 125............................ 2, 3, 117, 411, 445 126.............................................  413 127............................................ 413, 445 Annex I................................... 154, 410, 414, 416 (Part A)........................ 18, 154, 328 (5), (6).................... 18, 154 (Part B).............................. 210, 327 (3).......................... 210 (6)......................... 210, 417 (Part D)........................ 18, 154, 209 (7).......................... 210 (Part E)............................... 88, 308 II.............................. 59, 61, 417, 418 III.......................... 72, 174, 224, 269, 355, 357, 418 IV................................... 73, 271, 419 V........................... 78, 289, 292, 420, 421 VI ................................ 322, 421, 423 VI (Part A).............. 80, 84, 114, 297, 401, 423 (Part B)................... 114, 297, 423 (Part C)........................... 100, 376 VII ............................... 300, 423, 424 (Part A)...........................  84, 86 (Part B)........................... 87, 301 VIII...........................  78, 92, 94, 95, 322, 330, 358, 378, 380, 425, 431 (Part A)......................... 337, 359 (ii)..................... 378 I (Part A)(iv)............. 95, 357, 378 I (Part A)(v)..................... 95 VIII (Part B)(I)(1)(i)............. 95 (2)(v)............ 340 (II)(i)............... 102, 103 (v)................ 431 (III)................... 95 IX.......................... 96, 322, 346, 347, 431, 431, 432 (2.1).................................. 95, 357 (2.2)............................. 95, 96, 347 (2.3).................................. 347 (2.4).................................. 380 (2.5)................................. 102, 103

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Directive 2018/1972 establishing the European Electronic Communications Code (EECC) [2018] OJ L321/36 – contd Annex X................................. 98, 102, 347, 355, 356, 357, 358, 359, 360, 433 XI............................... 111, 395, 397, 434, 435 (3).........................  395, 396, 397, 398, 435, 436 XII............................... 2, 3, 117, 436 (Part A)........................... 117 XIII...........................  2, 3, 289, 293, 311, 362, 408, 437, 445, 446 Directive 2019/770 on certain aspects concerning contracts for the supply of digital content and digital services [2019] OJ L 136/1.............330, 989 Recital 1–4.......................................  989 5–11.....................................  990 12–18...................................  991 19–21...................................  992 22.........................................  993 23–25...................................  994 26–29...................................  995 30–34...................................  996 35–38...................................  997 39–42...................................  998 43–47...................................  999 48.........................................  1000 49–53...................................  1001 54–56...................................  1002 57–59...................................  1003 60–64...................................  1004 65–68...................................  1005 69–73...................................  1006 74–76...................................  1007 77–80...................................  1008 81–86...................................  1009 87.........................................  1010 Art 1, 2.............................................  1010 3.................................................  1011 (6)............................................. 379 4–7.............................................  1013 8.................................................  1014 9–11...........................................  1015 12, 13.........................................  1016 14...............................................  1017 15, 16.........................................  1018 17...............................................  1019 18...............................................  1019 19............................................ 379, 1019 20–22.........................................  1020 23–27.........................................  1021

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Directive 2019/771 on certain aspects concerning contracts for the sale of goods, amending Regulation (EU) 2017/2394 and Directive 2009/22/EC, and repealing Directive 1999/44/EC [2019] OJ L 136/28....................................... 379 Art 13(1), (4), (5)............................. 379 16............................................... 379 Directive 2019/882 on the accessibility requirements for products and services [2019] OJ L 151/70...... 330, 345, 384, 392, 662, 1022 Recital 1–4.......................................  1022 5–11.....................................  1023 12–20...................................  1024 21–27...................................  1025 28–32...................................  1026 33–36...................................  1027 37–41...................................  1028 42–45...................................  1029 46–50...................................  1030 51–58...................................  1031 59–66...................................  1032 67–70...................................  1033 71–76...................................  1034 77–84...................................  1035 85–90...................................  1036 91–95...................................  1037 96–103.................................  1038 104.......................................  1039 Art 1, 2.............................................  1039 3.................................................  1040 4, 5.............................................  1045 6, 7.............................................  1046 8, 9.............................................  1047 10...............................................  1048 11–13.........................................  1049 14...............................................  1050 15...............................................  1051 16–18.........................................  1052 19, 20.........................................  1053 21...............................................  1054 22, 23.........................................  1055 24–26.........................................  1056 27–29.........................................  1057 30, 31.........................................  1058 32............................................ 392, 1058

Directive 2019/882 on the accessibility requirements for products and services [2019] OJ L 151/70 – contd Art 33, 34.........................................  1059 35...............................................  1060 Annex I.............................................  1060 II...........................................  1067 III, IV....................................  1072 V...........................................  1073 VI..........................................  1074 Commission Directives Directive 2002/77 on competition in the markets for electronic communications networks and services [2002] OJ L 249/21....... 110, 734 Recital 1–5.......................................  734 6–8.......................................  735 9–12.....................................  736 13–17...................................  737 Art 1.................................................  737 2................................................ 206, 738 (1)............................................. 226 (2)............................................. 226 3.................................................  739 4........................................ 206, 214, 739 (2)............................................. 226 5................................................ 110, 739 6, 7.............................................  739 8–11...........................................  740 12...............................................  741 Annex I.............................................  741 II...........................................  741 Directive 2008/63 on competition in the markets in telecommunications terminal equipment [2008] OJ L 162/20..................................... 132, 140, 510, 742 Recital 1–4.......................................  742 5–11.....................................  743 12, 13...................................  744 Art 1.................................................  744 (1), (2)......................................  140 2–5.............................................  745 6–10...........................................  746 Annex I.............................................  746 II, III.....................................  747

Table of Decisions [All references are to page number, those in bold indicate where material is set out in part or in full] Decisions Decision 396/91 on the introduction of a single European emergency call number [1991] OJ L 217/31......... 382 Decision 3052/95 establishing a procedure for the exchange of information on national measures derogating from the principle of the free movement of goods within the Community [1995] OJ L 321/1......................................... 124 Decision 622/2002 establishing a Radio Spectrum Policy Group [2002] OJ L 198/49...................... 27, 557 Decision 627/2002 establishing the European Regulators Group for Electronic Communications Networks and Services [2002] OJ L 200/38....................................... 555 Decision 676/2002 on a regulatory framework for radio spectrum policy in the European Community (Radio Spectrum Decision) [2002] OJ L 108/1......... 20, 47, 224, 1077 Recital 1...........................................  1077 2.......................................... 37, 1078 3...........................................  1078 4.................................. 37, 205, 1078 5...........................................  1078 6........................................ 205, 1078 7.......................................... 37, 1079 8–10.....................................  1079 11, 12.................................. 37, 1079 13–15.................................. 37, 1080 16–19...................................  1081 20–25...................................  1082 Art 1.................................................  1082 (1)............................................ 140, 190 (2)............................................. 190 2–3.............................................  1083 4................................ 37, 140, 205, 1083 (2)............................................. 38 5.............................................. 140, 1084 6.................................................  1084 7–12...........................................  1085 Annex III.......................................... 45, 411

Decision 97/2004 Euratom taken by common agreement between the Representatives of the Member States, meeting at Head of State or Government level, of 13 December 2003 on the location of the seats of certain offices and agencies of the European Union [2004] OJ L 29/15........................ 600 Decision 243/2012 establishing a multiannual radio spectrum policy programme [2012] OJ L 81/7............................... 13, 20, 449, 1102 Recital 1, 2.......................................  1102 3–8.......................................  1103 9–14.....................................  1104 15–19...................................  1105 20–23...................................  1106 24–29...................................  1107 30–35...................................  1108 36–40...................................  1109 Art 1.................................................  1109 (1)............................................. 190 2.................................................  1110 3.............................................. 1110, 190 4, 6.............................................  1112 7, 8.............................................  1114 9.................................................  1115 10...............................................  1116 11–17.........................................  1117 Decision 585/2014 on the deployment of the interoperable EU-wide eCall service [2014] OJ L 164/6.. 496 Decision 443/2015 (EU, Euratom) on Security in the Commission [2015] OJ L 72/41....................... 584, 637 Decision 444/2015 (EU, Euratom) on the security rules for protecting EU classified information [2015] OJ L 72/53................................... 584, 637 Decision 899/2017 on the use of the 470-790 MHz frequency band in the Union [2017] OJ L 138/131... 46, 224, 1118 Recital 1–4.......................................  1118 5–10.....................................  1119

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Decision 899/2017 on the use of the 470-790 MHz frequency band in the Union [2017] OJ L 138/131 – contd Recital 11–15...................................  1120 16–19...................................  1121 20–22...................................  1122 23.........................................  1123 Art 1, 2.............................................  1123 3–7.............................................  1124 8, 9.............................................  1125 Annex ..............................................  1125 Commission Decisions Commission Decision of 15 February 2000 on reserving the national numbering range beginning with ‘116’ for harmonised numbers for harmonised services of social value [2007] OJ L 49/30..............  1098 Recital 1–6.......................................  1098 Art 1–4.............................................  1099 5–7.............................................  1100 Annex...............................................  1100 Commission Decision of 11 December 2006 establishing a list of standards and/or specifications for electronic communications networks, services and associated facilities and services and replacing all previous versions [2006] OJ L 86/11..................... 193, 1086 Recital 1–4.......................................  1086 Art 1, 2.............................................  1086 Annex...............................................  1087 Preface..............................................  1088

Commission Decision of 15 February 2007 on reserving the national numbering range beginning with 116 for harmonised numbers for harmonised services of social value (notified under document number C(2007) 249) (Text with EEA relevance) [2007] OJ L 49/30........................................... 311, 312 Commission Decision C(2014) 7465 final of 15 October 2014 ...... 56, 233, 238 Commission Decision of 11 June 2019 setting up the Radio Spectrum Policy Group and repealing Decision 2002/622/EC [2019] OJ C 196/16.......................................  1126 Recital 1–6.......................................  1126 7–13.....................................  1127 14–16...................................  1128 Art 1, 2.............................................  1128 3.................................................  1129 4.................................................  1130 5–9.............................................  1131 10, 11.........................................  1132 Commission Decision C(2020)1133 of 3 March 2020 setting up the group of experts on Emergency Communications.......................... 384 Commission Implementing Decision (EU) 2020/167 of 5 February 2020 on the harmonised standards for radio equipment drafted in support of Directive 2014/53/ EU of the European Parliament and of the Council [2020] OJ L 34/46............................................ 194

Table of Recommendations, Communications and Notices [All references are to page number, those in bold indicate where material is set out in part or in full] Council Recommendations Recommendation 1999/519 on the limitation of exposure of the general public to electromagnetic fields (0 Hz to 300 GHz) [1999] OJ L 199/59.................. 36, 37, 38, 54, 55, 232, 416, 669, 1133 Recital 1...........................................  1133 2–10.....................................  1134 11–19...................................  1135 Annex I.............................................  1137 II...........................................  1139 III..........................................  1140 IV..........................................  1142 Recommendation 2003/361 concerning the definition of micro, small and medium–sized enterprises [2003] OJ L 124/36........................... 24, 369, 375 Art 1................................................. 25 2................................. 25, 287, 293, 296, 315, 379 (1)–(3)...................................... 25 3................................................. 25 4................................................. 25 5................................................. 25 6................................................. 25 (2), (3)...................................... 26 Annex............................... 25, 287, 293, 296, 315, 379 Recommendation 2005/698 on accounting separation and cost accounting systems under the regulatory framework for electronic communications [2005] OJ L 266/64...................... 69 Recommendation 2020/1307 on a common Union toolbox for reducing the cost of deploying very high capacity networks and ensuring timely and investmentfriendly access to 5G radio spectrum, to foster connectivity in support of economic recovery from the COVID-19 crisis in the Union [2020] OJ L305/33............ 42

Recommendation 2021/554 on the form, content, time limits and level of detail to be given in notifications under the procedures set in Article 32 of Directive (EU) 2018/1972 of the European Parliament and of the Council establishing the European Electronic Communications Code [2021] OJ L 112/ 5............. 30 Commission Recommendations Recommendation 2003/203 on the harmonisation of the provision of ­public R-LAN access to public electronic communications networks and services in the Community [2003] OJ L78/12... 205, 1145 Recital 1–5.......................................  1145 6–12.....................................  1146 13.........................................  1147 Recommendation 2003/311 on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communication networks and services [2003] OJ L 114/45....................................... 674 Recommendation 2003/361 concerning the definition of micro, small and medium-sized enterprises [2003] OJ L 124/36 ................. 24, 316, 323, 358, 597 Art 1................................................. 25 2............................... 25, 79, 90, 94, 100, 330, 362 (1)–(3)...................................... 25 3................................................. 25

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Recommendation 2003/361 concerning the definition of micro, small and medium-sized enterprises [2003] OJ L 124/36 – contd Art 3(2), (3)...................................... 25 4................................................. 25 5................................................. 25 6................................................. 25 (1)–(3)...................................... 25 Annex........................... 79, 90, 94, 100, 330, 362 Recommendation 2005/698 on accounting separation and cost accounting systems under the regulatory framework for electronic communications [2005] OJ L266/64.......................  1148 Recital 1–3.......................................  1148 4–11.....................................  1149 12–16...................................  1150 Annex...............................................  1153 Recommendation 2007/717 on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services [2007] OJ L 344/65..........24 Recommendation 2007/879 on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services, [2007] OJ L 344/65.........674 Recommendation 2009/396 on the Regulatory Treatment of Fixed and Mobile Termination Rates in the EU (Termination Rates Recommendation) [2009] OJ L 124/67......................... 183, 675, 680, 685 Recommendation 2010/167 on the authorisation of systems for mobile communication services on board vessels (MCV services) [2010] OJ L72/42.........................  1155 Recital 1–7.......................................  1155 8–14.....................................  1156 15–19...................................  1157

Recommendation 2010/572 on regulated access to Next Generation Access Networks (NGA) [2010] OJ L251/35......... 201, 238, 264, 1160 Recital 1–4.......................................  1160 5–12.....................................  1161 13–20...................................  1162 21–25...................................  1163 26–31...................................  1164 32–38...................................  1165 39–41...................................  1166 Annex I.............................................  1172 II...........................................  1175 Recommendation 2011/750on support for an EU-wide eCall service in electronic communication networks for the transmission of in-vehicle emergency calls based on 112 (‘eCalls’) [2011] OJ L 303/46.......................................... 495 Recommendation 2013/466 on consistent non-discrimination obligations and costing methodologies to promote competition and enhance the broadband investment environment [2013] OJ L251/13..................... 260, 265, 1178 Recital 1–4.......................................  1178 5–9.......................................  1179 10–14...................................  1180 15–19...................................  1181 20–23...................................  1182 24–31...................................  1183 32–39...................................  1184 40–45...................................  1185 46–52...................................  1186 53–59...................................  1187 60–65...................................  1188 66–69...................................  1189 Annex I.............................................  1201 II...........................................  1201 Recommendation 2014/710 on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive 2002/21/ EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services, [2014] OJ L 295/79.........675 Recommendation 2017/1584 on coordinated response to largescale cybersecurity incidents and crises [2017] OJ L 239/36..... 603



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Recommendation 2020/2245 on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive (EU) 2018/1972 of the European Parliament and of the Council establishing the European Electronic Communications Code (notified under document C(2020) 8750) (Text with EEA relevance) [2020] OJ L 439/23............. 63, 246, 1224 Recital 1–5.......................................  1224 6–12.....................................  1225 13–17...................................  1226 18–23...................................  1227 24–29...................................  1228 30–34...................................  1229 35–39...................................  1230 40–45...................................  1231 46.........................................  1232 Annex............................ 63, 116, 250, 1232 Recommendation 2021/554 on the form, content, time limits and level of detail to be given in notifications under the procedures set in Article 32 of Directive (EU) 2018/1972 of the European Parliament and of the Council establishing the European Electronic Communications Code [2021] OJ L112/5............ 189, 1233 Recital 1–4.......................................  1233 5–10.....................................  1234 11–16...................................  1235 17–20...................................  1236 Annex I............................................. 1242 II........................................... 1244 III.......................................... 1245 IV.......................................... 1246

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Communications Communication from the Commission to the European Parliament, the Council, the European and Social Committee and the Committee of the Regions — Space Strategy for Europe (COM(2016) 705 final)... 593 Communication from the Commission, Guidelines on market analysis and the assessment of significant market power under the EU regulatory framework for electronic communications networks and services (OJ C 159/1).. 62, 244, 247, 1204 Communication from the Commission, Guidelines on market analysis and the assessment of significant market power under the EU regulatory framework for electronic communications networks and services (OJ C 159/1).................... 150 Notices Notice on the Application of the Competition Rules to Access Agreements in the Telecommunications Sector Framework, Relevant Markets and Principles (98/C 265/02).......  1280 Notice on the calculation of the cost of capital for legacy infrastructure in the context of the Commission’s review of national notifications in the EU electronic communications sector (Text with EEA relevance) [2019] OJ C 375/1........................ 186 Notice on the definition of the relevant market for the purposes of competition law, OJ 1997 C372/5.. 246

Table of Cases [All references are to page number] A Adeneler v Ellinikos Organismos Galaktos (ELOG) (C-212/04)  EU:C:2006:443, [2006] ECR I-6057, [2006] 7 WLUK 58, [2006] 3 CMLR 30, [2007] All ER (EC) 82, [2006] IRLR 716.................................................................................................... 411 Agricola Esposito Srl v Agenzia delle Entrate – Ufficio di Taranto 2 (C-492/09) EU:C:2010:766................................................................................................... 160, 198, 206 Airtours Plc v Commission of the European Communities (T-342/99)  EU:T:2002:146, [2002] ECR II-2585, [2002] 6 WLUK 43, [2002] UKCLR 642, [2002] 5 CMLR 7, [2002] All ER (EC) 783 .............................................................................................. 245 Akzo Nobel NV v European Commission (T-345/12) EU:T:2015:50, [2015] 1 WLUK 617, [2015] 4 CMLR 12 ...................................................................................................... 165 Albacom SpA (C-292/01) and Infostrada SpA  v Ministero del Tesoro, del Bilancio e della Programmazione Economica and Ministero delle Comunicazioni (C-293/01) EU:C:2003:480, [2003] ECR I-9449, [2003] 9 WLUK 244, [2003] Info TLR 446... 34, 159, 197 Alpine Investments BV  v Minister van Financien (C-384/93)  EU:C:1995:126, [1995] ECR I-1141, [1995] 5 WLUK 142, [1995] 2 BCLC 214, [1995] 2 CMLR 209, [1995] All ER (EC) 543............................................................................................... 43, 121 Ambulanter Pflegedienst Kugler GmbH  v Finanzamt fur Korperschaften I  in Berlin (C-141/00) EU:C:2002:473, [2002]  ECR  I-6833, [2002] 9  WLUK  63, [2004] 3 CMLR 54, [2004] BTC 5690, [2004] BVC 749, [2002] STI 1277.......................... 213 Antonio Munoz y Cia SA  v Frumar Ltd (C253/00)  EU:C:2002:497, [2003] Ch  328, [2003] 3 WLR 58, [2002] ECR I-7289, [2002] 9 WLUK 151, [2002] 3 CMLR 26, [2003] All ER (EC) 56................................................................................................. 125 Arcor AG & Co KG v Germany (C-152/07); Firma 01051 Telekom GmbH v Germany (C-154/07); Communication Services TELE2 GmbH  v Germany (C-153/07) EU:C:2008:426, [2008] ECR I-5959, [2008] 7 WLUK 519, [2008] 3 CMLR 37....... 124 Autorità Garante della Concorrenza e del Mercato v Wind Tre SpA and Vodafone Italia SpA (C-54/17 and C-55/17)  EU:C:2018:710, [2018] 9 WLUK  139. [2019] 1 CMLR 14, [2019] CEC 1189........................................................................... 147, 341, 345 AW v Lithuania (C-417/18) EU:C:2019:671, [2019] 4 WLR 127, [2019] 9 WLUK 25, [2020] 1 CMLR 17, [2020] CEC 679.......................................................................... 385 B Bank Austria Creditanstalt AG v Commission of the European Communities (T-198/03) EU:T:2006:136, [2006] ECR II-1429, [2006] 5 WLUK 768, [2006] 5 CMLR 10...... 165 Base Company NV and Mobistar NV v Ministerraad (C-1/14) EU:C:2015:378...... 293, 299, 300, 302 Base NV and Others v Ministerraad (C-389/08) EU:C:2010:584...................... 148, 183, 299, 300 Becker v Finanzamt Munster-Innenstadt (8/81)  EU:C:1982:7, [1982]  ECR  53, [1982] 1 WLUK 705, [1982] 1 CMLR 499............................................................................. 213 Belgacom SA v Etat belge (C-375/11) EU:C:2013:185............................. 152, 160, 162, 163, 199 Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v Netlog NV (C-360/10) EU:C:2012:85, [2012] 2 WLUK 519, [2012] 2 CMLR 18, [2012] CEC 1271.................................................................................................... 52, 98, 228 Bertelsmann AG  v Independent Music Publishers & Labels Association (IMPALA) (C-413/06  P) EU:C:2008:392, [2008]  ECR  I-4951, [2008] 7 WLUK  294, [2008] 5 CMLR 17, [2010] All ER (EC) 377.......................................................................... 245

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Bond van Adverteerders v Netherlands (C-352/85) EU:C:1988:196, [1988] ECR 2085, [1988] 4 WLUK 172, [1989] 3 CMLR........................................................................  8, 9 British Airways Plc v Commission of the European Communities (T-219/99) EU:T:2003:343, [2003] ECR II-5917, [2003] 12 WLUK 459, [2004] 4 CMLR 19, [2004] All ER (EC) 1115............................................................................................. 246 Bundesverband der Verbraucherzentralen und Verbraucherverbande – Verbraucherzentrale Bundesverband eV  v Deutsche Apotheker – und Arztebank eG (C-380/19) EU:C:2020:498 [2020] Bus LR 1887, [2020] 6 WLUK 353, [2021] 1 CMLR 10, [2021] CEC 511...................................................................................... 176 Bundesverband der Verbraucherzentralen und Verbraucherverbande — Verbraucherzentrale Bundesverband eV v Telefonica Germany GmbH & Co OHG (C-539/19)  EU:C:2020:634, [2020] 4  WLR  142, [2020] 9  WLUK  12, [2021] 1 CMLR 23..................................................................................................................  15, 91 C Canal Satelite Digital SL v Administracion General del Estado (C390/99) EU:C:2002:34, [2002]  ECR  I-607, [2002] 1 WLUK  373, [2003] 1  CMLR  27, [2002]  ECDR  22, [2003] EMLR 12.......................................................................................................... 43, 122 Centro Europa 7 Srl v Ministero delle Comunicazioni e Autorita per le Garanzie nelle Comunicazioni (C-380/05) EU:C:2008:59, [2008] ECR I-349, [2008] 1 WLUK 608, [2008] 2 CMLR 18...................................................................................... 206, 208, 214, 226 Centros v Erhvervs-og Selskabsstyrelsen (C-212/97)  EU:C:1999:126, [2000] Ch  446, [2000] 2  WLR  1048, [1999]  ECR  I-1459, [1999] 3  WLUK  146, [1999] BCC 983, [2000] 2 BCLC 68, [1999] 2 CMLR 551, [2000] All ER (EC) 481, [2000] CEC 290........................................................................................................... 754 Cesky telekomunikacni urad v T-Mobile Czech Republic as (C-508/14) EU:C:2015:657, [2015] 10 WLUK 73, [2016] 2 CMLR 4.................................................................... 299, 300 CIA  Security International SA  v Signalson SA (C-194/94)  EU:C:1996:172, [1996] ECR I-2201, [1996] 4 WLUK 346, [1996] 2 CMLR 781, [1996] All ER (EC) 557............................................................................................................................... 398 Comision del Mercado de las Telecomunicaciones v Administracion del Estado (C-82/07) EU:C:2008:143........................................................................................................... 146, 148 Commission of the European Communities v Belgium (C-11/95)  EU:C:1996:316, [1996] ECR I-4115, [1996] 9 WLUK 31, [1997] 2 CMLR 289 , [1998] EMLR 71... 754 Commission of the European Communities v Belgium (C-222/08) EU:C:2010:583........ 298, 300 Commission of the European Communities v French Republic (C-104/04) EU:C:2005:391............................................................................................................ 157 Commission of the European Communities v Germany (C-424/07) EU:C:2009:749........ 250 Commission of the European Communities v Grand Duchy of Luxembourg (C-448/99) EU:C:2001:39.............................................................................................................. 213 Commission of the European Communities v Grand Duchy of Luxembourg (C-33/04) EU:C:2005:750............................................................................................................ 412 Commission of the European Communities v Greece (C-384/97) [2000] ECR I-3823...... 410 Commission of the European Communities v Ireland (C-427/07)  EU:C:2009:457, [2009] ECR I-6277, [2009] 7 WLUK 468, [2011] 3 CMLR 46, [2010] Env LR 8..... 118 Commission of the European Communities v Kingdom of the Netherlands (C-350/02) EU:C:2004:389............................................................................................................ 411 Commission of the European Communities v Netherlands (C-152/98) [2001] ECR I-3463.................................................................................................................. 411 Connect Austria Gesellschaft fur Telekommunikation GmbH  v Telekom-ControlKommission (C-462/99) EU:C:2003:297, [2003] ECR I-5197, [2003] 5 WLUK 629, [2005] 5 CMLR 6, [2003] Info TLR 389.................................................................... 197, 214 Content Services Ltd v Bundesarbeitskammer (C-49/11) EU:C:2012:419, [2012] 2 All ER (Comm) 1019, [2012] 7 WLUK 154, [2012] 3 CMLR 34............................... 93, 94, 329 Cooperatieve Vereniging SNB-REACT UA  v Mehta (C-521/17)  EU:C:2018:639, [2018] Bus LR  1825, [2018] 8  WLUK  48, [2018]  ETMR  39, [2019]  ETMR  3, [2018] ECDR 23..................................................................................................... 50, 98, 228



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Criminal Proceedings against Denuit (C-14/96)  EU:C:1997:260, [1997]  ECR  I-2785, [1997] 5 WLUK 515, [1997] 3 CMLR 943, [1998] CEC 3, [1998] EMLR 60........... 754 Criminal Proceedings against HK (C-746/18) EU:C:2021:152, [2021] 3 WLUK 16......... 3, 4, 53, 319, 416 Criminal Proceedings against Milev (C-439/16  PPU) EU:C:2016:818, [2016] 10 WLUK 642, [2017] 2 CMLR 5 .............................................................................. 411 Criminal Proceedings against Webb (279/80) EU:C:1981:314, [1981] ECR 3305, [1981] 12 WLUK 181, [1982] 1 CMLR 719........................................................................... 121 Crosfield Italia Srl v European Chemicals Agency (T-587/14) EU:T:2016:475........ 26, 79, 90, 94, 100, 176, 287, 293, 296, 315, 330, 362, 379 D Dan Bengtsson (C-344/09) EU:C:2011:174................................................................... 37, 38, 207 Deutsche Telekom AG v Bundesrepublik Deutschland (C-543/09) EU:C:2011:279.......... 393 Deutsche Telekom AG v Commission (T-827/14) EU:T:2018:930..................................... 255 Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources (C-293/12); Proceedings Brought by Karntner Landesregierung (C-594/12) EU:C:2014:238, [2015] QB 127, [2014] 3 WLR 1607, [2014] 2 All ER (Comm) 1, [2014] 4 WLUK 285, [2014] 3 CMLR 44, [2014] All ER (EC) 775...................... 3, 318, 416 Dorsch Consult Ingenieurgesellschaft mbH  v Bundesbaugesellschaft Berlin mbH (C-54/96)  EU:C:1997:413, [1997]  ECR  I-4961, [1997] 9  WLUK  155, [1998] 2 CMLR 237, [1998] All ER (EC) 262........................................................................ 182 E Europa Way Srl and Persidera SpA  v Autorita per le Garanzie nelle Comunicazioni (C-560/15) EU:C:2017:593................................................................................ 149, 206, 214 European Commission v Kingdom of Belgium (C-222/08) EU:C:2010:583..................... 298, 300 European Commission v Republic of Austria (C-614/10)  EU:C:2012:631, [2012] 10 WLUK 443, [2013] 1 CMLR 23, [2013] All ER (EC) 237.................................... 16 European Commission v Republic of Bulgaria (C-376/13) EU:C:2015:266..................... 206, 227 Evonik Degussa GmbH v European Commission (T-341/12) EU:T:2015:51..................... 165 F Fjarskipti v Icelandic Post and Telecom Administration (E-6/16) judgment of 22 December 2016 in the EFTA Court............................................................................................... 139 France Telecom SA (formerly Wanadoo Interactive SA) v Commission of the European Communities (T-340/03) EU:T:2007:22, [2007] ECR II-107, [2007] 1 WLUK 643, [2007] 4 CMLR 21, [2008] All ER (EC) 677.............................................................. 246 France Telecom SA  v Commission of the European Communities (C-202/07  P) EU:C:2009:214, [2009]  ECR  I-2369, [2009] 4  WLUK  57, [2009] 4  CMLR  25, [2010] CEC 3............................................................................................................... 246 France Televisions SA v Playmedia and Conseil superieur de l’audiovisuel and Conseil (C-298/17) EU:C:2018:1017....................................................................................... 400 France v Commission of the European Communities (C-68/94)Societe Commerciale des Potasses et de l’Azote (SCPA) v Commission of the European Communities (C-30/95)  EU:C:1998:148, [1998]  ECR  I-1375,[1998] 3  WLUK  611, [1998] 4 CMLR 829................................................................................................................ 245 Francois De Coster v College des bourgmestre et echevins de Watermael-Boitsfort (C-17/00) EU:C:2001:651, [2001]  ECR  I-9445, [2001] 11  WLUK  824, [2002] 1 CMLR 12, [2002] All ER (EC) 154.......................................................................... 43, 122 Fratelli De Pra SpA and SAIV SpA v Agenzia Entrate – Direzione Provinciale Ufficio Controlli Belluno and Agenzia Entrate – Direzione Provinciale Ufficio Controlli Vicenza (Case C-416/14) EU:C:2015:617.................................................................. 161, 341

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G Gabalfrisa SL  v Agencia Estatal de Administración Tributaria (AEAT) (C-110/98 to C-147/98) EU:C:2000:145, [2000] ECR I-1577.......................................................... 182 Gencor Ltd v Commission of the European Communities (T-102/96)  EU:T:1999:65, [1999] ECR II-753, [1999] 3 WLUK 488, [1999] BCC 877, [1999] 4 CMLR 971, [1999] All ER (EC) 289, [1999] CEC 395................................................................... 245 General Electric Co v Commission of the European Communities (T210/01) EU:T:2005:456, [2005] ECR II-5575, [2005] 12 WLUK 389, [2006] 4 CMLR 15............................... 245 Germany v European Parliament (C-376/98) EU:C:2000:544, [2000] ECR I-8419, [2000] 10 WLUK 168, [2000] 3 CMLR 1175, [2000] All ER (EC) 769................................ 126 Germany v European Parliament (C-380/03)  EU:C:2006:772, [2006]  ECR  I-11573, [2006] 12 WLUK 238, [2007] 2 CMLR 1, [2007] All ER (EC) 1016......................... 126 Germany v Isis Multimedia Net GmbH & Co KG (C-327/03)  EU:C:2005:622, [2005] ECR I-8877, [2006] 4 CMLR 1....................................................................... 311 Glawischnig-Piesczek v Facebook Ireland Ltd (C-18/18)  EU:C:2019:821, [2020] 1  WLR  2030, [2019] 10  WLUK  37, [2020] 1  CMLR  33, [2020]  CEC  759, [2020] ECDR 19, [2020] EMLR 3......................................................................... 52, 98, 228 Google France Sarl v Louis Vuitton Malletier SA (C-236/08); Google France Sarl v Centre National de Recherche en Relations Humaines (CNRRH) Sarl (C-238/08); Google France Sarl v Viaticum SA (C-237/08) EU:C:2010:159, [2011] Bus LR 1, [2010] ECR I-2417, [2010] 3 WLUK 648, [2011] All ER (EC) 411, [2010] ETMR 30, [2010] RPC 19, 3 ALR Int’l 867.................................................................................. 50 Google LLC  v Bundesrepublik Deutschland (C-193/18)  EU:C:2019:498, [2019] 1 WLR 6044, [2019] 6 WLUK 182, ECJ..................................................................... 136 Google Spain SL  v Agencia Espanola de Proteccion de Datos (AEPD) (C-131/12) EU:C:2014:317, [2014] QB 1022, [2014] 3 WLR 659, [2014] 2 All ER (Comm) 301, [2014] 5 WLUK 394, [2014] 3 CMLR 50, [2014] All ER (EC) 717, [2014] ECDR 16, [2014] EMLR 27, 36 BHRC 589, (2014) 164(7607) NLJ 20...................................... 54 H Hoffmann La Roche & Co AG  v Commission of the European Communities (85/76) EU:C:1979:36, [1979]  ECR  461, [1979] 2  WLUK  87, [1979] 3  CMLR  211, [1980] FSR 13.............................................................................................................. 61, 244 Hutchison 3G UK  Ltd v HMRC (C-369/04)  EU:C:2007:382, [2008]  STC  218, [2007]  ECR  I-5247, [2007] 6 WLUK  603, [2007] 3  CMLR  26, [2010]  BVC  55, [2007] STI 1764........................................................................................................... 198 I I-21 Germany GmbH  v Germany (C-392/04); Arcor AG & Co KG (formerly ISIS  Multimedia Net GmbH & Co KG) v Germany (C-422/04)  EU:C:2006:586, [2006] ECR I-8559, [2006] 9 WLUK 262, [2007] 1 CMLR 10................................. 159, 413 Inconsult Anstalt v Finanzmarktaufsicht (E-4/09) [2010] EFTA Court Report, p 86.......... 329 Independent Music Publishers & Labels Association (Impala) v Commission of the European Communities (T-464/04)  EU:T:2006:216, [2006]  ECR II-2289, [2006] 7 WLUK 329, [2006] 5 CMLR 19............................................................................... 245 Inter-Environnement Wallonie ASBL  v Region Wallonie (C-129/96)  EU:C:1997:628, [1997] ECR I-7411, [1997] 12 WLUK 410, [1998] 1 CMLR 1057, [1998] All ER (EC) 155, [1998] Env LR 623...................................................................................... 411 Ireland v European Parliament (C-301/06)  EU:C:2009:68, [2009]  ECR  I-593, [2009] 2 WLUK 199, [2009] 2 CMLR 37, [2009] All ER (EC) 1181.................................... 126 Italy v Sacchi (155/73)  EU:C:1974:40, [1974]  ECR  409, [1974] 4 WLUK  74, [1974] 2 CMLR 177................................................................................................................ 43, 121 K Kabel Deutschland Vertrieb und Service GmbH & Co KG  v Niedersachsische Landesmedienanstalt fur Privaten Rundfunk (C-336/07)  EU:C:2008:765, [2008] ECR I-10889, [2008] 12 WLUK 706, [2009] 2 CMLR 6............................................ 400



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Kish Glass Co Ltd v Commission of the European Communities (T-65/96) EU:T:2000:93, [2000] ECR II-1885, [2000] 3 WLUK 935, [2000] 5 CMLR 229............................... 246 Klockner-Werke and Hoesch AG  v High Authority of the European Coal and Steel Community (C-17/61 and C-20/61) EU:C:1962:30.................................................... 213 Koninklijke KPN NV and  Others v Autoriteit Consument en Markt (ACM) (C-28/15) EU:C:2016:692................................................................................................... 184, 254, 268 KPN BV  v Autoriteit Consument en Markt (ACM) (C-85/14)  EU:C:2015:610, [2015] 9 WLUK 334, [2016] 1 CMLR 32..............................................................143, 254, 265, 313 L La Quadrature du Net and Others v Premier minister (C-511/18, C-512/18) EU:C:2020:791, [2020] 10 WLUK 30, [2021] 1 CMLR 31........................................................ 4, 53, 322, 416 L’Oreal SA v eBay International AG (C-324/09) EU:C:2011:474, [2012] Bus LR 1369, [2011] 7 WLUK 313, [2012] All ER (EC) 501, [2011] ETMR 52, [2012] EMLR 6, [2011] RPC 27............................................................................................................. 50 M Marchi Industriale SpA v European Chemicals Agency (T-620/13) EU:T:2016:479..... 26, 79, 90, 94, 100, 176, 287, 293, 296, 315, 330, 362, 379 McFadden v Sony Music Entertainment Germany GmbH (C-484/14)  EU:C:2016:689, [2017] Bus LR 430, [2016] 9 WLUK 298, [2017] 1 CMLR 38, [2016] ECDR 26....... 49, 97, 98, 228 Mediakabel BV  v Commissariaat voor de Media (C89/04)  EU:C:2005:348, [2005] ECR I-4891, [2005] 6 WLUK 15, [2005] Info TLR 307................................. 758 Ministere Public v Decoster (C69/91); Taillandier (C92/91); Lagauche  (C93/91 and C46/90) EU:C:1993:852, [1993] ECR I-5267, [1993] 10 WLUK 303....................... 124 Mobistar SA v Commune de Fleron (C-544/03); Belgacom Mobile SA v Commune de Schaerbeek (C-545/03) EU:C:2005:518, [2005] ECR I-7723, [2005] 9 WLUK 74, [2005] 3 CMLR 46................................................................................................ 43, 123, 197 N Nederlandsche Banden Industrie Michelin NV  v Commission of the European Communities (322/81) EU:C:1983:313, [1983] ECR 3461, [1983] 11 WLUK 104, [1985] 1 CMLR 282, [1985] FSR 250......................................................................... 246 Nemzeti Fogyasztovedelmi Hatosag v Invitel Tavkozlesi Zrt (C-472/10) EU:C:2012:242, [2012] 4 WLUK 583, [2012] 3 CMLR 1, [2012] CEC 1375....................................... 93 Number (UK) Ltd and Conduit Enterprises Ltd v Office of Communications and British Telecommunications plc (C-16/10) EU:C:2011:92..................................................... 295 Nuova società di telecomunicazioni SpA v Ministero delle Comunicazioni and ENI SpA (C-339/04) EU:C:2006:490.......................................................................... 34, 138, 159, 197 O Ordre des barreaux francophones et germanophone v Conseil des ministers (C-520/18) EU:C:2020:791............................................................................................................ 416 Osterreichischer Gewerkschaftsbund (Gewerkschaft Offentlicher Dienst) v Austria (195/98)  EU:C:2000:655, [2000]  ECR  I-10497, [2000] 11  WLUK  923, [2002] 1 CMLR 14.................................................................................................................. 182 O2 (Germany) GmbH & Co OHG  v Commission of the European Communities (T-328/03) [2006] ECR II-1231.................................................................................. 201, 250 O2 UK Ltd/T-Mobile UK Ltd (UK Network Sharing Agreement) (Case 38.370) OJ 2003 L200/59....................................................................................................................... 201, 250 P Papasavvas v O Fileleftheros Dimosia Etairia Ltd (C-291/13) EU:C:2014:2209, [2014] 9 WLUK 273, [2015] 1 CMLR 24, (2014) 158(36) SJLB 37................................ 53, 98, 228

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Persidera SpA v Autorita per le Garanzie nelle Comunicazioni (C-112/16) EU:C:2017:597, [2017] 7 WLUK 645, [2018] 1 CMLR 29 ................................................... 37, 153, 207, 208 Pizzo v CRGT Srl (C-27/15) EU:C:2016:404, [2016] 6 WLUK 70, [2017] 1 CMLR 1 .... 411 Polkomtel sp. z o.o. v Prezes Urzędu Komunikacji Elektronicznej (C-397/14) EU:C:2016:256.................................................................................. 144, 238, 254, 266, 314 Polkomtel sp. z o.o. v Prezes Urzędu Komunikacji Elektronicznej (C-277/16) EU:C:2017:989........................................................................................... 144, 251, 255, 267 Polska Telefonia Cyfrowa sp. z o.o. v Prezes Urzędu Komunikacji Elektronicznej (C-99/09) EU:C:2010:395........................................................................................... 375 Prefetto Provincia di Cuneo v Silvano Carbone (C-296/00) EU:C:2002:316..................... 124 Prezes Urzędu Komunikacji Elektronicznej and Petrotel sp. z o.o. w Płocku v Polkomtel sp. z o.o. (C-231/15) EU:C:2016:769......................................................................... 184, 318 Prezes Urzędu Komunikacji Elektronicznej and Telefonia Dialog sp. z o.o. v T-Mobile Polska SA (C-3/14) EU:C:2015:232........................................................... 177, 186, 238, 313 Privacy International v Secretary of State for Foreign and Commonwealth Affairs (C-623/17) EU:C:2020:790, [2020] 10 WLUK 31, [2021] 1 CMLR 30.....................  3, 318 Proceedings Brought by Ministerio Fiscal (C-207/16)  EU:C:2018:788, [2019] 1 WLR 3121, [2018] 10 WLUK 1, [2019] 1 CMLR 31, [2019] CEC 1323..... 3, 53, 319, 416 Proceedings Brought by Schmid (C-516/99) EU:C:2002:313, [2002] ECR I-4573, [2002] 5 WLUK 869, [2004] 3 CMLR 12............................................................................... 182 Productores de Musica de Espana (Promusicae) v Telefonica de Espana SAU (C-275/06) EU:C:2008:54, [2008]  ECR  I-271, [2008] 1  WLUK  496, [2008] 2  CMLR  17, [2008] All ER (EC) 809, [2008] CEC 590, [2008] ECDR 10, [2008] Info TLR 47, (2008) 31(6) IPD 31037.......................................................................................... 51, 98, 228 Provincie Antwerpen v Belgacom NV van publiek recht (C-256/13); Provincie Antwerpen v Mobistar NV (C-264/13) EU:C:2014:2149, [2014] 9 WLUK 95, [2014] BTC 44.... 157, 199 Proximus SA v Commune d’Etterbeek (C-454/13) EU:C:2015:819.................................. 161, 199 Proximus SA v Province of Namur (C-517/13) EU:C:2015:820....................................... 157, 200 R R  v Secretary of State for Trade and Industry, ex p British Telecommunications plc (C-302/94) EU:C:1996:485, [1996]  ECR  I-6417, [1996] 12  WLUK  224, [1997] 1 CMLR 424................................................................................................................ 125 R  (on the application of Alliance for Natural Health) v Secretary of State for Health (C154/04); R  (on the application of National Association of Health Stores) v Secretary of State for Health (C155/04) EU:C:2005:449, [2005] ECR I-6451, [2005] 7 WLUK 260, [2005] 2 CMLR 61............................................................................... 126 R (on the application of British American Tobacco (Investments) Ltd) v Secretary of State for Health (C-491/01) EU:C:2002:741, [2002] ECR I-11453, [2002] 12 WLUK 259, [2003] 1 CMLR 14, [2003] All ER (EC) 604, [2003] CEC 53, [2003] ETMR CN10, [2003] ETMR CN5...................................................................................................... 126 Radiosistemi Srl v Prefetto di Genova (C-388/00 and C-429/00) EU:C:2002:390............. 124 Rosalba Alassini v Telecom Italia SpA  Joined (C-317/08); Filomena Califano v Wind SpA (C-318/08); Lucia Anna Giorgia Iacono v Telecom Italia SpA (C-319/08); Multiservice Srl v Telecom Italia SpA (C-320/08)  EU:C:2010:146, [2010] 3 WLUK 497, [2010] 3 CMLR 17............................................................................... 176 Rouffeteau and Badia (C314/93)  EU:C:1994:284, [1994]  ECR  I-3257, [1994] 7 WLUK 130................................................................................................................ 124 S Safalero Srl v Prefetto di Genova (C-13/01) EU:C:2003:447, [2003] ECR I-8679, [2003] 9 WLUK 152, [2003] Info TLR 431............................................................................ 124 Scarlet Extended SA  v Societe Belge des Auteurs, Compositeurs et Editeurs SCRL (SABAM) (C-70/10) EU:C:2011:771, [2011] ECR I-11959, [2011] 11 WLUK 711, [2012] ECDR 4, 31 BHRC 558.............................................................................. 51, 98, 228 Skype Communications Sarl v Institut belge des services postaux et des telecommunications (IBPT) (C‑142/18) EU:C:2019:460............................................................................. 135



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Slovak Telekom as v European Commission (T-851/14)  EU:T:2018:929, [2018] 12 WLUK 195, [2019] 4 CMLR 21.............................................................. 56, 233, 238, 255 SpA  Eridania-Zuccherifici Nazionali SpA and Societa Italiana per l’Industria degli Zuccheri SpA Minister of Agriculture and Forestry, Minister for Industry, Trade and Craft and Zuccherifici Meridionali SpA (C230/78)  EU:C:1979:216, [1979] ECR 2749, [1979] 9 WLUK 114...................................................................... 125 Spain v Commission (C-351/98) [2002] ECR I-8031......................................................... 213 Spain v Commission of the European Communities (C-271/90, C-281/90, C-289/90) EU:C:1992:440, [1992] ECR I-5833, [1992] 11 WLUK 249...................................... 43, 121 Synetairismos Farmakopoion Aitolias & Akarnanias (SYFAIT) v GlaxoSmithKline Plc (C-53/03) EU:C:2005:333, [2005]  ECR  I-4609, [2005] 5 WLUK  754, [2005] 5 CMLR 1.................................................................................................................... 182 T T-Mobile Austria GmbH  v Austria (C-284/04)  EU:C:2007:381, [2008]  STC  184, [2007] ECR I-5189, [2007] 6 WLUK 601................................................................... 198 T-Mobile Austria GmbH v Telekom-Control-Kommission (C-282/13) EU:C:2015:24.... 183, 220, 221 TDC A/S v Teleklagenavnet (C-556/12) EU:C:2014:2009........................ 140, 238, 253, 263, 265 TDC  A/S  v Teleklagenavnet and Erhvervs- og Vakstministeriet (C-327/15) EU:C:2016:974........................................................................................................... 299, 303 Telefonica O2 Czech Republic a.s., formerly Český Telecom a.s. v Czech On Line a.s. (C-64/06) EU:C:2007:348........................................................................................... 413 Tele2 (Netherlands) BV and Others v Autoriteit Consument en Markt (ACM) (C-536/15) EU:C:2017:214........................................................................................................... 111, 394 Tele2 Sverige AB v Post- och telestyrelsen (C-203/15); Secretary of State for the Home Department v Tom Watson (C-698/15)  EU:C:2016:970, [2017]  QB  771, [2017] 2 WLR 1289, [2016] 12 WLUK 618, [2017] 2 CMLR 30............................... 3, 52, 319, 416 Tele2 Telecommunication GmbH  v Telekom-Control-Kommission (C-426/05) EU:C:2008:103........................................................................................................... 183, 251 Telecom Italia Mobile SpA (C-250/02), Blu SpA (C-251/02), Telecom Italia SpA (C-252/02); Vodafone Omnitel SpA, formerly Omnitel Pronto Italia SpA (C-253/02); WIND Telecomunicazioni SpA (C-256/02;  Ministero dell’Economia e delle Finanze, Ministero delle Comunicazioni, other parties to the procedure being Albacom SpA (C-251/02); Telemar SpA (C-252/02) EU:C:2004:335....... 34, 159, 197 Telekomunikacja Polska SA w Warszawie v Prezes Urzędu Komunikacji Elektronicznej (C-522/08) EU:C:2010:135................................................................................ 247, 251, 297 Telenor Magyarorszag Zrt v Nemzeti Mediaes Hirkozlesi Hatosag Elnoke (C-807/18; C-39/19) EU:C:2020:708, [2020] 4  WLR  155, [2020] 9  WLUK  140, [2021] 1 CMLR 32............................................................................................................. 15, 78, 427 TeliaSonera Finland Oyj (C-192/08) EU:C:2009:696.................................. 43, 140, 234, 238, 253 Tetra Pak International SA  v Commission of the European Communities (T-83/91) EU:T:1994:246, [1994] ECR II-755, [1994] 10 WLUK 70, [1997] 4 CMLR 726...... 245 The Number (UK) Ltd and Conduit Enterprises Ltd v Office of Communications and British Telecommunications plc (C-16/10) EU:C:2011:92......................................... 295 TV Play Baltic AS v Lietuvos radijo ir televizijos komisija (C-87/19) EU:C:2019:1063, [2020] 4 WLR 12, [2019] 12 WLUK 116, [2020] 2 CMLR 14, [2020] CEC 1180.... 43, 123, 140, 400 U Unilever Italia SpA v Central Food SpA (C443/98) EU:C:2000:496, [2000] ECR I-7535, [2000] 9 WLUK 300, [2001] 1 CMLR 21................................................................... 398 United Brands Co v Commission of the European Communities (Rectification) (27/76) [1978] 6 WLUK 151, [1978] 3 CMLR 83................................................................... 61, 246 United Kingdom v European Parliament (C-66/04) EU:C:2005:743, [2005] ECR I-10553, [2005] 12 WLUK 140, [2006] 3 CMLR 1, [2006] All ER (EC) 487........................... 125

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United Kingdom v European Parliament (C-217/04) EU:C:2006:279, [2006] ECR I-3771, [2006] 5 WLUK 2, [2006] 3 CMLR 2......................................................................... 43, 126 UPC DTH Sàrl v Nemzeti Média- és Hírközlési Hatóság Elnökhelyettese (C-475/12) EU:C:2014:285..................................................................................... 43, 123, 134, 135, 152 UPC Nederland BV v Gemeente Hilversum (C-518/11) EU:C:2013:709................. 134, 146, 147 V Van Binsbergen v Bestuur van de Bedrijfsvereniging voor de Metaalnijverheid (33/74) EU:C:1974:131, [1974] ECR 1299, [1974] 12 WLUK 7, [1975] 1 CMLR 298......... 121 Verein fur Konsumenteninformation v A1 Telekom Austria AG (C-326/14) EU:C:2015:782, [2015] 11 WLUK 686, [2016] CEC 517...................................................................... 362 Ville de Mons v Base Company, anciennement KPN (C-346/13) EU:C:2015:649............. 199 Vodafone España SA  v Ayuntamiento de Santa Amalia (C-55/11); Ayuntamiento de Tudela (C-57/11); France Telecom España SA  v Ayuntamiento de Torremayor (C-58/11) EU:C:2012:162........................................................................................... 198 Vodafone GmbH v Bundesrepublik Deutschland (C-395/14) EU:C:2016:9...................... 254, 266 Vodafone ITALIA / TIM / INWIT JV (Case M.9674)......................................................... 201 Vodafone Ltd v Secretary of State for Business, Enterprise and Regulatory Reform (C-58/08) EU:C:2010:321, [2010] 6 WLUK 67, [2010] 3 CMLR 44, [2010] All ER (EC) 741....................................................................................................................... 127 Vodafone Malta ltd and Mobisle Communications ltd v Avukat Ġenerali (C-71/12) EU:C:2013:431........................................................................................................... 160, 199 Vodafone Omnitel NV and Others v Autorita per le Garanzie nelle Comunicazioni (C-228/12 to C-232/12 and C-254/12 to C-258/12) EU:C:2013:495.......................... 159 Vodafone Ziggo Group BV v European Commission (T-660/18) EU:T:2019:546............. 187 VT4 Ltd v Vlaamse Gemeenschap (C-56/96) [1997] EU:C:1997:284, [1997] ECR I-3143, [1997] 6 WLUK 65, [1997] 3 CMLR 1225, [1997] CEC 1309, [1999] EMLR 102...... 754 X Xabier Ormaetxea Garai and Bernardo Lorenzo Almendros v Administracion del Estado (C-424/15) EU:C:2016:780................................................................................ 147, 148, 149 Z Zentrale zur Bekampfung unlauteren Wettbewerbs Frankfurt am Main eV  v comtech CmbH (C-568/15)  EU:C:2017:154, [2017] Bus LR  1232, [2017] 3  WLUK  78, [2017] 3 CMLR 14, [2017] CEC 1194........................................................................ 92

Chapter 1

Annotated Directive establishing the European Electronic Communications Code

Contents Annotated Version of the European Electronic Communications Code

1

DIRECTIVE (EU) 2018/1972 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 11 December 2018 establishing the European Electronic Communications Code (EECC)[1] (Recast) (Text with EEA relevance) (annotated version) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, Having regard to the opinion of the European Economic and Social Committee2, Having regard to the opinion of the Committee of the Regions3, Acting in accordance with the ordinary legislative procedure4, Whereas: (1) Directives 2002/19/EC5, 2002/20/EC6, 2002/21/EC7 and 2002/22/EC8 of the European Parliament and of the Council have been substantially amended. Since

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OJ L 321, 17.12.2018, p. 36. OJ C 125, 21.4.2017, p. 56. OJ C 125, 21.4.2017, p. 56. Position of the European Parliament of 14 November 2018 (not yet published in the Official Journal) and decision of the Council of 4 December 2018. 5 Directive 2002/19/EC of the European Parliament and of the Council of 7  March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) (OJ L 108, 24.4.2002, p. 7). 6 Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (OJ  L  108, 24.4.2002, p. 21). 7 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) (OJ L 108, 24.4.2002, p. 33) 8 Directive 2002/22/EC of the European Parliament and of the Council of 7  March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ L 108, 24.4.2002, p. 51). 1 2

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further amendments are to be made, those Directives should be recast in the interests of clarity. See: Article 125; Annexes XII and XIII. (2) The functioning of the five Directives which are part of the existing regulatory framework for electronic communications networks and services, namely Directives 2002/19/EC, 2002/20/EC, 2002/21/EC and 2002/22/EC, and Directive 2002/58/EC of the European Parliament and of the Council9, is subject to periodic review by the Commission, with a view, in particular, to determining the need for modification in light of technological and market developments. See: Article 1(2). (3) In its communication or 6 May 2015 setting out a Digital Single Market Strategy for Europe, the Commission stated that its review of the telecommunications framework would focus on measures that aim to provide incentives for investment in high-speed broadband networks, bring a more consistent internal market approach to radio spectrum policy and management, deliver conditions for a true internal market by tackling regulatory fragmentation, ensure effective protection of consumers, a level playing field for all market players and consistent application of the rules, as well as provide a more effective regulatory institutional framework. See: Article 1(2). (4) This Directive is part of a ‘Regulatory Fitness’ (REFIT) exercise, the scope of which includes four Directives, namely 2002/19/EC, 2002/20/EC, 2002/21/ EC and 2002/22/EC, and Regulation (EC) No  1211/2009 of the European Parliament and of the Council10. Each of those Directives contains measures applicable to providers of electronic communications networks and of electronic communications services, consistently with the regulatory history of the sector under which undertakings were vertically integrated, namely, active in both the provision of networks and of services. The review offers an occasion to recast the four Directives in order to simplify the current structure with a view to reinforcing its consistency and accessibility in relation to the REFIT objective. It also offers the possibility to adapt the structure to the new market reality, where the provision of communications services is no longer necessarily bundled to the provision of a network. As provided in the Interinstitutional Agreement of 28 November 2001 on a more structured use of the recasting technique for legal acts11, recasting consists in the adoption of a new legal act which incorporates in a single text both the substantive amendments which it makes to an earlier act and the unchanged provisions of that act. The proposal for recasting deals with the substantive amendments which it makes to an earlier act, and on a secondary level, includes the codification of the unchanged provisions of the earlier act with those substantive amendments. Directive 2002/58/EC 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 (Directive on privacy and electronic communications) (OJ L 201, 31.7.2002, p. 37). 10 Regulation (EC) No  1211/2009 of the European Parliament and of the Council of 25  November 2009 establishing the Body of European Regulators for Electronic Communications (BEREC) and the Office (OJ L 337, 18.12.2009, p. 1). 11 OJ C 77, 28.3.2002, p. 1. 9



Annotated Directive (EU) 2018/1972

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See: Article 125; Annexes XII and XIII. (5) This Directive creates a legal framework to ensure freedom to provide electronic communications networks and services, subject only to the conditions laid down in this Directive and to any restrictions in accordance with Article 52(1) of the Treaty on the Functioning of the European Union (TFEU), in particular measures regarding public policy, public security and public health, and consistent with Article 52(1) of the Charter of Fundamental Rights of the European Union (the ‘Charter’)[12]. See: Articles 1(1); 12(1); 100. Exception to the freedom to provide electronic communications networks and services TFEU, Article 52(1) (see annotations to Article 12). Limitation on the exercise of rights and freedoms recognised by the Charter Charter, Article 52(1) (see annotations to Article 100). (6)

This Directive is without prejudice to the possibility for each Member State to take the necessary measures to ensure the protection of its essential security interests, to safeguard public policy and public security, and to permit the investigation, detection and prosecution of criminal offences, taking into account that any limitation to the exercise of the rights and freedoms recognised by the Charter, in particular in Articles  7, 8 and 11 thereof, such as limitations regarding the processing of data, are to be provided for by law, respect the essence of those rights and freedoms and be subject to the principle of proportionality, in accordance with Article 52(1) of the Charter. See: Articles 1(3); 100. Right to respect for communications Charter, Article 7 (see annotations to Article 100). Right to protection of personal data Charter, Article 8 (see annotations to Article 100). Right to freedom of expression and information Charter, Article 11 (see annotations to Article 100). Limitation on the exercise of rights and freedoms recognised by the Charter Charter, Article 52(1) (see annotations to Article 100). Safeguarding national security Case C-623/17 Privacy International v Secretary of State for Foreign and Commonwealth Affairs and Others, EU:C:2020:790, paras 1 and 2 of the Court’s ruling (see annotations to Article 100). Investigating, detecting and prosecuting criminal offences and data retention Joined Cases C-293/12 Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources and Others and C-594/12 Kärntner Landesregierung and Others, EU:C:2013:845, para 159 of the Opinion of Advocate General Cruz Villalón delivered on 12 December 2013 and EU:C:2014:238, paras 69 and 71 of the judgment; Joined Cases C-203/15 Tele2 Sverige AB v Post- och telestyrelsen and C-698/15 Secretary of State for the Home Department v Tom Watson and Others, EU:C:2016:970, paras 1 and 2 of the Court’s ruling; Case C-207/16 Ministerio Fiscal, EU:C:2018:788, Court’s ruling; and Case C-746/18  H  K  v

OJ C 326, 26.10.2012, p. 391.

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Prokuratuur, EU:C:2020:18, para  130 of the Opinion of Advocate General Pitruzzella delivered on 21 January 2020; Joined Cases C-5-11/18 and C-512/18 La Quadrature du Net and Others v Premier minister and Others, and C-520/18 Ordre des barreaux francophones et germanophone and Others v Conseil des ministers, EU:C:2020:791, paras 1–4 of the Court’s ruling (see annotations to Article 100). (7) The convergence of the telecommunications, media and information technology sectors means that all electronic communications networks and services should be covered to the extent possible by a single European electronic communications code established by means of a single Directive, with the exception of matters better dealt with through directly applicable rules established by means of regulations. It is necessary to separate the regulation of electronic communications networks and services from the regulation of content. Therefore, this Directive does not cover the content of services delivered over electronic communications networks using electronic communications services, such as broadcasting content, financial services and certain information society services, and is without prejudice to measures taken at Union or national level in respect of such services, in accordance with Union law, in order to promote cultural and linguistic diversity and to ensure the defence of media pluralism. The content of television programmes is covered by Directive 2010/13/EU of the European Parliament and of the Council13. The regulation of audiovisual policy and content aims at achieving general interest objectives, such as freedom of expression, media pluralism, impartiality, cultural and linguistic diversity, social inclusion, consumer protection and the protection of minors. The separation between the regulation of electronic communications and the regulation of content does not affect the taking into account of the links existing between them, in particular in order to guarantee media pluralism, cultural diversity and consumer protection. Within the limits of their competences, competent authorities should contribute to ensuring the implementation of policies aiming to promote those objectives. See: Articles 1(3); 2(1) and (4); 24(3). (8) This Directive does not affect the application to radio equipment of Directive 2014/53/EU of the European Parliament and of the Council14, but does cover car radio and consumer radio receivers, and consumer digital television equipment. See: Articles 1(3)(d); 39(8); 57(3). (9) In order to allow national regulatory and other competent authorities to meet the objectives set out in this Directive, in particular concerning end-to-end interoperability, the scope of the Directive should cover certain aspects of radio equipment as defined in Directive 2014/53/EU and consumer equipment used for digital television, in order to facilitate access for end-users with disabilities. It is

Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (OJ L 95, 15.4.2010, p. 1). 14 Directive 2014/53/EU of the European Parliament and of the Council of 16 April 2014 on the harmonisation of the laws of the Member States relating to the making available on the market of radio equipment and repealing Directive 1999/5/EC (OJ L 153, 22.5.2014, p. 62). 13



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important for national regulatory and other competent authorities to encourage network operators and equipment manufacturers to cooperate in order to facilitate access by end-users with disabilities to electronic communications services. The non-exclusive use of radio spectrum for the self-use of radio terminal equipment, although not related to an economic activity, should also be the subject of this Directive in order to ensure a coordinated approach with regard to their authorisation regime. See: Articles 1(2); 3(2)(d); 24(1); 85(4); 111; 114(1). Definition of ‘radio equipment’ Directive 2014/53/EU, Article 2(1) items (1)–(4) (see p. 889). (10) Certain electronic communications services under this Directive could also fall within the scope of the definition of ‘information society service’ set out in Article 1 of Directive (EU) 2015/1535 of the European Parliament and of the Council15. The provisions of that Directive that govern information society services apply to those electronic communications services to the extent that this Directive or other Union legal acts do not contain more specific provisions applicable to electronic communications services. However, electronic communications services such as voice telephony, messaging services and electronic mail services are covered by this Directive. The same undertaking, for example an internet service provider, can offer both an electronic communications service, such as access to the internet, and services not covered by this Directive, such as the provision of web-based and not communications-related content. See: Article 2(4). Definition of ‘information society service’ Directive (EU) 2015/1535, Article 1(1) item (b) (see p. 943). Indicative list of services not covered by the definition of ‘information society services’ Directive (EU) 2015/1535, Annex I (see p. 950). (11) The same undertaking, for example a cable operator, can offer both an electronic communications service, such as the conveyance of television signals, and services not covered under this Directive, such as the commercialisation of an offer of sound or television broadcasting content services, and therefore additional obligations can be imposed on such an undertaking in relation to its activity as a content provider or distributor, in accordance with provisions other than those of this Directive, without prejudice to the conditions laid in an annex to this Directive. See: Article 2(4). (12) The regulatory framework should cover the use of radio spectrum by all electronic communications networks, including the emerging self-use of radio spectrum by new types of networks consisting exclusively of autonomous systems of mobile radio equipment that is connected via wireless links without a central management or centralised network operator, and not necessarily within the exercise of any Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ L 241, 17.9.2015, p. 1).

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specific economic activity. In the developing 5G wireless communications environment, such networks are likely to develop in particular outside buildings and on the roads, for transport, energy, research and development, eHealth, public protection and disaster relief, the Internet of Things, machine-to-machine and connected cars. As a result, the application by Member States, based on Article 7 of Directive 2014/53/EU, of additional national requirements regarding the putting into service or use of such radio equipment, or both, in relation to the effective and efficient use of radio spectrum and avoidance of harmful interference should reflect the principles of the internal market. See: Articles 2; 3(1) and (2)(c); 4. Putting into service or use of radio equipment Directive 2014/53/EU, Article 7 (see reproduced text at p. 893). (13) The requirements concerning the capabilities of electronic communications networks are constantly increasing. While in the past the focus was mainly on growing bandwidth available overall and to each individual user, other parameters such as latency, availability and reliability are becoming increasingly important. The current response towards that demand is to bring optical fibre closer and closer to the user, and future ‘very high capacity networks’ require performance parameters which are equivalent to those that a network based on optical fibre elements at least up to the distribution point at the serving location can deliver. In the case of fixed-line connection, this corresponds to network performance equivalent to that achievable by an optical fibre installation up to a multidwelling building, considered to be the serving location. In the case of wireless connection, this corresponds to network performance similar to that achievable based on an optical fibre installation up to the base station, considered to be the serving location. Variations in end-users’ experience which are due to the different characteristics of the medium by which the network ultimately connects with the network termination point should not be taken into account for the purposes of establishing whether a wireless network could be considered as providing similar network performance. In accordance with the principle of technology neutrality, other technologies and transmission media should not be excluded, where they compare with that baseline scenario in terms of their capabilities. The roll-out of such ‘very high capacity networks’ is likely to further increase the capabilities of networks and pave the way for the roll-out of future wireless network generations based on enhanced air interfaces and a more densified network architecture. See: Articles 2(2); 3(2); 82. (14) Definitions need to be adjusted to ensure that they are in line with the principle of technology neutrality and to keep pace with technological development, including new forms of network management such as through software emulation or software-defined networks. Technological and market evolution has brought networks to move to internet protocol (IP) technology, and enabled end-users to choose between a range of competing voice service providers. Therefore, the term ‘publicly available telephone service’, which is exclusively used in Directive 2002/22/ EC and widely perceived as referring to traditional analogue telephone services, should be replaced by the more current and technological neutral term ‘voice communications service’. Conditions for the provision of a service should be separated from the actual definitional elements of a voice communications service, namely, a publicly available electronic communications



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service for originating and receiving, directly or indirectly, national or national and international calls through a number or numbers in a national or international numbering plan, whether such a service is based on circuit switching or packet switching technology. It is the nature of such a service that it is bidirectional, enabling both parties to communicate. A service which does not fulfil all those conditions, such as for example a ‘click-through’ application on a customer service website, is not such a service. Voice communications services also include means of communication specifically intended for end-users with disabilities using text relay or total conversation services. See: Article 2(32) and (35). Definition of ‘publicly available telephone service’ ‘[A] service made available to the public for originating and receiving, directly or indirectly, national or national and international calls through a number or numbers in a national or international telephone numbering plan’. Directive 2002/22/EC, Article 2(c). (15) The services used for communications purposes, and the technical means of their delivery, have evolved considerably. End-users increasingly substitute traditional voice telephony, text messages (SMS) and electronic mail conveyance services by functionally equivalent online services such as Voice over IP, messaging services and web-based e-mail services. In order to ensure that end-users and their rights are effectively and equally protected when using functionally equivalent services, a future-oriented definition of electronic communications services should not be purely based on technical parameters but rather build on a functional approach. The scope of necessary regulation should be appropriate to achieve its public interest objectives. While ‘conveyance of signals’ remains an important parameter for determining the services falling into the scope of this Directive, the definition should cover also other services that enable communication. From an end-user’s perspective it is not relevant whether a provider conveys signals itself or whether the communication is delivered via an internet access service. The definition of electronic communications services should therefore contain three types of services which may partly overlap, that is to say internet access services as defined in point (2) of Article 2 of Regulation (EU) 2015/2120 of the European Parliament and of the Council16, interpersonal communications services as defined in this Directive, and services consisting wholly or mainly in the conveyance of signals. The definition of electronic communications service should eliminate ambiguities observed in the implementation of the definition as it existed prior to the adoption of this Directive and allow a calibrated provision-by-provision application of the specific rights and obligations contained in the framework to the different types of services. The processing of personal data by electronic communications services, whether as remuneration or otherwise, should comply with Regulation (EU) 2016/679 of the European Parliament and of the Council17.

Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 laying down measures concerning open internet access and amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services and Regulation (EU) No 531/2012 on roaming on public mobile communications networks within the Union (OJ L 310, 26.11.2015, p. 1). 17 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1). 16

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See: Article 2(4)–(7). Definition of ‘internet access service’ Regulation (EU) 2015/2120, Article 2(2) (see p. 518); BEREC Guidelines on the Implementation of the Open Internet Regulation, BoR (20) 112, 11 June 2020, paras 13–18 (see annotations to Article 2). (16) In order to fall within the scope of the definition of electronic communications service, a service needs to be provided normally in exchange for remuneration. In the digital economy, market participants increasingly consider information about users as having a monetary value. Electronic communications services are often supplied to the end-user not only for money, but increasingly and in particular for the provision of personal data or other data. The concept of remuneration should therefore encompass situations where the provider of a service requests and the end-user knowingly provides personal data within the meaning of Regulation (EU) 2016/679 or other data directly or indirectly to the provider. It should also encompass situations where the end-user allows access to information without actively supplying it, such as personal data, including the IP address, or other automatically generated information, such as information collected and transmitted by a cookie. In line with the case-law of the Court of Justice of the European Union (Court of Justice) on Article 57 TFEU18, remuneration also exists within the meaning of the TFEU if the service provider is paid by a third party and not by the service recipient. The concept of remuneration should therefore also encompass situations in which the end-user is exposed to advertisements as a condition for gaining access to the service, or situations in which the service provider monetises personal data it has collected in accordance with Regulation (EU) 2016/679. See: Article 2(4). Definition of ‘personal data’ ‘[A]ny information relating to an identified or identifiable natural person (“data subject”); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person’. Regulation (EU) 2016/679, Article 4(1). ‘Services’ under the TFEU ‘Services shall be considered to be ‘services’ within the meaning of the Treaties where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons. “Services” shall in particular include: (a)

activities of an industrial character;

(b) activities of a commercial character; (c)

activities of craftsmen;

(d) activities of the professions. Judgment of the Court of Justice of 26 April 1988, Bond van Adverteerders and Others v The Netherlands State, C-352/85, ECLI: EU:C:1988:196.

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Without prejudice to the provisions of the Chapter relating to the right of establishment, the person providing a service may, in order to do so, temporarily pursue his activity in the Member State where the service is provided, under the same conditions as are imposed by that State on its own nationals.’ TFEU, Article 57. Freedom to supply television programmes containing advertisements and Article 57 of the TFEU ‘1. The distribution, by operators of cable networks established in a Member State, of television programmes supplied by broadcasters established in other Member States and containing advertisements intended especially for the public in the Member State where the programmes are received, comprises a number of services within the meaning of Articles 59 and 60 of the Treaty [Article 60 of the Treaty correlates with Article 57 of the TFEU]. 2.

Prohibitions of advertising and subtitling such as those contained in the Kabelregeling [decree on the relaying by cable of television and radio programmes] entail restrictions on freedom to supply services contrary to Article 59 of the Treaty.

3.

Those prohibitions cannot be justified on grounds of public policy under Article 56 of the Treaty.’

Case C-352/85 Bond van Adverteerders and Others v The Netherlands State, EU:C:1988:196, paras 1–3 of the Court’s ruling. (17) Interpersonal communications services are services that enable interpersonal and interactive exchange of information, covering services like traditional voice calls between two individuals but also all types of emails, messaging services, or group chats. Interpersonal communications services only cover communications between a finite, that is to say not potentially unlimited, number of natural persons, which is determined by the sender of the communication. Communications involving legal persons should fall within the scope of the definition where natural persons act on behalf of those legal persons or are involved at least on one side of the communication. Interactive communication entails that the service allows the recipient of the information to respond. Services which do not meet those requirements, such as linear broadcasting, video on demand, websites, social networks, blogs, or exchange of information between machines, should not be considered to be interpersonal communications services. In exceptional circumstances a service should not be considered to be an interpersonal communications service if the interpersonal and interactive communication facility is a minor and purely ancillary feature to another service and for objective technical reasons cannot be used without that principal service, and its integration is not a means to circumvent the applicability of the rules governing electronic communications services. As elements of an exemption from the definition the terms ‘minor’ and ‘purely ancillary’ should be interpreted narrowly and from an objective end-user’s perspective. An interpersonal communications feature could be considered to be minor where its objective utility for an end-user is very limited and where it is in reality barely used by end-users. An example of a feature that could be considered to fall outside the scope of the definition of interpersonal communications services might be, in principle, a communication channel in online games, depending on the features of the communication facility of the service. See: Article 2(5).

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(18) Interpersonal communications services using numbers from national and international numbering plans connect with publicly assigned numbering resources. Those number-based interpersonal communications services comprise both services to which end-users numbers are assigned for the purpose of ensuring end-to-end connectivity and services enabling end-users to reach persons to whom such numbers have been assigned. The mere use of a number as an identifier should not be considered to be equivalent to the use of a number to connect with publicly assigned numbers and should therefore, in itself, not be considered to be sufficient to qualify a service as a number-based interpersonal communications service. Number-independent interpersonal communications services should be subject to obligations only where public interests require that specific regulatory obligations apply to all types of interpersonal communications services, regardless of whether they use numbers for the provision of their service. It is justified to treat numberbased interpersonal communications services differently, as they participate in, and hence also benefit from, a publicly assured interoperable ecosystem. See: Article 2(6), (7) and (14). (19) The network termination point represents a boundary for regulatory purposes between the regulatory framework for electronic communications networks and services and the regulation of telecommunications terminal equipment. Defining the location of the network termination point is the responsibility of the national regulatory authority. In light of the practice of national regulatory authorities, and given the variety of fixed and wireless topologies, the Body of European Regulators for Electronic Communications (‘BEREC’) should, in close cooperation with the Commission, adopt guidelines on common approaches to the identification of the network termination point, in accordance with this Directive, in various concrete circumstances. See: Articles 2(9); 61(7). BEREC Guidance BEREC Guidelines on Common Approaches to the Identification of the Network Termination Point in different Network Topologies, BoR (20) 46, 5 March 2020 (see annotations to Article 61). (20) Technical developments make it possible for end-users to access emergency services not only by voice calls but also by other interpersonal communications services. The concept of emergency communication should therefore cover all interpersonal communications services that allow such emergency services access. It builds on the emergency system elements already enshrined in Union law, namely a public safety answering point (‘PSAP’) and a most appropriate PSAP as defined in Regulation (EU) 2015/758 of the European Parliament and of the Council19, and on emergency services as defined in Commission Delegated Regulation (EU) No 305/201320.

Regulation (EU) 2015/758 of the European Parliament and of the Council of 29 April 2015 concerning type-approval requirements for the deployment of the eCall in-vehicle system based on the 112 service and amending Directive 2007/46/EC (OJ L 123, 19.5.2015, p 77). 20 Commission Regulation (EU) No 305/2013 of 26 November 2012 supplementing Directive 2010/40/EU of the European Parliament and of the Council with regard to the harmonised provision for an interoperable EU-wide eCall (OJ L 91, 3.4.2013, p. 1). 19



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See: Article 2(5), (14) and (36)–(39). Definition of ‘PSAP’ under the eCall In-Vehicle System – Type-Approval Regulation Regulation (EU) 2015/758, Article 3(3) (see p. 500). Definition of ‘most appropriate PSAP’ under the eCall In-Vehicle System – Type-Approval Regulation Regulation (EU) 2015/758, Article 3(4) (see p. 500). Definition of ‘emergency service’ Commission Delegated Regulation (EU) No 305/2013, Article 2(a) (see p. 490). (21) National regulatory and other competent authorities should have a harmonised set of objectives and principles to underpin their work, and should, where necessary, coordinate their actions with the authorities of other Member States and with BEREC in carrying out their tasks under this regulatory framework. See: Articles 3; 4; 10(2); 11. (22) The tasks assigned to competent authorities by this Directive contribute to the fulfilment of broader policies in the areas of culture, employment, the environment, social cohesion and town and country planning. See: Article 3. (23) The regulatory framework should, in addition to the existing three primary objectives of promoting competition, the internal market and end-user interests, pursue an additional connectivity objective, articulated in terms of outcomes: widespread access to and take-up of very high capacity networks for all citizens of the Union and Union businesses on the basis of reasonable price and choice, effective and fair competition, open innovation, efficient use of radio spectrum, common rules and predictable regulatory approaches in the internal market and the necessary sector-specific rules to safeguard the interests of citizens of the Union. For the Member States, the national regulatory and other competent authorities and the stakeholders, that connectivity objective translates, on the one hand, into aiming for the highest capacity networks and services economically sustainable in a given area, and, on the other, into pursuing territorial cohesion, in the sense of convergence in capacity available in different areas. See: Article 3(2). (24) Progress towards the achievement of the general objectives of this Directive should be supported by a robust system of continuous assessment and benchmarking by the Commission of Member States with respect to the availability of very high capacity networks in all major socio-economic drivers such as schools, transport hubs and major providers of public services, and highly digitised businesses, the availability of uninterrupted 5G coverage for urban areas and major terrestrial transport paths, and the availability to all households in each Member State of electronic communications networks which are capable of providing at least 100 Mbps, and which are promptly upgradeable to gigabit speeds. To that end, the Commission should continue monitoring the performance of Member States, including, by way of an example, indexes that summarise relevant indicators on the Union’s digital performance and track the evolution of Member States in digital

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competitiveness, such as the Digital Economy and Society Index, and, where necessary, establish new methods and new objective, concrete and quantifiable criteria for benchmarking the effectiveness of Member States. See: Article 3(3); 82. (25) The principle that Member States should apply Union law in a technologically neutral fashion, that is to say that a national regulatory or other competent authority should neither impose nor discriminate in favour of the use of a particular type of technology, does not preclude the taking of proportionate steps to promote certain specific services where justified in order to attain the objectives of the regulatory framework, for example digital television as a means for increasing radio spectrum efficiency. Furthermore, that principle does not preclude taking into account that certain transmission media have physical characteristics and architectural features that can be superior in terms of quality of service, capacity, maintenance cost, energy efficiency, management flexibility, reliability, robustness and scalability, and, ultimately, performance, which can be reflected in actions taken with a view to pursuing the various regulatory objectives. See: Article 3(4)(c). (26) Both efficient investment and competition should be encouraged in tandem, in order to increase economic growth, innovation and consumer choice. See: Article 3(2)(b) and (c). (27) Competition can best be fostered through an economically efficient level of investment in new and existing infrastructure, complemented by regulation, where necessary, to achieve effective competition in retail services. An efficient level of infrastructure-based competition is the extent of infrastructure duplication at which investors can reasonably be expected to make a fair return based on reasonable expectations about the evolution of market shares. See: Article 3(2)(b). (28) It is necessary to give appropriate incentives for investment in new very high capacity networks that support innovation in content-rich internet services and strengthen the international competitiveness of the Union. Such networks have enormous potential to deliver benefits to consumers and businesses across the Union. It is therefore vital to promote sustainable investment in the development of those new networks, while safeguarding competition, as bottlenecks and barriers to entry remain at the infrastructure level, and boosting consumer choice through regulatory predictability and consistency. See: Article 3(2)(d); 3(4)(a) and (d). (29) This Directive aims to progressively reduce ex ante sector-specific rules as competition in the markets develops and, ultimately, to ensure that electronic communications are governed only by competition law. Considering that the markets for electronic communications have shown strong competitive dynamics in recent years, it is essential that ex ante regulatory obligations are imposed only where there is no effective and sustainable competition on the markets



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concerned. The objective of ex ante regulatory intervention is to produce benefits for end-users by making retail markets effectively competitive on a sustainable basis. Obligations at wholesale level should be imposed where otherwise one or more retail markets are not likely to become effectively competitive in the absence of those obligations. It is likely that national regulatory authorities are gradually, through the process of market analysis, able to find retail markets to be competitive even in the absence of wholesale regulation, especially taking into account expected improvements in innovation and competition. In such a case, the national regulatory authority should conclude that regulation is no longer needed at wholesale level, and assess the corresponding relevant wholesale market with a view to withdrawing ex ante regulation. In doing so, the national regulatory authority should take into account any leverage effects between wholesale and related retail markets which might require the removal of barriers to entry at the infrastructure level in order to ensure long-term competition at the retail level. See: Article 3(4)(f). (30) Electronic communications are becoming essential for an increasing number of sectors. The Internet of Things is an illustration of how the radio signal conveyance underpinning electronic communications continues to evolve and shape societal and business reality. To derive the greatest benefit from those developments, the introduction and accommodation of new wireless communications technologies and applications in radio spectrum management is essential. As other technologies and applications relying on radio spectrum are equally subject to growing demand, and can be enhanced by integrating or combining them with electronic communications, radio spectrum management should adopt, where appropriate, a cross-sectorial approach to improve the efficient use of radio spectrum. See: Articles 3(2)(c); 4; 45(2)(b). (31) Strategic planning, coordination and, where appropriate, harmonisation at Union level can help ensure that radio spectrum users derive the full benefits of the internal market and that Union interests can be effectively defended globally. For those purposes it should be possible to adopt multiannual radio spectrum policy programmes, where appropriate. The first such programme was established by Decision No 243/2012/EU of the European Parliament and of the Council21, setting out policy orientations and objectives for the strategic planning and harmonisation of the use of radio spectrum in the Union. It should be possible for those policy orientations and objectives to refer to the availability and efficient use of radio spectrum necessary for the establishment and functioning of the internal market, in accordance with this Directive. See: Article 4. (32) National borders are increasingly irrelevant in determining optimal radio spectrum use. Undue fragmentation amongst national policies result in increased costs and lost market opportunities for radio spectrum users and slows down innovation to

Decision No 243/2012/EU of the European Parliament and of the Council of 14 March 2012 establishing a multiannual radio spectrum policy programme (OJ L 81, 21.3.2012, p. 7).

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the detriment of the proper functioning of the internal market and prejudice to consumers and the economy as a whole. See: Articles 4; 42(1). (33) The radio spectrum management provisions of this Directive should be consistent with the work of international and regional organisations dealing with radio spectrum management, such as the International Telecommunications Union (ITU) and the European Conference of Postal and Telecommunications Administrations (CEPT), in order to ensure the effective management of and harmonisation of the use of radio spectrum across the Union and between the Member States and other members of the ITU. See: Articles 4; 39(2); 45. (34) In accordance with the principle of the separation of regulatory and operational functions, Member States should guarantee the independence of the national regulatory and other competent authorities with a view to ensuring the impartiality of their decisions. This requirement of independence is without prejudice to the institutional autonomy and constitutional obligations of the Member States or to the principle of neutrality with regard to the rules in Member States governing the system of property ownership laid down in Article 345 TFEU. National regulatory and other competent authorities should be in possession of all the necessary resources, in terms of staffing, expertise, and financial means, for the performance of their tasks. See: Articles 6; 8. Property ownership under the TFEU ‘The Treaties shall in no way prejudice the rules in Member States governing the system of property ownership.’ TFEU, Article 345. (35) Certain tasks pursuant to the Directive, such as ex ante market regulation, including the imposition of obligations for access and interconnection, and the resolution of disputes between undertakings are tasks which should be undertaken only by national regulatory authorities, namely, bodies which are independent both from the sector and from any external intervention or political pressure. Unless otherwise provided, Member States should be able to assign other regulatory tasks provided for in this Directive either to the national regulatory authorities or to other competent authorities. In the course of transposition, Member States should promote the stability of competences of the national regulatory authorities with regard to the assignment of tasks which resulted from the transposition of the Union electronic communications regulatory framework as amended in 2009, in particular those related to market competition or market entry. Where tasks are assigned to other competent authorities, those other competent authorities should seek to consult the national regulatory authorities before taking a decision. Pursuant to the principle of good cooperation, national regulatory and other competent authorities should exchange information for the exercise of their tasks. See: Articles 5; 6; 8; 11.



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(36) This Directive does not include substantive provisions on open internet access or roaming and is without prejudice to the allocation of competences to national regulatory authorities in Regulation (EU) No 531/2012 of the European Parliament and of the Council22 and in Regulation (EU) 2015/2120. However, this Directive provides, in addition, for national regulatory authorities to be competent for assessing and monitoring closely market access and competition issues which potentially affect the rights of end-users to an open internet access. See: Articles 1(3)(d); 5(1)(e). Zero-rating offers and safeguarding open internet access Joined Cases C-807/18 and C-39/19 Telenor Magyarország Zrt v Nemzeti Médiaés Hírközlési Hatóság Elnöke, EU:C:2020:708, Court’s ruling (see annotations to Annex VIII). Regulated roaming tariffs Case C-539/19 Bundesverband der Verbraucherzentralen und Verbraucherverbande — Verbraucherzentrale Bundesverband eV  v Telefonica Germany GmbH & Co OHG, EU:C:2020:634, Court’s ruling (see annotations to Recital 256). (37) The independence of the national regulatory authorities was strengthened in the review of the electronic communications regulatory framework completed in 2009 in order to ensure a more effective application of the regulatory framework and to increase their authority and the predictability of their decisions. To that end, express provision had to be made in national law to ensure that, in the exercise of its tasks, a national regulatory authority is protected against external intervention or political pressure liable to jeopardise its independent assessment of matters coming before it. Such outside influence makes a national legislative body unsuited to act as a national regulatory authority under the regulatory framework. For that purpose, rules had to be laid down at the outset regarding the grounds for the dismissal of the head of the national regulatory authority in order to remove any reasonable doubt as to the neutrality of that body and its imperviousness to external factors. In order to avoid arbitrary dismissals, dismissed members should have the right to request that the competent courts verify the existence of a valid reason to dismiss, among those provided for in this Directive. Such dismissals should relate only to the personal or professional qualifications of the head or member. It is important that national regulatory authorities have their own budget allowing them, in particular, to recruit a sufficient number of qualified staff. In order to ensure transparency, that budget should be published annually. Within the limits of their budget, they should have autonomy in managing their resources, human and financial. In order to ensure impartiality, Member States that retain ownership of, or control, undertakings contributing to the budget of the national regulatory or other competent authorities through administrative charges should ensure that there is effective structural separation of activities associated with the exercise of ownership or control from the exercise of control over the budget. See: Articles 6–9. (38) There is a need to further reinforce the independence of the national regulatory authorities to ensure the imperviousness of its head and members to external pressure, by providing minimum appointment qualifications, and a minimum Regulation (EU) No 531/2012 of the European Parliament and of the Council of 13 June 2012 on roaming on public mobile communications networks within the Union (OJ L 172, 30.6.2012, p. 10).

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duration for their mandate. Furthermore, to address the risk of regulatory capture, ensure continuity and enhance independence, Member States should consider limiting the possibility of renewing the mandates of the head or members of the board and set up an appropriate rotation scheme for the board and the top management. This could be arranged, for instance, by appointing the first members of the collegiate body for different periods in order for their mandates, as well as that of their successors, not to lapse at the same moment. See: Article 7. (39) National regulatory authorities should be accountable for, and should be required to report on, the way in which they are exercising their tasks. That obligation should normally take the form of an annual reporting obligation rather than ad hoc reporting requests, which, if disproportionate, could limit their independence or hinder them in the exercise of their tasks. Indeed, according to the case-law of the Court of Justice23, extensive or unconditional reporting obligations may indirectly affect the independence of an authority. See: Article 8. Failure to fulfil obligations affecting the independence of an authority ‘By failing to take all the measures necessary to ensure that the legislation in force in Austria meets the requirement of independence with regard to the Data Protection Commission, more specifically by laying down a regulatory framework under which: • The managing member of the Data Protection Commission is a federal official subject to supervision, • The office of Data Protection Commission is integrated with the departments of the Federal Chancellery, and • The Federal Chancellery has an unconditional right to information covering all aspects of the work of the Data Protection Commission, the Republic of Austria has failed to fulfil its obligations under the second subparagraph of Article 28(1) of Directive 95/46/EC of the European Parliament and of the Council of 24  October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data’. Case C-614/10 European Commission v Republic of Austria, EU:C:2012:631, para 1 of the Court’s ruling. (40) Member States should notify the Commission of the identity of the national regulatory and other competent authorities. For authorities competent for granting rights of way, it should be possible to fulfil the notification requirement by a reference to the single information point established pursuant to Directive 2014/61/EU of the European Parliament and of the Council24. See: Article 5(4). Single information point Directive 2014/61/EU, Article 10(4) (see p. 939).

in particular the judgment of the Court of Justice of 16 October 2012, European Commission v Republic of Austria, Case C-614/10, ECLI:EU:C:2012:631. 24 Directive 2014/61/EU of the European Parliament and of the Council of 15 May 2014 on measures to reduce the cost of deploying high-speed electronic communications networks (OJ L 155, 23.5.2014, p. 1). 23



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(41) The least onerous authorisation system possible should be used to allow the provision of electronic communications networks and services in order to stimulate the development of new communications services and pan-European communications networks and services and to allow service providers and consumers to benefit from the economies of scale of the internal market. See: Articles 12; 45(2)(f); 46(1). (42) The benefits of the internal market to service providers and end-users can be best achieved by general authorisation of electronic communications networks and of electronic communications services other than number-independent interpersonal communications services, without requiring any explicit decision or administrative act by the national regulatory authority and by limiting any procedural requirements to a declaratory notification only. Where Member States require notification by providers of electronic communications networks or services when they start their activities, such notification should not entail administrative cost for the providers and could be made available via an entry point at the website of the competent authorities. In order to support effective cross-border coordination, in particular for pan-European operators, BEREC should establish and maintain a database of such notifications. Competent authorities should transmit only complete notifications to BEREC. Member States should not impede the provision of networks or services in any way, including on grounds of incompleteness of a notification. See: Article 12(2)–(4). BEREC Guidance BEREC Guidelines for the notification template pursuant to Article 12, para 4 of Directive 2018/1972 of the European Parliament and of the Council, BoR (19) 259, 6 December 2019 (see annotations to Article 12). General Authorisation Database hosted by BEREC See gadb.berec.europa.eu/#!view=Providers&sort=ProviderName|ASC. (43) Notifications should entail a mere declaration of the provider’s intention to commence the provision of electronic communications networks and services. A  provider should be required to complement that declaration only with the information set out in this Directive. Member States should not impose additional or separate notification requirements. See: Articles 12(3)–(4). BEREC Guidance BEREC Guidelines for the notification template pursuant to Article 12, para 4 of Directive 2018/1972 of the European Parliament and of the Council, BoR (19) 259, 6 December 2019 (see annotations to Article 12). (44) Contrary to the other categories of electronic communications networks and services as defined in this Directive, number-independent interpersonal communications services do not benefit from the use of public numbering resources and do not participate in a publicly assured interoperable ecosystem. It is therefore not appropriate to subject those types of services to the general authorisation regime. See: Article 12(2).

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(45) When granting rights of use for radio spectrum, for numbering resources or rights to install facilities, the competent authorities should inform the undertakings to which they grant such rights of the relevant conditions. Member States should be able to lay down such conditions for the use of radio spectrum in individual rights of use or in the general authorisation. See: Article 13(1). (46) General authorisations should contain only conditions which are specific to the electronic communications sector. They should not be made subject to conditions which are already applicable by virtue of other existing national law, in particular regarding consumer protection, which is not specific to the communications sector. For instance, competent authorities should be able to inform undertakings about the applicable environmental and town-and-country-planning requirements. Conditions imposed under the general authorisation do not affect the determination of applicable law pursuant to Regulation (EC) No  593/2008 of the European Parliament and of the Council25. See: Articles 13(1) and (3). (47) The conditions that could be attached to general authorisations should cover specific conditions governing accessibility for end-users with disabilities and the need of public authorities and emergency services to communicate between themselves and with the general public before, during and after major disasters. See: Article 13(1); Annex I(A)(5) and (6). (48) It is necessary to include the rights and obligations of undertakings under general authorisations explicitly in such authorisations in order to ensure a level playing field throughout the Union and to facilitate cross-border negotiation of interconnection between public electronic communications networks. See: Articles 12(1); 13; 15(2)(a). (49) General authorisations entitle undertakings providing electronic communications networks and services to the public to negotiate interconnection under the conditions of this Directive. Undertakings providing electronic communications networks and services other than to the public can negotiate interconnection on commercial terms. See: Article 15(2)(a). (50) Competent authorities should duly take into account, when attaching conditions to general authorisations and applying administrative charges, situations in which electronic communications networks or services are provided by natural persons on a not-for-profit basis. In the case of electronic communications networks and services not provided to the public it is appropriate to impose fewer and lighter conditions, if any, than are justified for electronic communications networks and services provided to the public. Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ L 177, 4.7.2008, p. 6)

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See: Articles 3(4)(e); 13. (51) Specific obligations imposed on undertakings providing electronic communications networks and electronic communications services in accordance with Union law by virtue of their designation as having significant market power as defined in this Directive should be imposed separately from the general rights and obligations under the general authorisation. See: Article 13(2). (52) It is possible that undertakings providing electronic communications networks and services need confirmation of their rights under the general authorisation with respect to interconnection and rights of way, in particular to facilitate negotiations with other, regional or local, levels of government or with service providers in other Member States. To that end competent authorities should provide declarations to undertakings either upon request or alternatively as an automatic response to a notification under the general authorisation. Such declarations should not by themselves constitute entitlements to rights, nor should any rights under the general authorisation, rights of use or the exercise of such rights depend upon a declaration. See: Article 14. (53) It should be possible to impose administrative charges on undertakings providing electronic communications services in order to finance the activities of the national regulatory or other competent authority in managing the general authorisation system and the granting of rights of use. Such charges should be limited to cover the actual administrative costs for those activities. To that end, transparency should be ensured in the income and expenditure of national regulatory and other competent authorities by means of annual reporting about the total sum of charges collected and the administrative costs incurred, in order to allow undertakings to verify that they are in balance. See: Article 16. (54) Systems for administrative charges should not distort competition or create barriers to market entry. A general authorisation system renders it impossible to attribute administrative costs and hence charges to individual undertakings, except for the granting of rights of use for numbering resources, radio spectrum and for rights to install facilities. Any applicable administrative charges should be in line with the principles of a general authorisation system. An example of a fair, simple and transparent alternative for those charge attribution criteria could be a turnover related distribution key. Where administrative charges are very low, flat rate charges, or charges combining a flat rate basis with a turnover related element could also be appropriate. To the extent that the general authorisation system extends to undertakings with very small market shares, such as community-based network providers, or to service providers the business model of which generates very limited revenues even in the case of significant market penetration in terms of volumes, Member States should assess the possibility to establish an appropriate de minimis threshold for the imposition of administrative charges. See: Article 16(1).

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(55) Member States might need to amend rights, conditions, procedures, charges and fees relating to general authorisations and rights of use where this is objectively justified. Such proposed amendments should be duly notified to all interested parties in good time, giving them adequate opportunity to express their views. Unnecessary procedures should be avoided in the case of minor amendments to existing rights to install facilities or rights of use for radio spectrum or for numbering resources when such amendments do not have an impact on third parties’ interests. Minor amendments to rights and obligations are amendments which are mainly administrative, do not change the substantial nature of the general authorisations and the individual rights of use and thus cannot generate any competitive advantage over other undertakings. See: Article 18. (56) Considering the importance of ensuring legal certainty and in order to promote regulatory predictability to provide a safe environment for investments, in particular for new wireless broadband communications, any restriction or withdrawal of any existing rights of use for radio spectrum or for numbering resources or right to install facilities should be subject to predictable and transparent justifications and procedures. Hence, stricter requirements or a notification mechanism could be imposed in particular where rights of use have been assigned pursuant to competitive or comparative procedures and in the case of harmonised radio spectrum bands to be used for wireless broadband electronic communications services (‘wireless broadband services’). Justifications referring to effective and efficient use of radio spectrum and technological evolution could rely on technical implementing measures adopted under Decision No 676/2002/EC of the European Parliament and of the Council26. Furthermore, except where proposed amendments are minor, where general authorisations and individual rights of use for radio spectrum need to be restricted, withdrawn or amended without the consent of the holder of the right, this can take place after consulting interested parties. As restrictions or withdrawals of general authorisations or rights may have significant consequences for their holders, the competent authorities should take particular care and assess in advance the potential harm that such measures may cause before adopting such measures. See: Articles 18; 19. Technical implementing measures adopted under the Radio Spectrum Decision See Annex III at pp. 691–1076. (57) National regulatory authorities, other competent authorities and BEREC need to gather information from market players in order to carry out their tasks effectively, including assessing the compliance of general terms and conditions with this Directive without suspending the applicability of those terms and conditions during the assessment. It may, by way of exception, also be necessary to gather information from other undertakings active in sectors that are closely related to the electronic communications services sector, such as content providers, that hold information which could be necessary for them to exercise their tasks under Union law. It might also be necessary to gather Decision No 676/2002/EC of the European Parliament and of the Council of 7 March 2002 on a regulatory framework for radio spectrum policy in the European Community (Radio Spectrum Decision) (OJ L 108, 24.4.2002, p. 1).

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such information on behalf of the Commission, to allow it to fulfil its respective obligations under Union law. Requests for information should be proportionate and not impose an undue burden on undertakings. Information gathered by national regulatory and other competent authorities should be publicly available, except in so far as it is confidential in accordance with national rules on public access to information and subject to Union and national rules on commercial confidentiality. See: Article 20. (58) In order to ensure that national regulatory authorities carry out their regulatory tasks in an effective manner, the data which they gather should include accounting data on the retail markets that are associated with wholesale markets where an undertaking is designated as having significant market power and as such are regulated by the national regulatory authority. The data should also include data which enable the national regulatory authority to assess compliance with conditions attached to rights of use, the possible impact of planned upgrades or changes to network topology on the development of competition or on wholesale products made available to other parties. Information regarding compliance with coverage obligations attached to rights of use for radio spectrum is key to ensure completeness of the geographical surveys of network deployments. In that respect, the competent authority should be able to require that information is provided at disaggregated local level with a granularity adequate to conduct a geographical survey of networks. See: Articles 17; 20(1); 21(1) and (2). (59) To alleviate the burden of reporting and information obligations for network and service providers and the competent authority concerned, such obligations should be proportionate, objectively justified and limited to what is strictly necessary. In particular, duplication of requests for information by the competent authority and by BEREC, and the systematic and regular proof of compliance with all conditions under a general authorisation or a right of use, should be avoided. Undertakings should be aware of the intended use of the information sought. Provision of information should not be a condition for market access. For statistical purposes, a notification may be required from providers of electronic communications networks or services when they cease activities. See: Article 21. (60) Member States’ obligations to provide information for the defence of Union interests under international agreements as well as reporting obligations under law that is not specific to the electronic communications sector such as competition law should not be affected. See: Article 20. (61) It should be possible to exchange information that is considered to be confidential by a competent authority, in accordance with Union and national rules on commercial confidentiality and on the protection of personal data, with the Commission, BEREC and any other authorities where such exchange is necessary for the application of national law transposing this Directive. The information

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exchanged should be limited to that which is relevant and proportionate to the purpose of such an exchange. See: Articles 11; 20(3) and (4). (62) Electronic communications broadband networks are becoming increasingly diverse in terms of technology, topology, medium used and ownership. Therefore, regulatory intervention must rely on detailed information regarding network roll-out in order to be effective and to target the areas where it is needed. That information is essential for the purpose of promoting investment, increasing connectivity across the Union and providing information to all relevant authorities and citizens. It should include surveys regarding both deployment of very high capacity networks, as well as significant upgrades or extensions of existing copper or other networks which might not match the performance characteristics of very high capacity networks in all respects, such as roll-out of fibre to the cabinet coupled with active technologies like vectoring. The relevant forecasts should concern periods of up to three years. The level of detail and territorial granularity of the information that competent authorities should gather should be guided by the specific regulatory objective, and should be adequate for the regulatory purposes that it serves. Therefore, the size of the territorial unit will also vary between Member States, depending on the regulatory needs in the specific national circumstances, and on the availability of local data. Level 3 in the Nomenclature of Territorial Units for Statistics (NUTS) is unlikely to be a sufficiently small territorial unit in most circumstances. National regulatory and other competent authorities should be guided by BEREC guidelines on best practice to approach such a task, and such guidelines will be able to rely on the existing experience of national regulatory and/or other competent authorities in conducting geographical surveys of networks roll-out. Without prejudice to commercial confidentiality requirements, competent authorities should, where the information is not already available on the market, make data directly accessible in an open format in accordance with Directive 2003/98/EC of the European Parliament and of the Council27 and without restrictions on reuse the information gathered in such surveys and should make available tools to end-users as regards quality of service to contribute towards the improvement of their awareness of the available connectivity services. In gathering any of that information, all authorities concerned should respect the principle of confidentiality, and should avoid causing a competitive disadvantage to any undertaking. See: Articles 10(2); 22(1) and (5)–(7); 82. NUTS See Regulation (EC) No  1059/2003 of the European Parliament and of the Council of 26  May 2003 on the establishment of a common classification of territorial units for statistics (NUTS) (OJ  L  154, 21.6.2003, p. 1); the NUTS  2021 classification is valid from 1  January 2021, see: Commission Delegated Regulation 2019/1755 of 8 August 2019 amending the Annexes to Regulation (EC) No 1059/2003 of the European Parliament and of the Council on the establishment of a common classification of territorial units for statistics (NUTS) (OJ L 270, 24.10.2019, p. 1). Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information (OJ L 345, 31.12.2003, p. 90).

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BEREC Guidance BEREC Guidelines on Geographical surveys of network deployments, BoR (20) 42, 5 March 2020 and BEREC Guidelines on Geographical surveys of network deployments. Article 22 (2), 22 (3) and 22 (4), BoR (21) 32, 11 March 2021 (see annotations to Article 22). (63) Bridging the digital divide in the Union is essential to enable all citizens of the Union to have access to the internet and digital services. To that end, in the case of specific and well-defined areas, the relevant authorities should have the possibility to invite undertakings and public authorities to declare their intention to deploy very high capacity networks in these areas, allowing them sufficient time to provide a thoroughly considered response. The information included in the forecasts should reflect the economic prospects of the electronic communications networks sector and investment intentions of undertakings at the time when the data are gathered, in order to allow the identification of available connectivity in different areas. Where an undertaking or public authority declares an intention to deploy in an area, the national regulatory or other competent authority should be able to require other undertakings and public authorities to declare whether or not they intend to deploy very high capacity networks, or significantly upgrade or extend their network to a performance of at least 100 Mbps download speeds in this area. That procedure will create transparency for undertakings and public authorities that have expressed their interest in deploying in this area, so that, when designing their business plans, they can assess the likely competition that they will face from other networks. The positive effect of such transparency relies on market participants responding truthfully and in good faith. See: Articles 22(2)–(5); 82. (64) While market participants can change their deployment plans for unforeseen, objective and justifiable reasons, competent authorities should intervene, including if public funding is affected, and, where appropriate, impose penalties if they have been provided, knowingly or due to gross negligence, by an undertaking or public authority with misleading erroneous or incomplete information. For the purpose of the relevant provisions on penalties, gross negligence should refer to a situation where an undertaking or a public authority provides misleading, erroneous or incomplete information due to its behaviour or internal organisation which falls significantly below due diligence regarding the information provided. Gross negligence should not require that the undertaking or public authority knows that the information provided is misleading, erroneous or incomplete, but, rather, that it would have known, had it acted or been organised with due diligence. It is important that the penalties are sufficiently dissuasive in light of the negative impact on competition and on publicly funded projects. The provisions on penalties should be without prejudice to any rights to claim compensation for damages in accordance with national law. See: Articles 22(3); 29. (65) In the interests of predictable investment conditions, competent authorities should be able to share information with undertakings and public authorities expressing interest in deploying very high capacity networks on whether other types of network upgrades, including those below 100 Mbps download speed, are present or foreseen in the area in question.

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See: Article 22(3) and (6). (66) It is important that national regulatory and other competent authorities consult all interested parties on proposed decisions, give them sufficient time to the complexity of the matter to provide their comments, and take account of their comments before adopting a final decision. In order to ensure that decisions at national level do not have an adverse effect on the functioning of the internal market or other TFEU objectives, national regulatory authorities should also notify certain draft decisions to the Commission and other national regulatory authorities to give them the opportunity to comment. It is appropriate for competent authorities to consult interested parties in the cases defined in this Directive on all draft measures which have an effect on trade between Member States. See: Articles 23; 32(2) and (3). (67) In the context of a competitive environment, the views of interested parties, including users and consumers, should be taken into account. In order to appropriately address the interests of citizens, Member States should put in place an appropriate consultation mechanism. Such a mechanism could take the form of a body which would, independently of the national regulatory authority and service providers, carry out research into consumer-related issues, such as consumer behaviour and mechanisms for changing suppliers, and which would operate in a transparent manner and contribute to the existing mechanisms for stakeholder consultation. Furthermore, a mechanism could be established for the purpose of enabling appropriate cooperation on issues relating to the promotion of lawful content. Any cooperation procedures agreed pursuant to such a mechanism should, however, not allow for the systematic surveillance of internet use. See Article 24. (68) Out-of-court dispute resolution procedures may constitute a fast and costefficient way for end-users to enforce their rights, in particular for consumers and microenterprises and small enterprises as defined in the Annex to Commission Recommendation 2003/361/EC28. Member States should enable the national regulatory authority or another competent authority responsible for, or at least one independent body with proven expertise in dealing with, end-user rights to act as an alternative dispute resolution entity. With respect to such dispute resolutions, those authorities should not be subject to any instructions. As many Member States have established dispute resolution procedures also for end-users other than consumers, to whom Directive 2013/11/EU of the European Parliament and of the Council29 does not apply, it is reasonable to maintain the sector-specific dispute resolution procedure for both consumers and, where Member States extend it, also for other end-users, in particular microenterprises and small enterprises. In relation to out-of-court dispute resolution, Member States should be able to maintain or introduce rules that go beyond those laid down by Directive 2013/11/ EU in order to ensure a higher level of consumer protection. Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ L 124, 20.5.2003, p. 36). 29 Directive 2013/11/EU of the European Parliament and of the Council of 21  May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No  2006/2004 and Directive 2009/22/EC (Directive on consumer ADR) (OJ L 165, 18.6.2013, p. 63). 28



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See: Article 25. Definitions of micro, small and medium-sized enterprises (a)

Definition of ‘enterprise’: ‘An enterprise is considered to be any entity engaged in an economic activity, irrespective of its legal form. This includes, in particular, self-employed persons and family businesses engaged in craft or other activities, and partnerships or associations regularly engaged in an economic activity.’ – Commission Recommendation 2003/361/EC, Annex, Article 1;

(b) Definition of ‘SMEs’: ‘The category of micro, small and medium-sized enterprises (SMEs) is made up of enterprises which employ fewer than 250 persons and which have an annual turnover not exceeding EUR 50 million, and/or an annual balance sheet total not exceeding EUR  43 million.’ – Commission Recommendation 2003/361/EC, Annex, Article 2(1); (c)

Definition of ‘small enterprise’: ‘Within the SME category, a small enterprise is defined as an enterprise which employs fewer than 50 persons and whose annual turnover and/or annual balance sheet total does not exceed EUR 10 million.’ – Commission Recommendation 2003/361/EC, Annex, Article 2(2);

(d) Definition of ‘microenterprise’: ‘Within the SME category, a microenterprise is defined as an enterprise which employs fewer than 10 persons and whose annual turnover and/or annual balance sheet total does not exceed EUR  2 million.’ – Commission Recommendation 2003/361/ EC, Annex, Article 2(3); (e)

Member States’ divergence: ‘The ceilings shown in Article 2 of the Annex are to be regarded as maximum values. Member States […] may fix lower ceilings. In implementing certain of their policies, they may also choose to apply only the criterion of number of employees, except in fields governed by the various rules on State aid.’ – Commission Recommendation 2003/361/EC, Article 2; see also Annex, Articles 3–6;

(f)

Establishing the data of an enterprise: ‘34. In the case of an autonomous enterprise, that is to say an enterprise which is not classified as a “partner enterprise” or as a “linked enterprise” within the meaning of Article 3(2) and (3) of the Annex to Recommendation 2003/361, the data, including the number of staff, are determined exclusively on the basis of the accounts of that enterprise, in accordance with Article 6(1) of that annex. 35. In the case of an enterprise having partner enterprises or linked enterprises, the data, including the headcount, are determined on the basis of the accounts and other data of the enterprise or, where they exist, the consolidated accounts of the enterprise, or the consolidated accounts in which the enterprise is included through consolidation, in accordance with the first paragraph of Article 6(2) of the Annex to Recommendation 2003/361. Under the second and third paragraphs of Article  6(2) of the Annex to Recommendation 2003/361, it is necessary to add to those data, first, the data of partner enterprises (situated immediately upstream or downstream from the enterprise in question) in proportion to the percentage interest in the capital

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or voting rights (whichever is greater), and, second, 100% of the data of enterprises, which are linked directly or indirectly to the enterprise in question, where the data were not already included through consolidation in the accounts. 36. For the application of Article 6(2) of the Annex to Recommendation 2003/361, the data of the partner enterprises of the enterprise in question are derived from their accounts and their other data, consolidated if they exist. To these is added 100% of the data of enterprises which are linked to these partner enterprises, unless their accounts data are already included through consolidation, pursuant to the first paragraph of Article 6(3) of the Annex to Recommendation 2003/361. As regards the data of the enterprises which are linked to the enterprise in question, they are to be derived from their accounts and their other data, consolidated if they exist. To these is added, pro rata, the data of any possible partner enterprise of that linked enterprise, situated immediately upstream or downstream from it, unless it has already been included in the consolidated accounts with a percentage at least proportional to the percentage interest in the capital or voting rights (whichever is greater), pursuant to the second paragraph of Article 6(3) of the Annex to Recommendation 2003/361.’ Case T-587/14 Crosfield Italia Srl v European Chemicals Agency (ECHA), EU:T:2016:475, paras 34–36; Case T-620/13  Marchi Industriale SpA  v European Chemicals Agency (ECHA), EU:T:2016:479, paras 30–32. (69) In the event of a dispute between undertakings in the same Member State in an area covered by this Directive, for example relating to obligations for access and interconnection or to the means of transferring end-user lists, an aggrieved party that has negotiated in good faith but failed to reach agreement should be able to call on the national regulatory authority to resolve the dispute. National regulatory authorities should be able to impose a solution on the parties. The intervention of a national regulatory authority in the resolution of a dispute between providers of electronic communications networks or services or associated facilities in a Member State should seek to ensure compliance with the obligations arising under this Directive. See: Article 26. (70) In addition to the rights of recourse granted under Union or national law, there is a need for a simple procedure to be initiated at the request of either party in a dispute, to resolve cross-border disputes between undertakings providing, or authorised to provide, electronic communications networks or services in different Member States. See: Article 27. (71) One important task assigned to BEREC is to adopt, where appropriate, opinions in relation to cross-border disputes. National regulatory authorities should therefore fully reflect any opinion submitted by BEREC in their measures imposing any obligation on an undertaking or otherwise resolving the dispute in such cases. See: Articles 10(2); 27(2)-(5).



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(72) Lack of coordination between Member States when organising the use of radio spectrum in their territory can, if not solved through bilateral Member States negotiations, create large-scale interference issues severely impacting on the development of the Digital Single Market. Member States should take all necessary measures to avoid cross-border and harmful interference between them. The Radio Spectrum Policy Group (RSPG) established by Commission Decision 2002/622/ EC30 should be tasked with supporting the necessary cross-border coordination and be the designated forum for resolving disputes between Member States on cross border issues. Building on the RSPG’s proposed solution, an implementing measure is required in some circumstances to resolve cross-border interference definitively or to enforce under Union law a coordinated solution agreed by two or several Member States in bilateral negotiations. Lack of coordination between Member States and countries neighbouring the Union can also create large-scale interference issues. Member States should take appropriate measures to avoid cross-border and harmful interference with countries neighbouring the Union, and cooperate with each other to that end. Upon the request of Member States affected by cross-border interference from third countries, the Union should provide its full support for those Member States. See: Articles 28; 118. (73) The RSPG is a Commission high-level advisory group which was created by Decision 2002/622/EC to contribute to the development of the internal market and to support the development of a Union-level radio spectrum policy, taking into account economic, political, cultural, strategic, health and social considerations, as well as technical parameters. It should be composed of the heads of the bodies that have overall political responsibility for strategic radio spectrum policy. It should assist and advise the Commission with respect to radio spectrum policy. This should further increase the visibility of radio spectrum policy in the various Union policy areas and help to ensure cross-sectorial consistency at Union and national and level. It should also provide advice to the European Parliament and to the Council upon their request. Moreover, the RSPG should also be the forum for the coordination of implementation by Member States of their obligations related to radio spectrum under this Directive and should play a central role in fields essential for the internal market such as cross-border coordination or standardisation. Technical or expert working groups could also be created to assist plenary meetings, at which strategic policy is framed through senior-level representatives of the Member States and the Commission. The Commission has indicated its intention to amend Decision 2002/622/EC within six months of the entry into force of this Directive, in order to reflect the new tasks conferred on the RSPG by this Directive. See: Articles 4; 28. RSPG Decision The validity of Decision 2002/622/EC ended on 1 July 2019, which was repealed by Commission Decision of 11 June 2019 setting up the Radio Spectrum Policy Group and repealing Decision 2002/622/EC (OJ C 196, 12.6.2019, p. 16) (see pp 691–1076).

Commission Decision 2002/622/EC of 26  July 2002 establishing a Radio Spectrum Policy Group (OJ L 198, 27.7.2002, p. 49).

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(74) Competent authorities should monitor and secure compliance with the terms and conditions of the general authorisation and rights of use, and in particular to ensure effective and efficient use of radio spectrum and compliance with coverage and quality of service obligations, through administrative penalties including financial penalties and injunctions and withdrawals of rights of use in the event of breaches of those terms and conditions. Undertakings should provide the most accurate and complete information possible to competent authorities to allow them to fulfil their surveillance tasks. See: Articles 29; 30. (75) The conditions attached to general authorisations and individual rights of use should be limited to those strictly necessary to ensure compliance with requirements and obligations under national law and Union law. See: Article 13. (76) Any party subject to a decision of a competent authority should have the right to appeal to a body that is independent of the parties involved and of any external intervention or political pressure which could jeopardise its independent assessment of matters coming before it. That body can be a court. Furthermore, any undertaking which considers that its applications for the granting of rights to install facilities have not been dealt with in accordance with the principles set out in this Directive should be entitled to appeal against such decisions. That appeal procedure should be without prejudice to the division of competences within national judicial systems and to the rights of legal entities or natural persons under national law. In any case, Member States should grant effective judicial review against such decisions. See: Article 31. (77) In order to ensure legal certainty for market players, appeal bodies should carry out their functions effectively. In particular, appeal proceedings should not be unduly lengthy. Interim measures suspending the effect of the decision of a competent authority should be granted only in urgent cases in order to prevent serious and irreparable damage to the party applying for those measures and if the balance of interests so requires. See: Article 31. (78) There has been a wide divergence in the manner in which appeal bodies have applied interim measures to suspend the decisions of the national regulatory or other competent authorities. In order to achieve greater consistency of approach common standards should be applied in line with the case law of the Court of Justice. Appeal bodies should also be entitled to request available information published by BEREC. Given the importance of appeals for the overall operation of the regulatory framework, a mechanism should be set up, in all the Member States, for collecting information on appeals and decisions to suspend decisions taken by the competent authorities and for the reporting of that information to the Commission and to BEREC. That mechanism should ensure that the Commission or BEREC can retrieve from Member States the text of the decisions and judgments with a view to developing a database.



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See: Article 31(3). (79) Transparency in the application of the Union mechanism for consolidating the internal market for electronic communications should be increased in the interest of citizens and stakeholders and to enable parties concerned to make their views known, including by way of requiring national regulatory authorities to publish any draft measure at the same time as it is communicated to the Commission, to BEREC, and to the national regulatory authorities in other Member States. Any such draft measure should be reasoned and should contain a detailed analysis. See: Article 32(1)–(3) and (9)–(11). (80) The Commission should be able, after taking utmost account of the opinion of BEREC, to require a national regulatory authority to withdraw a draft measure where it concerns the definition of relevant markets or the designation of undertakings as having significant market power, and where such decisions would create a barrier to the internal market or would be incompatible with Union law and in particular the policy objectives that national regulatory authorities should follow. This procedure is without prejudice to the notification procedure provided for in Directive (EU) 2015/1535 and the Commission’s prerogatives under TFEU in respect of infringements of Union law. See: Article 32(4)–(8). Notification procedure in the Single Market Transparency Directive See Directive (EU) 2015/1535, Articles 5–7 (see pp. 946–950). Commission’s prerogatives under TFEU in respect of infringements of Union law See TFEU, Articles 105; 259; 260. (81) The national consultation of interested parties should be conducted prior to the consultation at Union level for the purposes of consolidating the internal market for electronic communications and within the procedure for the consistent application of remedies, in order to allow the views of interested parties to be reflected in the consultation at Union level. This would also avoid the need for a second consultation at Union level in the event of changes to a planned measure as a result of the national consultation. See: Articles 32(3); 33. (82) It is important that the regulatory framework is implemented in a timely manner. When the Commission has taken a decision requiring a national regulatory authority to withdraw a planned measure, national regulatory authorities should withdraw its draft measure or submit a revised measure to the Commission. A  deadline should be laid down for the notification of the revised measure to the Commission in order to inform market players of the duration of the market review and in order to increase legal certainty. See: Articles 32(7); 33. (83) The Union mechanism allowing the Commission to require national regulatory authorities to withdraw planned measures concerning market definition and the

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designation of undertakings as having significant market power has contributed significantly to a consistent approach in identifying the circumstances in which ex ante regulation may be applied and those in which the undertakings are subject to such regulation. The experience of the procedures under Articles  7 and 7a of Directive 2002/21/EC has shown that inconsistencies in the national regulatory authorities’ application of remedies under similar market conditions undermine the internal market in electronic communications. Therefore, the Commission and BEREC should participate in ensuring, within their respective responsibilities, a higher level of consistency in the application of remedies concerning draft measures proposed by national regulatory authorities. In addition, for draft measures relating to the extension of obligations beyond the first concentration or distribution point, where needed to address high and non-transitory economic or physical barriers to replication, on undertakings irrespective of a designation as having significant market power, or to the regulatory treatment of new very high-capacity network elements where BEREC shares the Commission’s concerns, the Commission should be able to require a national regulatory authority to withdraw a draft measure. In order to benefit from the expertise of national regulatory authorities on the market analysis, the Commission should consult BEREC prior to adoption of its decisions or recommendations. See: Articles 32; 33. (84) Having regard to the short time-limits in the consultation mechanism at Union level, powers should be conferred on the Commission to adopt recommendations or guidelines to simplify the procedures for exchanging information between the Commission and national regulatory authorities, for example in cases concerning stable markets, or involving only minor changes to previously notified measures. Powers should also be conferred on the Commission in order to allow for the introduction of a notification exemption in order to streamline procedures in certain cases. See: Article 34. Commission Recommendation Commission Recommendation (EU) 2021/554 of 30  March 2021 on the form, content, time limits and level of detail to be given in notifications under the procedures set in Article  32 of Directive (EU) 2018/1972 of the European Parliament and of the Council establishing the European Electronic Communications Code (OJ L 112, 31.3.2021, p. 5) (see p. 1233). (85) National regulatory authorities should be required to cooperate with each other, with BEREC and with the Commission, in a transparent manner, to ensure the consistent application, in all Member States, of this Directive. See: Articles 10; 11; 32(2); 33. (86) The discretion of national regulatory authorities needs to be reconciled with the development of consistent regulatory practices and the consistent application of the regulatory framework in order to contribute effectively to the development and completion of the internal market. National regulatory authorities should therefore support the internal market activities of the Commission and of BEREC.



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See: Articles 10(1); 32; 33(2). (87) Measures that could affect trade between Member States are measures that could have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States in a manner which might create a barrier to the internal market. They comprise measures that have a significant impact on undertakings or users in other Member States, which include: measures which affect prices for users in other Member States; measures which affect the ability of an undertaking established in another Member State to provide an electronic communications service, and in particular measures which affect the ability to offer services on a transnational basis; and measures which affect market structure or access, leading to repercussions for undertakings in other Member States. See: Articles 32(3) and (4); 33. (88) A more convergent use and definition of elements of selection procedures and the conditions attached to the rights of use for radio spectrum which have a significant impact on market conditions and the competitive situation, including conditions for entry and expansion, would be enhanced by a coordination mechanism whereby the RSPG, at the request of the national regulatory or other competent authority or, exceptionally, on its own initiative, convenes a Peer Review Forum to examine draft measures in advance of the granting of rights of use by a given Member State with a view to exchanging best practices. The Peer Review Forum is an instrument of peer learning. It should contribute to a better exchange of best practices between Member States and increase the transparency of the competitive or comparative selection procedures. The Peer Review Process should not be a formal condition of national authorisation procedures. The exchange of views should be based on information provided by the national regulatory or other competent authority that requests the Peer Review Forum and should be a subset of a wider national measure, which may more broadly consist of the granting, trade and lease, duration, renewal or the amendment of rights of use. Therefore, the national regulatory or other competent authority should also be able to provide information on other draft national measures or aspects thereof related to the relevant selection procedure for limiting rights of use for radio spectrum which are not covered by the peer review mechanism. To reduce administrative burden, the national regulatory or other competent authority should be able to submit such information by way of a common reporting format, where available, for transmission to the RSPG members. See: Article 35. (89) Where the harmonised assignment of radio spectrum to particular undertakings has been agreed at Union level, Member States should strictly implement such agreements in the granting of rights of use for radio spectrum from the National Frequency Allocation Plan. See: Article 36. (90) Member States should be able to consider joint authorisation processes as an option when issuing rights of use where the expected usage covers cross-border situations.

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See: Article 37. (91) Any Commission decision to ensure the harmonised application of this Directive should be limited to regulatory principles, approaches and methodologies. For the avoidance of doubt, it should not prescribe any detail normally required to reflect national circumstances, and it should not prohibit alternative approaches which can reasonably be expected to have equivalent effect. Such a decision should be proportionate and should not have an effect on decisions taken by national regulatory or other competent authorities that do not create a barrier to the internal market. See: Article 38. (92) The Union and the Member States have entered into commitments in relation to standards and the regulatory framework of telecommunications networks and services in the World Trade Organization. See: Article 39. (93) Standardisation should remain primarily a market-driven process. However there may still be situations where it is appropriate to require compliance with specified standards at Union level in order to improve interoperability, freedom of choice for users and encourage interconnectivity in the internal market. At national level, Member States are subject to Directive (EU) 2015/1535. Standardisation procedures under this Directive are without prejudice to Directives 2014/30/EU31 and 2014/35/EU32 of the European Parliament and of the Council, and Directive 2014/ 53/EU. See: Article 39. Electrical safety: low-voltage electrical equipment Directive 2014/35/EU (see p. 859). (94) Providers of public electronic communications networks or publicly available electronic communications services, or of both, should be required to take measures to safeguard the security of their networks and services, respectively, and to prevent or minimise the impact of security incidents. Having regard to the state of the art, those measures should ensure a level of security of networks and services appropriate to the risks posed. Security measures should take into account, as a minimum, all the relevant aspects of the following elements: as regards security of networks and facilities: physical and environmental security, security of supply, access control to networks and integrity of networks; as regards handling of security incidents: handling procedures, security incident detection capability, security incident reporting and communication; as regards business continuity management: service continuity strategy and contingency plans, disaster recovery capabilities; as regards monitoring, auditing and testing: Directive 2014/30/EU of the European Parliament and of the Council of 26  February 2014 on the harmonisation of the laws of the Member States relating to electromagnetic compatibility (OJ  L  96, 29.3.2014, p. 79). 32 Directive 2014/35/EU of the European Parliament and of the Council of 26  February 2014 on the harmonisation of the laws of the Member States relating to the making available on the market of electrical equipment designed for use within certain voltage limits (OJ L 96, 29.3.2014, p. 357). 31



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monitoring and logging policies, exercise contingency plans, network and service testing, security assessments and compliance monitoring; and compliance with international standards. See: Article 40(1). (95) Given the growing importance of number-independent interpersonal communications services, it is necessary to ensure that they are also subject to appropriate security requirements in accordance with their specific nature and economic importance. Providers of such services should thus also ensure a level of security appropriate to the risk posed. Given that providers of numberindependent interpersonal communications services normally do not exercise actual control over the transmission of signals over networks, the degree of risk for such services can be considered in some respects to be lower than for traditional electronic communications services. Therefore, where justified on the basis of the actual assessment of the security risks involved, the measures taken by providers of number-independent interpersonal communications services should be lighter. The same approach should apply mutatis mutandis to interpersonal communications services which make use of numbers and which do not exercise actual control over signal transmission. See: Article 40(1). (96) Providers of public electronic communications networks or of publicly available electronic communications services should inform users of particular and significant security threats and of measures they can take to protect the security of their communications, for instance by using specific types of software or encryption technologies. The requirement to inform users of such threats should not discharge a service provider from the obligation to take, at its own expense, appropriate and immediate measures to remedy any security threats and restore the normal security level of the service. The provision of such information about security threats to the user should be free of charge. See: Article 40(3). (97) In order to safeguard security of networks and services, and without prejudice to the Member States’ powers to ensure the protection of their essential security interests and public security, and to permit the investigation, detection and prosecution of criminal offences, the use of encryption for example, end-to-end where appropriate, should be promoted and, where necessary, encryption should be mandatory in accordance with the principles of security and privacy by default and by design. See: Article 40(1) and (5). (98) Competent authorities should ensure that the integrity and availability of public electronic communications networks are maintained. The European Union Agency for Network and Information Security (‘ENISA’) should contribute to an enhanced level of security of electronic communications by, inter alia, providing expertise and advice, and promoting the exchange of best practices. The competent authorities should have the necessary means to perform their duties, including powers to request the information necessary to assess the level

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of security of networks or services. They should also have the power to request comprehensive and reliable data about actual security incidents that have had a significant impact on the operation of networks or services. They should, where necessary, be assisted by Computer Security Incident Response Teams (‘CSIRTs’) established by Directive (EU) 2016/ 1148 of the European Parliament and of the Council33. In particular, CSIRTs may be required to provide competent authorities with information about risks and security incidents affecting public electronic communications networks and publicly available electronic communications services, and recommend ways to address them. See: Articles 40(5); 41. (99) Where the provision of electronic communications relies on public resources the use of which is subject to specific authorisation, Member States should be able to grant the authority competent for issuance thereof the right to impose fees to ensure optimal use of those resources, in accordance with the procedures envisaged in this Directive. In line with the case-law of the Court of Justice, Member States cannot levy any charges or fees in relation to the provision of networks and electronic communications services other than those provided for by this Directive. In that regard, Member States should have a consistent approach in establishing those charges or fees in order not to provide an undue financial burden linked to the general authorisation procedure or rights of use for providers of electronic communications networks and services. See: Articles 16; 42; 95. Fees and charges other than and in addition to those allowed by the Directive Joined Cases C-292/01 Albacom SpA and C-293/01 Infostrada SpA v Ministero del Tesoro, del Bilancio e della Programmazione Economica and Ministero delle Comunicazioni, EU:C:2003:480, Court’s ruling, and Joined Cases C-250/02 Telecom Italia Mobile SpA, C-251/02 Blu SpA, C-252/02 Telecom Italia SpA, C-253/02 Vodafone Omnitel SpA, formerly Omnitel Pronto Italia SpA, and C-256/02  WIND  Telecomunicazioni SpA  v Ministero dell’Economia e delle Finanze and Ministero delle Comunicazioni, EU:C:2004:335, Court’s ruling (in Italian); Case C-339/04 Nuova società di telecomunicazioni SpA v Ministero delle Comunicazioni and ENI SpA, EU:C:2006:490, Court’s ruling (see annotations to Article 16). (100) To ensure optimal use of resources, fees should reflect the economic and technical situation of the market concerned as well as any other significant factor determining their value. At the same time, fees should be set in a manner that ensures efficient assignment and use of radio spectrum. This Directive is without prejudice to the purpose for which fees for rights of use and rights to install facilities are employed. It should be possible, for example, to use such fees to finance activities of national regulatory and other competent authorities that cannot be covered by administrative charges. Where, in the case of competitive or comparative selection procedures, fees for rights of use for radio spectrum consist entirely or partly of a one-off amount, payment arrangements should ensure that such fees do not in practice lead to selection on the basis of criteria unrelated to Directive (EU) 2016/1148 of the European Parliament and of the Council of 6  July 2016 concerning measures for a high common level of security of network and information systems across the Union (OJ L 194, 19.7.2016, p. 1).

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the objective of ensuring optimal use of radio spectrum. The Commission should be able to publish, on a regular basis, benchmark studies and, as appropriate, other guidance with regard to best practices for the assignment of radio spectrum, the assignment of numbering resources or the granting of rights of way. See: Articles 4(3); 36; 42; 43; 93-95. (101) Fees imposed on undertakings for rights of use for radio spectrum can influence decisions about whether to seek such rights and put into use radio spectrum resources. With a view to ensuring optimal use of radio spectrum, Member States should therefore set reserve prices in a way that leads to the efficient assignment of those rights, irrespective of the type of selection procedure used. Member States could also take into account possible costs associated with the fulfilment of authorisation conditions imposed to further policy objectives. In doing so, regard should also be had to the competitive situation of the market concerned including the possible alternative uses of the resources. See: Article 42. (102) Optimal use of radio spectrum resources depends on the availability of appropriate networks and associated facilities. In that regard, Member States should aim to ensure that, where national regulatory or other competent authorities apply fees for rights of use for radio spectrum and for rights to install facilities, they take into consideration the need to facilitate continuous infrastructure development with a view to achieving the most efficient use of the resources. Member States should seek to ensure the application, to the best extent possible, of arrangements for the payment of the fees for rights of use for radio spectrum linked with the actual availability of the resource in a manner that supports the investments necessary to promote such infrastructure development and the provision of related services. The payment arrangements should be specified in an objective, transparent, proportionate and non-discriminatory manner before opening procedures for the granting of rights of use for radio spectrum. See: Article 42. (103) It should be ensured that procedures exist for the granting of rights to install facilities that are timely, non-discriminatory and transparent, in order to guarantee the conditions for fair and effective competition. This Directive is without prejudice to national provisions governing the expropriation or use of property, the normal exercise of property rights, the normal use of the public domain, or to the principle of neutrality with regard to the rules in Member States governing the system of property ownership. See: Article 43. (104) Permits issued to providers of electronic communications networks and services allowing them to gain access to public or private property are essential factors for the establishment of electronic communications networks or new network elements. Unnecessary complexity and delay in the procedures for granting rights of way may therefore represent important obstacles to the development of competition. Consequently, the acquisition of rights of way by authorised undertakings should

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be simplified. Competent authorities should coordinate the acquisition of rights of way, making relevant information accessible on their websites. See: Article 43. (105) It is necessary to strengthen the powers of the Member States as regards holders of rights of way to ensure the entry or roll-out of a new network in a fair, efficient and environmentally responsible way and independently of any obligation on an undertaking designated as having significant market power to grant access to its electronic communications network. Improving facility sharing can lower the environmental cost of deploying electronic communications infrastructure and serve public health, public security and meet town and country planning objectives. Competent authorities should be empowered to require that the undertakings which have benefitted from rights to install facilities on, over or under public or private property share such facilities or property, including physical co-location, after an appropriate period of public consultation, during which all interested parties should be given the opportunity to state their views, in the specific areas where such general interest reasons impose such sharing. That can be the case for instance where the subsoil is highly congested or where a natural barrier needs to be crossed. Competent authorities should in particular be able to impose the sharing of network elements and associated facilities, such as ducts, conduits, masts, manholes, cabinets, antennae, towers and other supporting constructions, buildings or entries into buildings, and a better coordination of civil works on environmental or other public policy grounds. On the contrary, it should be for national regulatory authorities to define rules for apportioning the costs of the facility or property sharing, to ensure that there is an appropriate reward of risk for the undertakings concerned. In light of the obligations imposed by Directive 2014/61/EU, the competent authorities, in particular, local authorities, should also establish appropriate coordination procedures, in cooperation with national regulatory authorities, with respect to public works and other appropriate public facilities or property which should be able to include procedures that ensure that interested parties have information concerning appropriate public facilities or property and ongoing and planned public works, that they are notified in a timely manner of such works, and that sharing is facilitated to the maximum extent possible. See: Article 44. Obligations imposed by the Broadband Cost Reduction Directive See Directive 2014/61/EU, Articles 3–9 (see pp 933–939). (106) Where mobile operators are required to share towers or masts for environmental reasons, such mandated sharing could lead to a reduction in the maximum transmitted power levels allowed for each operator for reasons of public health, and this in turn could require operators to install more transmission sites to ensure national coverage. Competent authorities should seek to reconcile the environmental and public health considerations in question, taking due account of the precautionary approach set out in Council Recommendation 1999/519/EC34. See: Articles 44; 45. Council Recommendation 1999/519/EC of 12 July 1999 on the limitation of exposure of the general public to electromagnetic fields (0 Hz to 300 GHz) (OJ L 199, 30.7.1999, p. 59).

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Precautionary principle (a)

Recommendation 1999/519/EC (see p. 1133)

(b) The Court of Justice of the European Union had no jurisdiction to answer the question referred by the environmental and health committee of the Municipality of Mora (Sweden) on the interpretation of Council Recommendation 1999/519/EC in relation to Article 174(2) EC (correlates with TFEU, Article  191(2)), as to whether the reference levels for electromagnetic fields set out in the Recommendation are to be interpreted as guidelines for the application of the precautionary principle, or whether that principle constitutes a complement to the Recommendation Case C-344/09 Dan Bengtsson, EU:C:2011:174, para 26 of the Order of the Court (Fifth Chamber) of 24 March 2011. (107) Radio spectrum is a scarce public resource with an important public and market value. It is an essential input for radio-based electronic communications networks and services and, insofar as it relates to such networks and services, should therefore be efficiently allocated and assigned by national regulatory or other competent authorities in accordance with harmonised objectives and principles governing their action as well as to objective, transparent and non-discriminatory criteria, taking into account the democratic, social, linguistic and cultural interests related to the use of radio spectrum. Decision No  676/2002/EC establishes a framework for harmonisation of radio spectrum. See: Article 45(1) and (2). Framework for harmonisation of radio spectrum under the Radio Spectrum Decision See Decision No 676/2002/EC, Recitals 2; 4; 7; 11–14; Article 4 (see p. 107 et seq). Allocation of radio spectrum based on non-discriminatory and proportionate criteria Case C-112/16 Persidera SpA v Autorità per le Garanzie nelle Comunicazioni and Ministero dello Sviluppo Economico delle Infrastrutture e dei Trasporti, EU:C:2017:597, paras 1 and 2 of the Court’s ruling (see annotations to Article 45). (108) Radio spectrum policy activities in the Union should be without prejudice to measures taken, at Union or national level, in accordance with Union law, to pursue general interest objectives, in particular with regard to public governmental and defence networks, content regulation and audiovisual and media policies, and the right of Member States to organise and use their radio spectrum for public order, public security and defence. See: Article 45(4)–(6). (109) Ensuring widespread connectivity in each Member State is essential for economic and social development, participation in public life and social and territorial cohesion. As connectivity and the use of electronic communications become an integral element to European society and welfare, Member States should strive to ensure Union-wide wireless broadband coverage. Such coverage should be achieved by relying on the imposition by Member States of appropriate coverage requirements, which should be adapted to each area served and limited to proportionate burdens in order not to hinder deployment by service providers.

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Given the major role systems such as radio local area networks (RLANs) play in providing high-speed wireless broadband indoors, measures should aim to ensure the release of sufficient radio spectrum in bands which are particularly valuable assets for the cost-efficient deployment of wireless networks with universal coverage, in particular indoors. Moreover, consistent and coordinated measures for high-quality terrestrial wireless coverage across the Union, building on best national practices for operators’ licence obligations, should aim to meet the radio spectrum policy programme objective that all citizens of the Union should have access both indoors and outdoors, to the fastest broadband speeds of not less than 30 Mbps by 2020, and should aim to achieve an ambitious vision for a gigabit society in the Union. Such measures will promote innovative digital services and ensure long-term socioeconomic benefits. Seamless coverage of the territory as well as connectivity across Member States should be maximised and reliable, with a view to promoting in-border and cross-border services and applications such as connected cars and e-health. See: Article 45(2)(a). (110) The need to ensure that citizens are not exposed to electromagnetic fields at a level harmful to public health is imperative. Member States should pursue consistency across the Union to address this issue, having particular regard to the precautionary approach taken in Recommendation 1999/519/EC, in order to work towards ensuring more consistent deployment conditions. Member States should apply the procedure set out in Directive (EU) 2015/1535, where relevant, with a view also to providing transparency to stakeholders and to allow other Member States and the Commission to react. See: Articles 45(2)(h); 58. Notification procedure in the Single Market Transparency Directive See Directive (EU) 2015/1535, Articles 5–7 (see pp. 946–950). Precautionary principle (a)  Recommendation 1999/519/EC (see p. 1133). (b) Case C-344/09 Dan Bengtsson, EU:C:2011:174, para 26 of the Order of the Court (Fifth Chamber) of 24 March 2011 (see annotations to Recital 106). (111) Radio spectrum harmonisation and coordination, and equipment regulation supported by standardisation, are complementary and need to be coordinated closely to meet their joint objectives effectively, with the support of the RSPG. Coordination between the content and timing of mandates to CEPT under Decision No 676/2002/EC and standardisation requests to standardisation bodies, such as the European Telecommunications Standards Institute, including with regard to radio receivers parameters, should facilitate the introduction of future systems, support radio spectrum sharing opportunities and ensure efficient radio spectrum management. See: Articles 39; 45(2). Mandates to CEPT under the Radio Spectrum Decision Decision No 676/2002/EC, Article 4(2) (see p. 1084]).



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(112) The demand for harmonised radio spectrum is not uniform in all parts of the Union. Where there is lack of demand for all or part of a harmonised band at regional or national level, Member States could, by way of exception, allow an alternative use of the band, for example to cover lack of market supply for certain uses, for as long as such lack of demand persists and provided that the alternative use does not prejudice the harmonised use of the band by other Member States and that it ceases when demand for the harmonised use materialises. See: Article 45(3). (113) Flexibility in radio spectrum management and access to radio spectrum has been established through technology and service-neutral authorisations to allow radio spectrum users to choose the best technologies and services to apply in radio spectrum bands declared available for electronic communications services in the relevant National Frequency Allocation Plans in accordance with Union law (‘the principle of technology neutrality and the principle of service neutrality’). The administrative determination of technologies and services should apply only when general interest objectives are at stake and should be clearly justified and subject to regular review. See: Article 45(5). (114) Restrictions to the principle of technology neutrality should be appropriate and justified by the need to avoid harmful interference, for example by imposing emission masks and power levels, to ensure the protection of public health by limiting public exposure to electromagnetic fields, to ensure the proper functioning of services through an adequate level of technical quality of service, while not necessarily precluding the possibility of using more than one service in the same radio spectrum band, to ensure proper sharing of radio spectrum, in particular where its use is subject only to general authorisations, to safeguard efficient use of radio spectrum, or to fulfil a general interest objective in accordance with Union law. See: Article 45(4). (115) Radio spectrum users should also be able to choose freely the services they wish to offer over the radio spectrum. On the other hand, measures should be allowed which require the provision of a specific service to meet clearly defined general interest objectives such as safety of life, the need to promote social, regional and territorial cohesion, or the avoidance of the inefficient use of radio spectrum to be permitted where necessary and proportionate. Those objectives should include the promotion of cultural and linguistic diversity and media pluralism, as defined by Member States in accordance with Union law. Except where necessary to protect safety of life or, by way of exception, to fulfil other general interest objectives as defined by Member States in accordance with Union law, exceptions should not result in certain services having exclusive use, but should rather grant them priority so that, insofar as possible, other services or technologies could coexist in the same radio spectrum band. It lies within the competence of the Member States to define the scope and nature of any exception regarding the promotion of cultural and linguistic diversity and media pluralism. See: Article 45(4)–(7).

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(116) As the allocation of radio spectrum to specific technologies or services is an exception to the principles of technology and service neutrality and reduces the freedom to choose the service provided or technology used, any proposal for such allocation should be transparent and subject to public consultation. See: Articles 23; 45(3)–(5). (117) Where Member States decide, by way of exception, to limit the freedom to provide electronic communications networks and services based on grounds of public policy, public security or public health, Member States should explain the reasons for such a limitation. See: Article 45(4)–(6). (118) Radio spectrum should be managed in a manner that ensures the avoidance of harmful interference. The basic concept of harmful interference should therefore be properly defined to ensure that regulatory intervention is limited to the extent necessary to prevent such interference, having regard also to the need to take into consideration advanced methods for protection against harmful interference, with the aim of applying those technologies and radio spectrum management methods in order to avoid, to the extent possible, the application of the non-interference and non-protection principle. Transport has a strong cross-border element and its digitalisation brings challenges. Vehicles (such as metro, bus, cars, trucks, trains,) are becoming increasingly autonomous and connected. In the internal market, vehicles travel beyond national borders more easily. Reliable communications, and avoiding harmful interference, are critical for the safe and good operation of vehicles and their on-board communications systems. See: Articles 2(20); 28; 45(2)(d); 46. (119) With growing radio spectrum demand and new varying applications and technologies which necessitate more flexible access and use of radio spectrum, Member States should promote the shared use of radio spectrum by determining the most appropriate authorisation regimes for each scenario and by establishing appropriate and transparent rules and conditions therefor. Shared use of radio spectrum increasingly ensures its effective and efficient use by allowing several independent users or devices to access the same radio spectrum band under various types of legal regimes in order to make additional radio spectrum resources available, raise usage efficiency and facilitate radio spectrum access for new users. Shared use can be based on general authorisations or licence-exempt use allowing, under specific sharing conditions, several users to access and use the same radio spectrum in different geographic areas or at different moments in time. It can also be based on individual rights of use under arrangements such as licensed shared access where all users (with an existing user and new users) agree on the terms and conditions for shared access, under the supervision of the competent authorities, in such a way as to ensure a minimum guaranteed radio transmission quality. When allowing shared use under different authorisation regimes, Member States should not set widely diverging durations for such use under different authorisation regimes. See: Articles 45(2)(e); 46.



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(120) General authorisations for the use of radio spectrum may facilitate the most effective use of radio spectrum and foster innovation in some cases and are procompetitive, whereas individual rights of use for radio spectrum in other cases may be the most appropriate authorisation regime in the presence of certain specific circumstances. Individual rights of use should be considered, for example, when favourable propagation characteristics of the radio spectrum or the envisaged power level of the transmission imply that general authorisations cannot address the interference concerns in light of the required quality of service. Technical measures such as solutions to improve receiver resilience might enable the use of general authorisations or radio spectrum sharing, and possibly avoid systematic recourse to the non-interference and non-protection principle. See: Article 46(1). (121) In order to ensure predictability and preserve legal certainty and investment stability, Member States should establish, in advance, appropriate criteria to determine compliance with the objective of efficient use of radio spectrum by the holders of the rights when implementing the conditions attached to individual rights of use and general authorisations. Interested parties should be involved in the definition of such conditions and informed, in a transparent manner, about how the fulfilment of their obligations will be assessed. See: Articles 46; 47(1). (122) In order to avoid the creation of barriers to market entry, namely through anticompetitive hoarding, enforcement of conditions attached to radio spectrum rights by Member States should be effective and all competent authorities should participate where necessary. Enforcement conditions should include the application of a ‘use it or lose it’ clause. In order to ensure legal certainty in respect of the possible exposure to any penalty for failure to use radio spectrum, thresholds of use, including in terms of time, quantity or identity of radio spectrum, should be established in advance. Trading and leasing of radio spectrum should ensure the effective use by the original holder of the right. See: Articles 46; 47(1). (123) Where harmonised conditions for a radio spectrum band are established under Decision No  676/2002/EC, competent authorities are to decide on the most appropriate authorisation regime to be applied in that band or parts thereof. Where all Member States are likely to face similar problems for which diverging solutions could fragment the internal market in equipment, and thereby delay the rollout of 5G systems, it may be necessary for the Commission, taking utmost account of the opinion of the RSPG, to recommend common solutions, acknowledging technical harmonisation measures in force. This could provide a common toolbox for Member States which they could take into account when identifying appropriate consistent authorisation regimes to be applied to a band, or part of a band, depending on factors such as population density, propagation characteristics of the bands, divergence between urban and rural uses, the possible need to protect existing services and the resulting implications for economies of scale in manufacturing.

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See: Articles 36; 38; 45(1); 46. Harmonised conditions of radio spectrum bands established under the Radio Spectrum Decision See Annex III at pp. 1365–70. Toolbox Commission Recommendation (EU) 2020/1307 of 18 September 2020 on a common Union toolbox for reducing the cost of deploying very high capacity networks and ensuring timely and investment-friendly access to 5G radio spectrum, to foster connectivity in support of economic recovery from the COVID-19 crisis in the Union. (124) Network infrastructure sharing, and in some instances radio spectrum sharing, can allow for a more effective and efficient use of radio spectrum and ensure the rapid deployment of networks, especially in less densely populated areas. When establishing the conditions to be attached to rights of use for radio spectrum, competent authorities should also consider authorising forms of sharing or coordination between undertakings with a view to ensuring effective and efficient use of radio spectrum or compliance with coverage obligations, in accordance with competition law principles. See: Articles 46; 47(2). (125) The requirement to respect the principles of technology and service neutrality in granting rights of use, together with the possibility to transfer rights between undertakings, underpin the freedom and means to deliver electronic communications services to the public, thereby also facilitating the achievement of general interest objectives. This Directive is without prejudice whether radio spectrum is assigned directly to providers of electronic communications networks or services or to entities that use those networks or services. Such entities may be radio or television broadcast content providers. The responsibility for compliance with the conditions attached to the right of use for radio spectrum and the relevant conditions attached to the general authorisation should in any case lie with the undertaking to which the right of use for radio spectrum has been granted. Certain obligations imposed on broadcasters for the delivery of audiovisual media services may require the use of specific criteria and procedures for the granting of radio spectrum usage rights to meet a specific general interest objective set out by Member States in accordance with Union law. However, the procedure for the granting of such right should in any event be objective, transparent, nondiscriminatory and proportionate. See: Articles 13; 21(1)(c); 45; 48(1) and (2); 55. (126) The case-law of the Court of Justice requires that any national restrictions to the rights guaranteed by Article  56  TFEU should be objectively justified and proportionate and should not exceed those necessary to achieve their objectives. Moreover, radio spectrum granted without following an open procedure should not be used for purposes other than the general interest objective for which they were granted. In such a case, the interested parties should be given the opportunity to comment within a reasonable period. As part of the application procedure for granting rights, Member States should verify whether the applicant is able to comply with the conditions to be attached to such rights. Those conditions should



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be reflected in eligibility criteria set out in objective, transparent, proportionate and non-discriminatory terms prior to the launch of any competitive selection procedure. For the purpose of applying such criteria, the applicant may be requested to submit the necessary information to prove his ability to comply with those conditions. Where such information is not provided, the application for the right of use for radio spectrum may be rejected. See: Article 48(4). Freedom to provide services (a) ‘Within the framework of the provisions set out [in TFEU  Chapter  3 (Services)], restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may extend the provisions of the Chapter to nationals of a third country who provide services and who are established within the Union.’ TFEU, Article 56 (b) Case 155/73 Giuseppe Sacchi, EU:C:1974:40, paras 6 and 7; Joined Cases C-271/90 Kingdom of Spain, C-281/90 Kingdom of Belgium and C-289/90 Italian Republic v Commission of the European Communities, EU:C:1992:440, paras 19–20; Case C-384/93 Alpine Investments BV  v Minister van Financiën, EU:C:1995:126, paras 1–3 of the Court’s ruling; Case C-17/00 François De Coster v Collège des bourgmestre et échevins de Watermael-Boitsfort, EU:C:2001:651, Court’s ruling; see also paras 26– 31 and 36–38; Case C-390/99 Canal Satélite Digital SL v Adminstración General del Estado, and Distribuidora de Televisión Digital SA (DTS), EU:C:2002:34, paras 1 and 2 of the Court’s ruling; Joined Cases C-544/03 Mobistar SA v Commune de Fléron and C-545/03 Belgacom Mobile SA v Commune de Schaerbeek, EU:C:2005:518, paras 1 and 2 of the Court’s ruling; Case C-475/12, UPC DTH Sàrl v Nemzeti Média- és Hírközlési Hatóság Elnökhelyettese, EU:C:2014:285, paras 2 and 4 of the Court’s ruling; Case C-87/19, TV  Play Baltic AS  v Lietuvos radijo ir televizijos komisija, EU:C:2019:1063, para 3 of the Court’s ruling (see annotations to Article 1). (127) Member States should, prior to the granting of the right, impose only the verification of elements that can reasonably be demonstrated by an applicant exercising ordinary care, taking due account of the important public and market value of radio spectrum as a scarce public resource. This is without prejudice to the possibility for subsequent verification of the fulfilment of eligibility criteria, for example through milestones, where criteria could not reasonably be met initially. To preserve effective and efficient use of radio spectrum, Member States should not grant rights where their review indicates applicants’ inability to comply with the conditions, without prejudice to the possibility of facilitating time-limited experimental use. Sufficiently long duration of authorisations for the use of radio spectrum should increase investment predictability to contribute to faster network roll-out and better services, as well as stability to support radio spectrum trading and leasing. Unless use of radio spectrum is authorised for an unlimited period, such a

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duration should both take account of the objectives pursued and be sufficient to facilitate recoupment of the investments made. While a longer duration can ensure investment predictability, measures to ensure effective and efficient use of radio spectrum, such as the power of the competent authority to amend or withdraw the right in the case of non-compliance with the conditions attached to the rights of use, or the facilitation of radio spectrum tradability and leasing, will serve to prevent inappropriate accumulation of radio spectrum and support greater flexibility in distributing radio spectrum resources. Greater recourse to annualised fees is also a means to ensure a continuous assessment of the use of the radio spectrum by the holder of the right. See: Articles 48; 49(1) and (2). (128) Considering the importance of technical innovation, Member States should be able to provide for rights to use radio spectrum for experimental purposes, subject to specific restrictions and conditions strictly justified by the experimental nature of such rights. See: Article 49(3). (129) In deciding whether to renew already granted rights of use for harmonised radio spectrum, competent authorities should take into account the extent to which renewal would further the objectives of the regulatory framework and other objectives under Union and national law. Any such decision should be subject to an open, non-discriminatory and transparent procedure and based on a review of how the conditions attached to the rights concerned have been fulfilled. When assessing the need to renew rights of use, Member States should weigh the competitive impact of renewing assigned rights against the promotion of more efficient exploitation or of innovative new uses that might result if the band were opened to new users. Competent authorities should be able to make their determination in this regard by allowing for only a limited duration for renewal in order to prevent severe disruption of established use. While decisions on whether to renew rights assigned prior to the applicability of this Directive should respect any rules already applicable, Member States should also ensure that they do not prejudice the objectives of this Directive. See: Article 50(1) and (2). (130) When renewing existing rights of use for harmonised radio spectrum, Member States should, together with the assessment of the need to renew the right, review the fees attached thereto with a view to ensuring that those fees continue to promote optimal use, taking account, inter alia, of market developments and technological evolution. For reasons of legal certainty, it is appropriate for any adjustments to the existing fees to be based on the same principles as those applicable to the award of new rights of use. See: Article 50(4). (131) Effective management of radio spectrum can be ensured by facilitating the continued efficient use of radio spectrum that has already been assigned. In order to ensure legal certainty to holders of the rights, the possibility of renewal of rights of use should be considered within an appropriate time-span prior to the expiry of



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the rights concerned, for example, where rights have been assigned for 15 years or more, at least two years before expiry of those rights, unless the possibility of renewal was explicitly excluded at the time of assignment of the rights. In the interest of continuous resource management, competent authorities should be able to undertake such consideration at their own initiative as well as in response to a request from the assignee. The renewal of the right to use should not be granted contrary to the will of the assignee. See: Articles 50(1) and (3). (132) Transfer of rights of use for radio spectrum can be an effective means of increasing the efficient use of spectrum. For the sake of flexibility and efficiency, and to allow valuation of radio spectrum by the market, Member States should by default allow radio spectrum users to transfer or lease their rights of use for radio spectrum to third parties following a simple procedure and subject to the conditions attached to such rights and to competition rules, under the supervision of the national regulatory authorities responsible. In order to facilitate such transfers or leases, provided that technical implementing measures adopted under Decision No 676/2002/EC are respected, Member States should also consider requests to have radio spectrum rights partitioned or disaggregated and conditions for use reviewed. See: Article 51. Technical implementing measures adopted under the Radio Spectrum Decision See Annex III at pp. 1365–1370. (133) Measures taken specifically to promote competition when granting or renewing rights of use for radio spectrum should be decided by national regulatory and other competent authorities, which have the necessary economic, technical and market knowledge. Radio spectrum assignment conditions can influence the competitive situation in electronic communications markets and conditions for entry. Limited access to radio spectrum, in particular when radio spectrum is scarce, can create a barrier to entry or hamper investment, network roll-out, the provision of new services or applications, innovation and competition. New rights of use, including those acquired through transfer or leasing, and the introduction of new flexible criteria for radio spectrum use can also influence existing competition. Where unduly applied, certain conditions used to promote competition, can have other effects; for example, radio spectrum caps and reservations can create artificial scarcity, wholesale access obligations can unduly constrain business models in the absence of market power, and limits on transfers can impede the development of secondary markets. Therefore, a consistent and objective competition test for the imposition of such conditions is necessary and should be applied consistently. The use of such measures should therefore be based on a thorough and objective assessment, by national regulatory and other competent authorities, of the market and the competitive conditions thereof. National competent authorities should, however, always ensure the effective and efficient use of radio spectrum and avoid distortion of competition through anti-competitive hoarding. See: Article 52. (134) Building on opinions from the RSPG, the adoption of a common deadline for allowing the use of a radio spectrum band which has been harmonised under

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Decision No  676/2002/EC can be necessary to avoid cross-border interference and beneficial to ensure release of the full benefits of the related technical harmonisation measures for equipment markets and for the deployment of very high capacity networks and services. Allowing the use of a radio spectrum band entails assigning radio spectrum under a general authorisation regime or individual rights of use in order to permit the use of radio spectrum as soon as the assignment process is completed. In order to assign radio spectrum bands, it might be necessary to release a band occupied by other users and to compensate them. Implementation of a common deadline for allowing the use of harmonised bands for electronic communications services, including for 5G, might however be affected in a particular Member State by problems relating to unresolved crossborder coordination issues between Member States or with third countries, to the complexity of ensuring the technical migration of existing users of a band; a restriction to the use of the band based on a general interest objective, to the safeguarding of national security and defence or to force majeure. In any case, Member States should take all measures to reduce any delay to the minimum in terms of geographical coverage, timing and radio spectrum range. Moreover, Member States should be able, where appropriate in light of their assessment of the relevant circumstances, to request the Union to provide legal, political and technical support to resolve radio spectrum coordination issues with countries neighbouring the Union, including candidate and acceding countries, in such a way that the Member States concerned can observe their obligations under Union law. See: Article 53. (135) In order to ensure increased coordinated availabilities of radio spectrum by 2020 to achieve very high speed fixed and wireless networks in the context of 5G, the 3,4-3,8 GHz and the 24,25-27,5 GHz bands have been identified by the RSPG as priority bands suitable to fulfil the objectives of the 5G Action Plan by 2020. The 40,5-43,5 GHz and 66-71 GHz bands have also been identified for further study. It is therefore necessary to ensure that, by 31 December 2020, the 3,4-3,8 GHz and the 24,25-27,5 GHz bands or parts thereof are available for terrestrial systems capable of providing wireless broadband services under harmonised conditions established by technical implementing measures adopted in accordance with Article 4 of Decision No 676/2002/EC, complementing Decision (EU) 2017/899 of the European Parliament and of the Council35, as those bands have specific qualities, in terms of coverage and data capacity, which allow them to be combined appropriately to meet 5G requirements. Member States could, however, be affected by interference likely to arise from third countries which, in accordance with the ITU  Radio Regulations, have identified those bands for services other than international mobile telecommunications. This might have an effect on the obligation to meet a common implementation date. Future use of the 26 GHz band for 5G terrestrial wireless services is likely, inter alia, to target urban areas and sub-urban hotspot areas, while some deployment can be foreseen along major roads and railway tracks in rural areas. This provides the opportunity to use the 26 GHz band for services other than 5G wireless outside those geographic areas, for example, for business specific communications or indoor use, and therefore allows

Decision (EU) 2017/899 of the European Parliament and of the Council of 17 May 2017 on the use of the 470-790 MHz frequency band in the Union (OJ L 138, 25.5.2017, p. 131).

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Member States to designate and make that band available on a non-exclusive basis. See: Articles 54; 124(2). 5G Action Plan Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, 5G for Europe: An Action Plan, COM(2016) 588 final; Commission Staff Working Document, 5G  Global Developments, Accompanying the document Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, 5G for Europe: An Action Plan, SWD(2016) 306 final. Technical implementing measures adopted under the Radio Spectrum Decision with respect to the 3,4-3,8 GHz frequency band and the 24,25-27,5 GHz frequency band (wireless broadband services) See Annex III at pp. 1365–70. (136) Where demand for a radio spectrum band exceeds the availability and, as a result, a Member State concludes that the rights of use for radio spectrum is to be limited, appropriate and transparent procedures should apply for the granting of such rights to avoid any discrimination and optimise the use of the scarce resource. Such limitation should be justified, proportionate and based on a thorough assessment of market conditions, giving due weight to the overall benefits for users and to national and internal market objectives. The objectives governing any limitation procedure should be clearly established in advance. When considering the most appropriate selection procedure, and in accordance with coordination measures taken at Union level, Member States should, in a timely and transparent manner, consult all interested parties on the justification, objectives and conditions of the procedure. Member States should be able to use, inter alia, competitive or comparative selection procedures for the assignment of radio spectrum or of numbering resources with exceptional economic value. In administering such schemes, competent authorities should take into account the objectives of this Directive. If a Member State finds that further rights can be made available in a band, it should start the process therefor. See: Article 55. (137) Massive growth in radio spectrum demand, and in end-user demand for wireless broadband capacity, calls for solutions allowing alternative, complementary, spectrally efficient access solutions, including low-power wireless access systems with a small-area operating range, such as RLANs and networks of low-power small-size cellular access points. Such complementary wireless access systems, in particular publicly accessible RLAN access points, increase access to the internet for end-users and mobile traffic off-loading for mobile operators. RLANs use harmonised radio spectrum without requiring an individual authorisation or a right of use for radio spectrum. To date, most RLAN access points are used by private users as local wireless extension of their fixed broadband connection. Endusers, within the limits of their own internet subscription, should not be prevented from sharing access to their RLAN with others, in order to increase the number of available access points, in particular, in densely populated areas, maximise wireless data capacity through radio spectrum re-use and create a cost-effective complementary wireless broadband infrastructure accessible to other end-users.

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Therefore, unnecessary restrictions to the deployment and interlinkage of RLAN access points should also be removed. See: Article 56. (138) Public authorities or public service providers that use RLANs in their premises for their personnel, visitors or clients, for example to facilitate access to e-Government services or for information on public transport or road traffic management, could also provide access to such access points for general use by citizens as an ancillary service to services they offer to the public on such premises, to the extent allowed by competition and public procurement rules. Moreover, the provider of such local access to electronic communications networks within or around a private property or a limited public area on a non-commercial basis or as an ancillary service to another activity that is not dependent on such access, such as RLAN hotspots made available to customers of other commercial activities or to the general public in that area, can be subject to compliance with general authorisations for rights of use for radio spectrum but should not be subject to any conditions or requirements attached to general authorisations applicable to providers of public electronic communications networks or services or to obligations regarding end-users or interconnection. However, such a provider should remain subject to the liability rules set out in Directive 2000/31/EC of the European Parliament and of the Council36. Further technologies, such as LiFi, are emerging and will complement current radio spectrum capabilities of RLANs and wireless access point to include optical visible light-based access points and lead to hybrid local area networks allowing optical wireless communication. See: Article 56(6). Liability of intermediary service providers under the Directive on Electronic Commerce (a) ‘Mere conduit’: Directive 2000/31/EC, Article 12 (see p. 708). Liability of wireless local area network operator ‘1.

Article 12(1) of [the Directive on Electronic Commerce], read in conjunction with Article 2(a) of that directive and with Article 1(2) of Directive 98/34/ EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on information society services, as amended by Directive 98/48/EC of the European Parliament and of the Council of 20  July 1998, must be interpreted as meaning that a service such as that at issue in the main proceedings, provided by a communication network operator and consisting in making that network available to the general public free of charge constitutes an “information society service” within the meaning of Article  12(1) of Directive 2000/31 where the activity is performed by the service provider in question for the purposes of advertising the goods sold or services supplied by that service provider.

2.

Article 12(1) of Directive 2000/31 must be interpreted as meaning that, in order for the service referred to in that article, consisting in providing access to a communication network, to be considered to have been provided, that

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) (OJ L 178, 17.7.2000, p. 1).

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access must not go beyond the boundaries of a technical, automatic and passive process for the transmission of the required information, there being no further conditions to be satisfied. 3.

Article  12(1) of Directive 2000/31 must be interpreted as meaning that the condition laid down in Article 14(1)(b) of that directive does not apply mutatis mutandis to Article 12(1) of Directive 2000/31.

4.

Article 12(1) of Directive 2000/31, read in conjunction with Article 2(b) of that directive, must be interpreted as meaning that there are no conditions, other than the one mentioned in that provision, to which a service provider supplying access to a communication network is subject.

5.

Article 12(1) of Directive 2000/31 must be interpreted as meaning that a person harmed by the infringement of its rights over a work is precluded from claiming compensation from an access provider on the ground that the connection to that network was used by a third party to infringe its rights and the reimbursement of the costs of giving formal notice or court costs incurred in relation to its claim for compensation. However, that article must be interpreted as meaning that it does not preclude such a person from claiming injunctive relief against the continuation of that infringement and the payment of the costs of giving formal notice and court costs from a communication network access provider whose services were used in that infringement where such claims are made for the purposes of obtaining, or follow the grant of injunctive relief by a national authority or court to prevent that service provider from allowing the infringement to continue.

6.

Having regard to the requirements deriving from the protection of fundamental rights and to the rules laid down in Directives 2001/29 and 2004/48, Article  12(1) of Directive 2000/31, read in conjunction with Article  12(3) of that directive, must be interpreted as, in principle, not precluding the grant of an injunction such as that at issue in the main proceedings, which requires, on pain of payment of a fine, a provider of access to a communication network allowing the public to connect to the internet to prevent third parties from making a particular copyrightprotected work or parts thereof available to the general public from an online (peer-to-peer) exchange platform via an internet connection, where that provider may choose which technical measures to take in order to comply with the injunction even if such a choice is limited to a single measure consisting in password-protecting the internet connection, provided that those users are required to reveal their identity in order to obtain the required password and may not therefore act anonymously, a matter which it is for the referring court to ascertain.’ Case C-484/14 Tobias Mc Fadden v Sony Music Entertainment Germany GmbH, EU:C:2016:689, paras 1–6 of the Court’s ruling. (b) ‘Caching’: Directive 2000/31/EC, Article 13 (see p. 709). Liability of a provider of IP address rental and registration services allowing the anonymous use of domain names and websites ‘Articles 12 to 14 of [the Directive on Electronic Commerce] must be interpreted as meaning that the limitations of liability for which they provide apply to the provider of an IP address rental and registration service allowing the anonymous use of internet domain names, such as that at issue in the case in the main proceedings, inasmuch as that service comes within the scope of one of the categories of service referred to in those articles and meets all the corresponding

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conditions, in so far as the activity of such a service provider is of a merely technical, automatic and passive nature, implying that he has neither knowledge of nor control over the information transmitted or cached by his customers, and in so far as he does not play an active role in allowing those customers to optimise their online sales activity, these being matters for the referring court to verify.’ Case C-521/17 Coöperatieve Vereniging SNB-REACT  U  A  v Deepak Mehta, EU:C:2018:639, para 2 of the Court’s ruling. (c) Hosting: Directive 2000/31/EC, Article 14 (see p. 709). Liability of search engine operator ‘Article  14 of [the Directive on Electronic Commerce] must be interpreted as meaning that the rule laid down therein applies to an internet referencing service provider in the case where that service provider has not played an active role of such a kind as to give it knowledge of, or control over, the data stored. If it has not played such a role, that service provider cannot be held liable for the data which it has stored at the request of an advertiser, unless, having obtained knowledge of the unlawful nature of those data or of that advertiser’s activities, it failed to act expeditiously to remove or to disable access to the data concerned.’ Joined Cases C-236/08 Google France SARL and Google Inc. v Louis Vuitton Malletier SA, C-237/08 Google France SARL v Viaticum SA and Luteciel SARL and C-238/08 Google France SARL v Centre national de recherché en relations humaines (CNRRH) SARL and Others, EU:C:2010:159, para  3 of the Court’s ruling. Liability of online-marketplace operator ‘Article 14(1) of [the Directive on Electronic Commerce] must be interpreted as applying to the operator of an online marketplace where that operator has not played an active role allowing it to have knowledge or control of the data stored. The operator plays such a role when it provides assistance which entails, in particular, optimising the presentation of the offers for sale in question or promoting them. Where the operator of the online marketplace has not played an active role within the meaning of the preceding paragraph and the service provided falls, as a consequence, within the scope of Article 14(1) of Directive 2000/31, the operator none the less cannot, in a case which may result in an order to pay damages, rely on the exemption from liability provided for in that provision if it was aware of facts or circumstances on the basis of which a diligent economic operator should have realised that the offers for sale in question were unlawful and, in the event of it being so aware, failed to act expeditiously in accordance with Article 14(1) (b) of Directive 2000/31.’ Case C-324/09  L’Oréal SA and Others v eBay International AG and Others, EU:C:2011:474, para 6 of the Court’s ruling. (d) No general obligation to monitor (i)

Directive 2000/31/EC, Article 15 (see p. 710);

(ii)  The Directive on Electronic Commerce, ‘Directive 2001/29/EC of the European Parliament and of the Council of 22  May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights, and Directive 2002/58/EC 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 (Directive on



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privacy and electronic communications) do not require the Member States to lay down, in a situation such as that in the main proceedings, an obligation to communicate personal data in order to ensure effective protection of copyright in the context of civil proceedings. However, Community law requires that, when transposing those directives, the Member States take care to rely on an interpretation of them which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order. Further, when implementing the measures transposing those directives, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality.’ Case C-275/06, Productores de Música de España (Promusicae) v Telefónica de España SAU, EU:C:2008:54, Court’s ruling. (iii)  The Directive on Electronic Commerce, read together with the ePrivacy Directive, Directive 2001/29/EC of the European Parliament and of the Council of 22  May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society and Directive 2004/48/EC of the European Parliament and of the council of 29 April 2004 on the enforcement of intellectual property rights, and Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, ‘and construed in the light of the requirements stemming from the protection of the applicable fundamental rights, must be interpreted as precluding an injunction made against an internet service provider which requires it to install a system for filtering –

all electronic communications passing via its services, in particular those involving the use of peer-to-peer software;

–

which applies indiscriminately to all its customers;

–

as a preventive measure;

–

exclusively at its expense; and

–

for an unlimited period,

which is capable of identifying on that provider’s network the movement of electronic files containing a musical, cinematographic or audio-visual work in respect of which the applicant claims to hold intellectual-property rights, with a view to blocking the transfer of files the sharing of which infringes copyright.’ Case C-70/10 Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM), EU:C:2011:771, Court’s ruling. (iv)   The Directive on Electronic Commerce, read together with Directive 2001/29/EC of the European Parliament and of the Council of 22  May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society and Directive 2004/48/EC of the European Parliament and of the council of 29  April 2004 on the enforcement of intellectual property rights, ‘and construed in the light of the requirements

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stemming from the protection of the applicable fundamental rights, must be interpreted as precluding a national court from issuing an injunction against a hosting service provider which requires it to install a system for filtering: –

information which is stored on its servers by its service users;

–

which applies indiscriminately to all of those users;

–

as a preventative measure;

–

exclusively at its expense; and

–

for an unlimited period,

which is capable of identifying electronic files containing musical, cinematographic or audio-visual work in respect of which the applicant for the injunction claims to hold intellectual property rights, with a view to preventing those works from being made available to the public in breach of copyright.’ Case C-360/10 Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v Netlog NV, EU:C:2012:85, Court’s ruling. (v)  ‘[…The Directive on Electronic Commerce], in particular Article  15(1), must be interpreted as meaning that it does not preclude a court of a Member State from: –

ordering a host provider to remove information which it stores, the content of which is identical to the content of information which was previously declared to be unlawful, or to block access to that information, irrespective of who requested the storage of that information;

–

ordering a host provider to remove information which it stores, the content of which is equivalent to the content of information which was previously declared to be unlawful, or to block access to that information, provided that the monitoring of and search for the information concerned by such an injunction are limited to information conveying a message the content of which remains essentially unchanged compared with the content which gave rise to the finding of illegality and containing the elements specified in the injunction, and provided that the differences in the wording of that equivalent content, compared with the wording characterising the information which was previously declared to be illegal, are not such as to require the host provider to carry out an independent assessment of that content, and

–

ordering a host provider to remove information covered by the injunction or to block access to that information worldwide within the framework of the relevant international law.’

Case C-18/18 Eva Glawischnig-Piesczek v Facebook Ireland Ltd, EU:C:2019:821, Court’s ruling. (vi) See also: Joined Cases C-203/15 Tele2 Sverige AB v Post- och telestyrelsen and C-698/15 Secretary of State for the Home Department v Tom Watson and Others, EU:C:2016:970, paras 1 and 2 of the Court’s ruling; Case



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C-207/16 Ministerio Fiscal, EU:C:2018:788, Court’s ruling; and Case C-746/18 H K v Prokuratuur, EU:C:2020:18, para 130 of the Opinion of Advocate General Pitruzzella delivered on 21 January 2020; Joined Cases C-5-11/18 and C-512/18 La Quadrature du Net and Others v Premier minister and Others, and C-520/18 Ordre des barreaux francophones et germanophone and Others v Conseil des ministres, EU:C:2020:791, paras 1–4 of the Court’s ruling (see annotations to Article 100). (e) Defamation proceedings ‘1.

Article 2(a) of [the Directive on Electronic Commerce] must be interpreted as meaning that the concept of ‘information society services’, within the meaning of that provision, covers the provision of online information services for which the service provider is remunerated, not by the recipient, but by income generated by advertisements posted on a website.

2.

In a case such as that at issue in the main proceedings, Directive 2000/31 does not preclude the application of rules of civil liability for defamation.

3.

The limitations of civil liability specified in Articles 12 to 14 of Directive 2000/31 do not apply to the case of a newspaper publishing company which operates a website on which the online version of a newspaper is posted, that company being, moreover, remunerated by income generated by commercial advertisements posted on that website, since it has knowledge of the information posted and exercises control over that information, whether or not access to that website is free of charge.

4.

The limitations of civil liability specified in Articles 12 to 14 of Directive 2000/31 are capable of applying in the context of proceedings between individuals relating to civil liability for defamation, where the conditions referred to in those articles are satisfied.

5.

Articles 12 to 14 of Directive 2000/ 31 do not allow information society service providers to oppose the bringing of legal proceedings for civil liability against them and, consequently, the adoption of a prohibitory injunction by a national court. The limitations of liability provided for in those articles may be invoked by the provider in accordance with the provisions of national law transposing them or, failing that, for the purpose of an interpretation of that law in conformity with the directive. By contrast, in a case such as that in the main proceedings, Directive 2000/31 cannot, in itself, create obligations on the part of individuals and therefore cannot be relied on against those individuals.’

Case C-291/13 Sotiris Papasavvas v O  Fileleftheros Dimosia Etairia Ltd and Others, EU:C:2014:2209, paras 1–5 of the Court’s ruling. (f) Internet search engines 37. The role and legal position of internet search engine service providers has not been expressly regulated in EU legislation. As such “information location tool services” are “provided at a distance, by electronic means and at the individual request of a recipient of services”, and amount thus to an information society service consisting of provision of tools that allow for search, access and retrieval of data. However, internet search engine service providers like Google who do not provide their service in return for remuneration from the internet users, appear to fall in that capacity outside the scope of application of ecommerce Directive 2000/31.

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38. Despite this, it is necessary to analyse their position vis-à-vis the legal principles underpinning the limitations on the liability of internet service providers. In other words, to what extent are activities performed by an internet search engine service provider, from the point of view of liability principles, analogous to the services enumerated in the ecommerce Directive 2000/31(transfer, mere caching, hosting) or transmission service mentioned in recital 47 in the preamble to the Directive, and to what extent does the internet search engine service provider act as content provider in its own right. […] 87. […T]he principle expressed in recital 47 in the preamble to the Directive […] states that the controller of messages containing personal data transmitted by telecommunication or by electronic mail is the originator of the message and not the person offering transmission services. This recital, as well as the exceptions to liability provided in the ecommerce Directive2000/31 (Articles  12, 13 and 14), builds on the legal principle according to which automated, technical and passive relationships to electronically stored or transmitted content do not create control or liability over it. […] 92. […T]he contents of the cache memory of the internet search engine cannot be considered as falling within the control of the service provider because the cache is the result of completely technical and automated processes producing a mirror image of the text data of the crawled webpages, with the exception of data excluded from indexing and archiving. It is of interest that some Member States seem to provide special horizontal exceptions regarding the liability of search engines analogous to the exception provided in ecommerce Directive 2000/31 for certain information society service providers.’ Case C-131/12, Google Spain SL and Google Inc v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González, EU:C:2013:424, paras 37, 38, 87 and 92 of the Opinion of Advocate General Jääskinen delivered on 25 June 2013. (139) Since low power small-area wireless access points, such as femtocells, picocells, metrocells or microcells, can be very small and make use of unobtrusive equipment similar to that of domestic RLAN routers, which do not require any permits beyond those necessary for the use of radio spectrum, and considering the positive impact of such access points on the use of radio spectrum and on the development of wireless communications, any restriction to their deployment should be limited to the greatest extent possible. As a result, in order to facilitate the deployment of small-area wireless access points, and without prejudice to any applicable requirement related to radio spectrum management, Member States should not subject to any individual permits the deployment of such devices on buildings which are not officially protected as part of a designated environment or because of their special architectural or historical merit, except for reasons of public safety. To that end, their characteristics, such as maximum size, weight and emission characteristics, should be specified at Union level in a proportionate way for local deployment and to ensure a high level of protection of public health, as laid down in Recommendation 1999/519/EC. For the operation of small-area wireless access points, Article 7 of Directive 2014/53/



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EU should apply. This is without prejudice to private property rights set out in Union or national law. The procedure for considering permit applications should be streamlined and without prejudice to any commercial agreements and any administrative charge involved should be limited to the administrative costs relating to the processing of the application. The process of assessing a request for a permit should take as little time as possible, and in principle no longer than four months. See: Articles 57; 58. Putting into service or use of radio equipment Directive 2014/53/EU, Article  7 (see p. 866); Council Recommendation to ensure a high level of protection of public health: Recommendation 1999/519/ EC, paragraphs II-IV (see p. 1136). (140) Public buildings and other public infrastructure are visited and used daily by a significant number of end-users who need connectivity to consume eGovernment, eTransport and other services. Other public infrastructure, such as street lamps, traffic lights, offer very valuable sites for deploying small cells, for instance, due to their density. Without prejudice to the possibility for competent authorities to subject the deployment of small-area wireless access points to individual prior permits, operators should have the right to access to those public sites for the purpose of adequately serving demand. Member States should therefore ensure that such public buildings and other public infrastructure are made available on reasonable conditions for the deployment of small-cells with a view to complementing Directive 2014/61/EU and without prejudice to the principles set out in this Directive. Directive 2014/61/EU follows a functional approach and imposes obligations of access to physical infrastructure only when it is part of a network and only if it is owned or used by a network operator, thereby leaving many buildings owned or used by public authorities outside its scope. On the contrary, a specific obligation is not necessary for physical infrastructure, such as ducts or poles, used for intelligent transport systems, which are owned by network operators (providers of transport services or providers of public electronic communications networks), and host parts of a network, thus falling within the scope of Directive 2014/61/EU. See: Article 57(4). Access to physical infrastructure under the Broadband Cost Reduction Directive Directive 2014/61/EU, Recital 13; Articles 3; 4 (see pp. 924 and 933–34). (141) The provisions of this Directive as regards access and interconnection apply to public electronic communications networks. Providers of electronic communications networks other than to the public do not have access or interconnection obligations under this Directive except where, in benefiting from access to public networks, they may be subject to conditions laid down by Member States. See: Articles 59; 60(1). (142) The term ‘access’ has a wide range of meanings, and it is therefore necessary to define precisely how that term is used in this Directive, without prejudice to how it is used in other Union measures. An operator may own the underlying network or facilities or may rent some or all of them.

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See: Articles 2(27); 59. (143) In an open and competitive market, there should be no restrictions that prevent undertakings from negotiating access and interconnection arrangements between themselves, in particular on cross-border agreements, subject to the competition rules laid down in the TFEU. In the context of achieving a more efficient, truly pan-European market, with effective competition, more choice and competitive services to end-users, undertakings which receive requests for access or interconnection from other undertakings that are subject to general authorisation in order to provide electronic communications networks or services to the public should in principle conclude such agreements on a commercial basis, and negotiate in good faith. See: Articles 59(1); 60(1). TFEU competition rules TFEU, Articles 101–109. Abuse of dominant position with respect to access by third party undertakings to the incumbent operator’s local loop Case T-851/14, Slovak Telekom, a s v European Commission, EU:T:2018:929, with respect to Commission Decision C(2014) 7465 final of 15  October 2014 relating to proceedings under Article  102  TFEU and Article  54 of the EEA Agreement (Case AT.39523 – Slovak Telekom). (144) In markets where there continue to be large differences in negotiating power between undertakings, and where some undertakings rely on infrastructure provided by others for delivery of their services, it is appropriate to establish a regulatory framework to ensure that the market functions effectively. National regulatory authorities should have the power to secure, where commercial negotiation fails, adequate access and interconnection and interoperability of services in the interest of end-users. In particular, they can ensure end-to-end connectivity by imposing proportionate obligations on undertakings that are subject to the general authorisation and that control access to end-users. Control of means of access may entail ownership or control of the physical link to the end-user (either fixed or mobile), or the ability to change or withdraw the national number or numbers needed to access an end-user’s network termination point. This would be the case for example if network operators were to restrict unreasonably end-user choice for access to internet portals and services. See: Article 61(1) and (2). (145) In light of the principle of non-discrimination, national regulatory authorities should ensure that all undertakings, irrespective of their size and business model, whether vertically integrated or separated, can interconnect on reasonable terms and conditions, with a view to providing end-to-end connectivity and access to the internet. See: Article 61(2) and (5). (146) National legal or administrative measures that link the terms and conditions for access or interconnection to the activities of the party seeking interconnection, and specifically to the degree of its investment in network infrastructure, and not



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to the interconnection or access services provided, may cause market distortion and may therefore not be compatible with competition rules. See: Article 61(1). (147) Network operators who control access to their own customers do so on the basis of unique numbers or addresses from a published numbering or addressing range. Other network operators need to be able to deliver traffic to those customers, and so need to be able to interconnect directly or indirectly to each other. It is therefore appropriate to lay down rights and obligations to negotiate interconnection. See: Articles 60(1); 61. (148) Interoperability is of benefit to end-users and is an important aim of that regulatory framework. Encouraging interoperability is one of the objectives for national regulatory and other competent authorities as set out in that framework. That framework also provides for the Commission to publish a list of standards or specifications covering the provision of services, technical interfaces or network functions, as the basis for encouraging harmonisation in electronic communications. Member States should encourage the use of published standards or specifications to the extent strictly necessary to ensure interoperability of services and to improve freedom of choice for users. See: Articles 39; 61(2). (149) Currently both end-to-end connectivity and access to emergency services depend on end-users using number-based interpersonal communications services. Future technological developments or an increased use of number-independent interpersonal communications services could entail a lack of sufficient interoperability between communications services. As a consequence, significant barriers to market entry and obstacles to further onward innovation could emerge and appreciably threaten effective end-to-end connectivity between end-users. See: Article 61(2)(c); 61(2) second subparagraph. (150) Where such interoperability issues arise, the Commission should be able to request a BEREC report which should provide a factual assessment of the market situation at Union and Member State level. Taking utmost account of the BEREC report and other available evidence and taking into account the effects on the internal market, the Commission should decide whether there is a need for regulatory intervention by national regulatory or other competent authorities. If the Commission considers that such regulatory intervention should be considered by national regulatory or other competent authorities, it should be able to adopt implementing measures specifying the nature and scope of possible regulatory interventions by national regulatory or other competent authorities, including in particular obligations to publish and allow the use, modification and redistribution of relevant information by the authorities and other providers and measures to impose the mandatory use of standards or specifications on all or specific providers. See: Article 61(2) second subparagraph.

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(151) National regulatory or other competent authorities should assess, in light of the specific national circumstances, whether any intervention is necessary and justified to ensure end-to-end-connectivity, and if so, impose proportionate obligations, in accordance with the Commission’s implementing measures, on those providers of number-independent interpersonal communications services with a significant level of coverage and user-uptake. The term significant should be interpreted in the sense that the geographic coverage and the number of end-users of the provider concerned represent a critical mass with a view to achieving the goal of ensuring end-to-end connectivity between end-users. Providers with a limited number of end-users or limited geographic coverage which would contribute only marginally to achieving that goal, should normally not be subject to such interoperability obligations. See: Articles 61(2)(c); 61(2) second subparagraph. (152) In situations where undertakings are deprived of access to viable alternatives to non-replicable wiring, cables and associated facilities inside buildings or up to the first concentration or distribution point and in order to promote competitive outcomes in the interest of end-users, national regulatory authorities should be empowered to impose access obligations on all undertakings, irrespective of a designation as having significant market power. In that regard, national regulatory authorities should take into consideration all technical and economic barriers to future replication of networks. However, as such obligations can in certain cases be intrusive, can undermine incentives for investments, and can have the effect of strengthening the position of dominant players, they should be imposed only where justified and proportionate to achieving sustainable competition in the relevant markets. The mere fact that more than one such infrastructure already exists should not necessarily be interpreted as showing that its assets are replicable. If necessary in combination with such access obligations, undertakings should also be able to rely on the obligations to provide access to physical infrastructure on the basis of Directive 2014/61/EU. Any obligations imposed by the national regulatory authority under this Directive and decisions taken by other competent authorities under Directive 2014/61/EU to ensure access to in-building physical infrastructure or to physical infrastructure up to the access point should be consistent. See: Article 61(3). Access to physical infrastructure under the Broadband Cost Reduction Directive Directive 2014/61/EU, Articles 3; 4 (see pp. 933–34). Access to in-building physical infrastructure under the Broadband Cost Reduction Directive Directive 2014/61/EU, Article 9 (see p. 938). (153) National regulatory authorities should be able, to the extent necessary, to impose obligations on undertakings to provide access to the facilities referred to in an annex to this Directive, namely application programming interfaces (APIs) and electronic programme guides (EPGs), to ensure not only accessibility for end-users to digital radio and television broadcast services but also to related complementary services. Such complementary services should be able to include programme related services which are specifically designed to improve accessibility for endusers with disabilities, and programme related connected television services.



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See: Article 61(2)(d); Annex II (Part II). (154) It is important that when national regulatory authorities assess the concentration or distribution point up to which they intend to impose access, they choose a point in accordance with BEREC guidelines. Selecting a point nearer to endusers will be more beneficial to infrastructure competition and the roll-out of very high capacity networks. In this way the national regulatory authority should first consider choosing a point in a building or just outside a building. It could be justified to extend access obligations to wiring and cables beyond the first concentration or distribution point while confining such obligations to points as close as possible to end-users capable of hosting a sufficient number of end-users, where it is demonstrated that replication faces high and non-transitory physical or economic barriers, leading to important competition problems or market failures at the retail level to the detriment of end-users. The assessment of the replicability of network elements requires a market review which is different from an analysis assessing significant market power, and so the national regulatory authority does not need to establish significant market power in order to impose these obligations. On the other hand, such review requires a sufficient economic assessment of market conditions, to establish whether the criteria necessary to impose obligations beyond the first concentration or distribution point are met. Such extended access obligations are more likely to be necessary in geographical areas where the business case for alternative infrastructure rollout is more risky, for example because of low population density or because of the limited number of multi-dwelling buildings. Conversely, a high concentration of households might indicate that the imposition of such obligations is unnecessary. National regulatory authorities should also consider whether such obligations have the potential to strengthen the position of undertakings designated as having significant market power. National regulatory authorities should be able to impose access to active or virtual network elements used for service provision on such infrastructure if access to passive elements would be economically inefficient or physically impracticable, and if the national regulatory authority considers that, absent such an intervention, the purpose of the access obligation would be circumvented. In order to enhance consistent regulatory practice across the Union, the Commission should be able to require the national regulatory authority to withdraw its draft measures extending access obligations beyond the first concentration or distribution point, where BEREC shares the Commission’s serious doubts as to the compatibility of the draft measure with Union law and in particular the regulatory objectives of this Directive. See: Article 61(3). (155) In such cases, in order to comply with the principle of proportionality, it can be appropriate for national regulatory authorities to exempt certain categories of owners or undertakings, or both, from obligations going beyond the first concentration or distribution point, which should be determined by national regulatory authorities, on the grounds that an access obligation not based on an undertaking’s designation as having significant market power would risk compromising their business case for recently deployed network elements, in particular by small local projects. Wholesale-only undertakings should not be subject to such access obligations if they offer an effective alternative access on a commercial basis to a very high capacity network, on fair, non-discriminatory

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and reasonable terms and conditions, including as regards price. It should be possible to extend that exemption to other providers on the same terms. The exemption may not be appropriate for providers that are in receipt of public funding. See: Article 61(3) and (6). (156) Sharing of passive infrastructure used in the provision of wireless electronic communications services in compliance with competition law principles can be particularly useful to maximise very high capacity connectivity throughout the Union, especially in less dense areas where replication is impracticable and end-users risk being deprived of such connectivity. National regulatory or other competent authorities should, by way of exception, be able to impose such sharing or localised roaming access, in accordance with Union law, if that possibility has been clearly established in the original conditions for the granting of the right of use and they demonstrate the benefits of such sharing in terms of overcoming insurmountable economic or physical obstacles and access to networks or services is therefore severely deficient or absent, and taking into account several factors, including in particular the need for coverage along major transport paths, choice and a higher quality of service for end-users as well as the need to maintain infrastructure roll-out incentives. In circumstances where there is no access by end-users, and sharing of passive infrastructure alone does not suffice to address the situation, the national regulatory authorities should be able to impose obligations on the sharing of active infrastructure. In so doing, national regulatory or other competent authorities retain the flexibility to choose the most appropriate sharing or access obligation which should be proportionate and justified based on the nature of the problem identified. See: Article 61(4). (157) While it is appropriate in some circumstances for a national regulatory or other competent authority to impose obligations on undertakings irrespective of a designation of significant market power in order to achieve goals such as endto-end connectivity or interoperability of services, it is necessary to ensure that such obligations are imposed in accordance with the regulatory framework and, in particular, its notification procedures. Such obligations should be imposed only where justified in order to secure the objectives of this Directive, and where they are objectively justified, transparent, proportionate and non-discriminatory for the purpose of promoting efficiency, sustainable competition, efficient investment and innovation, and giving the maximum benefit to end-users, and imposed in accordance with the relevant notification procedures. See: Article 61(1), (2) and (5). (158) In order to overcome insurmountable economic or physical obstacles for providing end-users with services or networks which rely on the use of radio spectrum and where mobile coverage gaps persist, their closing may require the access and sharing of passive infrastructure, or, where this is not sufficient, the sharing of active infrastructure, or localised roaming access agreements. Without prejudice to sharing obligations attached to the rights of use on the basis of other provisions of this Directive, and in particular measures to promote competition, where national regulatory or other competent authorities intend to take measures



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to impose the sharing of passive infrastructure, or when passive access and sharing are not sufficient, active infrastructure sharing or localised roaming access agreements, they may, however, also be called to consider the possible risk for market participants in underserved areas. See: Article 61(4). (159) Competition rules alone may not always be sufficient to ensure cultural diversity and media pluralism in the area of digital television. Technological and market developments make it necessary to review obligations to provide conditional access on fair, reasonable and non-discriminatory terms on a regular basis, by a Member State for its national market, in particular to determine whether it is justified to extend obligations to EPGs and APIs, to the extent necessary to ensure accessibility for end-users to specified digital broadcasting services. Member States should be able to specify the digital broadcasting services to which access by end-users is to be ensured by any legislative, regulatory or administrative means that they consider to be necessary. See: Articles 61(2)(d); 62; Annex II. (160) Member States should also be able to permit their national regulatory authority to review obligations in relation to conditional access to digital broadcasting services in order to assess through a market analysis whether to withdraw or amend conditions for undertakings that do not have significant market power on the relevant market. Such a withdrawal or amendment should not adversely affect access for end-users to such services or the prospects for effective competition. See: Articles 62(2); 67(1). (161) There is a need for ex ante obligations in certain circumstances in order to ensure the development of a competitive market, the conditions of which favour the deployment and take-up of very high capacity networks and services, and the maximisation of end-user benefits. The definition of significant market power used in this Directive is equivalent to the concept of dominance as defined in the case-law of the Court of Justice. See: Article 63(2). ‘Dominance’ as defined in the case law ‘a position of economic strength enjoyed by an undertaking which enables it to prevent effective competition being maintained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, its customers and ultimately of its consumers’. Case 85/76, Hoffmann-La Roche & Co AG  v Commission of the European Communities, EU:C:1979:36, para 38 and Case 27/76 United Brands Company and United Brands Continentaal BV v Commission of the European Communities, EU:C:1978:22, para 65. (162) Two or more undertakings can be found to enjoy a joint dominant position not only where there exist structural or other links between them but also where the structure of the relevant market is conducive to coordinated effects, that is, it encourages parallel or aligned anti-competitive behaviour on the market.

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See: Article 63(2). (163) It is essential that ex ante regulatory obligations should be imposed on a wholesale market only where there are one or more undertakings with significant market power, with a view to ensuring sustainable competition and where Union and national competition law remedies are not sufficient to address the problem. The Commission has drawn up guidelines at Union level in accordance with the principles of competition law for national regulatory authorities to follow in assessing whether competition is effective in a given market and in assessing significant market power. National regulatory authorities should analyse whether a given product or service market is effectively competitive in a given geographical area, which could be the whole or a part of the territory of the Member State concerned or neighbouring parts of territories of Member States considered together. An analysis of effective competition should include an analysis as to whether the market is prospectively competitive, and thus whether any lack of effective competition is durable. Those guidelines should also address the issue of newly emerging markets, where de facto the market leader is likely to have a substantial market share but should not be subjected to inappropriate obligations. The Commission should review the guidelines regularly, in particular on the occasion of a review of the existing law, taking into account the case-law of the Court of Justice, economic thinking and actual market experience and with a view to ensuring that they remain appropriate in a rapidly developing market. National regulatory authorities will need to cooperate with each other where the relevant market is found to be transnational. See: Article 63. SMP Guidelines Communication from the Commission, Guidelines on market analysis and the assessment of significant market power under the EU regulatory framework for electronic communications networks and services (OJ C 159, 7.5.2018, p. 1) (see p. 1204). (164) In determining whether an undertaking has significant market power in a specific market, national regulatory authorities should act in accordance with Union law and take utmost account of the Commission guidelines on market analysis and the assessment of significant market power. See: Articles 63; 64(3). SMP Guidelines Communication from the Commission, Guidelines on market analysis and the assessment of significant market power under the EU regulatory framework for electronic communications networks and services (OJ C 159, 7.5.2018, p. 1) (see p. 1204). (165) National regulatory authorities should define relevant geographic markets within their territory taking into utmost account the Commission Recommendation on relevant product and service markets (the ‘Recommendation’) adopted pursuant to this Directive and taking into account national and local circumstances. Therefore, national regulatory authorities should at least analyse the markets that are contained in the Recommendation, including those markets that are listed but no longer regulated in the specific national or local context. National regulatory authorities



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should also analyse markets that are not contained in that Recommendation, but that are regulated within the territory of their jurisdiction on the basis of previous market analyses, or other markets, if they have sufficient grounds to consider that the three criteria provided in this Directive are met. See: Article 64(3). Commission Recommendation on relevant product and service markets The European Commission has identified two wholesale markets as susceptible to regulation at EU level: Market 1: Wholesale local access provided at a fixed location; Market 2: Wholesale dedicated capacity – Commission Recommendation (EU) 2020/2245 of 18  December 2020 on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive (EU) 2018/1972 of the European Parliament and of the Council establishing the European Electronic Communications Code (notified under document C(2020) 8750) (Text with EEA relevance) (OJ L 439, 29.12.2020, p. 23), Annex (see p. 1224). (166) Transnational markets can be defined when it is justified by the geographic market definition, taking into account all supply-side and demand-side factors in accordance with competition law principles. BEREC is the most appropriate body to undertake such analysis, benefiting from the extensive collective experience of national regulatory authorities when defining markets on a national level. National circumstances should be taken into account when an analysis of potential transnational markets is undertaken. If transnational markets are defined and warrant regulatory intervention, concerned national regulatory authorities should cooperate to identify the appropriate regulatory response, including in the process of notification to the Commission. They can also cooperate in the same manner where transnational markets are not identified but on their territories market conditions are sufficiently homogeneous to benefit from a coordinated regulatory approach, such as for example in terms of similar costs, market structures or operators, or in the case of transnational or comparable end-user demand. See: Article 65. (167) In some circumstances geographic markets are defined as national or subnational, for example due to the national or local nature of network roll-out which determines the boundaries of undertakings’ potential market power in respect of wholesale supply, but there is still a significant transnational demand from one or more categories of end-users. That can in particular be the case for demand from business end-users with multisite facility operations in different Member States. If that transnational demand is not sufficiently met by suppliers, for example if they are fragmented along national borders or locally, a potential internal market barrier arises. Therefore, BEREC should be empowered to provide guidelines to national regulatory authorities on common regulatory approaches to ensure that transnational demand can be met in a satisfactory way, providing a basis for the interoperability of wholesale access products across the Union and permitting efficiencies and economies of scale despite the fragmented supply side. BEREC’s guidelines should shape the choices of national regulatory authorities in pursuing the internal market objective when imposing regulatory obligations on undertakings designated as having significant market power at national level while providing guidance for the harmonisation of technical specifications of wholesale

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access products capable of meeting such identified transnational demand, in the interest of the internal market. See: Articles 10(2); 66. (168) The objective of any ex ante regulatory intervention is ultimately to produce benefits for end-users in terms of price, quality and choice by making retail markets effectively competitive on a sustainable basis. It is likely that national regulatory authorities will gradually be able to find many retail markets to be competitive even in the absence of wholesale regulation, especially taking into account expected improvements in innovation and competition. See: Article 67. (169) For national regulatory authorities, the starting point for the identification of wholesale markets susceptible to ex ante regulation is the analysis of corresponding retail markets. The analysis of effective competition at the retail and at the wholesale level is conducted from a forward-looking perspective over a given time horizon, and is guided by competition law, including, as appropriate, the relevant case law of the Court of Justice. If it is concluded that a retail market would be effectively competitive in the absence of ex ante wholesale regulation on the corresponding relevant markets, this should lead the national regulatory authority to conclude that regulation is no longer needed at the relevant wholesale level. See: Article 67. (170) During the gradual transition to deregulated markets, commercial agreements, including for co-investment and access between operators will gradually become more common, and if they are sustainable and improve competitive dynamics, they can contribute to the conclusion that a particular wholesale market does not warrant ex ante regulation. A similar logic would apply in reverse, to the unforeseeable termination of commercial agreements on a deregulated market. The analysis of such agreements should take into account that the prospect of regulation can be a motive for network owners to enter into commercial negotiations. With a view to ensuring adequate consideration of the impact of regulation imposed on related markets when determining whether a given market warrants ex ante regulation, national regulatory authorities should ensure markets are analysed in a consistent manner and where possible, at the same time or as close as possible to each other in time. See: Articles 67; 68(6). (171) When assessing wholesale regulation to solve problems at the retail level, national regulatory authorities should take into account the fact that several wholesale markets can provide wholesale upstream inputs for a particular retail market, and, conversely, that a single wholesale market can provide wholesale upstream inputs for a variety of retail markets. Furthermore, competitive dynamics in a particular market can be influenced by markets that are contiguous but not in a vertical relationship, such as can be the case between certain fixed and mobile markets. National regulatory authorities should conduct that assessment for each individual wholesale market considered for regulation, starting with remedies for access to



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civil infrastructure, as such remedies are usually conducive to more sustainable competition including infrastructure competition, and thereafter analysing any wholesale markets considered susceptible to ex ante regulation in order of their likely suitability to address identified competition problems at retail level. When deciding on the specific remedy to be imposed, national regulatory authorities should assess its technical feasibility and carry out a cost-benefit analysis, having regard to its degree of suitability to address the identified competition problems at retail level, and enabling competition based on differentiation and technology neutrality. National regulatory authorities should consider the consequences of imposing any specific remedy which, if feasible only on certain network topologies, could constitute a disincentive for the deployment of very high capacity networks in the interest of end-users. See: Article 67(2)(b). (172) Without prejudice to the principle of technology neutrality, the national regulatory authorities should provide incentives through the remedies imposed, and, where possible, before the roll-out of infrastructure, for the development of flexible and open network architecture, which would reduce eventually the burden and complexity of remedies imposed at a later stage. At each stage of the assessment, before the national regulatory authority determines whether any additional, more burdensome, remedy should be imposed on the undertaking designated as having significant market power, it should seek to determine whether the retail market concerned would be effectively competitive, also taking into account any relevant commercial arrangements or other wholesale market circumstances, including other types of regulation already in force, such as for example general access obligations to non-replicable assets or obligations imposed pursuant to Directive 2014/61/EU, and of any regulation already considered to be appropriate by the national regulatory authority for an undertaking designated as having significant market power. Such an assessment, aiming to ensure that only the most appropriate remedies necessary to effectively address any problems identified in the market analysis are imposed, does not preclude a national regulatory authority from finding that a mix of such remedies together, even if of differing intensity, in line with the proportionality principle, offers the least intrusive way of addressing the problem. Even if such differences do not result in the definition of distinct geographic markets, they should be able to justify differentiation in the appropriate remedies imposed in light of the differing intensity of competitive constraints. See: Article 67. Obligations imposed by the Broadband Cost Reduction Directive See Directive 2014/61/EU, Articles 3–9 (see pp. 933–39). (173) Ex ante regulation imposed at the wholesale level, which is in principle less intrusive than retail regulation, is considered to be sufficient to tackle potential competition problems on the related downstream retail market or markets. The advances in the functioning of competition since the regulatory framework for electronic communications has been in place are demonstrated by the progressive deregulation of retail markets across the Union. Furthermore, the rules relating to the imposition of ex ante remedies on undertakings designated as having significant market power should, where possible, be simplified and be made more predictable. Therefore, the imposition of ex ante regulatory controls based on

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an undertaking’s designation as having significant market power in wholesale markets should prevail. See: Articles 3(4)(f); 67; 68. (174) When a national regulatory authority withdraws wholesale regulation, it should define an appropriate notice period to ensure a sustainable transition to a deregulated market. In defining such a notice period, the national regulatory authority should take into account the existing agreements between access providers and access seekers that have been entered into on the basis of the imposed regulatory obligations. In particular, such agreements can provide a contractual legal protection to access seekers for a determined period. The national regulatory authority should also take into account the effective possibility for market participants to take up any commercial wholesale access or co-investment offers which can be present in the market and the need to avoid an extended period of possible regulatory arbitrage. Transition arrangements established by the national regulatory authority should consider the extent and timing of regulatory oversight of pre-existing agreements, once the notice period starts. See: Article 67(3). (175) In order to provide market players with certainty as to regulatory conditions, a time limit for market reviews is necessary. It is important to conduct a market analysis on a regular basis and within a reasonable and appropriate time-frame. There is a risk that failure by a national regulatory authority to analyse a market within the time-limit jeopardises the internal market, and normal infringement proceedings do not produce their desired effect on time. Alternatively, the national regulatory authority concerned should be able to request the assistance of BEREC to complete the market analysis. Such assistance could, for example, take the form of a specific task force composed of representatives of other national regulatory authorities. See: Article 67(5) and (6). (176) Due to the high level of technological innovation and highly dynamic markets in the electronic communications sector, there is a need to adapt regulation rapidly in a coordinated and harmonised way at Union level, as experience has shown that divergence among the national regulatory authorities in the implementation of the regulatory framework may create a barrier to the internal market. See: Articles 32; 38; 67(5) and (6). (177) However, in the interest of greater stability and predictability of regulatory measures, the maximum period allowed between market analyses should be extended from three to five years, provided market changes in the intervening period do not require a new analysis. In determining whether a national regulatory authority has complied with its obligation to analyse markets and notified the corresponding draft measure at a minimum every five years, only a notification including a new assessment of the market definition and of significant market power will be considered to be starting a new five-year market cycle. A mere notification of new or amended regulatory remedies, imposed on the basis of a previous and unrevised market analysis will not be considered to have satisfied that obligation. Non-compliance by a national



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regulatory authority with the obligation to conduct market analysis at regular intervals laid down in this Directive should not be considered, in itself, to be a ground for the invalidity or inapplicability of existing obligations imposed by that national regulatory authority in the market in question. See: Article 67(5) and (6). (178) The imposition of a specific obligation on an undertaking designated as having significant market power does not require an additional market analysis but rather a justification that the obligation in question is appropriate and proportionate in relation to the nature of the problem identified on the market in question, and on the related retail market. See: Article 68(2)–(4). (179) When assessing the proportionality of the obligations and conditions to be imposed, national regulatory authorities should take into account the different competitive conditions existing in the different areas within their Member States having regard in particular to the results of the geographical survey conducted in accordance with this Directive. See: Articles 64(3); 68(4). (180) When considering whether to impose remedies to control prices, and if so in what form, national regulatory authorities should seek to allow a fair return for the investor on a particular new investment project. In particular, there are risks associated with investment projects specific to new access networks which support products for which demand is uncertain at the time the investment is made. See: Article 74(1). (181) Reviews of obligations imposed on undertakings designated as having significant market power during the timeframe of a market analysis should allow national regulatory authorities to take into account the impact on competitive conditions of new developments, for instance of newly concluded voluntary agreements between undertakings, such as access and co-investment agreements, thus providing the flexibility which is particularly necessary in the context of longer regulatory cycles. A similar logic should apply in the case of an unforeseeable breach or termination of a commercial agreement, or if such an agreement has effects diverging from the market analysis. If the termination of an existing agreement occurs in a deregulated market, it is possible that a new market analysis is required. In the absence of a single important change in the market but in the case of dynamic markets, it may be necessary to conduct a market analysis more often than every five years, for example not earlier than every three years as was the case until the date of application of this Directive. Markets should be considered to be dynamic if the technological evolution and end-user demand patterns are likely to evolve in such a way that the conclusions of the analysis would be superseded within the medium term for a significant group of geographic areas or of end-users within the geographic and product market defined by the national regulatory authority. See: Article 68(6); 76.

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(182) Transparency of terms and conditions for access and interconnection, including prices, serve to speed up negotiation, avoid disputes and give confidence to market players that a service is not being provided on discriminatory terms. Openness and transparency of technical interfaces can be particularly important in ensuring interoperability. Where a national regulatory authority imposes obligations to make information public, it should also be able to specify the manner in which the information is to be made available, and whether it is free of charge, taking into account the nature and purpose of the information concerned. See: Article 69(1) and (3). (183) In light of the variety of network topologies, access products and market circumstance that have arisen since 2002, the objectives of Annex II to Directive 2002/19/EC, concerning local loop unbundling, and access products for providers of digital television and radio services, can be better achieved and in a more flexible manner, by providing guidelines on the minimum criteria for a reference offer to be developed by and periodically updated by BEREC. That Annex should therefore be deleted. See: Articles 10(2); 69(4). BEREC Guidance BEREC Guidelines on the minimum criteria for a reference offer, BoR (19) 238, 5 December 2019 (see annotations to Article 69). (184) The principle of non-discrimination ensures that undertakings with significant market power do not distort competition, in particular where they are vertically integrated undertakings that supply services to undertakings with whom they compete on downstream markets. See: Article 70. (185) In order to address and prevent non-price related discriminatory behaviour, equivalence of inputs (EoI) is in principle the surest way of achieving effective protection from discrimination. On the other hand, providing regulated wholesale inputs on an EoI basis is likely to trigger higher compliance costs than other forms of non-discrimination obligations. Those higher compliance costs should be measured against the benefits of more vigorous competition downstream, and of the relevance of non-discrimination guarantees in circumstances where the undertaking designated as having significant market power is not subject to direct price controls. In particular, national regulatory authorities might consider that the provision of wholesale inputs over new systems on an EoI basis is more likely to create sufficient net benefits, and thus be proportionate, given the comparatively lower incremental compliance costs to ensure that newly built systems are EoIcompliant. On the other hand, national regulatory authorities should also consider whether obligations are proportionate for affected undertakings, for example, by taking into account implementation costs and weigh up possible disincentives to the deployment of new systems, relative to more incremental upgrades, in the event that the former would be subject to more restrictive regulatory obligations. In Member States with a high number of small-scale undertakings designated as having significant market power, the imposition of EoI on each of those undertakings can be disproportionate.



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See: Article 70(2). (186) Accounting separation allows internal price transfers to be rendered visible, and allows national regulatory authorities to check compliance with obligations for non-discrimination where applicable. In this regard the Commission published Recommendation 2005/698/EC37. See: Article 71. Accounting separation and cost accounting systems Recommendation 2005/698/EC (see p. 1133). (187) Civil engineering assets that can host an electronic communications network are crucial for the successful roll-out of new networks because of the high cost of duplicating them, and the significant savings that can be made when they can be reused. Therefore, in addition to the rules on physical infrastructure laid down in Directive 2014/61/EU, a specific remedy is necessary in those circumstances where civil engineering assets are owned by an undertaking designated as having significant market power. Where civil engineering assets exist and are reusable, the positive effect of achieving effective access to them on the roll-out of competing infrastructure is very high, and it is therefore necessary to ensure that access to such assets can be used as a self-standing remedy for the improvement of competitive and deployment dynamics in any downstream market, to be considered before assessing the need to impose any other potential remedies, and not just as an ancillary remedy to other wholesale products or services or as a remedy limited to undertakings availing themselves of such other wholesale products or services. National regulatory authorities should value reusable legacy civil engineering assets on the basis of the regulatory accounting value net of the accumulated depreciation at the time of calculation, indexed by an appropriate price index, such as the retail price index, and excluding those assets which are fully depreciated, over a period of not less than 40 years, but still in use. See: Article 72. Rules on physical infrastructure under the Broadband Cost Reduction Directive See Directive 2014/61/EU, Articles 3-9 (see pp. 933–39). (188) National regulatory authorities should, when imposing obligations for access to new and enhanced infrastructures, 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, in order to provide planning certainty to investors, national regulatory authorities should be able to set, if applicable, terms and conditions for access which are consistent over appropriate review periods. In the event that price controls are considered to be appropriate, such terms and conditions can include pricing arrangements which depend on volumes or length of contract in accordance with Union law and provided they have no

Commission Recommendation 2005/698/EC of 19  September 2005 on accounting separation and cost accounting systems under the regulatory framework for electronic communications (OJ L 266, 11.10.2005, p. 64).

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discriminatory effect. Any access conditions imposed should respect the need to preserve effective competition in services to consumers and businesses. See: Article 73. (189) Mandating access to network infrastructure can be justified as a means of increasing competition, but national regulatory authorities need to balance the rights of an infrastructure owner to exploit its infrastructure for its own benefit, and the rights of other service providers to access facilities that are essential for the provision of competing services. See: Article 73(2). (190) In markets where an increased number of access networks can be expected on a forward-looking basis, end-users are more likely to benefit from improvements in network quality, by virtue of infrastructure-based competition, compared to markets where only one network persists. The adequacy of competition on other parameters, such as price and choice, is likely to depend on the national and local competitive circumstances. In assessing the adequacy of competition on such parameters and the need for regulatory intervention, national regulatory authorities should also take into account whether wholesale access is available to any interested undertaking on reasonable commercial terms permitting sustainable competitive outcomes for end-users on the retail market. The application of general competition rules in markets characterised by sustainable and effective infrastructure-based competition should be sufficient. See: Article 73(2). (191) Where obligations are imposed on undertakings that require them to meet reasonable requests for access to and use of networks elements and associated facilities, such requests should be refused only on the basis of objective criteria such as technical feasibility or the need to maintain network integrity. Where access is refused, the aggrieved party should be able to submit the case to the dispute resolutions procedures under this Directive. An undertaking with mandated access obligations cannot be required to provide types of access which it is not within its power to provide. The imposition by national regulatory authorities of mandated access that increases competition in the short term should not reduce incentives for competitors to invest in alternative facilities that will secure more sustainable competition or higher performance and end-user benefits in the long term. When choosing the least intrusive regulatory intervention, and in line with the principle of proportionality, national regulatory authorities could, for example, decide to review the obligations imposed on undertakings designated as having significant market power and amend any previous decision, including by withdrawing obligations, imposing or not imposing new access obligations if this is in the interests of users and sustainable service competition. National regulatory authorities should be able to impose technical and operational conditions on the provider or beneficiaries of mandated access in accordance with Union law. In particular the imposition of technical standards should comply with Directive (EU) 2015/1535. See: Article 73(2) and (3). Notification procedure in the Single Market Transparency Directive See Directive (EU) 2015/1535, Articles 5–7 (see pp. 946–50).



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(192) Price control may be necessary when market analysis in a particular market reveals inefficient competition. In particular, undertakings designated as having significant market power should avoid a price squeeze whereby the difference between their retail prices and the interconnection or access prices charged to competitors who provide similar retail services is not adequate to ensure sustainable competition. When a national regulatory authority calculates costs incurred in establishing a service mandated under this Directive, it is appropriate to allow a reasonable return on the capital employed including appropriate labour and building costs, with the value of capital adjusted where necessary to reflect the current valuation of assets and efficiency of operations. The method of cost recovery should be appropriate to the circumstances taking account of the need to promote efficiency, sustainable competition and deployment of very high capacity networks and thereby maximise end-user benefits, and should take in account the need to have predictable and stable wholesale prices for the benefit of all operators seeking to deploy new and enhanced networks, in accordance with Commission Recommendation 2013/466/EU38. See: Article 74. (193) Due to uncertainty regarding the rate of materialisation of demand for the provision of next-generation broadband services, it is important in order to promote efficient investment and innovation to allow those operators investing in new or upgraded networks a certain degree of pricing flexibility. National regulatory authorities should be able to decide to maintain or not to impose regulated wholesale access prices on next-generation networks if sufficient competition safeguards are present. More specifically, to prevent excessive prices in markets where there are undertakings designated as having significant market power, pricing flexibility should be accompanied by additional safeguards to protect competition and enduser interests, such as strict non-discrimination obligations, measures to ensure technical and economic replicability of downstream products, and a demonstrable retail price constraint resulting from infrastructure competition or a price anchor stemming from other regulated access products, or both. Those competitive safeguards do not prejudice the identification by national regulatory authorities of other circumstances under which it would be appropriate not to impose regulated access prices for certain wholesale inputs, such as where high price elasticity of end-user demand makes it unprofitable for the undertaking designated as having significant market power to charge prices appreciably above the competitive level or where lower population density reduces the incentives for the development of very high capacity networks and the national regulatory authority establishes that effective and non-discriminatory access is ensured through obligations imposed in accordance with this Directive. See: Article 74. (194) Where a national regulatory authority imposes obligations to implement a costaccounting system in order to support price controls, it should be able to undertake an annual audit to ensure compliance with that cost-accounting system, provided

Commission Recommendation 2013/466/EU of 11  September 2013 on consistent non-discrimination obligations and costing methodologies to promote competition and enhance the broadband investment environment (OJ L 251, 21.9.2013, p. 13).

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that it has the necessary qualified staff, or to require such an audit to be carried out by another qualified body, independent of the undertaking concerned. See: Articles 74(4); 83(3). (195) The charging system in the Union for wholesale voice call termination is based on Calling Party Network Pays. An analysis of demand and supply substitutability shows that currently or in the foreseeable future, there are no substitutes at wholesale level which might constrain the setting of charges for termination in a given network. Taking into account the two-way access nature of termination markets, further potential competition problems include cross-subsidisation between operators. Those potential competition problems are common to both fixed and mobile voice call termination markets. Therefore, in light of the ability and incentives of terminating operators to raise prices substantially above cost, cost orientation is considered to be the most appropriate intervention to address this concern over the medium term. Future market developments may alter the dynamics of those markets to the extent that regulation would no longer be necessary. See: Article 75. (196) In order to reduce the regulatory burden in addressing the competition problems relating to wholesale voice call termination consistently across the Union, the Commission should establish, by means of a delegated act, a single maximum voice termination rate for mobile services and a single maximum voice termination rate for fixed services that apply Union-wide. See: Article 75(1); Annex III. Delegated Regulation Commission Delegated Regulation (EU) 2021/654 of 18  December 2020 supplementing Directive (EU) 2018/1972 of the European Parliament and of the Council by setting a single maximum Union-wide mobile voice termination rate and a single maximum Union-wide fixed voice termination rate (Text with EEA relevance) (see p. 681). (197) This Directive should lay down the detailed criteria and parameters on the basis of which the values of voice call termination rates are set. Termination rates across the Union have decreased consistently and are expected to continue to do so. When the Commission determines the maximum termination rates in the first delegated act that it adopts pursuant to this Directive, it should disregard any unjustified exceptional national deviation from that trend. See: Article 75(1); Annex III. (198) Due to current uncertainty regarding the rate of materialisation of demand for very high capacity broadband services as well as general economies of scale and density, co-investment agreements offer significant benefits in terms of pooling of costs and risks, enabling smaller-scale undertakings to invest on economically rational terms and thus promoting sustainable, long-term competition, including in areas where infrastructure-based competition might not be efficient. Such coinvestments can take different forms, including co-ownership of network assets or long-term risk sharing through co-financing or through purchase agreements.



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In that context, purchase agreements which constitute co-investments entail the acquisition of specific rights to capacity of a structural character, involving a degree of co-determination and enabling co-investors to compete effectively and sustainably in the long term in downstream markets in which the undertaking designated as having significant market power is active. By contrast, commercial access agreements that are limited to the rental of capacity do not give rise to such rights and therefore should not be considered to be co-investments. See: Article 76. (199) Where an undertaking designated as having significant market power makes an offer for co-investment on fair, reasonable and non-discriminatory terms in very high capacity networks that consist of optical fibre elements up to the end-user premises or the base station, providing an opportunity to undertakings of different sizes and financial capacity to become infrastructure co-investors, the national regulatory authority should be able to refrain from imposing obligations pursuant to this Directive on the new very high capacity network if at least one potential coinvestor has entered into a co-investment agreement with that undertaking. Where a national regulatory authority decides to make binding a co-investment offer that has not resulted in an agreement, and decides, not to impose additional regulatory obligations, it can do so, subject to the condition that such an agreement is to be concluded before the deregulatory measure takes effect. Where it is technically impracticable to deploy optical fibre elements up to the end-user’s premises, very high capacity networks consisting of optical fibre elements up to the immediate proximity of, meaning just outside, such premises should also be able to benefit from the same regulatory treatment. See: Article 76(1) and (2); Annex IV. (200) When making a determination to refrain from imposing obligations, the national regulatory authority should take such steps after ensuring that the co-investment offers comply with the necessary criteria and are made in good faith. The differential regulatory treatment of new very high capacity networks should be subject to review in subsequent market analyses which, in particular after some time has elapsed, may require adjustments to the regulatory treatment. In duly justified circumstances, national regulatory authorities should be able to impose obligations on such new network elements when they establish that certain markets would, in the absence of regulatory intervention, face significant competition problems. In particular, when there are multiple downstream markets that have not reached the same degree of competition, national regulatory authorities could require specific asymmetric remedies to promote effective competition, for instance, but not limited to, niche retail markets, such as electronic communications products for business end-users. To maintain the competitiveness of the markets, national regulatory authorities should also safeguard the rights of access seekers who do not participate in a given co-investment. This should be achieved through the maintenance of existing access products or, where legacy network elements are dismantled in due course, through the imposition of access products with at least comparable functionality and quality to those previously available on the legacy infrastructure, in both cases subject to an appropriate adaptable mechanism validated by the national regulatory authority that does not undermine the incentives for co-investors. See: Article 76(2) and (3); Annex IV.

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(201) In order to enhance the consistent regulatory practice across the Union, where national regulatory authorities conclude that the conditions of the co-investment offer are met, the Commission should be able to require the national regulatory authority to withdraw its draft measures either refraining from imposing obligations or intervening with regulatory obligations in order to address significant competition problems, where BEREC shares the Commission’s serious doubts as to the compatibility of the draft measure with Union law and in particular the regulatory objectives of this Directive. In the interest of efficiency, a national regulatory authority should be able to submit a single notification to the Commission of a draft measure that relates to a co-investment scheme that meets the relevant conditions. Where the Commission does not exercise its powers to require the withdrawal of the draft measure, it would be disproportionate for subsequent simplified notifications of individual draft decisions of the national regulatory authority on the basis of the same scheme, including in addition evidence of actual conclusion of an agreement with at least one co-investor, to be subject to a decision requiring withdrawal in the absence of a change in circumstances. Furthermore, obligations imposed on undertakings, irrespective of whether they are designated as having significant market power, pursuant to this Directive or to Directive 2014/61/EU continue to apply. Obligations in relation to co-investment agreements are without prejudice to the application of Union law. See: Articles 33(5)(c); 76. Obligations imposed by the Broadband Cost Reduction Directive See Directive 2014/61/EU, Articles 3–9 (see pp. 933–39). (202) The purpose of functional separation, whereby the vertically integrated undertaking is required to establish operationally separate business entities, is to ensure the provision of fully equivalent access products to all downstream operators, including the operator’s own vertically integrated downstream divisions. Functional separation has the capacity to improve competition in several relevant markets by significantly reducing the incentive for discrimination and by making it easier to verify and enforce compliance with non-discrimination obligations. In exceptional cases, it should be possible for functional separation to be justified as a remedy where there has been persistent failure to achieve effective non-discrimination in several of the markets concerned, and where there is little or no prospect of infrastructure competition within a reasonable time-frame after recourse to one or more remedies previously considered to be appropriate. However, it is very important to ensure that its imposition preserves the incentives of the undertaking concerned to invest in its network and that it does not entail any potential negative effects on consumer welfare. Its imposition requires a coordinated analysis of different relevant markets related to the access network, in accordance with the market analysis procedure. When undertaking the market analysis and designing the details of that remedy, national regulatory authorities should pay particular attention to the products to be managed by the separate business entities, taking into account the extent of network roll-out and the degree of technological progress, which may affect the substitutability of fixed and wireless services. In order to avoid distortions of competition in the internal market, proposals for functional separation should be approved in advance by the Commission. See: Article 77.



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(203) The implementation of functional separation should not prevent appropriate coordination mechanisms between the different separate business entities in order to ensure that the economic and management supervision rights of the parent company are protected. See: Article 77. (204) Where a vertically integrated undertaking chooses to transfer a substantial part or all of its local access network assets to a separate legal entity under different ownership or by establishing a separate business entity for dealing with access products, the national regulatory authority should assess the effect of the intended transaction, including any access commitments offered by this undertaking, on all existing regulatory obligations imposed on the vertically integrated undertaking in order to ensure the compatibility of any new arrangements with this Directive. The national regulatory authority concerned should undertake a new analysis of the markets in which the segregated entity operates, and impose, maintain, amend or withdraw obligations accordingly. To that end, the national regulatory authority should be able to request information from the undertaking. See: Article 78. (205) It is already possible today in some markets that as part of the market analysis the undertakings designated as having significant market power are able to offer commitments which aim to address competition problems identified by the national regulatory authority and which the national regulatory authority then takes into account in deciding on the appropriate regulatory obligations. Any new market developments should be taken into account in deciding on the most appropriate remedies. However, and without prejudice to the provisions on regulatory treatment of co-investments, the nature of the commitments offered as such does not limit the discretion accorded to the national regulatory authority to impose remedies on undertakings designated as having significant market power. In order to enhance transparency and to provide legal certainty across the Union, the procedure for undertakings to offer commitments and for the national regulatory authorities to assess them, taking into account the views of market participants by means of a market test, and if appropriate to make them binding on the committing undertaking and enforceable by the national regulatory authority, should be laid down in this Directive. Unless the national regulatory authority has made commitments on co-investments binding and decided not to impose obligations, that procedure is without prejudice to the application of the market analysis procedure and the obligation to impose appropriate and proportionate remedies to address the identified market failure. See: Article 79. (206) National regulatory authorities should be able to make the commitments binding, wholly or in part, for a specific period which should not exceed the period for which they are offered, after having conducted a market test by means of a public consultation of interested parties. Where the commitments have been made binding, the national regulatory authority should consider the consequences of this decision in its market analysis and take them into account when choosing the most appropriate regulatory measures. National regulatory authorities should consider the commitments made from a forward-looking perspective of

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sustainability, in particular when choosing the period for which they are made binding, and should have regard to the value placed by stakeholders in the public consultation on stable and predictable market conditions. Binding commitments related to voluntary separation by a vertically integrated undertaking which has been designated as having significant market power in one or more relevant markets can add predictability and transparency to the process, by setting out the process of implementation of the planned separation, for example by providing a roadmap for implementation with clear milestones and predictable consequences if certain milestones are not met. See: Article 79(3). (207) The commitments can include the appointment of a monitoring trustee, whose identity and mandate should be approved by the national regulatory authority, and the obligation on the undertaking offering them to provide periodic implementation reports. See: Article 79(4). (208) Network owners whose business model is limited to the provision of wholesale services to others, can be beneficial to the creation of a thriving wholesale market, with positive effects on retail competition downstream. Furthermore, their business model can be attractive to potential financial investors in less volatile infrastructure assets and with longer term perspectives on deployment of very high capacity networks. Nevertheless, the presence of a wholesale-only undertaking does not necessarily lead to effectively competitive retail markets, and wholesaleonly undertakings can be designated as having significant market power in particular product and geographic markets. Certain competition risks arising from the behaviour of undertakings following wholesale-only business models might be lower than for vertically integrated undertakings, provided the wholesale-only model is genuine and no incentives to discriminate between downstream providers exist. The regulatory response should therefore be commensurately less intrusive, but should preserve in particular the possibility to introduce obligations in relation to fair and reasonable pricing. On the other hand, national regulatory authorities should be able to intervene if competition problems have arisen to the detriment of end-users. An undertaking active on a wholesale market that supplies retail services solely to business users larger than small and medium-sized enterprises should be regarded as a wholesale-only undertaking. See: Article 80. (209) To facilitate the migration from legacy copper networks to next-generation networks, which is in the interests of end-users, national regulatory authorities should be able to monitor network operators’ own initiatives in this respect and to establish, where necessary, the conditions for an appropriate migration process, for example by means of prior notice, transparency and availability of alternative access products of at least comparable quality, once the network owner has demonstrated the intent and readiness to switch to upgraded networks. In order to avoid unjustified delays to the migration, national regulatory authorities should be empowered to withdraw access obligations relating to the copper network once an adequate migration process has been established and compliance with conditions and process for migration from legacy infrastructure is ensured. However, network



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owners should be able to decommission legacy networks. Access seekers migrating from an access product based on legacy infrastructure to an access product based on a more advanced technology or medium should be able to upgrade their access to any regulated product with higher capacity, but should not be required to do so. In the case of an upgrade, access seekers should adhere to the regulatory conditions for access to the higher capacity access product, as determined by the national regulatory authority in its market analysis. See: Article 81. (210) The liberalisation of the telecommunications sector and increasing competition and choice for communications services go hand in hand with parallel action to create a harmonised regulatory framework which secures the delivery of universal service. The concept of universal service should evolve to reflect advances in technology, market developments and changes in user demand. See: Articles 84; 85. (211) Under Article 169 TFEU, the Union is to contribute to the protection of consumers. See: Articles 84(1); 85(1) and (2). Consumer protection under the TFEU ‘1.

In order to promote the interests of consumers and to ensure a high level of consumer protection, the Union shall contribute to protecting the health, safety and economic interests of consumers, as well as to promoting their right to information, education and to organise themselves in order to safeguard their interests.

2.

The Union shall contribute to the attainment of the objectives referred to in paragraph 1 through: (a) measures adopted pursuant to Article  114 in the context of the completion of the internal market; (b)

measures which support, supplement and monitor the policy pursued by the Member States.

3.

The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall adopt the measures referred to in paragraph 2(b).

4.

Measures adopted pursuant to paragraph 3 shall not prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with the Treaties. The Commission shall be notified of them.’

TFEU, Article 169. (212) Universal service is a safety net to ensure that a set of at least the minimum services is available to all end-users and at an affordable price to consumers, where a risk of social exclusion arising from the lack of such access prevents citizens from full social and economic participation in society. See: Articles 84; 85.

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(213) Basic broadband internet access is virtually universally available across the Union and very widely used for a broad range of activities. However, the overall take-up rate is lower than availability as there are still those who are disconnected due to reasons related to awareness, cost, skills and due to choice. Affordable adequate broadband internet access has become of crucial importance to society and the wider economy. It provides the basis for participation in the digital economy and society through essential online internet services. See: Article 84(3). (214) A fundamental requirement of universal service is to ensure that all consumers have access at an affordable price to an available adequate broadband internet access and voice communications services, at a fixed location. Member States should also have the possibility to ensure affordability of adequate broadband internet access and voice communications services other than at a fixed location to citizens on the move, where they consider that this is necessary to ensure consumers’ full social and economic participation in society. Particular attention should be paid in that context to ensuring that end-users with disabilities have equivalent access. There should be no limitations on the technical means by which the connection is provided, allowing for wired or wireless technologies, nor any limitations on the category of providers which provide part or all of universal service obligations. See: Articles 84(1) and (2); 85(4). (215) The speed of internet access experienced by a given user depends on a number of factors, including the providers of internet connectivity as well as the given application for which a connection is being used. It is for the Member States, taking into account BEREC’s report on best practices, to define adequate broadband internet access in light of national conditions and the minimum bandwidth enjoyed by the majority of consumers within a Member State’s territory in order to allow an adequate level of social inclusion and participation in the digital economy and society in their territory. The affordable adequate broadband internet access service should have sufficient bandwidth to support access to and use of at least a minimum set of basic services that reflect the services used by the majority of end-users. To that end, the Commission should monitor the development in the use of the internet to identify those online services used by a majority of end-users across the Union and necessary for social and economic participation in society and update the list accordingly. The requirements of Union law on open internet access, in particular of Regulation (EU) 2015/2120, should apply to any adequate broadband internet access service. See: Articles 10(2); 84(3); Annex V. Zero-rating offers and safeguarding open internet access Joined Cases C-807/18 and C-39/19 Telenor Magyarország Zrt v Nemzeti Médiaés Hírközlési Hatóság Elnöke, EU:C:2020:708, Court’s ruling (see annotations to Annex VIII). BEREC Guidance BEREC  Report on Member States’ best practices to support the defining of adequate broadband internet access service, BoR (20) 99, 11  June 2020 (see annotations to Article  84); BEREC  Guidelines on the Implementation of the Open Internet Regulation, BoR (20) 112, 11  June 2020 (see annotations to Articles 2; 56; 102; 104).



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(216) Consumers should not be obliged to access services they do not want and it should therefore be possible for eligible consumers to restrict, on request, the affordable universal service to voice communications services. See: Articles 84(4); 88(1). (217) Member States should be able to extend measures related to affordability and control of expenditure measures to microenterprises and small and mediumsized enterprises and not-for-profit organisations, provided they fulfil the relevant conditions. See: Articles 84(5); 85(6); 88(2). Definitions of micro, small and medium-sized enterprises Commission Recommendation 2003/361/EC, Article  2 and Annex; Case T-587/14,Crosfield Italia Srl v European Chemicals Agency (ECHA), EU:T:2016:475, paras 34–36; Case T-620/13, Marchi Industriale SpA v European Chemicals Agency (ECHA), EU:T:2016:479, paras 30–32 (see annotations to Recital 68). (218) National regulatory authorities in coordination with other competent authorities should be able to monitor the evolution and level of retail tariffs for services that fall within the scope of universal service obligations. Such monitoring should be carried out in such a way that it would not represent an excessive administrative burden for either national regulatory and other competent authorities or providers of such services. See: Article 85(1). (219) An affordable price means a price defined by Member States at national level in light of specific national conditions. Where Member States establish that retail prices for adequate broadband internet access and voice communications services are not affordable to consumers with low-income or special social needs, including older people, end-users with disabilities and consumers living in rural or geographically isolated areas, they should take appropriate measures. To that end, Member States could provide those consumers with direct support for communication purposes, which could be part of social allowances or vouchers for, or direct payments to, those consumers. This can be an appropriate alternative having regard to the need to minimise market distortions. Alternatively, or in addition, Member States could require providers of such services to offer basic tariff options or packages to those consumers. See: Article 85(2). (220) Ensuring affordability may involve special tariff options or packages to deal with the needs of low-income users or users with special social needs. Such offers should be provided with basic features, in order to avoid distortion of the functioning of the market. Affordability for individual consumers should be founded upon their right to contract with a provider, availability of a number, continued connection of service and their ability to monitor and control their expenditure. See: Article 85(3) and (5).

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(221) Where a Member State requires providers to offer to consumers with a low-income or special social needs tariff options or packages different from those provided under normal commercial conditions, those tariff options or packages should be provided by all providers of internet access and voice communication services. In accordance with the principle of proportionality, requiring all providers of internet access and voice communication services to offer tariff options or packages should not result in excessive administrative or financial burden for those providers or Member States. Where a Member State demonstrates such an excessive administrative or financial burden, on the basis of an objective assessment, it might exceptionally decide to impose the obligation to offer specific tariff options or packages only on designated providers. The objective assessment should also consider the benefits arising for consumers with a low-income or special social needs from a choice of providers and the benefits for all providers being able to benefit from being a universal service provider. Where a Member State exceptionally decides to impose the obligation to offer specific tariff options or packages only on designated providers, they should ensure that consumers with low income or special needs have a choice of providers offering social tariffs. However, in certain situations Member States might not be able to guarantee a choice of providers, for example where only one undertaking provides services in the area of residence of the beneficiary, or if providing a choice would put an excessive additional organisational and financial burden on the Member State. See: Articles 85(2); 86. (222) Affordability should no longer be a barrier to consumers’ access to the minimum set of connectivity services. A right to contract with a provider should mean that consumers who might face refusal, in particular those with a low-income or special social needs, should have the possibility to enter into a contract for the provision of affordable adequate broadband internet access and voice communications services at least at a fixed location with any provider of such services in that location or a designated provider, where a Member State has exceptionally decided to designate one or more providers to offer those tariff options or packages. In order to minimise the financial risks such as non-payment of bills, providers should be free to provide the contract under pre-payment terms, on the basis of affordable individual pre-paid units. See: Articles 85; 88; Annex VI (Part A). (223) In order to ensure that citizens are reachable by voice communications services, Member States should ensure the availability of a number for a reasonable period also during periods of non-use of voice communications services. Providers should be able to put in place mechanisms to check the continued interest of the consumer in keeping the availability of the number. See: Article 85(2). (224) Compensating providers of such services in such circumstances need not result in the distortion of competition, provided that such providers are compensated for the specific net cost involved and provided that the net cost burden is recovered in a competitively neutral way. See: Articles 85; 89.



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(225) In order to assess the need for affordability measures, national regulatory authorities in coordination with other competent authorities should be able to monitor the evolution and details of offers of tariff options or packages for consumers with a low-income or special social needs. See: Article 85(1)–(3). (226) Member States should introduce measures to promote the creation of a market for affordable products and services incorporating facilities for consumers with disabilities, including equipment with assistive technologies. This can be achieved, inter alia, by referring to European standards, or by supporting the implementation of requirements under Union law harmonising accessibility requirements for products and services. Member States should introduce appropriate measures in accordance with national circumstances, which gives flexibility for Member States to take specific measures for instance if the market is not delivering affordable products and services incorporating facilities for consumers with disabilities under normal economic conditions. Those measures could include direct financial support to end-users. The cost to consumers with disabilities of relay services should be equivalent to the average cost of voice communications services. See: Article 85(4). (227) Relay services refer to services which enable two-way communication between remote end-users of different modes of communication (for example text, sign, speech) by providing conversion between those modes of communication, normally by a human operator. Real time text is defined in accordance with Union law harmonising accessibility requirements for products and services and refers to form of text conversation in point to point situations or in multipoint conferencing where the text being entered is sent in such a way that the communication is perceived by the user as being continuous on a character-by-character basis. See: Article 85(4). (228) For data communications at data rates that are sufficient to permit an adequate broadband internet access, fixed-line connections are nearly universally available and used by a majority of citizens of the Union. The standard fixed broadband coverage and availability in the Union stood at 97 % of homes in 2015, with an average take-up rate of 72 %, and services based on wireless technologies have even greater reach. However, there are differences between Member States as regards availability and affordability of fixed broadband across urban and rural areas. See: Articles 84–86. (229) The market has a leading role to play in ensuring availability of broadband internet access with constantly growing capacity. In areas where the market would not deliver, other public policy tools to support availability of adequate broadband internet access connections appear, in principle, more cost-effective and less market-distortive than universal service obligations, for example recourse to financial instruments such as those available under the European Fund for Strategic Investments and Connecting Europe Facility, the use of public funding from the European structural and investment funds, attaching coverage obligations to rights

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of use for radio spectrum to support the deployment of broadband networks in less densely populated areas and public investment in accordance with Union State aid rules. See: Articles 86; 90. (230) If, after carrying out a due assessment, taking into account the results of the geographical survey of networks deployment conducted by the competent authority, or the latest information available to the Member States before the results of the first geographical survey are available, it is shown that neither the market nor public intervention mechanisms are likely to provide end-users in certain areas with a connection capable of delivering adequate broadband internet access service as defined by Member States and voice communications services at a fixed location, the Member State should be able to exceptionally designate different providers or sets of providers of those services in the different relevant parts of the national territory. In addition to the geographical survey, Member States should be able to use, where necessary, any additional evidence to establish to what extent adequate broadband internet access and voice communications services are available at a fixed location. That additional evidence could include data available to the national regulatory authorities through the market analysis procedure and data collected from users. Member States should be able to restrict universal service obligations in support of availability of adequate broadband internet access services to the end-user’s primary location or residence. There should be no constraints on the technical means by which the adequate broadband internet access and voice communications services at a fixed location are provided, allowing for wired or wireless technologies, nor any constraints on which undertakings provide part or all of universal service obligations. See: Article 86(1). (231) In accordance with the principle of subsidiarity, it is for the Member States to decide on the basis of objective criteria which undertakings are designated as universal service providers, where appropriate taking into account the ability and the willingness of undertakings to accept all or part of the universal service obligations. This does not preclude Member States from including, in the designation process, specific conditions justified on grounds of efficiency, including grouping geographical areas or components or setting minimum periods for the designation. See: Article 86(2) and (3). (232) The costs of ensuring the availability of a connection capable of delivering an adequate broadband internet access service as identified in accordance with this Directive and voice communications services at a fixed location at an affordable price within the universal service obligations should be estimated, in particular by assessing the expected financial burden for providers and users in the electronic communications sector. See: Article 86(4). (233) A priori, requirements to ensure nation-wide territorial coverage imposed in the designation procedure are likely to exclude or dissuade certain undertakings



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from applying for being designated as universal service providers. Designating providers with universal service obligations for an excessive or indefinite period might also lead to an a priori exclusion of certain providers. Where a Member State decides to designate one or more providers for affordability purposes, it should be possible for those providers to be different from those designated for the availability element of universal service. See: Article 86(4). (234) When a provider that is, on an exceptional basis, designated to provide tariff options or packages different from those provided under normal commercial conditions, as identified in accordance with this Directive or to ensure the availability at a fixed location of an adequate broadband internet access service or voice communications services, as identified in accordance with this Directive, chooses to dispose of a substantial part, viewed in light of its universal service obligations, or all, of its local access network assets in the national territory to a separate legal entity under different ultimate ownership, the competent 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 that end, the competent authority which imposed the universal service obligations should be informed by the provider in advance of the disposal. The assessment of the competent authority should not prejudice the completion of the transaction. See: Article 86(5). (235) In order to provide stability and support a gradual transition, Member States should be able to continue to ensure the provision of universal service in their territory, other than adequate broadband internet access and voice communications services at a fixed location, that are included in the scope of their universal service obligations on the basis of Directive 2002/22/EC on the date of entry into force of this Directive, provided the services or comparable services are not available under normal commercial circumstances. Allowing the continuation of the provision of public payphones to the general public by use of coins, credit or debit cards, or pre-payment cards, including cards for use with dialling codes, directories and directory enquiry services under the universal service regime, for as long as the need is demonstrated, would give Member States the flexibility necessary to duly take into account the varying national circumstances. This can include providing public pay telephones in the main entry points of the country, such as airports or train and bus stations, as well as places used by people in the case of an emergency, such as hospitals, police stations and highway emergency areas, to meet the reasonable needs of end-users, including in particular end-users with disabilities. See: Article 87. (236) Member States should monitor the situation of consumers with respect to their use of adequate broadband internet access and voice communications services and in particular with respect to affordability. The affordability of adequate broadband internet access and voice communications services is related to the information which users receive regarding usage expenses as well as the relative cost of usage compared to other services, and is also related to their ability to control expenditure. Affordability therefore means giving power to consumers through

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obligations imposed on providers. Those obligations include a specified level of itemised billing, the possibility for consumers selectively to block certain calls, such as high-priced calls to premium services, to control expenditure via prepayment means, and to offset up-front connection fees. Such measures may need to be reviewed and changed in light of market developments. Itemised bills on the usage of internet access should indicate only the time, duration and amount of consumption during a usage session but not indicate the websites or internet endpoints connected to during such a usage session. See: Article 88; Annex VI (Part A). (237) Except in cases of persistent late payment or non-payment of bills, consumers entitled to affordable tariffs should, pending resolution of the dispute, be protected from immediate disconnection from the network on the grounds of an unpaid bill and, in particular, in the case of disputes over high bills for premium-rate services, continue to have access to essential voice communications services and a minimum service level of internet access as defined by Member States. It should be possible for Member States to decide that such access is to continue to be provided only if the subscriber continues to pay line rental or basic internet access charges. See: Article 88(2); Annex VI (Part A). (238) Where the provision of adequate broadband internet access and voice communications services or the provision of other services in accordance with this Directive result in an unfair burden on a provider, taking due account of the costs and revenues as well as the intangible benefits resulting from the provision of the services concerned, that unfair burden can be included in any net cost calculation of universal service obligations. See: Article 89(1); Annex VII (Part A). (239) Member States should, where necessary, establish mechanisms for financing the net cost of universal service obligations where it is demonstrated that the obligations can only be provided at a loss or at a net cost which falls outside normal commercial standards. It is important to ensure that the net cost of universal service obligations is properly calculated and that any financing is undertaken with minimum distortion to the market and to undertakings, and is compatible with Articles 107 and 108 TFEU. See: Articles 89; 90. State aid under the TFEU ‘1.

Save as otherwise provided in the Treaties, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the internal market.

2.

The following shall be compatible with the internal market: (a) aid having a social character, granted to individual consumers, provided that such aid is granted without discrimination related to the origin of the products concerned;



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(b) aid to make good the damage caused by natural disasters or exceptional occurrences; (c)

3.

aid granted to the economy of certain areas of the Federal Republic of Germany affected by the division of Germany, in so far as such aid is required in order to compensate for the economic disadvantages caused by that division. Five years after the entry into force of the Treaty of Lisbon, the Council, acting on a proposal from the Commission, may adopt a decision repealing this point.

The following may be considered to be compatible with the internal market: (a) aid to promote the economic development of areas where the standard of living is abnormally low or where there is serious underemployment, and of the regions referred to in Article  349 [Guadeloupe, French Guiana, Martinique, Mayotte, Réunion, SaintMartin, the Azores, Madeira and the Canary Islands], in view of their structural, economic and social situation; (b) aid to promote the execution of an important project of common European interest or to remedy a serious disturbance in the economy of a Member State; (c) aid to facilitate the development of certain economic activities or of certain economic areas, where such aid does not adversely affect trading conditions to an extent contrary to the common interest; (d) aid to promote culture and heritage conservation where such aid does not affect trading conditions and competition in the Union to an extent that is contrary to the common interest; (e) such other categories of aid as may be specified by decision of the Council on a proposal from the Commission.’

TFEU, Article 107. ‘1. The Commission shall, in cooperation with Member States, keep under constant review all systems of aid existing in those States. It shall propose to the latter any appropriate measures required by the progressive development or by the functioning of the internal market. 2.

If, after giving notice to the parties concerned to submit their comments, the Commission finds that aid granted by a State or through State resources is not compatible with the internal market having regard to Article 107, or that such aid is being misused, it shall decide that the State concerned shall abolish or alter such aid within a period of time to be determined by the Commission. If the State concerned does not comply with this decision within the prescribed time, the Commission or any other interested State may, in derogation from the provisions of Articles 258 and 259, refer the matter to the Court of Justice of the European Union direct. On application by a Member State, the Council may, acting unanimously, decide that aid which that State is granting or intends to grant shall be considered to be compatible with the internal market, in derogation from the provisions of Article  107 or from the regulations provided for in

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Article  109, if such a decision is justified by exceptional circumstances. If, as regards the aid in question, the Commission has already initiated the procedure provided for in the first subparagraph of this paragraph, the fact that the State concerned has made its application to the Council shall have the effect of suspending that procedure until the Council has made its attitude known. If, however, the Council has not made its attitude known within three months of the said application being made, the Commission shall give its decision on the case. 3.

The Commission shall be informed, in sufficient time to enable it to submit its comments, of any plans to grant or alter aid. If it considers that any such plan is not compatible with the internal market having regard to Article  107, it shall without delay initiate the procedure provided for in paragraph  2. The Member State concerned shall not put its proposed measures into effect until this procedure has resulted in a final decision.

4.

The Commission may adopt regulations relating to the categories of State aid that the Council has, pursuant to Article  109, determined may be exempted from the procedure provided for by paragraph 3 of this Article.’

TFEU, Article 108. (240) Any calculation of the net cost of universal service obligations should take due account of costs and revenues, as well as the intangible benefits resulting from providing universal service, but should not hinder the general aim of ensuring that pricing structures reflect costs. Any net costs of universal service obligations should be calculated on the basis of transparent procedures. See: Articles 89(1); 91; Annex VII (Part A). (241) Taking into account intangible benefits means that an estimate in monetary terms, of the indirect benefits that an undertaking derives by virtue of its position as universal service provider, should be deducted from the direct net cost of universal service obligations in order to determine the overall cost burden. See: Article 89(1); Annex VII (Part A). (242) When a universal service obligation represents an unfair burden on a provider, it is appropriate to allow Member States to establish mechanisms for efficiently recovering net costs. Recovery via public funds constitutes one method of recovering the net costs of universal service obligations. Sharing the net costs of universal service obligations between providers of electronic communications networks and services is another method. Member States should be able to finance the net costs of different elements of universal service through different mechanisms, or to finance the net costs of some or all elements from either of the mechanisms or a combination of both. Adequate broadband internet access brings benefits not only to the electronic communications sector but also to the wider online economy and to society as a whole. Providing a connection which supports broadband speeds to an increased number of end-users enables them to use online services and so actively to participate in the digital society. Ensuring such connections on the basis of universal service obligations serves both the public interest and the interests of electronic communications providers. Those facts



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should be taken into account by Member States when choosing and designing mechanisms for recovering net costs. See: Article 90. (243) In the case of cost recovery by means of sharing the net cost of universal service obligations between providers of electronic communications networks and services, Member States should ensure that the method of allocation amongst providers is based on objective and non-discriminatory criteria and is in accordance with the principle of proportionality. This principle does not prevent Member States from exempting new entrants which have not achieved any significant market presence. Any funding mechanism should ensure that market participants only contribute to the financing of universal service obligations and not to other activities which are not directly linked to the provision of the universal service obligations. Recovery mechanisms should respect the principles of Union law, and in particular in the case of sharing mechanisms those of non-discrimination and proportionality. Any funding mechanism should ensure that users in one Member State do not contribute to the costs of providing universal service in another Member State. It should be possible to share the net cost of universal service obligations between all or certain specified classes of providers. Member States should ensure that the sharing mechanism respects the principles of transparency, least market distortion, non-discrimination and proportionality. Least market distortion means that contributions should be recovered in a way that as far as possible minimises the impact of the financial burden falling on end-users, for example by spreading contributions as widely as possible. See: Article 90(2); Annex VII (Part B). (244) Providers benefiting from universal service funding should provide national regulatory authorities with a sufficient level of detail of the specific elements requiring such funding in order to justify their request. Member States’ schemes for the costing and financing of universal service obligations should be communicated to the Commission for verification of compatibility with the TFEU. Member States should ensure effective transparency and control of amounts charged to finance universal service obligations. Calculation of the net costs of providing universal service should be based on an objective and transparent methodology to ensure the most cost-effective provision of universal service and promote a level playing field for market participants. Making the methodology intended to be used to calculate the net costs of individual universal service elements known in advance before implementing the calculation could help to achieve increased transparency. See: Article 91. (245) Member States are not permitted to impose on market participants financial contributions which relate to measures which are not part of the universal service obligations. Individual Member States remain free to impose special measures (outside the scope of universal service obligations) and finance them in accordance with Union law but not by means of contributions from market participants. See: Article 92.

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(246) In order to effectively support the free movement of goods, services and persons within the Union, it should be possible to use certain national numbering resources, in particular certain non-geographic numbers, in an extraterritorial manner, that is to say outside the territory of the assigning Member State. In light of the considerable risk of fraud with respect to interpersonal communications, such extraterritorial use should be allowed only for the provision of electronic communications services other than interpersonal communications services. Enforcement of relevant national laws, in particular consumer protection rules and other rules related to the use of numbering resources should be ensured by Member States independently of where the rights of use have been granted and where the numbering resources are used within the Union. Member States remain competent to apply their national law to numbering resources used in their territory, including where rights have been granted in another Member State. See: Articles 93(4); 94(6). (247) The national regulatory or other competent authorities of the Member States where numbering resources from another Member State are used, do not have control over those numbering resources. It is therefore essential that the national regulatory or other competent authority of the Member State which grants the rights of extraterritorial use should also ensure the effective protection of the endusers in the Member States where those numbers are used. In order to achieve effective protection, national regulatory or other competent authority granting rights of extraterritorial use should attach conditions in accordance with this Directive regarding the respect by the provider of consumer protection rules and other rules related to the use of numbering resources in those Member States where those resources will be used. See: Articles 93(4); 94(6); Annex I (Part E). (248) The national regulatory or other competent authorities of those Member States where numbering resources are used should be able to request the support of the national regulatory or other competent authorities that granted the rights of use for the numbering resources to assist in enforcing its rules. Enforcement measures by the national regulatory or other competent authorities that granted the rights of use should include dissuasive penalties, in particular in the case of a serious breach the withdrawal of the right of extraterritorial use for the numbering resources assigned to the undertaking concerned. The requirements on extraterritorial use should be without prejudice to Member States’ powers to block, on a case-by-case basis, access to numbers or services where that is justified by reasons of fraud or misuse. The extraterritorial use of numbering resources should be without prejudice to Union rules related to the provision of roaming services, including those relative to preventing anomalous or abusive use of roaming services which are subject to retail price regulation and which benefit from regulated wholesale roaming rates. Member States should continue to be able to enter into specific agreements on extraterritorial use of numbering resources with third countries. See: Articles 29; 93(4); 94(6); 97(2). (249) Member States should promote over-the-air provisioning of numbering resources to facilitate switching of electronic communications providers. Overthe-air provisioning of numbering resources enables the reprogramming of



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communications equipment identifiers without physical access to the devices concerned. This feature is particularly relevant for machine-to-machine services, that is to say services involving an automated transfer of data and information between devices or software-based applications with limited or no human interaction. Providers of such machine-to-machine services might not have recourse to physical access to their devices due to their use in remote conditions, or to the large number of devices deployed or to their usage patterns. In light of the emerging machine-to-machine market and new technologies, Member States should strive to ensure technology neutrality in promoting over-the-air provisioning. See: Article 93(6). (250) Access to numbering resources on the basis of transparent, objective and nondiscriminatory criteria is essential for undertakings to compete in the electronic communications sector. Member States should be able to grant rights of use for numbering resources to undertakings other than providers of electronic communications networks or services in light of the increasing relevance of numbers for various Internet of Things services. All elements of national numbering plans should be managed by national regulatory or other competent authorities, including point codes used in network addressing. Where there is a need for harmonisation of numbering resources in the Union to support the development of pan-European services or cross-border services, in particular new machine-tomachine-based services such as connected cars, and where the demand could not be met on the basis of the existing numbering resources in place, the Commission can take implementing measures with the assistance of BEREC. See: Article 93(2), (7) and (8). (251) It should be possible to fulfil the requirement to publish decisions on the granting of rights of use for numbering resources by making those decisions publicly accessible via a website. See: Articles 93(7); 94(3). (252) Considering the particular aspects related to the reporting of missing children, Member States should maintain their commitment to ensure that a well-functioning service for reporting missing children is actually available in their territories under the number ‘116000’. Member States should take appropriate measures to ensure that a sufficient level of service quality in operating the ‘116000’ number is achieved. See: Article 96. (253) In parallel with the missing children hotline number ‘116000’, many Member States also ensure that children have access to a child-friendly service operating a helpline that helps children in need of care and protection through the use of the ‘116111’ number. Such Member States and the Commission should ensure that awareness is raised among citizens, and in particular among children and among national child protection systems, about the existence of the ‘116111’ helpline. See: Article 96(4).

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(254) An internal market implies that end-users are able to access all numbers included in the national numbering plans of other Member States and to access services using non-geographic numbers, including freephone and premium-rate numbers, within the Union, except where the called end-user has chosen, for commercial reasons, to limit access from certain geographical areas. End-users should also be able to access numbers from the Universal International Freephone Numbers (UIFN). Cross-border access to numbering resources and associated services should not be prevented, except in objectively justified cases, for example to combat fraud or abuse (for example, in connection with certain premium-rate services), when the number is defined as having a national scope only (for example, a national short code) or when it is economically unfeasible. Tariffs charged to parties calling from outside the Member State concerned need not be the same as for those parties calling from inside that Member State. Users should be fully informed in advance and in a clear manner of any charges applicable to freephone numbers, such as international call charges for numbers accessible through standard international dialling codes. Where interconnection or other service revenues are withheld by providers of electronic communications services for reasons of fraud or misuse, Member States should ensure that retained service revenues are refunded to the end-users affected by the relevant fraud or misuse where possible. See: Article 97. (255) In accordance with the principle of proportionality, a number of provisions on enduser rights in this Directive should not apply to microenterprises which provide only number-independent interpersonal communications services. According to the case law of the Court of Justice, the definition of small and medium-sized enterprises, which includes microenterprises, is to be interpreted strictly. In order to include only enterprises that are genuinely independent microenterprises, it is necessary to examine the structure of microenterprises which form an economic group, the power of which exceeds the power of a microenterprise, and to ensure that the definition of microenterprise is not circumvented by purely formal means. See: Article 98. Definitions of micro, small and medium-sized enterprises Commission Recommendation 2003/361/EC, Article 2 and Annex; Case T-587/14 Crosfield Italia Srl v European Chemicals Agency (ECHA), EU:T:2016:475, paras 34–36; Case T-620/13  Marchi Industriale SpA  v European Chemicals Agency (ECHA), EU:T:2016:479, paras 30–32 (see annotations to Recital 68). (256) The completion of the single market for electronic communications requires the removal of barriers for end-users to have cross-border access to electronic communications services across the Union. Providers of electronic communications to the public should not deny or restrict access or discriminate against end-users on the basis of their nationality, or Member State of residence or of establishment. Differentiation should, however, be possible on the basis of objectively justifiable differences in costs and risks, not limited to the measures provided for in Regulation (EU) No 531/2012 in respect of abusive or anomalous use of regulated retail roaming services. See: Article 99. Fair use under the Roaming Regulation Regulation (EU) No 531/2012, Article 6b (see p. 473); Commission Implementing Regulation (EU) 2016/2286 of 15  December 2016 laying down detailed rules



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on the application of fair use policy and on the methodology for assessing the sustainability of the abolition of retail roaming surcharges and on the application to be submitted by a roaming provider for the purposes of that assessment (OJ L 344, 17.12.2016, p.46) (see p. 534). Regulated roaming tariffs ‘Articles  6a and 6e(3) of Regulation (EU) No  531/2012 of the European Parliament and of the Council of 13  June 2012 on roaming on public mobile communications networks within the Union, as amended by Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015, must be interpreted as meaning that, as from 15  June 2017, roaming service providers were required to apply automatically to all their customers the regulated roaming tariff referred to, inter alia, in Article 6a of that regulation, irrespective of whether those customers had previously opted for a regulated roaming tariff or for an alternative tariff, unless they had, before the deadline of 15 June 2017, expressly indicated their choice to benefit from such an alternative tariff, in accordance with the procedure laid down in that regard in the first subparagraph of Article 6e(3) of that regulation.’ Case C-539/19 Bundesverband der Verbraucherzentralen und Verbraucherverbande — Verbraucherzentrale Bundesverband eV  v Telefonica Germany GmbH & Co. OHG, EU:C:2020:634, Court’s ruling. (257) Divergent implementation of the rules on end-user protection has created significant internal market barriers affecting both providers of electronic communications services and end-users. Those barriers should be reduced by the applicability of the same rules ensuring a high common level of protection across the Union. A calibrated full harmonisation of the end-user rights covered by this Directive should considerably increase legal certainty for both end-users and providers of electronic communications services, and should significantly lower entry barriers and unnecessary compliance burden stemming from the fragmentation of the rules. Full harmonisation helps to overcome barriers to the functioning of the internal market resulting from such national provisions concerning end-user rights which at the same time protect national providers against competition from other Member States. In order to achieve a high common level of protection, several provisions concerning end-user rights should be reasonably enhanced in this Directive in light of best practices in Member States. Full harmonisation of their rights increases the trust of end-users in the internal market as they benefit from an equally high level of protection when using electronic communications services, not only in their Member State but also while living, working or travelling in other Member States. Full harmonisation should extend only to the subject matters covered by the provisions on end-user rights in this Directive. Therefore, it should not affect national law with respect to those aspects of end-user protection, including some aspects of transparency measures which are not covered by those provisions. For example, measures relating to transparency obligations which are not covered by this Directive should be considered to be compatible with the principle of full harmonisation whereas additional requirements regarding transparency issues covered by this Directive, such as publication of information, should be considered to be incompatible. Moreover, Member States should be able to maintain or introduce national provisions on issues not specifically addressed in this Directive, in particular in order to address newly emerging issues. See: Article 101.

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(258) Contracts are an important tool for end- users to ensure transparency of information and legal certainty. Most service providers in a competitive environment will conclude contracts with their customers for reasons of commercial desirability. In addition to this Directive, the requirements of existing Union consumer protection law relating to contracts, in particular Council Directive 93/13/EEC39 and Directive 2011/83/EU of the European Parliament and of the Council40, apply to consumer transactions relating to electronic communications networks and services. The inclusion of information requirements in this Directive, which might also be required pursuant to Directive 2011/83/EU, should not lead to duplication of the information within pre-contractual and contractual documents. Relevant information provided in respect of this Directive, including any more prescriptive and more detailed informational requirements, should be considered to fulfil the corresponding requirements pursuant to Directive 2011/83/EU. See: Article 102; Annex VIII. Information requirements under the Consumer Rights Directive Directive 2011/83/EU, Articles 5; 6 (see annotations to Article 102). Communication by telephone ‘The concept of ‘basic rate’ referred to in Article 21 of [the Consumer Rights Directive], must be interpreted as meaning that call charges relating to a contract concluded with a trader to a telephone helpline operated by the trader may not exceed the cost of a call to a standard geographic landline or mobile telephone line. Provided that that limit is respected, the fact that the relevant trader makes or does not make a profit through that telephone helpline is irrelevant.’ Case C-568/15 Zentrale zur Bekämpfung unlauteren Wettbewerbs Frankfurt am Main eV v comtech CmbH, EU:C:2017:154, Court’s ruling. Unfair terms in consumer contracts (a) Commission notice – Guidance on the interpretation and application of Council Directive 93/13/EEC on unfair terms in consumer contracts (Text with EEA relevance) (2019/C 323/04) (OJ C 323, 27.9.2019, p. 4); (b) ‘1.  It is for the national court, ruling on an action for an injunction, brought in the public interest and on behalf of consumers by a body appointed by national law, to assess, with regard to Article  3(1) and (3) the unfair nature of a term included in the general business conditions of consumer contracts by which a seller or supplier provides for a unilateral amendment of fees connected with the service to be provided, without setting out clearly the method of fixing those fees or specifying a valid reason for that amendment. The national court must determine whether, in light of all the terms appearing in the general business conditions of consumer contracts which include the contested term, and in light of the national legislation setting out rights and obligations which could supplement those provided by the general business conditions at issue, the reasons for, or the method of the amendment of the fees connected with the service to be provided are set out in plain, intelligible language and, as the case may be, whether consumers have a right to terminate the contract. Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ L 95, 21.4.1993, p. 29). 40 Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/ 577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ L 304, 22.11.2011, p. 64). 39



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Article 6(1) must be interpreted as meaning that: –

It does not preclude the declaration of invalidity of an unfair term included in the standard terms of consumer contracts in an action for an injunction, provided for in Article 7, brought against a seller or supplier in the public interest, and on behalf of consumers, by a body appointed by national legislation from producing, in accordance with that legislation, effects with regard to all consumers who concluded with the seller or supplier concerned a contract to which the same general business conditions apply, including with regard to those consumers who were not party to the injunction proceedings;

–

Where the unfair nature of a term in the general business conditions has been acknowledged in such proceedings, national courts are required, of their own motion, and also with regard to the future, to draw all the consequences which are provided by national law in order to ensure that consumers who have concluded a contract with the seller or supplier to which those general business conditions apply will not be bound by that term.’ Case C-472/10 Nemzeti Fogyasztóvédelmi Hatóság v Invitel Távközlési Zrt, EU:C:2012:242, paras 1 and 2 of the Court’s ruling. Provision of information to consumers via hyperlink on the supplier’s website Case C-49/11 Content Services Ltd v Bundesarbeitskammer, EU:C:2012:419, Court’s ruling (see annotations to Article 102). (259) Some of those end-user protection provisions which a priori apply only to consumers, namely those on contract information, maximum contract duration and bundles, should benefit not only consumers, but also microenterprises and small enterprises, and not-for-profit organisations as defined in national law. The bargaining position of those categories of enterprises and organisations is comparable to that of consumers and they should therefore benefit from the same level of protection unless they explicitly waive those rights. Obligations on contract information in this Directive, including those of Directive 2011/83/EU that are referred to in this Directive, should apply irrespective of whether any payment is made and of the amount of the payment to be made by the customer. The obligations on contract information, including those contained in Directive 2011/83/EU, should apply automatically to microenterprises, small enterprises and not-for-profit organisations unless they prefer negotiating individualised contract terms with providers of electronic communications services. As opposed to microenterprises, small enterprises and not-for-profit organisations, larger enterprises usually have stronger bargaining power and do, therefore, not depend on the same contractual information requirements as consumers. Other provisions, such as number portability, which are important also for larger enterprises should continue to apply to all end-users. Not-for-profit organisations are legal entities that do not earn a profit for their owners or members. Typically, not-for-profit organisations are charities or other types of public interest organisations. Hence, in light of the comparable situation, it is legitimate to treat such organisations in the same way as microenterprises or small enterprises under this Directive, insofar as end-user rights are concerned. See: Articles 102(2); 105(2); 107(4). Information requirements under the Consumer Rights Directive Directive 2011/83/EU, Articles 5; 6 (see annotations to Article 102).

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Definitions of micro, small and medium-sized enterprises Commission Recommendation 2003/361/EC, Article 2 and Annex; Case T-587/14 Crosfield Italia Srl v European Chemicals Agency (ECHA), EU:T:2016:475, paras 34–36; Case T-620/13  Marchi Industriale SpA  v European Chemicals Agency (ECHA), EU:T:2016:479, paras 30–32 (see annotations to Recital 68). Provision of information to consumers via hyperlink on the supplier’s website Case C-49/11 Content Services Ltd v Bundesarbeitskammer, EU:C:2012:419, Court’s ruling (see annotations to Article 102). (260) The specificities of the electronic communications sector require, beyond horizontal contract rules, a limited number of additional end-user protection provisions. End-users should be informed, inter alia, of any quality of service levels offered, conditions for promotions and termination of contracts, applicable tariff plans and tariffs for services subject to particular pricing conditions. That information is relevant for providers of publicly available electronic communications services other than transmission services used for the provision of machine-to-machine services. Without prejudice to the applicable rules on the protection of personal data, a provider of publicly available electronic communications services should not be subject to the obligations on information requirements for contracts where that provider, and affiliated companies or persons, do not receive any remuneration directly or indirectly linked to the provision of electronic communications services, such as where a university gives visitors free access to its Wi-Fi network on campus without receiving any remuneration, whether through payment from the users or through advertising revenues. See: Article 102(1), (3) and (5); Annex VIII. (261) In order to enable the end-user to make a well-informed choice, it is essential that the required relevant information is provided prior to the conclusion of the contract and in clear and understandable language and on a durable medium or, where not feasible and without prejudice to the definition of durable medium set out in Directive 2011/83/EU, in a document, made available by the provider and notified to the user, that is easy to download, open and consult on devices commonly used by consumers. In order to facilitate choice, providers should also present a summary of the essential contract terms. In order to facilitate comparability and reduce compliance cost, the Commission should, after consulting BEREC, adopt a template for such contract summaries. The pre-contractually provided information as well as the summary template should constitute an integral part of the final contract. The contract summary should be concise and easily readable, ideally no longer than the equivalent of one single-sided A4 page or, where a number of different services are bundled into a single contract, the equivalent of up to three single-sided A4 pages. See: Article 102(1), (3) and (4). Meaning of ‘durable medium’ Directive 2011/83/EU, Article 2(10) (see annotations to Article 102). Provision of information to consumers via hyperlink on the supplier’s website Case C-49/11 Content Services Ltd v Bundesarbeitskammer, EU:C:2012:419, Court’s ruling (see annotations to Article 102). Contract summary template Commission Implementing Regulation (EU) 2019/2243 of 17 December 2019 establishing a template for the contract summary to be used by providers of



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publicly available electronic communications services pursuant to Directive (EU) 2018/1972 of the European Parliament and of the Council (OJ  L  336, 30.12.2019, p. 274) and Corrigendum to Commission Implementing Regulation (EU) 2019/2243 of 17 December 2019 establishing a template for the contract summary to be used by providers of publicly available electronic communications services pursuant to Directive (EU) 2018/1972 of the European Parliament and of the Council (OJ L 16, 21.1.2020, p. 40) (see p. 662). (262) Following the adoption of Regulation (EU) 2015/2120, the provisions in this Directive regarding information on conditions limiting access to, or the use of, services and applications as well as information on traffic shaping became obsolete and should be repealed. See: Article 102; Annex VIII. There do not appear to be any specific provisions in this Directive relating to information on conditions limiting access to, or the use of, services and applications and on traffic shaping. Annex VIII(B)(III) requires providers of internet access services to provide the information required pursuant to Article 4(1) of Regulation (EU) 2015/2120 (see annotations to Annex VIII). (263) With respect to terminal equipment, the customer contract should specify any conditions imposed by the provider on the use of the equipment, such as by way of ‘SIM-locking’ mobile devices, if such conditions are not prohibited under national law, and any charges due on termination of the contract, whether before or on the agreed expiry date, including any cost imposed in order to retain the equipment. Where the end-user chooses to retain terminal equipment bundled at the moment of the contract conclusion, any compensation due should not exceed its pro rata temporis value calculated on the basis of the value at the moment of the contract conclusion, or on the remaining part of the service fee until the end of the contract, whichever amount is smaller. Member States should be able to choose other methods of calculating the compensation rate, where such a rate is equal to or less than that compensation calculated. Any restriction to the usage of terminal equipment on other networks should be lifted, free of charge, by the provider at the latest upon payment of such compensation. See: Articles 102(1); 103(1); 105(6); Annexes VIII(A)(3)(iv) and (B)(I)(1)(ii); IX(2.1) and (2.2). (264) Without prejudice to the substantive obligation on the provider related to security by virtue of this Directive, the contract should specify the type of action the provider might take in the case of security incidents, threats or vulnerabilities. In addition, the contract should also specify any compensation and refund arrangements available if a provider responds inadequately to a security incident, including if a security incident, notified to the provider, takes place due to known software or hardware vulnerabilities, for which patches have been issued by the manufacturer or developer and the service provider has not applied those patches or taken any other appropriate counter-measure. See: Article 102(1); Annex VIII(A)(4) and (A)(5). (265) The availability of transparent, up-to-date and comparable information on offers and services is a key element for consumers in competitive markets where several

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providers offer services. End-users should be able to compare the prices of various services offered on the market easily on the basis of information published in an easily accessible form. In order to allow them to make price and service comparisons easily, competent authorities in coordination, where relevant, with national regulatory authorities should be able to require from providers of internet access services or publicly available interpersonal communication services greater transparency as regards information, including tariffs, quality of service, conditions on terminal equipment supplied, and other relevant statistics. Any such requirements should take due account of the characteristics of those networks or services. They should also ensure that third parties have the right to use, without charge, publicly available information published by such undertakings, with a view to providing comparison tools. See: Article 103(1) and (2); Annex IX. (266) End-users are often not aware of the cost of their consumption behaviour or have difficulties in estimating their time or data consumption when using electronic communications services. In order to increase transparency and to allow for better control of their communications budget, it is important to provide end-users with facilities that enable them to track their consumption in a timely manner. In addition, Member States should be able to maintain or introduce provisions on consumption limits protecting end-users against ‘bill-shocks’, including in relation to premium rate services and other services subject to particular pricing conditions. This allows competent authorities to require information about such prices to be provided prior to providing the service and does not prejudice the possibility of Member States to maintain or introduce general obligations for premium rate services to ensure the effective protection of end-users. See: Articles 102(5)–(7); 103(1); Annex IX(2.2). (267) Independent comparison tools, such as websites, are an effective means for endusers to assess the merits of different providers of internet access services and interpersonal communications services, where provided against recurring or consumption-based direct monetary payments, and to obtain impartial information, in particular by comparing prices, tariffs, and quality parameters in one place. Such tools should be operationally independent from service providers and no service provider should be given favourable treatment in search results. Such tools should aim to provide information that is both clear and concise, and complete and comprehensive. They should also aim to include the broadest possible range of offers, in order to give a representative overview and cover a significant part of the market. The information given on such tools should be trustworthy, impartial and transparent. End-users should be informed of the availability of such tools. Member States should ensure that end-users have free access to at least one such tool in their respective territories. Where there is only one tool in a Member State and that tool ceases to operate or ceases to comply with the quality criteria, the Member State should ensure that end-users have access within a reasonable time to another comparison tool at national level. See: Article 103(2) and (3). (268) Independent comparison tools can be operated by private undertakings, or by or on behalf of competent authorities, however they should be operated in accordance



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with specified quality criteria including the requirement to provide details of their owners, provide accurate and up-to-date information, state the time of the last update, set out clear, objective criteria on which the comparison will be based, and include a broad range of offers covering a significant part of the market. Member States should be able to determine how often comparison tools are required to review and update the information they provide to end-users, taking into account the frequency with which providers of internet access services and of publicly available interpersonal communications services, generally update their tariff and quality information. See: Article 103(2) and (3). (269) In order to address public interest issues with respect to the use of internet access services and publicly available number-based interpersonal communications services and to encourage protection of the rights and freedoms of others, Member States should be able to produce and disseminate or have disseminated, with the aid of providers of such services, public-interest information related to the use of such services. It should be possible for such information to include publicinterest information regarding the most common infringements and their legal consequences, for instance regarding copyright infringement, other unlawful uses and the dissemination of harmful content, and advice and means of protection against risks to personal security, for example those arising from disclosure of personal information in certain circumstances, as well as risks to privacy and personal data, and the availability of easy-to-use and configurable software or software options allowing protection for children or vulnerable persons. The information could be coordinated by way of the cooperation procedure established in this Directive. Such public-interest information should be updated where necessary and should be presented in easily comprehensible formats, as determined by each Member State, and on national public authority websites. Member States should be able to oblige providers of internet access services and publicly available numberbased interpersonal communications services to disseminate this standardised information to all of their customers in a manner considered to be appropriate by the national public authorities. Dissemination of such information should, however, not impose an excessive burden on providers. If it does so, Member States should require such dissemination by the means used by providers in communications with end-users made in the ordinary course of business. See: Articles 24(3); 103(4). (270) In the absence of relevant rules of Union law, content, applications and services are considered to be lawful or harmful in accordance with national substantive and procedural law. It is a task for the Member States, not for providers of electronic communications networks or services, to decide, in accordance with due process, whether content, applications or services are lawful or harmful. This Directive and Directive 2002/58/EC are without prejudice to Directive 2000/31/EC, which, inter alia, contains a ‘mere conduit’ rule for intermediary service providers, as defined therein. See: Articles 24(3); 103(4). ‘Mere conduit’ rule under the Directive on Electronic Commerce Directive 2000/31/EC, Article  12 (see p. 708) and Case C-484/14 Tobias McFadden v Sony Music Entertainment Germany GmbH, EU:C:2016:689,

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paras 1–6 of the Court’s ruling; see also Directive 2000/31/EC, Article  15 and Case C-275/06 Productores de Música de España (Promusicae) v Telefónica de España SAU, EU:C:2008:54, Court’s ruling; Case C-70/10 Scarlet Extended SA  v Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM), EU:C:2011:771, Court’s ruling; Case C-360/10 Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v Netlog NV., EU:C:2012:85, Court’s ruling; Case C-18/18 Eva Glawischnig-Piesczek v Facebook Ireland Ltd, EU:C:2019:821, Court’s ruling; Case C-291/13 Sotiris Papasavvas v O Fileleftheros Dimosia Etairia Ltd and Others, EU:C:2014:2209, paras 1–5 of the Court’s ruling; Case C-521/17 Coöperatieve Vereniging SNBREACT  U.A. v Deepak Mehta, EU:C:2018:639, para  2 of the Court’s ruling (see annotations to Recital 138). (271) National regulatory authorities in coordination with other competent authorities, or where relevant, other competent authorities in co-ordination with national regulatory authorities should be empowered to monitor the quality of services and to collect systematically information on the quality of services offered by providers of internet access services and of publicly available interpersonal communications services, to the extent that the latter are able to offer minimum levels of service quality either through control of at least some elements of the network or by virtue of a service level agreement to that end, including the quality related to the provision of services to end-users with disabilities. That information should be collected on the basis of criteria which allow comparability between service providers and between Member States. Providers of such electronic communications services, operating in a competitive environment, are likely to make adequate and up-to-date information on their services publicly available for reasons of commercial advantage. National regulatory authorities in coordination with other competent authorities, or where relevant, other competent authorities in co-ordination with national regulatory authorities should nonetheless be able to require publication of such information where it is demonstrated that such information is not effectively available to the public. Where the quality of services of publicly available interpersonal communication services depends on any external factors, such as control of signal transmission or network connectivity, national regulatory authorities in coordination with other competent authorities should be able to require providers of such services to inform their consumers accordingly. See: Article 104(1). (272) National regulatory authorities in coordination with other competent authorities should also set out the measurement methods to be applied by the service providers in order to improve the comparability of the data provided. In order to facilitate comparability across the Union and to reduce compliance cost, BEREC should adopt guidelines on relevant quality of service parameters which national regulatory authorities in coordination with other competent authorities should take into utmost account. See: Articles 10; 104(2); Annex X. BEREC Guidance BEREC  Guidelines detailing Quality of Service Parameters, BoR (20) 53, 6 March 2020 (see annotations to Article 104).



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(273) 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 best interest to do so. It is essential to ensure that they are able to do so without being hindered by legal, technical or practical obstacles, including contractual conditions, procedures and charges. That does not preclude providers from setting reasonable minimum contractual periods of up to 24 months in consumer contracts. However, Member States should have the possibility to maintain or introduce provisions for a shorter maximum duration and to permit consumers to change tariff plans or terminate the contract within the contract period without incurring additional costs in light of national conditions, such as levels of competition and stability of network investments. Independently from the electronic communications service contract, consumers might prefer and benefit from a longer reimbursement period for physical connections. Such consumer commitments can be an important factor in facilitating deployment of very high capacity networks up to or very close to end-user premises, including through demand aggregation schemes which enable network investors to reduce initial take-up risks. However, the rights of consumers to switch between providers of electronic communications services, as established in this Directive, should not be restricted by such reimbursement periods in contracts on physical connections and such contracts should not cover terminal or internet access equipment, such as handsets, routers or modems. Member States should ensure the equal treatment of entities, including operators, financing the deployment of a very high capacity physical connection to the premises of an enduser, including where such financing is by way of an instalment contract. See: Article 105(1) and (2). (274) Automatic prolongation of contracts for electronic communications services is also possible. In those cases, end-users should be able to terminate their contract without incurring any costs after the expiry of the contract term. See: Article 105(3). (275) Any changes to the contractual conditions proposed by providers of publicly available electronic communications services other than number-independent interpersonal communications services, which are not to the benefit of the enduser, for example in relation to charges, tariffs, data volume limitations, data speeds, coverage, or the processing of personal data, should give rise to the right of the end-user to terminate the contract without incurring any costs, even if they are combined with some beneficial changes. Any change to the contractual conditions by the provider should therefore entitle the end-user to terminate the contract unless each change is in itself beneficial to the end-user, or the changes are of a purely administrative nature, such as a change in the provider’s address, and have no negative effect on the end-user, or the changes are strictly imposed by legislative or regulatory changes, such as new contract information requirements imposed by Union or national law. Whether a change is exclusively to the benefit of the end-user should be assessed on the basis of objective criteria. The end-user’s right to terminate the contract should be excluded only if the provider is able to demonstrate that all contract changes are exclusively to the benefit of the end-user or are of a purely administrative nature without any negative effect on the end-user. See: Article 105(4) and (7).

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(276) End-users should be notified of any changes to the contractual conditions by means of a durable medium. End-users other than consumers, microenterprises or small enterprises, or not-for-profit organisations should not benefit from the termination rights in the case of contract modification, insofar as transmission services used for machine-to-machine services are concerned. Member States should be able to provide for specific end-user protections regarding contract termination where the end-users change their place of residence. The provisions on contract termination should be without prejudice to other provisions of Union or national law concerning the grounds on which contracts can be terminated or on which contractual terms and conditions can be changed by the service provider or by the end-user. See: Article 105(4), (6) and (7). Definitions of micro, small and medium-sized enterprises Commission Recommendation 2003/361/EC, Article 2 and Annex; Case T-587/14 Crosfield Italia Srl v European Chemicals Agency (ECHA), EU:T:2016:475, paras 34–36; Case T-620/13  Marchi Industriale SpA  v European Chemicals Agency (ECHA), EU:T:2016:479, paras 30-32 (see annotations to Recital 68). (277) The possibility of switching between providers is key for effective competition in a competitive environment. The availability of transparent, accurate and timely information on switching should increase the end-users’ confidence in switching and make them more willing to engage actively in the competitive process. Service providers should ensure continuity of service so that end-users are able to switch providers without being hindered by the risk of a loss of service and, where technically possible, allow for switching on the date requested by end-users. See: Article 106(1). (278) Number portability is a key facilitator of consumer choice and effective competition in competitive electronic communications markets. End-users who so request should be able to retain their numbers independently of the provider of service and for a limited time between the switching of providers of service. The provision of this facility between connections to the public telephone network at fixed and non-fixed locations is not covered by this Directive. However, Member States should be able to apply provisions for porting numbers between networks providing services at a fixed location and mobile networks. See: Article 106(2) and (3); Annex VI (Part C). (279) The impact of number portability is considerably strengthened when there is transparent tariff information, both for end-users who port their numbers and for end-users who call those who have ported their numbers. National regulatory authorities should, where feasible, facilitate appropriate tariff transparency as part of the implementation of number portability. See: Article 106(6). (280) When ensuring that pricing for interconnection related to the provision of number portability is cost-oriented, national regulatory authorities should also be able to take account of prices available in comparable markets. See: Article 106(4).



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(281) Number portability is a key facilitator of consumer choice and effective competition in competitive markets for electronic communications and should be implemented with the minimum delay, so that the number is functionally activated within one working day and the end-user does not experience a loss of service lasting longer than one working day from the agreed date. The right to port the number should be attributed to the end-user who has the relevant (pre- or post-paid) contract with the provider. In order to facilitate a one-stop-shop enabling a seamless switching experience for end- users, the switching process should be led by the receiving provider of electronic communications to the public. National regulatory or, where relevant, other competent authorities should be able to prescribe the global process of the switching and of the porting of numbers, taking into account national provisions on contracts and technological developments. This should include, where available, a requirement for the porting to be completed though over-the-air provisioning, unless an end-user requests otherwise. Experience in certain Member States has shown that there is a risk of end-users being switched to another provider without having given their 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, including appropriate penalties, as are necessary to minimise such risks, and to ensure that end-users are protected throughout the switching process without making the process less attractive for them. The right to port numbers should not be restricted by contractual conditions. See: Article 106(5)–(7). (282) In order to ensure that switching and porting take place within the time-limits provided for in this Directive, Member States should provide for the compensation of end-users by providers in an easy and timely manner where an agreement between a provider and an end-user is not respected. Such measures should be proportionate to the length of the delay in complying with the agreement. Endusers should at least be compensated for delays exceeding one working day in activation of service, porting of a number, or loss of service, and where providers miss agreed service or installation appointments. Additional compensation could also be in the form of an automatic reduction of the remuneration where the transferring provider is to continue providing its services until the services of the receiving provider are activated. See: Article 106(8) and (9). (283) Bundles comprising at least either an internet access service or a publicly available number-based interpersonal communications service, as well as other services, such as publicly available number-independent interpersonal communications services, linear broadcasting and machine-to-machine services, or terminal equipment, have become increasingly widespread and are an important element of competition. For the purposes of this Directive, a bundle should be considered to exist in situations where the elements of the bundle are provided or sold by the same provider under the same or a closely related or linked contract. While bundles often bring about benefits for consumers, they can make switching more difficult or costly and raise risks of contractual ‘lock-in’. Where different services and terminal equipment within a bundle are subject to divergent rules on contract termination and switching or on contractual commitments regarding the acquisition of terminal equipment, consumers are effectively hampered in their

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rights under this Directive to switch to competitive offers for the entire bundle or parts of it. Certain essential provisions of this Directive regarding contract summary information, transparency, contract duration and termination and switching should, therefore, apply to all elements of a bundle, including terminal equipment, other services such as digital content or digital services, and electronic communications services which are not directly covered by the scope of those provisions. All end-user obligations applicable under this Directive to a given electronic communications service when provided or sold as a stand-alone service should also be applicable when it is part of a bundle with at least an internet access service or a publicly available number-based interpersonal communications service. Other contractual issues, such as the remedies applicable in the event of non-conformity with the contract, should be governed by the rules applicable to the respective element of the bundle, for instance by the rules of contracts for the sales of goods or for the supply of digital content. However, a right to terminate any element of a bundle comprising at least an internet access service or a publicly available number-based interpersonal communications service before the end of the agreed contract term because of a lack of conformity or a failure to supply should give a consumer the right to terminate all elements of the bundle. Also, in order to maintain their capacity to switch easily providers, consumers should not be locked in with a provider by means of a contractual de facto extension of the initial contract period. See: Article 107. (284) Providers of number-based interpersonal communications services have an obligation to provide access to emergency services through emergency communications. In exceptional circumstances, namely due to a lack of technical feasibility, they might not be able to provide access to emergency services or caller location, or to both. In such cases, they should inform their customers adequately in the contract. Such providers should provide their customers with clear and transparent information in the initial contract and update it in the event of any change in the provision of access to emergency services, for example in invoices. That information should include any limitations on territorial coverage, on the basis of the planned technical operating parameters of the communications service and the available infrastructure. Where the service is not provided over a connection which is managed to give a specified quality of service, the information should also include the level of reliability of the access and of caller location information compared to a service that is provided over such a connection, taking into account current technology and quality standards, as well as any quality of service parameters specified under this Directive. See: Article 109(2); Annexes VIII(B)(II)(1); IX(2.5); X. BEREC Guidance BEREC  Guidelines detailing Quality of Service Parameters, BoR (20) 53, 6 March 2020 (see annotations to Article 104). (285) End-users should be able to access emergency services through emergency communications free of charge and without having to use any means of payment, from any device which enables number-based interpersonal communications services, including when using roaming services in a Member State. Emergency communications are a means of communication that includes not only voice communications services, but also SMS, messaging, video or other types of



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communications, for example real time text, total conversation and relay services. Member States, taking into account the capabilities and technical equipment of the PSAPs, should be able to determine which number-based interpersonal communications services are appropriate for emergency services, including the possibility to limit those options to voice communications services and their equivalent for end-users with disabilities, or to add additional options as agreed with national PSAPs. Emergency communication can be triggered on behalf of a person by an in-vehicle emergency call or an eCall as defined in Regulation (EU) 2015/758. See: Article 109(1) and (5). Definition of ‘eCall’ under the eCall In-Vehicle System – Type-Approval Regulation Regulation (EU) 2015/758, Article 3(2)–(5) (see p 500). (286) Member States should ensure that providers of number-based interpersonal communications services provide reliable and accurate access to emergency services, taking into account national specifications and criteria and the capabilities of national PSAPs. Member States should consider the PSAP’s ability to handle emergency communications in more than one language. Where the number-based interpersonal communications service is not provided over a connection which is managed to give a specified quality of service, the service provider might not be able to ensure that emergency calls made through their service are routed to the most appropriate PSAP with the same reliability. For such network-independent providers, namely providers which are not integrated with a provider of public electronic communications networks, providing caller location information may not always be technically feasible. Member States should ensure that standards ensuring accurate and reliable routing and connection to the emergency services are implemented as soon as possible in order to allow network-independent providers of number-based interpersonal communications services to fulfil the obligations related to access to emergency services and caller location information provision at a level comparable to that required of other providers of such communications services. Where such standards and the related PSAP systems have not been implemented, network-independent number-based interpersonal communications services should not be required to provide access to emergency services except in a manner that is technically feasible or economically viable. This may, for example, include the designation by a Member State of a single, central PSAP for receiving emergency communications. Nonetheless, such providers should inform end-users when access to the single European emergency number ‘112’ or to caller location information is not supported. See: Articles 39; 109(2), (3) and (6); Annexes VIII(B)(II)(1); IX(2.5). (287) In order to improve the reporting and performance measurement by Member States with respect to the answering and handling of emergency calls, the Commission should, every two years, report to the European Parliament and to the Council on the effectiveness of the implementation of the single European emergency number ‘112’. See: Article 109(4).

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(288) Member States should take specific measures to ensure that emergency services, including the single European emergency number ‘112’, are equally accessible to end-users with disabilities, in particular deaf, hearing-impaired, speechimpaired and deaf-blind end-users and in accordance with Union law harmonising accessibility requirements for products and services. This could involve the provision of special terminal devices for end-users with disabilities when other ways of communication are not suitable for them. See: Article 109(5). (289) It is important to increase awareness of the single European emergency number ‘112’ in order to improve the level of protection and security of citizens travelling in the Union. To that end, citizens should be made fully aware, when travelling in any Member State, in particular through information provided in international bus terminals, train stations, ports or airports and in telephone directories, end-user and billing material, that the single European emergency number ‘112’ can be used as a single emergency number throughout the Union. This is primarily the responsibility of the Member States, but the Commission should continue both to support and to supplement initiatives of the Member States to heighten awareness of the single European emergency number ‘112’ and periodically to evaluate the public’s awareness of it. See: Article 109(7). (290) Caller location information, which applies to all emergency communications, improves the level of protection and the security of end-users and assists the emergency services in the discharge of their duties, provided that the transfer of emergency communication and associated data to the emergency services concerned is guaranteed by the national system of PSAPs. The reception and use of caller location information, which includes both network-based location information and where available, enhanced handset caller location information, should comply with relevant Union law on the processing of personal data and security measures. Undertakings that provide network-based location should make caller location information available to emergency services as soon as the call reaches that service, independently of the technology used. However, handset-based location technologies have proven to be significantly more accurate and cost effective due to the availability of data provided by the European Geostationary Navigation Overlay Service and Galileo Satellite system and other Global Navigation Satellite Systems and Wi-Fi data. Therefore, handset-derived caller location information should complement network-based location information even if the handsetderived location becomes available only after the emergency communication is set up. Member States should ensure that, where available, the handset-derived caller location information is made available to the most appropriate PSAP. This might not be always possible, for example when the location is not available on the handset or through the interpersonal communications service used, or when it is not technically feasible to obtain that information. Furthermore, Member States should ensure that the PSAPs are able to retrieve and manage the caller location information available, where feasible. The establishment and transmission of caller location information should be free of charge for both the end-user and the authority handling the emergency communication irrespective of the means of establishment, for example through the handset or the network, or the means of transmission, for example through voice channel, SMS or IP-based.



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See: Article 109(6). (291) In order to respond to technological developments concerning accurate caller location information, equivalent access for end-users with disabilities and call routing to the most appropriate PSAP, the Commission should be empowered to adopt by means of a delegated act measures necessary to ensure the compatibility, interoperability, quality, reliability and continuity of emergency communications in the Union, such as functional provisions determining the role of various parties within the communications chain, for example number-based interpersonal communications service providers, network operators and PSAPs, as well as technical provisions determining the technical means to fulfil the functional provisions. Such measures should be without prejudice to the organisation of emergency services of Member States. See: Article 109(8). (292) A citizen in one Member State who needs to contact the emergency services in another Member State cannot do so because the emergency services may not have any contact information for emergency services in other Member States. A Union-wide, secure database of numbers for a lead emergency service in each country should therefore be introduced. To that end, BEREC should maintain a secure database of E.164 numbers of Member State emergency service numbers, if such a database is not maintained by another organisation, in order to ensure that the emergency services in one Member State can be contacted by the emergency services in another. See: Article 109(8). (293) Diverging national law has developed in relation to the transmission by electronic communications services of public warnings regarding imminent or developing major emergencies and disasters. In order to approximate law in that area, this Directive should therefore provide that, when public warning systems are in place, public warnings should be transmitted by providers of mobile number-based interpersonal communication services to all end-users concerned. The end-users concerned should be considered to be those who are located in the geographic areas potentially being affected by imminent or developing major emergencies and disasters during the warning period, as determined by the competent authorities. See: Article 110(1). (294) Where the effective reach of all end-users concerned, independently of their place or Member State of residence, is ensured and fulfils the highest level of data security, Member States should be able to provide for the transmission of public warnings by publicly available electronic communications services other than mobile number-based interpersonal communications services and other than transmission services used for broadcasting or by mobile application transmitted via internet access services. In order to inform end-users entering a Member State of the existence of such a public warning system, that Member State should ensure that those end-users receive, automatically by means of SMS, without undue delay and free of charge, easily understandable information on how to receive public warnings, including by means of mobile terminal equipment not enabled

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for internet access services. Public warnings other than those relying on mobile number-based interpersonal communications services should be transmitted to end-users in an easily receivable manner. Where a public warning system relies on an application, it should not require end-users to log in or register with the authorities or the application provider. End-users’ location data should be used in accordance with Directive 2002/58/EC. The transmission of public warnings should be free of charge for end-users. In its review of the implementation of this Directive, the Commission could also assess whether it is possible in accordance with Union law, and feasible to set up a single Union-wide public warning system in order to alert the public in the event of an imminent or developing disaster or major state of emergency across different Member States. See: Articles 110(2); 122. Use of location data under the ePrivacy Directive Directive 2002/58/EC, Articles 9 and 10 (see pp 729–10). (295) Member States should be able to determine if proposals for alternative systems, other than through mobile number-based interpersonal communication services, are truly equivalent to such services, taking utmost account of the corresponding BEREC guidelines. Such guidelines should be developed after consulting national authorities in charge of PSAPs in order to ensure that emergency experts have a role in their development and that there is a common understanding between different Member State authorities as to what is needed to ensure full implementation of such public warning systems within the Member States while ensuring that the citizens of the Union are effectively protected while travelling in another Member State. See: Articles 10(2); 110(2). BEREC Guidance BEREC Guidelines on how to assess the effectiveness of public warning systems transmitted by different means, BoR (20) 115, 12 June 2020 (see annotations to Article 110). (296) In line with the objectives of the Charter and the obligations enshrined in the United Nations Convention on the Rights of Persons with Disabilities, the regulatory framework should ensure that all end-users, including end-users with disabilities, older people, and users with special social needs, have easy and equivalent access to affordable high quality services regardless of their place of residence within the Union. Declaration 22 annexed to the final Act of Amsterdam provides that the institutions of the Union are to take account of the needs of persons with disabilities in drawing up measures under Article 114 TFEU. See: Articles 100; 111. Objectives of the Charter ‘[I]t is necessary to strengthen the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments by making those rights more visible in a Charter. This Charter reaffirms, with due regard for the powers and tasks of the Union and for the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Union and by



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the Council of Europe and the case-law of the Court of Justice of the European Union and of the European Court of Human Rights. […] Enjoyment of these rights entails responsibilities and duties with regard to other persons, to the human community and to future generations. The Union therefore recognises the rights, freedoms and principles set out [in the Charter].’ Charter, Preamble. General obligations under the Convention on the Rights of Persons with Disabilities ‘1. States Parties undertake to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake: (a) To adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention; (b) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities; (c) To take into account the protection and promotion of the human rights of persons with disabilities in all policies and programmes; (d) To refrain from engaging in any act or practice that is inconsistent with the present Convention and to ensure that public authorities and institutions act in conformity with the present Convention; (e) To take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise; (f)

To undertake or promote research and development of universally designed goods, services, equipment and facilities, as defined in article  2 of the present Convention, which should require the minimum possible adaptation and the least cost to meet the specific needs of a person with disabilities, to promote their availability and use, and to promote universal design in the development of standards and guidelines;

(g)

To undertake or promote research and development of, and to promote the availability and use of new technologies, including information and communications technologies, mobility aids, devices and assistive technologies, suitable for persons with disabilities, giving priority to technologies at an affordable cost;

(h) To provide accessible information to persons with disabilities about mobility aids, devices and assistive technologies, including new technologies, as well as other forms of assistance, support services and facilities; (i) To promote the training of professionals and staff working with persons with disabilities in the rights recognized in the present Convention so as to better provide the assistance and services guaranteed by those rights.

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2.

With regard to economic, social and cultural rights, each State Party undertakes to take measures to the maximum of its available resources and, where needed, within the framework of international cooperation, with a view to achieving progressively the full realization of these rights, without prejudice to those obligations contained in the present Convention that are immediately applicable according to international law.

3.

In the development and implementation of legislation and policies to implement the present Convention, and in other decision-making processes concerning issues relating to persons with disabilities, States Parties shall closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations.

4.

Nothing in the present Convention shall affect any provisions which are more conducive to the realization of the rights of persons with disabilities and which may be contained in the law of a State Party or international law in force for that State. There shall be no restriction upon or derogation from any of the human rights and fundamental freedoms recognized or existing in any State Party to the present Convention pursuant to law, conventions, regulation or custom on the pretext that the present Convention does not recognize such rights or freedoms or that it recognizes them to a lesser extent.

5.

The provisions of the present Convention shall extend to all parts of federal States without any limitations or exceptions.’

Convention on the Rights of Persons with Disabilities, Article 4. Declaration regarding persons with a disability ‘The Conference agrees that, in drawing up measures under Article 100a of the Treaty establishing the European Community, the institutions of the Community shall take account of the needs of persons with a disability.’ Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts (OJ  C  340, 10.11.1997, p.1), Declaration 22. Drawing up measures under TFEU, Article 114 ‘1. Save where otherwise provided in the Treaties, the following provisions shall apply for the achievement of the objectives set out in Article  26. The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market. 2.

Paragraph 1 shall not apply to fiscal provisions, to those relating to the free movement of persons nor to those relating to the rights and interests of employed persons.

3.

The Commission, in its proposals envisaged in paragraph  1 concerning health, safety, environmental protection and consumer protection, will take as a base a high level of protection, taking account in particular of any new development based on scientific facts. Within their respective powers, the European Parliament and the Council will also seek to achieve this objective.



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4.

If, after the adoption of a harmonisation measure by the European Parliament and the Council, by the Council or by the Commission, a Member State deems it necessary to maintain national provisions on grounds of major needs referred to in Article 36, or relating to the protection of the environment or the working environment, it shall notify the Commission of these provisions as well as the grounds for maintaining them.

5.

Moreover, without prejudice to paragraph  4, if, after the adoption of a harmonisation measure by the European Parliament and the Council, by the Council or by the Commission, a Member State deems it necessary to introduce national provisions based on new scientific evidence relating to the protection of the environment or the working environment on grounds of a problem specific to that Member State arising after the adoption of the harmonisation measure, it shall notify the Commission of the envisaged provisions as well as the grounds for introducing them.

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6.

The Commission shall, within six months of the notifications as referred to in paragraphs 4 and 5, approve or reject the national provisions involved after having verified whether or not they are a means of arbitrary discrimination or a disguised restriction on trade between Member States and whether or not they shall constitute an obstacle to the functioning of the internal market. In the absence of a decision by the Commission within this period the national provisions referred to in paragraphs 4 and 5 shall be deemed to have been approved. When justified by the complexity of the matter and in the absence of danger for human health, the Commission may notify the Member State concerned that the period referred to in this paragraph may be extended for a further period of up to six months. 7. When, pursuant to paragraph 6, a Member State is authorised to maintain or introduce national provisions derogating from a harmonisation measure, the Commission shall immediately examine whether to propose an adaptation to that measure. 8. When a Member State raises a specific problem on public health in a field which has been the subject of prior harmonisation measures, it shall bring it to the attention of the Commission which shall immediately examine whether to propose appropriate measures to the Council. 9. By way of derogation from the procedure laid down in Articles 258 and 259, the Commission and any Member State may bring the matter directly before the Court of Justice of the European Union if it considers that another Member State is making improper use of the powers provided for in this Article. 10. The harmonisation measures referred to above shall, in appropriate cases, include a safeguard clause authorising the Member States to take, for one or more of the non-economic reasons referred to in Article 36, provisional measures subject to a Union control procedure.’ TFEU, Article 114. (297) In order to ensure that end-users with disabilities benefit from competition and the choice of service providers enjoyed by the majority of end-users,

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competent authorities should specify, where appropriate and in light of national conditions, and after consulting end-users with disabilities, consumer protection requirements for end-users with disabilities to be met by providers of publicly available electronic communications services. Such requirements can include, in particular, that providers ensure that end-users with disabilities take advantage of their services on equivalent terms and conditions, including prices, tariffs and quality, as those offered to their other end-users, irrespective of any additional costs incurred by those providers. Other requirements can relate to wholesale arrangements between providers. In order to avoid creating an excessive burden on service providers competent authorities should verify, whether the objectives of equivalent access and choice can be achieved without such measures. See: Article 111(1). (298) In addition to Union law harmonising accessibility requirements for products and services, this Directive sets out new enhanced affordability and availability requirements on related terminal equipment and specific equipment and specific services for end-users with disabilities. Therefore, the corresponding obligation in Directive 2002/22/EC that required Member States to encourage the availability of terminal equipment for end-users with disabilities has become obsolete and should be repealed. See: Articles 85(4); 111. Obligation to encourage availability of terminal equipment for end-users with disabilities under the Universal Service Directive ‘In order to be able to adopt and implement specific arrangements for disabled end-users, Member States shall encourage the availability of terminal equipment offering the necessary services and functions.’ Directive 2002/22/EC, Article 23a(2). (299) Effective competition has developed in the provision of directory enquiry services and directories pursuant, inter alia, to Article 5 of Commission Directive 2002/77/ EC41. In order to maintain that effective competition, all providers of numberbased interpersonal communications services which attribute numbers from a numbering plan to their end-users should continue to be obliged to make relevant information available in a fair, cost-oriented and non-discriminatory manner. See: Article 112(1) and (2). Directory services Directive 2002/77/EC, Article 5 (see p. 739). (300) End-users should be informed about their right to determine whether they want to be included in a directory. Providers of number-based interpersonal communications services should respect the end-users’ decision when making data available to directory service providers. Article 12 of Directive 2002/58/EC ensures the endusers’ right to privacy with regard to the inclusion of their personal information in a public directory. See: Article 112(3) and (4). Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services (OJ L 249, 17.9.2002, p. 21).

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Requests to make available relevant information for the purposes of directory services and subscribers’ consent Case C-536/15 Tele2 (Netherlands) BV and Others v Autoriteit Consument en Markt (ACM), EU:C:2017:214, paras 1 and 2 of the Court’s ruling; see also para 37 and 38 (see annotations to Article 112). (301) Measures at wholesale level ensuring the inclusion of end-user data in databases should comply with the safeguards for the protection of personal data under Regulation (EU) 2016/679 and Article  12 of Directive 2002/58/EC. The costoriented supply of that data to service providers, with the possibility for Member States to establish a centralised mechanism for providing comprehensive aggregated information to directory providers, and the provision of network access under reasonable and transparent conditions, should be put in place in order to ensure that end-users benefit fully from competition, which has largely allowed the enabling of the removal of retail regulation from these services and the provision of offers of directory services under reasonable and transparent conditions. See: Article 112(3) and (4). Requests to make available relevant information for the purposes of directory services and subscribers’ consent Case C-536/15 Tele2 (Netherlands) BV and Others v Autoriteit Consument en Markt (ACM), EU:C:2017:214; paras 1 and 2 of the Court’s ruling; see also paras 37 and 38 (see annotations to Article 112). (302) Following the abolition of the universal service obligation for directory services and given the existence of a functioning market for such services, the right to access directory enquiry services is no longer necessary. However, the national regulatory authorities should still be able to impose obligations and conditions on undertakings that control access to end-users in order to maintain access and competition in that market. See: Article 112(2). (303) End-users should be able to enjoy a guarantee of interoperability in respect of all equipment sold in the Union for the reception of radio in new vehicles of category M and of digital television. Member States should be able to require minimum harmonised standards in respect of such equipment. Such standards could be adapted from time to time in light of technological and market developments. See: Articles 39; 113; Annex XI. (304) Where Member States decide to adopt measures in accordance with Directive (EU) 2015/1535 for the interoperability of consumer radio receivers, they should be capable of receiving and reproducing radio services provided via digital terrestrial radio broadcasting or via IP networks, in order to ensure that interoperability is maintained. This may also improve public safety, by enabling users to rely on a wider set of technologies for accessing and receiving emergency information in the Member States. See: Article 113.

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(305) It is desirable to enable consumers to achieve the fullest connectivity possible to digital television sets. Interoperability is an evolving concept in dynamic markets. Standardisation bodies should do their utmost to ensure that appropriate standards evolve along with the technologies concerned. It is likewise important to ensure that connectors are available on digital television sets that are capable of passing all the necessary elements of a digital signal, including the audio and video streams, conditional access information, service information, API information and copy protection information. This Directive should therefore ensure that the functionality associated to or implemented in connectors is not limited by network operators, service providers or equipment manufacturers and continues to evolve in line with technological developments. For display and presentation of connected television services, the realisation of a common standard through a market-driven mechanism is recognised as a consumer benefit. Member States and the Commission should be able to take policy initiatives, consistent with the Treaties, to encourage this development. See: Articles 39; 113(3). (306) The provisions on interoperability of consumer radio and television equipment do not prevent car radio receivers in new vehicles of category M from being capable of receiving and reproducing radio services provided via analogue terrestrial radio broadcasting and those provisions do not prevent Member States from imposing obligations to ensure that digital radio receivers are capable of receiving and reproducing analogue terrestrial radio broadcasts. See: Article 113. (307) Without prejudice to Union law, this Directive does not prevent Member States from adopting technical regulations related to digital terrestrial television equipment, to prepare the migration of consumers to new terrestrial broadcasting standards, and avoid the supply of equipment that would not be compliant with the standards to be rolled out. See: Article 113(3). (308) Member States should be able to lay down proportionate ‘must carry’ obligations on undertakings under their jurisdiction, in the interest of legitimate public policy considerations, but such obligations should only be imposed where they are necessary to meet general interest objectives clearly defined by Member States in accordance with Union law and should be proportionate and transparent. It should be possible to apply ‘must carry’ obligations to specified radio and television broadcast channels and complementary services supplied by a specified media service provider. Obligations imposed by Member States should be reasonable, that is they should be proportionate and transparent in light of clearly defined general interest objectives. Member States should provide an objective justification for the ‘must carry’ obligations that they impose in their national law in order to ensure that such obligations are transparent, proportionate and clearly defined. The obligations should be designed in a way which provides sufficient incentives for efficient investment in infrastructure. See: Article 114(1).



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(309) ‘Must carry’ obligations should be subject to periodic review at least every five years in order to keep them up-to-date with technological and market evolution and in order to ensure that they continue to be proportionate to the objectives to be achieved. Such obligations could, where appropriate, entail a provision for proportionate remuneration which should be set out in national law. Where that is the case, national law should also determine the applicable methodology for calculating appropriate remuneration. That methodology should avoid inconsistency with access remedies that may be imposed by national regulatory authorities on providers of transmission services used for broadcasting which have been designated as having significant market power. However, where a fixed-term contract signed before 20 December 2018 provides for a different methodology, it should be possible to continue to apply that methodology for the duration of the contract. In the absence of a national provision on remuneration, providers of radio or television broadcast channels and providers of electronic communications networks used for the transmission of those radio or television broadcast channels should be able to agree contractually on a proportionate remuneration. See: Article 114(2) and (3). (310) Electronic communications networks and services used for the distribution of radio or television broadcasts to the public include cable, IPTV, satellite and terrestrial broadcasting networks. They might also include other networks to the extent that a significant number of end-users use such networks as their principal means to receive radio and television broadcasts. ‘Must carry’ obligations related to analogue television broadcast transmissions should be considered only where the lack of such an obligation would cause significant disruption for a significant number of end-users or where there are no other means of transmission for specified television broadcast channels. ‘Must carry’ obligations can include the transmission of services specifically designed to enable equivalent access by endusers with disabilities. Accordingly complementary services include services designed to improve accessibility for end-users with disabilities, such as videotext, subtitling for end-users who are deaf or hard of hearing, audio description, spoken subtitles and sign language interpretation, and could include access to the related raw-data where necessary. In light of the growing provision and reception of connected television services and the continued importance of EPGs for end-user choice the transmission of programme-related data necessary to support connected television and EPG functionalities can be included in ‘must carry’ obligations. It should be possible for such programme-related data to include information about the programme content and how to access it, but not the programme content itself. See: Article 114. (311) Calling line identification facilities are normally available on modern telephone exchanges and can therefore increasingly be provided at little or no expense. Member States are not required to impose obligations to provide these facilities when they are already available. Directive 2002/58/EC safeguards the privacy of users with regard to itemised billing, by giving them the means to protect their right to privacy when calling line identification is implemented. The development of those services on a pan-European basis would benefit consumers and is encouraged by this Directive. A common practice by providers of internet access services is to provide customers with an e-mail address using their commercial name or trade mark. In order to ensure end-users do not suffer lock-in effects

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related to the risk of losing access to e-mails when changing internet access services, Member States should be able to impose obligations on providers of such services, on request, either to provide access to their e-mails, or to transfer e-mails sent to the relevant e-mail account(s). The facility should be provided free of charge and for a duration that is considered to be appropriate by the national regulatory authority. See: Article 115; Annex VI(Part A) and (Part B). Itemised billing under the ePrivacy Directive Directive 2002/58/EC, Article 7 (see p 726). Presentation and restriction of calling and connected line identification under the ePrivacy Directive Directive 2002/58/EC, Article 10 (see p 728). (312) The publication of information by Member States will ensure that market players and potential market entrants understand their rights and obligations, and know where to find the relevant detailed information. Publication in the national gazette helps interested parties in other Member States to find the relevant information. See: Article 120. (313) In order to ensure that the pan-European electronic communications market is effective and efficient, the Commission should monitor and publish information on charges which contribute to determining prices to end-users. See: Articles 119; 120(6). (314) In order to determine the correct application of Union law, the Commission needs to know which undertakings have been designated as having significant market power and which obligations have been placed upon market players by national regulatory authorities. In addition to publication of that information at national level, it is therefore necessary for Member States to submit that information to the Commission. Where Member States are required to send information to the Commission, they should be able to do so by electronic means, subject to agreement on appropriate authentication procedures. See: Articles 119–121. (315) In order to take account of market, social and technological developments, including evolution of technical standards, to manage the risks posed to security of networks and services and to ensure effective access to emergency services through emergency communications, the power to adopt acts in accordance with Article  290  TFEU should be delegated to the Commission in respect of setting a single maximum Union-wide voice termination rate in fixed and mobile markets; adopting measures related to emergency communications in the Union; and adapting the annexes to this Directive. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13  April 2016 on Better Law-Making42. In particular, to ensure equal participation in the OJ L 123, 12.5.2016, p. 1.

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preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts. See: Articles 75; 109; 116; 117. Delegated acts ‘1.

A legislative act may delegate to the Commission the power to adopt nonlegislative acts of general application to supplement or amend certain nonessential elements of the legislative act. The objectives, content, scope and duration of the delegation of power shall be explicitly defined in the legislative acts. The essential elements of an area shall be reserved for the legislative act and accordingly shall not be the subject of a delegation of power.

2.

Legislative acts shall explicitly lay down the conditions to which the delegation is subject; these conditions may be as follows: (a) the European Parliament or the Council may decide to revoke the delegation; (b) the delegated act may enter into force only if no objection has been expressed by the European Parliament or the Council within a period set by the legislative act. For the purposes of (a) and (b), the European Parliament shall act by a majority of its component members, and the Council by a qualified majority.

3.

The adjective ‘delegated’ shall be inserted in the title of delegated acts.’

TFEU, Article 290. Consultations by the Commission Interinstitutional Agreement of 13 April 2016 on Better Law-Making, paras 2831 (see annotations to Article 117). Consultations in the preparation and drawing-up of delegated acts Interinstitutional Agreement of 13 April 2016 on Better Law-Making, Annex, paras 4–12 (see annotations to Article 117). (316) In order to ensure uniform conditions for the implementation of this Directive, implementing powers should be conferred on the Commission to adopt decisions to resolve cross-border harmful interference between Member States; to identify a harmonised or coordinated approach for the purpose of addressing inconsistent implementation of general regulatory approaches by national regulatory authorities on the regulation of electronic communications markets, as well as numbering, including number ranges, portability of numbers and identifiers, number and address translation systems, and access to emergency services through the single European emergency number ‘112’; to make the implementation of standards or specifications compulsory, or remove standards or specifications from the compulsory part of the list of standards; to adopt the technical and organisational measures to appropriately manage the risks posed to security of networks and services, as well as the circumstances, format and procedures applicable to notification of security incidents; to specify relevant details relating to tradable individual rights publicly available in a standardised electronic format when the rights of use for radio spectrum are created to specify the physical and technical

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characteristics of small-area wireless access points; to authorise or prevent a national regulatory authority from imposing on undertakings designated as having significant market power certain obligations for access or interconnection; to harmonise specific numbers or numbering ranges to address unmet cross-border or pan-European demand for numbering resources; and to specify the contract summary template to be provided to consumers. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council43. See: Articles 28(4); 38(1); 39; 40(5); 45; 57(2); 65(1); 109(8); 118. (317) Finally, the Commission should be able to adopt, as necessary, having taken utmost account of the opinion of BEREC, recommendations in relation to the identification of the relevant product and service markets, the notifications under the procedure for consolidating the internal market and the harmonised application of the provisions of the regulatory framework. See: Articles 34; 38; 64. Commission Recommendation on relevant product and service markets The European Commission has identified two wholesale markets as susceptible to regulation at EU level: Market 1: Wholesale local access provided at a fixed location; Market 2: Wholesale dedicated capacity – Commission Recommendation (EU) 2020/2245 of 18  December 2020 on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive (EU) 2018/1972 of the European Parliament and of the Council establishing the European Electronic Communications Code (notified under document C(2020) 8750) (Text with EEA relevance) (OJ L 439, 29.12.2020, p. 23), Annex (see p. 1224). (318) The Commission should review the functioning of this Directive periodically, in particular with a view to determining the need for amendments in light of changing technological or market conditions. See: Article 122. (319) In carrying out its review of the functioning of this Directive, the Commission should assess whether, in light of developments in the market and with regard to both competition and consumer protection, there is a continued need for the provisions on sector-specific ex ante regulation or whether those provisions should be amended or repealed. As this Directive introduces novel approaches to the regulation of electronic communications sectors, such as the possibility to extend the application of symmetric obligations beyond the first concentration or distribution point and the regulatory treatment of co-investments, a particular regard should be given in assessing their functioning. See: Article 122.

Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).

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(320) Future technological and market developments, in particular changes in the use of different electronic communications services and their ability to ensure effective access to emergency services, might jeopardise the achievement of the objectives of this Directive on end-users’ rights. BEREC should therefore monitor those developments in Member States and regularly publish an opinion including an assessment of the impact of such developments on the application in practice of the provisions of this Directive relating to end-users. The Commission, taking outmost account of BEREC’s opinion, should publish a report and submit a legislative proposal where it considers it to be necessary to ensure that the objectives of this Directive are achieved. See: Articles 109; 123. (321) Directives 2002/19/EC, 2002/20/EC, 2002/21/EC, 2002/22/EC and Article  5 of Decision No 243/2012/EU should be repealed. See: Article 125; Annex XII (Part A). (322) The Commission should monitor the transition from the existing framework to the new framework. See: Articles 121; 124; 125. (323) Since the objective of this Directive, namely achieving a harmonised and simplified framework for the regulation of electronic communications networks, electronic communications services, associated facilities and associated services, of the conditions for the authorisation of networks and services, of radio spectrum use and of numbering resources, of access to and interconnection of electronic communications networks and associated facilities and of end-user protection cannot be sufficiently achieved by the Member States but can rather, by reason of the scale and effects of the action, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective. See: Articles 3; 124. Principles of subsidiarity and proportionality ‘1.

The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.

2.

Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.

3.

Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can

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rather, by reason of the scale or effects of the proposed action, be better achieved at Union level. The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol. 4.

Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.

The institutions of the Union shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality.’ Consolidated version of the Treaty on European Union (OJ C 326, 26.10.2012, p. 13), Article 5. (324) In accordance with the Joint Political Declaration of 28  September 2011 of Member States and the Commission on explanatory documents44, Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified. See: Article 124. Member States’ Joint Political Declaration ‘Pursuant to Article 288 TFEU, “A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods”. Member States and the Commission recognise that the effective implementation of Union law is a prerequisite for achieving the policy objectives of the Union and that, whilst the responsibility for such implementation lies primarily with Member States, it is a matter of common interest since it aims, inter alia, to create a level playing field in all Member States. Member States and the Commission acknowledge that the correct and timely transposition of Union directives is a legal obligation. They note that the Treaties entrust the Commission with the task of overseeing the application of Union law under the supervision of the Court of Justice and share the common understanding that the notification of transposition measures should facilitate the achievement by the Commission of this task. In this context, Member States acknowledge that the information they supply to the Commission as regards the transposition of directives in national law “must be clear and precise” and ‘must indicate unequivocally the laws, regulations and administrative provisions’, or any other provisions of national law, as well as, where relevant, the jurisprudence of national courts, by means of which the Member States consider that they have satisfied the various requirements imposed on them by the directive[45].

OJ C 369, 17.12.2011, p. 14. ‘See Judgment of the Court of Justice of 16 July 2009 in case C-427/07, point 107 and the case-law cited therein’: fn 1 in the Joint Political Declaration.

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In order to improve the quality of information on the transposition of Union directives, where the Commission considers that documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments are required, it shall justify on a case by case basis, when submitting the relevant proposals, the need for, and the proportionality of, providing such documents, taking into account, in particular and respectively, the complexity of the directive and of its transposition, as well as the possible additional administrative burden. In justified cases, Member States undertake to accompany the notification of transposition measures with one or more explanatory documents, which can take the form of correlation tables or other documents serving the same purpose.’ Joint Political Declaration of 28  September 2011 of Member States and the Commission on explanatory documents (OJ C 369, 17.12.2011, p. 14). (325) The obligation to transpose this Directive into national law should be confined to those provisions which represent a substantive amendment as compared to the repealed Directives. The obligation to transpose the provisions which are unchanged arises under the repealed Directives. See: Article 124. (326) This Directive should be without prejudice to the obligations of the Member States relating to the time-limits for the transposition into national law and the dates of application of the Directives set out in Annex XII, Part B[.] See: Articles 124; 125; Annex XII (Part B). HAVE ADOPTED THIS DIRECTIVE: PART I FRAMEWORK (GENERAL RULES FOR THE ORGANISATION OF THE SECTOR) TITLE I SCOPE, AIM AND OBJECTIVES, DEFINITIONS CHAPTER I Subject matter, aim and definitions Article 1 Subject matter, scope and aims 1.

This Directive establishes a harmonised framework for the regulation of electronic communications networks, electronic communications services, associated facilities and associated services, and certain aspects of terminal equipment. It lays down tasks of national regulatory authorities and, where applicable, of other competent authorities, and establishes a set of procedures to ensure the harmonised application of the regulatory framework throughout the Union.

2.

The aims of this Directive are to: (a) implement an internal market in electronic communications networks and services that results in the deployment and take-up of very high capacity networks, sustainable competition, interoperability of electronic communications services, accessibility, security of networks and services and end-user benefits; and

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(b) ensure the provision throughout the Union of good quality, affordable, publicly available services through effective competition and choice, to deal with circumstances in which the needs of end-users, including those with disabilities in order to access the services on an equal basis with others, are not satisfactorily met by the market and to lay down the necessary end-user rights. 3.

This Directive is without prejudice to: (a) obligations imposed by national law in accordance with Union law or by Union law in respect of services provided using electronic communications networks and services; (b) measures taken at Union or national level, in accordance with Union law, to pursue general interest objectives, in particular relating to the protection of personal data and privacy, content regulation and audiovisual policy;

4.

(c)

actions taken by Member States for public order and public security purposes and for defence;

(d)

Regulations (EU) No 531/2012 and (EU) 2015/2120 and Directive 2014/53/ EU.

The Commission, the Body of European Regulators for Electronic Communications (‘BEREC’) and the authorities concerned shall ensure compliance of their processing of personal data with Union data protection rules. See: Recitals 1; 2; 3; 5-9; 36. Correlation with Framework Directive EECC  Article  1(1)–(3) correlate with Directive 2002/21/EC, Articles  1(1)– (3); EECC  Article  1(4) correlates with Directive 2002/21/EC, Article  1(3a); EECC Article 1(5) and (6) correlate with Directive 2002/21/EC, Article 1(4) and (5). Correlation with Authorisation Directive EECC Article 1(1) correlates with Directive 2002/20/EC, Article 1. Correlation with Access Directive EECC Article 1(2) and (3) correlate with Directive 2002/19/EC, Article 1(1) and (2). Correlation with Universal Service Directive EECC Article 1(4) and (5) correlate with Directive 2002/22/EC, Article 1. Background European Commission’s Proposal COM(2016)590 final with Explanatory Memorandum and Impact Assessment. Free movement of services (a) ‘In the absence of express provision to the contrary in the Treaty, a television signal must, by reason of its nature, be regarded as provision of services. Although it is not ruled out that services normally provided for remuneration may come under the provisions relating to free movement of goods, such is however the case, as appears from Article 60, only insofar as they are governed by such provisions.



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It follows that the transmission of television signals, including those in the nature of advertisements, comes, as such, within the rules of the treaty relating to services. On the other hand, trade in material, sound recordings, films, apparatus and other products used for the diffusion of television signals are subject to the rules relating to freedom of movement for goods. As a result, although the existence of a monopoly with regard to television advertising is not in itself contrary to the principle of free movement of goods, such a monopoly would contravene this principle if it discriminated in favour of national material and products.’ Case 155/73 Giuseppe Sacchi, EU:C:1974:40, paras 6 and 7. (b) ‘By virtue of Article  59 of the Treaty [now Article  56 of the TFEU], restrictions on the freedom to provide services within the Community were to be withdrawn by the end of the transitional period as regards nationals of Member States established in a Community country other than that of the person for whom the services are intended. The requirements of that provision include, in particular, the elimination of any discrimination against the provider of a service established in a Member State other than that where the service is provided. The Court has consistently held (see in particular the judgment in Case 279/80 Webb [1981] ECR 3305, paragraph 13) that Article 59 imposes an obligation to achieve a precise result, the fulfilment of which had to be made easier by, but not dependent upon, the implementation of a programme of progressive measures. It follows that the provisions of Article  59 of the Treaty became unconditional on the expiry of the transitional period (judgment in Case 33/74 Van Binsbergen [1974] ECR 1299, paragraph 24).’ Joined Cases C-271/90 Kingdom of Spain, C-281/90 Kingdom of Belgium and C-289/90 Italian Republic v Commission of the European Communities, EU:C:1992:440, paras 19–20. (c)

‘1.  On a proper construction, Article 59 of the EEC Treaty [now Article 56 of the TFEU] covers services which the provider offers by telephone to potential recipients established in other Member States and provides without moving from the Member State in which he is established.

2.

Rules of a Member State which prohibit providers of services established in its territory from making unsolicited telephone calls to potential clients established in other Member States in order to offer their services constitute a restriction on freedom to provide services within the meaning of Article 59 of the Treaty.

3.

Article 59 does not preclude national rules which, in order to protect investor confidence in national financial markets, prohibit the practice of making unsolicited telephone calls to potential clients resident in other Member States to offer them services linked to investment in commodities futures.’

Case C-384/93, Alpine Investments BV v Minister van Financiën, EU:C:1995:126, paras 1–3 of the Court’s ruling. (d) ‘Article 59 of the EC Treaty (now, after amendment, Article 49 EC [and now Article 56 of the TFEU]) and Articles 60 and 66 of the EC Treaty (now

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Articles 50 and 55 EC [and now Article 56 and 62 of the TFEU]) must be interpreted as preventing the application of a tax on satellite dishes […]’. Case C-17/00, François De Coster v Collège des bourgmestre et échevins de Watermael-Boitsfort, EU:C:2001:651, Court’s ruling; see also paras 26–31 and 36–38. (e)

‘1.  National legislation which makes the marketing of apparatus, equipment, decoders or digital transmission and reception systems for television signals by satellite and the provision of related services by operators of conditionalaccess services subject to a prior authorisation procedure restricts both the free movement of goods and the freedom to provide services. Therefore, in order to be justified with regard to those fundamental freedoms, such legislation must pursue a public-interest objective recognised by Community law and comply with the principle of proportionality; that is to say, it must be appropriate to ensure achievement of the aim pursued and not go beyond what is necessary in order to achieve it.

2.

In determining whether national legislation such as that at issue in the main proceedings complies with the principle of proportionality, the referring court must take into account the following considerations in particular: –

for a prior administrative authorisation scheme to be justified even though it derogates from those fundamental freedoms, it must, in any event, be based on objective, non-discriminatory criteria which are known in advance, in such a way as to circumscribe the exercise of the national authorities’ discretion, so that it is not used arbitrarily;

–

a measure introduced by a Member State cannot be regarded as necessary to achieve the aim pursued if it essentially duplicates controls which have already been carried out in the context of other procedures, either in the same State or in another Member State;

–

a prior authorisation procedure will be necessary only where subsequent control must be regarded as being too late to be genuinely effective and to enable it to achieve the aim pursued;

–

a prior authorisation procedure does not comply with the fundamental principles of the free movement of goods and the freedom to provide services if, on account of its duration and the disproportionate costs to which it gives rise, it is such as to deter the operators concerned from pursuing their business plan.’

Case C-390/99 Canal Satélite Digital SL v Adminstración General del Estado, and Distribuidora de Televisión Digital SA (DTS), EU:C:2002:34, paras 1 and 2 of the Court’s ruling. (f) ‘1.  Article  59 of the EC Treaty (now, after amendment, Article  49  EC [and now Article 56 of the TFEU]) must be interpreted as not precluding the introduction, by legislation of a national or local authority, of a tax on mobile and personal communications infrastructures used to carry on activities provided for in licences and authorisations, which applies without distinction to national providers of services and to those of other Member States and affects in the same way the provision of services within one Member State and the provision of services between Member States.



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2.  Tax measures applying to mobile communications infrastructures are not covered by Article 3c of Commission Directive 90/388/EEC of 28 June 1990 on competition in the markets for telecommunications services, as amended, with regard to the implementation of full competition in telecommunications markets, by Commission Directive 96/19/EC of 13 March 1996, except where those measures favour, directly or indirectly, operators which have or have had exclusive or special rights to the detriment of new operators and appreciably affect the competitive situation.’ Joined Cases C-544/03 Mobistar SA  v Commune de Fléron and C-545/03 Belgacom Mobile SA v Commune de Schaerbeek, EU:C:2005:518, paras 1 and 2 of the Court’s ruling. (g) ’In circumstances such as those at issue in the main proceedings, a service consisting in the supply, for consideration, of conditional access to a package of programmes which contains radio and audio-visual broadcast services and is retransmitted by satellite constitutes a provision of services for the purposes of Article 56 TFEU.’ Case C-475/12, UPC DTH Sàrl v Nemzeti Média- és Hírközlési Hatóság Elnökhelyettese, EU:C:2014:285, para 2 of the Court’s ruling; see also para 4 of the Court’s ruling (see annotations to Article 12). (h) Case C-87/19, TV Play Baltic AS v Lietuvos radijo ir televizijos komisija, EU:C:2019:1063, para  3 of the Court’s ruling (see annotations to Article 114). Free movement of equipment (a)

‘(1)  Article 28 EC [now Article 34 of the TFEU] precludes legislation and national administrative practice which -–in the context of a system where matters concerning conformity assessment procedures for the purposes of placing radio equipment on the market and putting such equipment into service have been delegated to the administrative authorities, to be decided at their discretion – prevents economic operators from importing, marketing or holding in stock, with a view to selling, radio equipment that has not undergone national type-approval, and which does not admit other forms of evidence, equally reliable but less burdensome to obtain, to prove that such equipment is in conformity with requirements concerning the proper use of the radio frequencies authorised under national law. (2)  The provisions of the second sentence of Article 6(1), Article 7(1) and Article  8(1) of Directive 1999/5/EC of the European Parliament and of the Council of 9 March 1999 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity [correlates with Articles  6, 7 and 9 of Directive 2014/53/EU] confer on individuals rights which may be relied upon before national courts even though the Directive itself has not been formally implemented in national law within the period prescribed. Article  7(2) of the Directive does not allow for the maintenance in force of legislation or administrative practice which, after 8  April 2000, prohibits the marketing or the putting into service of radio equipment which does not bear the national type-approval stamp, where it has been confirmed that such equipment makes efficient and proper use of the radio frequencies authorised under national law, or where it is easy to verify that this is the case.

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(3)  The term “measure” within the meaning of Article  1 of Decision No  3052/95/EC of the European Parliament and of the Council of 13 December 1995 establishing a procedure for the exchange of information on national measures derogating from the principle of the free movement of goods within the Community[46] includes any measures, other than judicial decisions, taken by a Member State having the effect of restricting the free movement of goods lawfully produced or marketed in another Member State. Where the administrative authorities, having seized a particular model or a particular type of product which is lawfully marketed in another Member State, continue to withhold that model or product after a check has been carried out by the public authorities responsible for technical checks to ascertain that the product in question is in conformity with both national and Community legislation, that is a “measure” which must be notified to the Commission within the meaning of that provision. (4) Where national provisions have been recognised as being contrary to Community law, the imposition of fines or other coercive measures for infringements of those provisions is also incompatible with Community law.’ Joined Cases C-388/00 and C-429/00, Radiosistemi Srl v Prefetto di Genova, EU:C:2002:390, paras 1–4 of the Court’s ruling. (b) ‘[… T]he apparatus in question was seized solely because it did not bear the national type-approval mark provided for by the Italian legislation. The judgment in Radiosistemi, […] (particularly paragraphs 47 and 66), states that such a requirement of national law is incompatible with Community law which has direct effect, whether it be Article 28 EC [now Article 34 of the TFEU] or the provisions of the Directive which acquire direct effect after the expiry of the time-limit for its implementation. Furthermore, it follows from the judgment in Radiosistemi (particularly paragraphs 79 and 80), that a system of penalties which provides for fines or other coercive measures to ensure compliance with national rules that are recognised as being contrary to Community law must be held, from that fact alone, to be contrary to Community law, without there being any need to examine whether it meets the tests of non-discrimination or proportionality. It follows therefrom that a seizure of goods such as that in issue in the main proceedings is contrary to Community law. […]’ Case C-13/01, Safalero Srl v Prefetto di Genova, EU:C:2003:447, paras 43-46 Imports from third countries Case C-296/00 Prefetto Provincia di Cuneo v Silvano Carbone, EU:C:2002:316, paras 28, 29, 33 and 35. Direct effect See Case C-314/93 Rouffeteau [1994]  ECR  I-3274, paras 6–8 and 11; Joined cases C-46/90 and C-93/91 Lagauche [1993] ECR I-5267, paras 40–41; Joined cases C-388/00 and C-429/00 Radiosistemi [2002]  ECR  I-5845; Joined Cases C-152/07 Arcor AG and Co KG, C-153/07 Communication Services TELE2 GmbH and C-154/07 Firma 01051 Telekom GmbH [2008] ECR I-5959, paras 40–

Repealed by Regulation (EC) No 764/2008; see Article 2 of Regulation (EU) 2019/515 of the European Parliament and of the Council of 19 March 2019 on the mutual recognition of goods lawfully marketed in another Member State and repealing Regulation (EC) No 764/2008 (Text with EEA relevance.) OJ L 91, 29.3.2019, p. 1.

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43; Case C-253/00, Munoz [2002] ECR I 7289, para 27; Case 230/78 Eridania v Ministry of Agriculture and Forestry [1979] ECR 02749). Harmonisation (a) ‘According to the second recital in the preamble to the “services” directive [Directive 90/388/EEC], at the time when that directive and the “open networks” directive [Directive 90/387/EEC] were adopted, the provision and operation of telecommunications networks and the provision of related services were generally delegated, in all Member States, to one or more undertakings which enjoyed, to that end, “exclusive or special” rights, that is to say, rights “characterized by the discretionary powers which the State exercises in various degrees with regard to access to the market for telecommunications services”. The ‘services’ directive required Member States to withdraw all special or exclusive rights granted to those undertakings for the supply of most telecommunications services so as to ensure that those services may be freely offered throughout the Community (see in particular the first paragraph of Article 2 of the directive). In contrast, exclusive or special rights granted to those undertakings for the provision and operation of networks have not been called in question. In order to prevent retention of those exclusive or special rights in respect of telecommunications networks from impeding freedom to provide telecommunications services within and between the Member States, the ‘open networks’ directive provided for the creation of a Community-wide, open telecommunications network accessible to all operators on the same terms. Accordingly, the directive harmonizes certain of the conditions governing access to telecommunications networks and the use thereof. Under that directive, however, harmonization is to be carried out in stages so as to take account of the situations and technical or administrative constraints existing in the various Member States (see the fifth recital in the preamble to the directive and Article 4).’ Case C-302/94 The Queen v Secretary of State for Trade and Industry, ex parte British Telecommunications plc, EU:C:1996:485, paras 27–31. (b) ‘As regards the scope of the legislative powers laid down in Article 95 EC [now Article 114 of the TFEU] it must be observed that, as the Court held in paragraph 44 of the judgment in Case C-66/04 United Kingdom v Parliament and Council [2005] ECR I-0000, that provision is used as a legal basis only where it is actually and objectively apparent from the legal act that its purpose is to improve the conditions for the establishment and functioning of the internal market. The Court also pointed out in paragraph 45 of that judgment that by using the expression “measures for the approximation” in Article  95  EC the authors of the Treaty intended to confer on the Community legislature a discretion, depending on the general context and the specific circumstances of the matter to be harmonised, as regards the method of approximation most appropriate for achieving the desired result, in particular in fields with complex technical features. It must be added in that regard that nothing in the wording of Article 95 EC implies that the addressees of the measures adopted by the Community

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legislature on the basis of that provision can only be the individual Member States. The legislature may deem it necessary to provide for the establishment of a Community body responsible for contributing to the implementation of a process of harmonisation in situations where, in order to facilitate the uniform implementation and application of acts based on that provision, the adoption of non-binding supporting and framework measures seems appropriate. It must be emphasised, however, that the tasks conferred on such a body must be closely linked to the subject-matter of the acts approximating the laws, regulations and administrative provisions of the Member States. Such is the case in particular where the Community body thus established provides services to national authorities and/or operators which affect the homogenous implementation of harmonising instruments and which are likely to facilitate their application.’ Case C-217/04, United Kingdom of Great Britain and Northern Ireland v European Parliament and Council of the European Union, EU:C:2006:279, paras 42–45 (c) ‘According to consistent case-law the object of measures adopted on the basis of Article 95(1) EC [now Article 114(1) of the TFEU] must genuinely be to improve the conditions for the establishment and functioning of the internal market (Case C‑491/01 British American Tobacco (Investments) and Imperial Tobacco [2002] ECR I-11453, para 60, and Case C-217/04 United Kingdom v Parliament and Council [2006]  ECR  I‑3771, paragraph 42). While a mere finding of disparities between national rules and the abstract risk of infringements of fundamental freedoms or distortion of competition is not sufficient to justify the choice of Article 95 EC as a legal basis, the Community legislature may have recourse to it in particular where there are differences between national rules which are such as to obstruct the fundamental freedoms and thus have a direct effect on the functioning of the internal market (Case C‑380/03 Germany v Parliament and Council [2006] ECR I‑11573, paragraph 37 and the case-law cited) or to cause significant distortions of competition (Case C‑376/98 Germany v Parliament and Council [2000] ECR I‑8419, paragraphs 84 and 106). Recourse to that provision is also possible if the aim is to prevent the emergence of such obstacles to trade resulting from the divergent development of national laws. However, the emergence of such obstacles must be likely and the measure in question must be designed to prevent them (Germany v Parliament and Council, paragraph 38 and the case-law cited, and Case C‑301/06 Ireland v Parliament and Council [2009] ECR I-593, paragraph 64; see also, to that effect, United Kingdom v Parliament and Council, paragraphs 60 to 64). Where an act based on Article 95 EC has already removed any obstacle to trade in the area that it harmonises, the Community legislature cannot be denied the possibility of adapting that act to any change in circumstances or development of knowledge having regard to its task of safeguarding the general interests recognised by the Treaty (see, to that effect, British American Tobacco (Investments)and Imperial Tobacco, paragraphs 77 and 78).



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In that respect, the Court held, in paragraph  43 of United Kingdom v Parliament and Council, that by using the expression ‘measures for the approximation’ in Article  95  EC the authors of the Treaty intended to confer on the Community legislature a discretion, depending on the general context and the specific circumstances of the matter to be harmonised, as regards the method of approximation most appropriate for achieving the desired result, in particular in fields with complex technical features. Moreover, provided that the conditions for recourse to Article  95  EC as a legal basis are fulfilled, the Community legislature cannot be prevented from relying on that legal basis on the ground that consumer protection is a decisive factor in the choices to be made (see, regarding public health protection, Germany v Parliament and Council, paragraph  88; British American Tobacco (Investments)and Imperial Tobacco, paragraph 62; and Joined Cases C‑154/04 and C-155/04  Alliance for Natural Health and Others [2005] ECR I-6451, paragraph 30).’ Case C-58/08, The Queen, on the application of Vodafone Ltd and Others v Secretary of State for Business, Enterprise and Regulatory Reform, ECLI:EU:C:2010:321, paras 32–36 Q&A on Article 1(2)(b): ‘The aims of this Directive are to: […] (b) ensure the provision throughout the Union of good quality, affordable, publicly available services through effective competition and choice, to deal with circumstances in which the needs of end-users, including those with disabilities in order to access the services on an equal basis with others, are not satisfactorily met by the market and to lay down the necessary end-user rights.’ We would like to know your views and position on the interpretation and application of this provision taking into account: (a) the fact that there could be a different authority applying consumer protection and consumer rights’ legislation in a Member State, and (b) the application of sector specific rules.’ Reply: ‘Article 1 par.2 (b) provides one of the aims of the Directive concerning end-users’ rights. Its wording draws on Article  1(1) of Directive 2002/22/EC (Universal Service Directive). Article 3 of the EECC provides a set of objectives and principles and sets the binding obligation of the NRAs and of other competent authorities to pursue each of these general objectives. The specificities of the electronic communications sector require a limited number of additional end-user protection rules. The EECC rules, which sometimes target all end-users and not only the consumers, are sector specific rules. Duplication with general European consumer protection rules has been avoided. In case of conflict, the EECC would be considered lex specialis. The institutional changes introduced by the EECC include a minimum set of competences for the NRAs (Article  5  EECC). The EECC allows nevertheless other competent authorities to be assigned tasks in areas not directly entrusted to NRAs and promotes the cooperation between the NRAs and other competent authorities. Specifically, as far as the consumer and end-user protection in the electronic communication sector is concerned, the EECC does not mandate that NRAs are responsible for end-user protection. However, where Member States

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assign this task to a different competent authority, the EECC provides that NRAs should contribute to this task in coordination with other competent authorities (Article 5 par.1 (d)). The Article also addresses the need for cooperation between the competent authorities and for publishing in a clear way the tasks assigned to each of them. Recital 35 explains that “where tasks are assigned to other competent authorities, those other competent authorities should seek to consult the national regulatory authorities before taking a decision”. In light of the above the response to your questions is: The EECC does not exclude that the responsibility for applying some or all the sector specific end-user protection rules is entrusted to a competent authority other than the NRA, such as for instance the authority which applies the general consumer protection rules. However, in such a case, the Member State should ensure that the competent authority coordinates with the NRA and that the latter may contribute to this work. Such contribution may take different forms, one of which is indicated in recital 35, which explains that NRAs should be consulted before competent authorities take a decision.’ Article 2 Definitions For the purposes of this Directive, the following definitions apply: (1) ‘electronic communications network’ means transmission systems, whether or not based on a permanent infrastructure or centralised administration capacity, and, where applicable, switching or routing equipment and other resources, including network elements which are not active, which permit the conveyance of signals by wire, radio, optical or other electromagnetic means, including satellite networks, fixed (circuit- and packet-switched, including internet) and mobile networks, electricity cable systems, to the extent that they are used for the purpose of transmitting signals, networks used for radio and television broadcasting, and cable television networks, irrespective of the type of information conveyed; (2) ‘very high capacity network’ means either an electronic communications network which consists wholly of optical fibre elements at least up to the distribution point at the serving location, or an electronic communications network which is capable of delivering, under usual peak-time conditions, similar network performance in terms of available downlink and uplink bandwidth, resilience, error-related parameters, and latency and its variation; network performance can be considered similar regardless of whether the end-user experience varies due to the inherently different characteristics of the medium by which the network ultimately connects with the network termination point; (3) ‘transnational markets’ means markets identified in accordance with Article 65, which cover the Union or a substantial part thereof located in more than one Member State; (4) ‘electronic communications service’ means a service normally provided for remuneration via electronic communications networks, which encompasses, with the exception of services providing, or exercising editorial control over, content transmitted using electronic communications networks and services, the following types of services: (a) ‘internet access service’ as defined in point (2) of the second paragraph of Article 2 of Regulation (EU) 2015/2120; (b) interpersonal communications service; and



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(c) services consisting wholly or mainly in the conveyance of signals such as transmission services used for the provision of machine-to-machine services and for broadcasting; (5) ‘interpersonal communications service’ means a service normally provided for remuneration that enables direct interpersonal and interactive exchange of information via electronic communications networks between a finite number of persons, whereby the persons initiating or participating in the communication determine its recipient(s) and does not include services which enable interpersonal and interactive communication merely as a minor ancillary feature that is intrinsically linked to another service; (6) ‘number-based interpersonal communications service’ means an interpersonal communications service which connects with publicly assigned numbering resources, namely, a number or numbers in national or international numbering plans, or which enables communication with a number or numbers in national or international numbering plans; (7) ‘number-independent interpersonal communications service’ means an interpersonal communications service which does not connect with publicly assigned numbering resources, namely, a number or numbers in national or international numbering plans, or which does not enable communication with a number or numbers in national or international numbering plans; (8)

‘public electronic communications network’ means an electronic communications network used wholly or mainly for the provision of publicly available electronic communications services which support the transfer of information between network termination points;

(9) ‘network termination point’ means the physical point at which an end-user is provided with access to a public electronic communications network, and which, in the case of networks involving switching or routing, is identified by means of a specific network address, which may be linked to an end-user’s number or name; (10) ‘associated facilities’ means associated services, physical infrastructures and other facilities or elements associated with an electronic communications network or an electronic communications service which enable or support the provision of services via that network or service, or have the potential to do so, and include buildings or entries to buildings, building wiring, antennae, towers and other supporting constructions, ducts, conduits, masts, manholes, and cabinets; (11) ‘associated service’ means a service associated with an electronic communications network or an electronic communications service which enables or supports the provision, self-provision or automated-provision of services via that network or service, or has the potential to do so, and includes number translation or systems offering equivalent functionality, conditional access systems and electronic programme guides (EPGs), as well as other services such as identity, location and presence service; (12) ‘conditional access system’ means any technical measure, authentication system and/or arrangement whereby access to a protected radio or television broadcasting service in intelligible form is made conditional upon subscription or another form of prior individual authorisation; (13) ‘user’ means a natural or legal person using or requesting a publicly available electronic communications service;

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(14) ‘end-user’ means a user not providing public electronic communications networks or publicly available electronic communications services; (15) ‘consumer’ means any natural person who uses or requests a publicly available electronic communications service for purposes which are outside his or her trade, business, craft or profession; (16) ‘provision of an electronic communications network’ means the establishment, operation, control or making available of such a network; (17) ‘enhanced digital television equipment’ means set-top boxes intended for connection to television sets or integrated digital television sets, able to receive digital interactive television services; (18) ‘application programming interface’ or ‘API’ means the software interface between applications, made available by broadcasters or service providers, and the resources in the enhanced digital television equipment for digital television and radio services; (19) ‘radio spectrum allocation’ means the designation of a given radio spectrum band for use by one or more types of radio communications services, where appropriate, under specified conditions; (20) ‘harmful interference’ means interference which endangers the functioning of a radio navigation service or of other safety services or which otherwise seriously degrades, obstructs or repeatedly interrupts a radio communications service operating in accordance with the applicable international, Union or national regulations; (21) ‘security of networks and services’ means the ability of electronic communications networks and services to resist, at a given level of confidence, any action that compromises the availability, authenticity, integrity or confidentiality of those networks and services, of stored or transmitted or processed data, or of the related services offered by, or accessible via, those electronic communications networks or services; (22) ‘general authorisation’ means a legal framework established by a Member State ensuring rights for the provision of electronic communications networks or services and laying down sector-specific obligations that may apply to all or to specific types of electronic communications networks and services, in accordance with this Directive; (23) ‘small-area wireless access point’ means low-power wireless network access equipment of a small size operating within a small range, using licenced radio spectrum or licence-exempt radio spectrum or a combination thereof, which may be used as part of a public electronic communications network, which may be equipped with one or more low visual impact antennae, and which allows wireless access by users to electronic communications networks regardless of the underlying network topology, be it mobile or fixed; (24) ‘radio local area network’ or ‘RLAN’ means low-power wireless access system, operating within a small range, with a low risk of interference with other such systems deployed in close proximity by other users, using, on a non-exclusive basis, harmonised radio spectrum; (25) ‘harmonised radio spectrum’ means radio spectrum for which harmonised conditions relating to its availability and efficient use have been established by way of technical implementing measures in accordance with Article 4 of Decision No 676/2002/EC;



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(26) ‘shared use of radio spectrum’ means access by two or more users to use the same radio spectrum bands under a defined sharing arrangement, authorised on the basis of a general authorisation, individual rights of use for radio spectrum or a combination thereof, including regulatory approaches such as licensed shared access aiming to facilitate the shared use of a radio spectrum band, subject to a binding agreement of all parties involved, in accordance with sharing rules as included in their rights of use for radio spectrum in order to guarantee to all users predictable and reliable sharing arrangements, and without prejudice to the application of competition law; (27) ‘access’ means the making available of facilities or services to another undertaking, under defined conditions, either on an exclusive or a non-exclusive basis, for the purpose of providing electronic communications services, including when they are used for the delivery of information society services or broadcast content services; it covers, inter alia: access to network elements and associated facilities, which may involve the connection of equipment, by fixed or non-fixed means (in particular this includes access to the local loop and to facilities and services necessary to provide services over the local loop); access to physical infrastructure including buildings, ducts and masts; access to relevant software systems including operational support systems; access to information systems or databases for pre-ordering, provisioning, ordering, maintaining and repair requests, and billing; access to number translation or systems offering equivalent functionality; access to fixed and mobile networks, in particular for roaming; access to conditional access systems for digital television services and access to virtual network services; (28) ‘interconnection’ means a specific type of access implemented between public network operators by means of the physical and logical linking of public electronic communications networks used by the same or a different undertaking in order to allow the users of one undertaking to communicate with users of the same or another undertaking, or to access services provided by another undertaking where such services are provided by the parties involved or other parties who have access to the network; (29) ‘operator’ means an undertaking providing or authorised to provide a public electronic communications network or an associated facility; (30) ‘local loop’ means the physical path used by electronic communications signals connecting the network termination point to a distribution frame or equivalent facility in the fixed public electronic communications network; (31) ‘call’ means a connection established by means of a publicly available interpersonal communications service allowing two-way voice communication; (32) ‘voice communications service’ means a publicly available electronic communications service for originating and receiving, directly or indirectly, national or national and international calls through a number or numbers in a national or international numbering plan; (33) ‘geographic number’ means a number from the national numbering plan where part of its digit structure contains geographic significance used for routing calls to the physical location of the network termination point; (34) ‘non-geographic number’ means a number from the national numbering plan that is not a geographic number, such as mobile, freephone and premium-rate numbers;

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(35) ‘total conversation service’ means a multimedia real time conversation service that provides bidirectional symmetric real time transfer of motion video, real time text and voice between users in two or more locations; (36) ‘public safety answering point’ or ‘PSAP’ means a physical location where an emergency communication is first received under the responsibility of a public authority or a private organisation recognised by the Member State; (37) ‘most appropriate PSAP’ means a PSAP established by responsible authorities to cover emergency communications from a certain area or for emergency communications of a certain type; (38) ‘emergency communication’ means communication by means of interpersonal communications services between an end-user and the PSAP with the goal to request and receive emergency relief from emergency services; (39) ‘emergency service’ means a service, recognised as such by the Member State, that provides immediate and rapid assistance in situations where there is, in particular, a direct risk to life or limb, to individual or public health or safety, to private or public property, or to the environment, in accordance with national law; (40) ‘caller location information’ means, in a public mobile network, the data processed, derived from network infrastructure or handsets, indicating the geographic position of an end-user’s mobile terminal equipment, and, in a public fixed network, the data about the physical address of the network termination point; (41) ‘terminal equipment’ means terminal equipment as defined in point (1) of Article 1 of Commission Directive 2008/63/ EC47; (42) ‘security incident’ means an event having an actual adverse effect on the security of electronic communications networks or services. See: Recitals 7; 10-20; 118; 142. Correlation with Framework Directive EECC Article  2(1) correlates with Directive 2002/21/EC, Article  2(a); EECC Article 2(3) correlates with Directive 2002/21/EC, Article 2(b); EECC Article 2(4) correlates with Directive 2002/21/EC, Article 2(c); EECC Article 2(8) correlates with Directive 2002/21/EC, Article  2(d); EECC  Article  2(9) correlates with Directive 2002/21/EC, Article  2(da); EECC  Article  2(10) correlates with Directive 2002/21/EC, Article 2(e); EECC Article 2(11) correlates with Directive 2002/21/EC, Article 2(ea); EECC Article 2(12) correlates with Directive 2002/21/ EC, Article  2(f); EECC  Article  2(13) correlates with Directive 2002/21/EC, Article 2(h); EECC Article 2(14) correlates with Directive 2002/21/EC, Article 2(n); Article  2(15) correlates with Directive 2002/21/EC, Article  2(i); EECC Article 2(16) correlates with Directive 2002/21/EC,Article 2(m); EECC Article 2(17) correlates with Directive 2002/21/EC, Article 2(o); EECC Article 2(18) correlates with Directive 2002/21/EC, Article  2(p); EECC  Article  2(19) correlates with Directive 2002/21/EC, Article 2(q); EECC Article 2(20) correlates with Directive 2002/21/EC, Article 2(r); EECC Article 2(31) correlates with Directive 2002/21/ EC, Article 2(s). Correlation with Authorisation Directive EECC Article 2(22) correlates with Directive 2002/20/EC, Article 2(2).

Commission Directive 2008/63/EC of 20 June 2008 on competition in the markets in telecommunications terminal equipment (OJ L 162, 21.6.2008, p. 20).

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Correlation with Access Directive EECC Article 2(27) correlates with Directive 2002/19/EC, Article 2(a); EECC Article 2(28) correlates with Directive 2002/19/EC, Article 2(b); EECC Article 2(29) correlates with Directive 2002/19/EC, Article  2(c); EECC Article 2(30) correlates with Directive 2002/19/EC, Article 2(e). Correlation with Universal Service Directive EECC Article 2(32) correlates with Directive 2002/22/EC, Article 2(c); EECC Article 2(33) correlates with Directive 2002/22/EC, Article 2(d); EECC Article 2(34) correlates with Directive 2002/22/EC, Article 2(f). Definition of ‘very high capacity network’ (a) BEREC Guidance: BEREC Guidelines on Very High Capacity Networks, BoR (20) 165, 1 October 2020 (see annotations to Article 82). (b) Q&A  on Article  2(2): ‘The EECC defines the term ‘very high capacity network’ as either an electronic communications network which consists wholly of optical fibre elements at least up to the distribution point at the serving location, or an electronic communications network which is capable of delivering, under usual peak-time conditions, similar network performance in terms of available downlink and uplink bandwidth, resilience, error-related parameters, and latency and its variation; network performance can be considered similar regardless of whether the end-user experience varies due to the inherently different characteristics of the medium by which the network ultimately connects with the network termination point. Directive 2014/61/EU, on the other hand, defines the term “high-speed electronic communication network” as an electronic communication network which is capable of delivering broadband access services at speeds of at least 30 Mbps. According to the above, is it necessary to retain the definition from Directive 2014/61/EU in the new Electronic Communications Act or is it sufficient to use the EECC definition? In what way could this definition incompatibility be resolved?’ Reply: ‘The two terms (“high-speed electronic communications network” and “very high capacity network”) describe two types of networks, with the latter being a subset of the former (very high capacity networks are also high-speed networks, while the opposite is not always the case). They are not meant to be used interchangeably, nor is one meant to supersede the other. Given that Directive 2014/61/EU (the BBCRD) remains in force in parallel with Directive (EU) 1972/2018 (the EECC), both terms remain valid and relevant in their respective regulatory context. Therefore, the definition of both terms should be maintained in national law.’. Definition of ‘electronic communications service’ (a)  Provision of a basic package of radio and television programmes via cable: ‘Article 2(c) of [the Framework Directive] must be interpreted as meaning that a service consisting in the supply of a basic package of radio and television programmes via cable, the charge for which includes transmission costs as well as payments to broadcasters and royalties paid to copyright collecting societies in connection with the transmission of programme content, falls within the definition of an ‘electronic communications service’ and, consequently, within the substantive scope both of that directive and Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector, [the Access Directive, the Authorisation Directive and the Universal Directive …], in so far as that service entails primarily the transmission of television content on the cable distribution network to the receiving terminal of the final consumer.’

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Case C-518/11, UPC  Nederland BV  v Gemeente Hilversum, EU:C:2013:709, paragraph 1 of the Court’s ruling. (b)  Conditional access to packages of radio and audio-visual broadcast services received by satellite: ‘[…T]he fact that the transmission of signals is by means of an infrastructure that does not belong to UPC [UPC DTH Sàrl, the supplier of the services] is of no relevance to the classification of the nature of the service. All that matters in that regard is that UPC is responsible vis-à-vis the end-users for transmission of the signal which ensures that they are supplied with the service to which they have subscribed. […] 1.

Article 2(c) of [the Framework Directive], must be interpreted as meaning that a service consisting in the supply, for consideration, of conditional access to a package of programmes which contains radio and television broadcast services and is retransmitted by satellite falls within the definition of “electronic communications service” within the meaning of that provision. The fact that that service includes a conditional access system within the meaning of Article 2(ea) and (f) of [the Framework Directive], is irrelevant in that regard. An operator supplying a service such as that at issue in the main proceedings must be regarded as a provider of electronic communications services under [the Framework Directive]’ Case C-475/12 UPC DTH Sàrl v Nemzeti Média- és Hírközlési Hatóság Elnökhelyettese, EU:C:2014:285, para 43 and para 1 of the Court’s ruling. (c) VoIP service to fixed or mobile telephone numbers: ‘34. Although it is true, at the technical level, that the transmission of the voice calls made through SkypeOut is in practical terms carried out, first, by the ISPs on the internet, the first segment going from the internet connection of the user making the call to the Gateway between the internet and the PSTN and, second, by the telecommunications service providers on the PSTN, the second segment going from that Gateway to the mobile or fixed connection point of the user receiving the call, the fact remains that such transmission occurs pursuant to agreements between Skype Communications and those telecommunications service providers and that it could not be made without the conclusion of such agreements. […] 42. It is true, as Skype Communications argues, that the Skype software provides a bundle of services, which are not at issue in the main proceedings, including, on the one hand, a service allowing users to make free audio and/ or video calls between terminal equipment connected to the internet and, on the other hand, a number of services such as screen-sharing services, instant text messaging, file sharing and simultaneous translation, which cannot be classified as “electronic communications services’”as they do not consist wholly or mainly in the conveyance of signals. 43. However, although the installation of the SkypeOut feature on a terminal requires the prior installation of the Skype software, the fact remains, as the Belgian, German, Netherlands and Romanian Governments have noted, that the services offered, respectively, by the Skype Software itself and by its SkypeOut feature appear clearly distinct in their purpose and remain entirely autonomous in their operation.



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[…] Article  2(c) of [the Framework Directive], must be interpreted as meaning that the provision, by a software publisher, of a feature offering a Voice over Internet Protocol (VoIP) service which allows the user to call a fixed or mobile number covered by a national numbering plan from a terminal via the public switched telephone network (PSTN) of a Member State constitutes an ‘electronic communications service’ within the meaning of that provision, provided that, first, the software publisher is remunerated for the provision of that service and, second, the provision of that service involves the conclusion of agreements between that software publisher and telecommunications service providers that are duly authorised to send and terminate calls to the PSTN.’ Case C‑142/18 Skype Communications Sàrl v Institut belge des services postaux et des télécommunications (IBPT) EU:C:2019:460, paras 34 and 42–43 and the Court’s ruling. (d) Web-based email service: ‘34. It is common ground that the provider of a web-based email service, such as Gmail, conveys signals. Google thus confirmed, during the hearing before the Court, that, in providing its email service, it uploads to the open internet and receives from it, via its email servers, the data packets relating to the emails sent and received, respectively, by the holders of a Google email account. 35. Nonetheless, it cannot be thus concluded that the operations performed by Google to ensure the functioning of its web-based email service constitute an “electronic communications service” within the meaning of Article 2(c) of the Framework Directive, since that service does not consist wholly or mainly in the conveyance of signals on electronic communications networks. 36. As the European Commission pointed out, inter alia, in its written observations, it is (a) the IAPs of the senders and recipients of the emails and, as the case may be, the web-based email service providers and (b) the operators of the various networks of which the open internet is constituted which, essentially, convey the signals necessary for the functioning of any web-based email service, and it is they who bear responsibility in accordance with the judgment of 30 April 2014, UPC DTH (C‑475/12, EU:C:2014:285, paragraph 43). 37. The fact that the supplier of a web-based email service actively participates in the sending and receipt of messages, whether by assigning to the email addresses the IP addresses of the corresponding terminal devices or by splitting those messages into data packets and uploading them to, or receiving them from, the open internet for the purposes of transmitting them to their recipients, does not appear to be sufficient to enable that service, on the technical level, to be regarded as consisting ‘wholly or mainly in the conveyance of signals on electronic communications networks’ within the meaning of Article 2(c) of the Framework Directive. 38. Accordingly, given the absence of any other element such as to establish Google’s responsibility vis-à-vis those holding an email account with Gmail for the conveyance of signals necessary for that account’s functioning, which it is for the referring court to verify, the Gmail email service cannot be classified as an ‘electronic communications service’ within the meaning of Article 2(c) of the Framework Directive.

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39. Lastly, the fact that Google also operates its own electronic communications networks in Germany is not such as to call in question that finding. 40.

The fact that Google must be regarded as supplying electronic communications services as the operator of its own electronic communications networks and that it may, as such, be subject to the obligation to declare its activity under Article 3(2) and (3) of [the Authorisation Directive], does not mean that all the web-based services which it supplies must also be treated as electronic communications services, even though they do not consist wholly or mainly in the conveyance of signals.

[…] Article 2(c) of [the Framework Directive], must be interpreted as meaning that a web-based email service which does not itself provide internet access, such as the Gmail service provided by Google LLC, does not consist wholly or mainly in the conveyance of signals on electronic communications networks and therefore does not constitute an “electronic communications service’ within the meaning of that provision.”’ Case C-193/18 Google LLC  v Bundesrepublik Deutschland, EU:C:2019:498, paras 34–40 and the Court’s ruling. (e) Definition of ‘internet access service’: Regulation (EU) 2015/2120, Article  2(2) (see p. 518), ‘Interconnection services are distinct from internet access services. […] Given that the Regulation is focused on internet access services provided to end-users,  BEREC does not consider interconnection services to be within scope of the Regulation.’ BEREC press release available at: https://berec.europa.eu/eng/netneutrality/ regulation/. BEREC Guidance ‘13. Article  2(2) defines an “internet access service” (IAS) as an ECS that provides access to the internet, and thereby connectivity to virtually all end points of the internet, irrespective of the network technology and terminal equipment used. 14. For the purpose of the Regulation, BEREC understands the term “internet” as referring to a global system of interconnected networks that enables connected end-users to connect to one another. An IAS enables such access to the internet. 15. BEREC understands the term “connectivity to virtually all end-points” as a consequence of the fact that the internet is a distributed system where a single ISP controls a rather limited part. Due to reasons outside the control of an individual ISP (e.g. technical limitations, the policy of other ISPs or regulation in some countries), not all end points might be reachable all of the time. However, such a lack of reachability should not preclude that the service is defined as an IAS. 16. Where restrictions to reach end points stem from the use of two different internet addressing schemes, IPv4 and IPv6, this typically does not mean the services cannot be defined as an IAS. While it is not possible to connect two different points with different types of addresses without any translation function, BEREC considers that the term “virtually all end points” should, at present, not be interpreted as a requirement on ISPs to offer connectivity with both IPv4 and IPv6.



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17. BEREC understands a sub-internet service to be a service which restricts access to services or applications (e.g. banning the use of VoIP or video streaming) or enables access to only a pre-defined part of the internet (e.g. access only to particular websites). NRAs should take into account the fact that an ISP could easily circumvent the Regulation by providing such sub-internet offers. These services should therefore be considered to be in the scope of the Regulation and the fact that they provide a limited access to the internet should constitute an infringement of Articles  3(1), 3(2) and 3(3) of the Regulation. BEREC refers to these service offers as “subinternet services”, as further discussed in paragraphs 38 and 55. 18. Services where the number of reachable end points is limited by the nature of the terminal equipment used with such services (e.g. services designed for communication with individual devices, such as e-book readers as well as machine-to-machine[48] devices like smart meters etc.) are considered to be outside the scope of the Regulation unless they are used to circumvent this Regulation. They could use an IAS (but not provide an IAS nor constitute a substitute to an IAS), use a private network or constitute a specialised service. If these services are using an IAS or constitute a specialised service the connectivity service will be subject to the relevant rules applicable to IAS and specialised services in the Regulation.[49]’ BEREC Guidelines on the Implementation of the Open Internet Regulation, BoR (20) 112, 11 June 2020, paragraphs 13–18. (f) Machine-to-machine services – Q&A on Article 2(4): ‘Does M2M-service (“transmission services used for the provision of machine-to-machine services”) only include the transmission services used for the communication, or does it also include the M2M service itself?’ Reply: ‘M2M-service as such is not a category of electronic communications services. However, electronic communications services include services that consist wholly or mainly in the conveyance of signals. These include transmission services used for the provision of machine-to-machine services. The M2M service itself (application) is not included.’ Definition of ‘interpersonal communications service’ – Q&A on Article 2(5): ‘The definition of an “interpersonal communication service” in Art.2(5) refers to a direct interpersonal and interactive exchange of information via electronic communications networks between a finite number of persons. On this basis, we assume that at least two natural persons must be involved. Recital 17 says that communications involving legal persons should fall within the scope of the definition where natural persons act on behalf of those legal persons or are involved at least on one side of the communication. Does this mean that an interpersonal communications service requires only one natural person on one side of the communication? Could you clarify how exactly legal persons should participate in the communication? Do you consider services like Siri or Alexa, ‘However, some machine-to-machine communication services may also represent a specialised service according to Article  3(5) of the Regulation (ref. Recital 16 and paragraph  113 of these Guidelines). Moreover, a provider of an M2M device or M2M service (e.g. car manufacturer, provider of energy including smart meter) typically does not seem to provide an ECS under the present regulatory framework, whereas the connectivity service provider which provides connectivity over a public network for remuneration is generally the provider of an ECS in the IoT value chain (ref. BEREC Report on Enabling the Internet of Things, BoR (16) 39, pages 21–23)’ – fn 9 to the Guidelines. 49 ‘Notwithstanding, the provisions regarding specialised services apply – see paragraphs 99–127 [of the Guidelines]’ – fn 10 of the Guidelines. 48

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where a natural person speaks to a machine, to be regarded as interpersonal communications services?’ Reply: ‘In light of Recital 17 the scope of the definition of interpersonal communications service covers situations where one natural person is participating on one side of the communication whereas on the other side is a legal person (possibly represented by a natural person acting on behalf of such legal person). A legal person could also directly participate in the communication (e.g. via a functional mailbox whereby no natural person would be identified or known to the natural person participating in the communication). P2M (natural person to machine) communication would not be covered under said definition, in cases where the communication is possible exclusively with a machine, as […] a machine is not a person.’ Definition of ‘public electronic communications network’ (a) Public versus private electronic communications network: ‘26. The Court finds in that respect that, according to Article 1(1) of Directive 97/13, the latter concerns the procedures for granting authorisations for the purposes of providing telecommunication services, without making any distinction between networks open to the public and private networks. 27. In addition, Article  7(2) of that directive authorises Member States to enact a system of individual licences for the establishment and provision of public telecommunication networks as well as other networks involving the use of radio frequencies. 28. It follows that that directive applies, in principle, not only to public telecommunication networks and services but also to private telecommunication networks which have not been opened to the public and are reserved to a closed group of users, and to services provided on those private networks. 29. According to the referring court, the network at issue in the main proceedings has been opened to the public by virtue of the individual licence authorising NST [Nuova società di telecomunicazioni SpA] to provide a public telecommunication network, in accordance with Article  7(2) of Directive 97/13. 30. In that respect, it should be noted that, in accordance with the fifth recital of Directive 97/33/EC of the European Parliament and of the Council of 30  June 1997 on interconnection in Telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP) (OJ  1997  L  199, p. 32), the word “public” refers to any network or service that is made publicly available for use by third parties. 31.

Moreover, it follows from the second subparagraph of Article 2(2) of Council Directive 90/387/EEC of 28 June 1990 on the establishment of the internal market for telecommunications services through the implementation of open network provision (OJ 1990 L 192, p. 1), as amended by Directive 97/51/EC of the European Parliament and of the Council of 6 October 1997 (OJ 1997 L 295, p. 23), that “public telecommunications network” is to be interpreted as a telecommunications network “used, wholly or in part, for the provision of publicly available telecommunications services”.



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32. It follows that a network such as that at issue in the main proceedings, which has been made available to the public after having been used solely for private purposes, must be regarded as a public telecommunications network within the meaning of Directive 97/13. 33. Therefore, such a telecommunications network, and all services supplied under it, fall in their entirety within the scope of that directive.’ Case C-339/04 Nuova società di telecomunicazioni SpA  v Ministero delle Comunicazioni and ENI SpA, EU:C:2006:490, paras 26–33. (b) ‘Provider of electronic communications to the public’ as defined in Article 2(1) of the Open Internet Regulation – BEREC Guidance: ‘8. The term “provider of electronic communications to the public” (PECP) comprises both “public communications networks” and “electronic communications services” (ECS), which are defined in Article [2(4) and (8) of the EECC]. 9.

Conversely, the definition of PECP does not cover providers of electronic communication services or communication networks that are not publicly available, which are therefore out of scope of this Regulation.

10. Electronic communication services or networks that are offered not only to a predetermined group of end-users but in principle to any customer who wants to subscribe to the service or network should be considered to be publicly available. Electronic communication services or networks that are offered only to a predetermined group of end-users could be considered to be not publicly available.[50] 11. Virtual private network (VPN) services are typically offered by PECPs to anyone that wishes to enter a contract for the provision of such a service. These would be considered to be publicly available; whereas the operation of a specific VPN would be a private network. The term ‘private’ in this context describes the use of such a service which is usually limited to end points of the business entering the contract and is secured for internal communications. VPNs are further discussed in paragraph 115 [of the Guidelines]. 12. The following examples could be considered as services or networks not being made publicly available, subject to a case-by-case assessment by NRAs taking into account national practices: • access to the internet provided by cafés and restaurants; • internal corporate networks; • private M2M-networks, for example in factories and ports. Examples of criteria which could be used to make assessments include the contractual relationship under which the service is provided, the range of users and whether the range is predetermined. Where the end-user contracts directly with the ISP specifically for the service, this is more likely to be considered a publicly available service. Enterprise services having a closed group of end-users, that are not available to the general public, would ordinarily not be considered to be publicly available.’ ‘For further discussion of publicly available services, see for example case E-6/16 Fjarskipti v Icelandic Post and Telecom Administration, judgment of 22  December 2016 in the EFTA  Court’ – fn 8 to the Guidelines.

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BEREC Guidelines on the Implementation of the Open Internet Regulation, BoR (20) 112, 11 June 2020, paras 8–12. (c) Q&A  on Article  2(8): ‘Can the category ‘publicly available electronic communications services’ (mentioned in Art 2(8)) continue to be used, to maintain the reference to telecommunication services?’ Reply: ‘The term “publicly available electronic communications service” is used throughout the EECC to refer to the general category of an electronic communications service (that covers three categories: IAS, ICS and conveyance of signals) that is publicly available. For example, in Articles 102, 104 and 105. Article  2 (8) refers to ‘public electronic communications network’ that is also used in the EECC, for example, Article 40.’ Definition of ‘network termination point’ BEREC  Guidance: BEREC  Guidelines on Common Approaches to the Identification of the Network Termination Point in different Network Topologies, BoR (20) 46, 5 March 2020 (see annotations to Article 61). Definition of ‘provision of an electronic communications network’ ‘Article  2(m) of [the Framework Directive] must be interpreted as meaning that activities of television rebroadcasting over satellite networks owned by third parties are not covered by the concept of “provision of an electronic communications network”, for the purposes of that provision.’ Case C-87/19 TV  Play Baltic AS  v Lietuvos radijo ir televizijos komisija, EU:C:2019:1063, para 1 of the Court’s ruling. Definition of ‘harmonised radio spectrum’ – harmonised conditions of radio spectrum established by way of technical implementing measures under the Radio Spectrum Decision Decision No 676/2002/EC, Articles 1(1), 4 and 5 (see pp 1082–84). Definition of ‘access’ Case C-556/12 TDC  A/S  v Teleklagenævnet, EU:C:2014:2009, para  1 of the Court’s ruling (see annotations to Article 68). Definition of ‘operator’ Case C-192/08 TeliaSonera Finland Oyj, EU:C:2009:696, paras 1 and 3 of the Court’s ruling (see annotations to Article 60). Definition of ‘caller location information’ Q&A  on Article  2(40): ‘Do you agree that the definition of “caller location information”, as provided by para 40 of Article 2, must be interpreted taking into account a broad interpretation of the term “caller”, in order to include the location information in respect of emergency communications through a means other than a call, bearing in mind that, according to Recital 285, “emergency communications are a means of communication that includes not only voice communications services, but also SMS, messaging, video or other types of communications, for example real time text, total conversation and relay services”?’ Reply: ‘Indeed, caller location should be interpreted as the location information of the user of emergency communication. Hence, in case other emergency communication than a “call” is mandated in a Member State, “caller location” should be accordingly provided. In any case, the definition of “emergency communication” encompasses any type of communication with the goal to request and receive emergency relief from emergency services. Please note that in case of users of means of access designed for end-users with disabilities, the location information of the end-users should be also [be] provided by virtue of the obligation to ensure equivalence of access.’ Definition of ‘terminal equipment’ Commission Directive 2008/63/EC, Article 1(1) and (2) (see p. 744). Definition of ‘security incident’



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Q&A  on Article  2(42): ‘In the definition of security incident, what does the “actual” in “actual adverse effect” [mean]?’ Reply: ‘The definition is inspired by the similar one in the NIS directive. The term “actual” indicates that the adverse effect has already materialised.’ Definition of ‘Content Delivery Networks’ ‘Interconnection services are distinct from internet access services. Interconnections enable traffic to be exchanged between networks across the internet, and interconnection services can be provided by many different operators, including wholesale (“backbone”) and retail telecom operators, content delivery network (CDN) companies, and large content providers (e.g. YouTube, Netflix) which operate their own CDNs. […] BEREC does not consider interconnection services to be within scope of [internet access services].’ BEREC press release available at: https://berec.europa.eu/eng/netneutrality/ regulation/. CHAPTER II Objectives Article 3 General objectives 1.

Member States shall ensure that in carrying out the regulatory tasks specified in this Directive, the national regulatory and other competent authorities take all reasonable measures which are necessary and proportionate for achieving the objectives set out in paragraph 2. Member States, the Commission, the Radio Spectrum Policy Group (‘RSPG’), and BEREC shall also contribute to the achievement of those objectives. National regulatory and other competent authorities shall contribute within their competence to ensuring the implementation of policies aimed at the promotion of freedom of expression and information, cultural and linguistic diversity, as well as media pluralism.

2.

In the context of this Directive, the national regulatory and other competent authorities as well as BEREC, the Commission and the Member States shall pursue each of the following general objectives, which are not listed in order of priority: (a) promote connectivity and access to, and take-up of, very high capacity networks, including fixed, mobile and wireless networks, by all citizens and businesses of the Union; (b) promote competition in the provision of electronic communications networks and associated facilities, including efficient infrastructure-based competition, and in the provision of electronic communications services and associated services; (c)

contribute to the development of the internal market by removing remaining obstacles to, and facilitating convergent conditions for, investment in, and the provision of, electronic communications networks, electronic communications services, associated facilities and associated services, throughout the Union, by developing common rules and predictable regulatory approaches, by favouring the effective, efficient and coordinated use of radio spectrum, open innovation, the establishment and development of trans-European networks, the provision, availability and interoperability of pan-European services, and end-to-end connectivity;

(d)

promote the interests of the citizens of the Union, by ensuring connectivity and the widespread availability and take-up of very high capacity networks, including

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fixed, mobile and wireless networks, and of electronic communications services, by enabling maximum benefits in terms of choice, price and quality on the basis of effective competition, by maintaining the security of networks and services, by ensuring a high and common level of protection for end-users through the necessary sector-specific rules and by addressing the needs, such as affordable prices, of specific social groups, in particular end-users with disabilities, elderly end-users and end-users with special social needs, and choice and equivalent access for end-users with disabilities. 3.

Where the Commission establishes benchmarks and reports on the effectiveness of Member States’ measures towards achieving the objectives referred to in paragraph  2, the Commission shall, where necessary, be assisted by Member States, national regulatory authorities, BEREC and the RSPG.

4.

The national regulatory and other competent authorities shall, in pursuit of the policy objectives referred to in paragraph  2 and specified in this paragraph, inter alia: (a) promote regulatory predictability by ensuring a consistent regulatory approach over appropriate review periods and through cooperation with each other, with BEREC, with the RSPG and with the Commission; (b) ensure that, in similar circumstances, there is no discrimination in the treatment of providers of electronic communications networks and services; (c)

apply Union law in a technologically neutral fashion, to the extent that this is consistent with the achievement of the objectives set out in paragraph 2;

(d) promote efficient investment and innovation in new and enhanced infrastructures, including by ensuring that any access obligation takes appropriate account of the risk incurred by the investing undertakings and by permitting various cooperative arrangements between investors and parties seeking access to diversify the risk of investment, while ensuring that competition in the market and the principle of non-discrimination are preserved; (e) take due account of the variety of conditions relating to infrastructure, competition, the circumstances of end-users and, in particular, consumers in the various geographic areas within a Member State, including local infrastructure managed by natural persons on a not-for-profit basis; (f)

impose ex ante regulatory obligations only to the extent necessary to secure effective and sustainable competition in the interest of end-users and relax or lift such obligations as soon as that condition is fulfilled. Member States shall ensure that the national regulatory and other competent authorities act impartially, objectively, transparently and in a non-discriminatory and proportionate manner.

See: Recitals 9; 12; 13; 21-30; 50; 173; 323. Correlation with Framework Directive EECC Article 3(1) and (2) correlates with Directive 2002/21/EC, Articles 8(1) and (2); EECC Article 3(3) correlates with Directive 2002/21/EC, Article 8(5). Objectives ‘48. As regards the Framework Directive, referred to in recital 9 in the preamble to the regulation [Regulation (EC) No 460/2004 of the European Parliament



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and of the Council of 10 March 2004 establishing the European Network and Information Security Agency (OJ 2004 L 77, p. 1)], Article 1(1) thereof states that it seeks to establish a harmonised framework for the regulation of electronic communications services, electronic communications networks and associated facilities and services. It lays down the tasks of national regulatory authorities and establishes a set of procedures to ensure the harmonised application of the regulatory framework throughout the Community. 49. Recital 16 in the preamble to the Framework Directive indicates in that regard that those authorities are to base their actions on a harmonised set of objectives and principles. The latter are stated in Article 8 of that directive, and include, inter alia, a high level of protection of personal data and privacy and the integrity and security of public communications networks (see Article 8(4)(c) and (f) of the Framework Directive). 50. Numerous concerns of the specific directives express the concerns of the Community legislature in relation to network and information security. 51. First, as is apparent from recital 6 in the preamble to the regulation, the Authorisation Directive mentions, in points 7 and 16 of part A of the annex thereto, personal data and privacy protection in the electronic communications sector and security of public networks against unauthorised access. 52. Second, as is apparent from recital 7 in the preamble to the regulation, the Universal Service Directive aims to ensure the integrity and availability of public telephone networks. In that regard, Article  23 of that directive provides that the Member States are to take all necessary steps to ensure those functionalities, in particular in the event of catastrophic network breakdown or in cases of force majeure. 53. Third, as is specified in recital 8 in the preamble to the regulation, the Directive on privacy and electronic communications requires providers of publicly available electronic communications services to take appropriate technical and organisational measures to safeguard security of the services concerned and the confidentiality of the communications and related traffic data. Those requirements are reflected in particular in Articles 4 and 5 of that directive, which concern network security and the confidentiality of communications respectively.’ Case C-217/04 United Kingdom of Great Britain and Northern Ireland v European Parliament and Council of the European Union, EU:C:2006:279, paras 48–53. Obligation of undertaking without SMP to negotiate interconnection to meet general policy objectives Case C-192/08 TeliaSonera Finland Oyj, EU:C:2009:696, paras 1–3 of the Court’s ruling (see annotations to Article 60); see also paras 50–54 and 60. Obligation to meet reasonable requests for access to and use of specific network elements and associated facilities proportionate and justified in light of the general objectives Case C-556/12 TDC A/S v Teleklagenævnet, EU:C:2014:2009, paras 1 and 2 of the Court’s ruling (see annotations to Article 68). Price controls on undertaking providing telephone call transit services without SMP proportionate and justified in light of the general objectives Case C-85/14 KPN BV v Autoriteit Consument en Markt (ACM), EU:C:2015:610, para 1 of the Court’s ruling (see annotations to Article 97).

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Imposing price control obligations on undertakings that control access to endusers Case C-397/14 Polkomtel sp. z o.o. v Prezes Urzędu Komunikacji Elektronicznej, EU:C:2016:256, para 2 of the Court’s ruling (see annotations to Article 97). Obligation to ensure cost orientation of prices – prices set below the costs incurred by the operator for the provision of voice call termination services on mobile networks Case C-277/16 Polkomtel sp. z o.o. v Prezes Urzędu Komunikacji Elektronicznej, EU:C:2017:989, paragraph 2 of the Court’s ruling (see annotations to Article 74); see also paragraph 61. Article 4 Strategic planning and coordination of radio spectrum policy 1.

Member States shall cooperate with each other and with the Commission in the strategic planning, coordination and harmonisation of the use of radio spectrum in the Union in accordance with Union policies for the establishment and functioning of the internal market in electronic communications. To that end, they shall take into consideration, inter alia, the economic, safety, health, public interest, freedom of expression, cultural, scientific, social and technical aspects of Union policies, as well as the various interests of radio spectrum user communities, with the aim of optimising the use of radio spectrum and avoiding harmful interference.

2.

By cooperating with each other and with the Commission, Member States shall promote the coordination of radio spectrum policy approaches in the Union and, where appropriate, harmonised conditions with regard to the availability and efficient use of radio spectrum necessary for the establishment and functioning of the internal market in electronic communications.

3.

Member States shall, through the RSPG, cooperate with each other and with the Commission in accordance with paragraph  1, and upon their request with the European Parliament and with the Council, in support of the strategic planning and coordination of radio spectrum policy approaches in the Union, by: (a)

developing best practices on radio spectrum related matters, with a view to implementing this Directive;

(b) facilitating the coordination between Member States with a view to implementing this Directive and other Union law and to contributing to the development of the internal market; (c)

4.

coordinating their approaches to the assignment and authorisation of use of radio spectrum and publishing reports or opinions on radio spectrum related matters. BEREC shall participate on issues concerning its competence relating to market regulation and competition related to radio spectrum.

The Commission, taking utmost account of the opinion of the RSPG, may submit legislative proposals to the European Parliament and to the Council for the purpose of establishing multiannual radio spectrum policy programmes, setting out the policy orientations and objectives for the strategic planning and harmonisation of the use of radio spectrum in accordance with this Directive, as well as for the purpose of releasing harmonised radio spectrum for shared use or for use not subject to individual rights. See: Recitals 12; 21; 30-33; 73; 100. Correlation with Framework Directive



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EECC Article 4(1) and (2) correlates with Directive 2002/21/EC, Articles 8a(1) and 8(2); EECC Article 4(4) correlates with Directive 2002/21/EC, Article 8a(3). TITLE II INSTITUTIONAL SET-UP AND GOVERNANCE CHAPTER I National regulatory and other competent authorities Article 5 National regulatory and other competent authorities 1.

Member States shall ensure that each of the tasks laid down in this Directive is undertaken by a competent authority. Within the scope of this Directive, the national regulatory authorities shall be responsible at least for the following tasks: (a)

implementing ex ante market regulation, including the imposition of access and interconnection obligations;

(b) ensuring the resolution of disputes between undertakings; (c)

carrying out radio spectrum management and decisions or, where those tasks are assigned to other competent authorities, providing advice regarding the market-shaping and competition elements of national processes related to the rights of use for radio spectrum for electronic communications networks and services;

(d) contributing to the protection of end-user rights in the electronic communications sector, in coordination, wh ere relevant, with other competent authorities; (e) assessing and monitoring closely market-shaping and competition issues regarding open internet access; (f)

assessing the unfair burden and calculating the net cost of the provision of universal service;

(g) ensuring number portability between providers; (h) performing any other task that this Directive reserves to national regulatory authorities. Member States may assign other tasks provided for in this Directive and other Union law to national regulatory authorities, in particular, those related to market competition or market entry, such as general authorisation, and those related to any role conferred on BEREC. Where those tasks related to market competition or market entry are assigned to other competent authorities, they shall seek to consult the national regulatory authority before taking a decision. For the purposes of contributing to BEREC’s tasks, national regulatory authorities shall be entitled to collect necessary data and other information from market participants. Member States may also assign to national regulatory authorities other tasks on the basis of national law, including national law implementing Union law. Member States shall, in particular, promote stability of competences of the national regulatory authorities when transposing this Directive with regard to the attribution of tasks resulting from the Union electronic communications regulatory framework as amended in 2009.

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2.

National regulatory and other competent authorities of the same Member State or of different Member States shall, where necessary, enter into cooperative arrangements with each other to foster regulatory cooperation.

3.

Member States shall publish the tasks to be undertaken by national regulatory and other competent authorities in an easily accessible form, in particular where those tasks are assigned to more than one body. Member States shall ensure, where appropriate, consultation and cooperation between those authorities, and between those authorities and national authorities entrusted with the implementation of competition law or consumer law, on matters of common interest. Where more than one authority has competence to address such matters, Member States shall ensure that the respective tasks of each authority are published in an easily accessible form.

4.

Member States shall notify to the Commission all national regulatory and other competent authorities that are assigned tasks under this Directive, and their respective responsibilities, as well as any change thereof. See: Recitals 35; 36; 40. Correlation with Framework Directive EECC  Article  5(1) correlates with Directive 2002/21/EC, Article  3(1); EECC  Article  5(3) correlates with Directive 2002/21/EC, Article  3(4); EECC Article 5(4) correlates with Directive 2002/21/EC, Article 3(6). Assignment of national numbering resources and management of national numbering plans ‘Articles 3(2), 3(4) and 10(1) of [the Framework Directive] must be interpreted as meaning that the assignment of the national numbering resources and the management of the national numbering plans must be regarded as regulatory functions. Member States are not required to allocate those different functions to separate regulatory authorities. Article  10(1) and Article  3(2), (4) and (6) of [the Framework Directive] must be interpreted as not precluding the functions of assigning national numbering resources or of managing national numbering plans from being shared by a number of independent regulatory authorities, provided that the allocation of the tasks is made public and easily accessible, and notified to the Commission of the European Communities.’ Case C-82/07 Comisión del Mercado de las Telecomunicaciones v Administración del Estado, EU:C:2008:143, paras 1 and 2 of the Court’s ruling. Responsibilities of NRAs ‘2. [The Framework Directive, Access Directive, Authorisation Directive and the Universal Directive] must be interpreted as meaning that they preclude an entity such as that at issue in the main proceedings, which is not a national regulatory authority, from intervening directly in retail tariffs in respect of the supply of a basic package of radio and television programmes via cable. 3. The same directives must be interpreted as precluding an entity which is not a national regulatory authority from relying on, as against a supplier of basic packages of radio and television programmes via cable, a clause stipulated in an agreement concluded prior to the adoption of the new regulatory framework applicable to electronic communications services which restricts that supplier’s freedom to set tariffs.’ Case C-518/11 UPC  Nederland BV  v Gemeente Hilversum, EU:C:2013:709, paras 2 and 3 of the Court’s ruling. Market surveillance proceedings



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‘Surveillance proceedings relating to electronic communications services, such as that at issue in the main proceedings, will be subject to the authorities of the Member State in which the recipients of those services are resident.’ Case C-475/12 UPC DTH Sàrl v Nemzeti Média- és Hírközlési Hatóság Elnökhelyettese, EU:C:2014:285, para 3 of the Court’s ruling. Multisectoral NRAs The Framework Directive ‘is to be interpreted as not precluding, in principle, national legislation which entails the merger of a national regulatory authority, within the meaning of [the Framework Directive], with other national regulatory authorities, such as the authorities responsible for competition, the postal sector and the energy sector, in order to create a multisectoral regulatory body responsible, inter alia, for the tasks entrusted to national regulatory authorities, within the meaning of that directive, as amended, provided that, in performing those tasks, that body meets the requirements of competence, independence, impartiality and transparency laid down by that directive and that an effective right of appeal is available against its decisions to a body independent of the parties involved, which is a matter to be determined by the national court.’ Case C-424/15 Xabier Ormaetxea Garai and Bernardo Lorenzo Almendros v Administración del Estado, EU:C:2016:780, para 1 of the Court’s ruling. Competence of NRA to penalise providers of electronic communications services for unfair trading practices ‘1. The concept of ‘inertia selling’ within the meaning of Annex I, point 29 of Directive 2005/29/EC […] (Unfair Commercial Practices Directive) must be interpreted as including, subject to verifications by the referring court, conduct, such as that at issue in the main proceedings, whereby a telecommunications operator sells SIM (Subscriber Identity Module) cards on which services such as internet browsing services and voicemail services are pre-loaded and pre-activated without first sufficiently informing the consumer of that pre-loading and pre-activation, nor the cost of those services. 2.

Article  3(4) of Directive 2005/29 must be interpreted as not precluding national rules under which conduct constituting inertia selling, within the meaning of Annex I, point 29 of Directive 2005/29, such as that at issue in the main proceedings, must be assessed in the light of the provisions of that directive, with the result that, according to that legislation, the [NRA], within the meaning of [the Framework Directive], is not competent to penalise such conduct.’ Joined Cases C-54/17 Autorità Garante della Concorrenza e del Mercato v Wind Tre SpA and C-55/17 Autorità Garante della Concorrenza e del Mercato v Vodafone Italia SpA, EU:C:2018:710, paras 1 and 2 of the Court’s ruling. Article 6 Independence of national regulatory and other competent authorities 1.

Member States shall guarantee the independence of national regulatory authorities and of other competent authorities by ensuring that they are legally distinct from, and functionally independent of, any natural or legal person providing electronic communications networks, equipment or services. Member States that retain ownership or control of undertakings providing electronic communications networks or services shall ensure effective structural separation of the regulatory function from activities associated with ownership or control.

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Member States shall ensure that national regulatory and other competent authorities exercise their powers impartially, transparently and in a timely manner. Member States shall ensure that they have adequate technical, financial and human resources to carry out the tasks assigned to them. See: Recitals 34; 35; 37. Correlation with Framework Directive EECC  Article  6(1) correlates with Directive 2002/21/EC, Article  3(2); EECC Article 6(2) correlates with Directive 2002/21/EC, Article 3(3). Assignment of national numbering resources and management of national numbering plans Case C-82/07 Comisión del Mercado de las Telecomunicaciones v Administración del Estado, EU:C:2008:143, paras 1 and 2 of the Court’s ruling (see annotations to Article 5). National legislature acting as NRA The Universal Service Directive ‘does not in principle preclude, by itself, the national legislature from acting as national regulatory authority within the meaning of [the Framework Directive] provided that, in the exercise of that function, it meets the requirements of competence, independence, impartiality and transparency laid down by those directives and that its decisions in the exercise of that function can be made the object of an effective appeal to a body independent of the parties involved, which it is for the Grondwettelijk Hof [Constitutional Court in Belgium] to determine.’ Case C-389/08 Base NV and Others v Ministerraad, EU:C:2010:584, para 1 of the Court’s ruling. Multisectoral NRAs Case C-424/15 Xabier Ormaetxea Garai and Bernardo Lorenzo Almendros v Administración del Estado, EU:C:2016:780, paragraph  1 of the Court’s ruling (see annotations to Article 5). Article 7 Appointment and dismissal of members of national regulatory authorities

1.

The head of a national regulatory authority, or, where applicable, the members of the collegiate body fulfilling that function within a national regulatory authority or their alternates, shall be appointed for a term of office of at least three years from among persons of recognised standing and professional experience, on the basis of merit, skills, knowledge and experience and following an open and transparent selection procedure. Member States shall ensure continuity of decision-making.

2.

Member States shall ensure that the head of a national regulatory authority, or where applicable, members of the collegiate body fulfilling that function within a national regulatory authority or their alternates may be dismissed during their term only if they no longer fulfil the conditions required for the performance of their duties which are laid down in national law before their appointment.

3.

The decision to dismiss the head of the national regulatory authority concerned, or where applicable members of the collegiate body fulfilling that function, shall be made public at the time of dismissal. The dismissed head of the national regulatory authority or, where applicable, members of the collegiate body fulfilling that function shall receive a statement of reasons. In the event that the statement of reasons is not published, it shall be published upon that person’s request. Member States shall ensure that this decision is subject to review by a court, on points of fact as well as on points of law.



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See: Recitals 37; 38 Correlation with Framework Directive EECC Article 7(2) and (3) correlates with Directive 2002/21/EC, Article 3(3a) second subparagraph. Institutional reform and dismissal of the President and board member of the merged NRA ‘Article 3(3a) of [the Framework Directive] is to be interpreted as precluding – on the sole ground that an institutional reform has taken place involving the merger of a national regulatory authority responsible for ex-ante market regulation or for resolution of disputes between undertakings with other national regulatory authorities in order to create a multisectoral regulatory body responsible, inter alia, for the tasks entrusted to national regulatory authorities, within the meaning of that directive, as amended – the dismissal of the President and a board member, members of the collegiate body running the merged national regulatory authority, before the expiry of their terms of office, in the absence of any rules guaranteeing that such dismissals do not jeopardise the independence and impartiality of such members.’ Case C-424/15 Xabier Ormaetxea Garai and Bernardo Lorenzo Almendros v Administración del Estado, EU:C:2016:780, para 2 of the Court’s ruling. Article 8 Political independence and accountability of the national regulatory authorities 1. Without prejudice to Article  10, national regulatory authorities shall act independently and objectively, including in the development of internal procedures and the organisation of staff, shall operate in a transparent and accountable manner in accordance with Union law, and shall not seek or take instructions from any other body in relation to the exercise of the tasks assigned to them under national law implementing Union law. This shall not prevent supervision in accordance with national constitutional law. Only appeal bodies set up in accordance with Article 31 shall have the power to suspend or overturn decisions of the national regulatory authorities. 2.

National regulatory authorities shall report annually, inter alia, on the state of the electronic communications market, on the decisions they issue, on their human and financial resources and how those resources are attributed, as well as on future plans. Their reports shall be made public. See: Recitals 34; 35; 37; 39. Correlation with Framework Directive EECC  Article  8(1) correlates with Directive 2002/21/EC, Article  3(3a) first subparagraph. Independence of NRA with respect to the annulment by a national legislature of an on-going selection procedure (‘beauty contest’) for the allocation of radio frequencies ‘Article 3(3a) of [the Framework Directive], must be interpreted as precluding the annulment, by a national legislature, of an on-going selection procedure for the allocation of radio frequencies conducted by the competent national regulatory authority in circumstances such as those of the case in the main proceedings which was suspended by ministerial order.’ Case C-560/15 Europa Way Srl and Persidera SpA v Autorità per le Garanzie nelle Comunicazioni and Others, EU:C:2017:593, para 1 of the Court’s ruling.

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Article 9 Regulatory capacity of national regulatory authorities 1.

Member States shall ensure that national regulatory authorities have separate annual budgets and have autonomy in the implementation of the allocated budget. Those budgets shall be made public.

2.

Without prejudice to the obligation to ensure that national regulatory authorities have adequate financial and human resources to carry out the task assigned to them, financial autonomy shall not prevent supervision or control in accordance with national constitutional law. Any control on the budget of the national regulatory authorities shall be exercised in a transparent manner and made public.

3.

Member States shall also ensure that national regulatory authorities have adequate financial and human resources to enable them to actively participate in and contribute to BEREC. See: Recital 37. Correlation with Framework Directive EECC Article 9(1) and (3) correlates with Directive 2002/21/EC, Article 3(3a) third subparagraph. Article 10 Participation of national regulatory authorities in BEREC

1.

Member States shall ensure that the goals of BEREC of promoting greater regulatory coordination and consistency are actively supported by their respective national regulatory authorities.

2.

Member States shall ensure that national regulatory authorities take utmost account of guidelines, opinions, recommendations, common positions, best practices and methodologies adopted by BEREC when adopting their own decisions for their national markets. See: Recitals 21; 62; 71; 85; 86; 167; 183; 215; 272; 295. Correlation with Framework Directive EECC  Article  10(1) correlates with Directive 2002/21/EC, Article  3(3b); EECC Article 10(2) correlates with Directive 2002/21/EC, Article 3(3c). BEREC Guidance See Annex IV pp 1499–1503.

Article 11 Cooperation with national authorities National regulatory authorities, other competent authorities under this Directive, and national competition authorities shall provide each other with the information necessary for the application of this Directive. In respect of the information exchanged, Union data protection rules shall apply, and the receiving authority shall ensure the same level of confidentiality as that of the originating authority. See: Recitals 21; 35; 61; 85. Correlation with Framework Directive EECC Article 11 correlates with Directive 2002/21/EC, Article 3(5).



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CHAPTER II General authorisation Section 1 General part Article 12 General authorisation of electronic communications networks and services 1.

Member States shall ensure the freedom to provide electronic communications networks and services, subject to the conditions set out in this Directive. To this end, Member States shall not prevent an undertaking from providing electronic communications networks or services, except where this is necessary for the reasons set out in Article  52(1)  TFEU. Any such limitation to the freedom to provide electronic communications networks and services shall be duly reasoned and shall be notified to the Commission.

2.

The provision of electronic communications networks or services, other than number-independent interpersonal communications services, may, without prejudice to the specific obligations referred to in Article 13(2) or rights of use referred to in Articles 46 and 94, be subject only to a general authorisation.

3.

Where a Member State considers that a notification requirement is justified for undertakings subject to a general authorisation, that Member State may require such undertakings only to submit a notification to the national regulatory or other competent authority. The Member State shall not require such undertakings to obtain an explicit decision or any other administrative act by such authority or by any other authority before exercising the rights derived from the general authorisation. Upon notification, when required, an undertaking may start the activity, where necessary subject to the provisions on the rights of use under this Directive.

4.

The notification referred to in paragraph 3 shall not entail more than a declaration by a natural or legal person to the national regulatory or other competent authority of the intention to start the provision of electronic communications networks or services and the submission of the minimal information which is required to allow BEREC and that authority to keep a register or list of providers of electronic communications networks and services. That information shall be limited to: (a)

the name of the provider;

(b)

the provider’s legal status, form and registration number, where the provider is registered in a trade or other similar public register in the Union;

(c)

the geographical address of the provider’s main establishment in the Union, if any, and, where applicable, any secondary branch in a Member State;

(d) the provider’s website address, where applicable, associated with the provision of electronic communications networks or services; (e)

a contact person and contact details;

(f)

a short description of the networks or services intended to be provided;

(g) the Member States concerned; and (h) an estimated date for starting the activity. Member States shall not impose any additional or separate notification requirements.

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In order to approximate notification requirements, BEREC shall publish guidelines for the notification template and maintain a Union database of the notifications transmitted to the competent authorities. To that end, the competent authorities shall, by electronic means, forward each notification received to BEREC without undue delay. Notifications made to the competent authorities before 21  December 2020 shall be forwarded to BEREC by 21 December 2021. See: Recitals 5; 14; 41-44; 48. Correlation with Authorisation Directive EECC  Article  12(1) correlates with Directive 2002/20/EC, Article  3(1); EECC  Article  12(2) correlates with Directive 2002/20/EC, Article  3(2) first sentence; EECC Article 12(3) correlates with Directive 2002/20/EC, Article 3(2) second, third and fourth sentences; EECC Article 12(4) correlates with Directive 2002/20/EC, Article 3(3). Exception to the freedom to provide electronic communications networks and services The provisions of Chapter  2 (Right of Establishment) of Title IV (Free Movement of Persons, Services and Capital) under Part Three (Union Policies and Internal Actions) of the TFEU, ‘and measures taken in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health.’ TFEU, Article 52(1). One-off fees for grant and renewal of rights to use radio frequencies ‘As a preliminary point, it is clear that Articles 3 and 12 of [the Authorisation Directive], which relate to the Member States’ obligation to ensure the freedom to provide electronic communications networks and services and the detailed rules for levying ‘administrative charges’ respectively, are not intended to apply to a fee such as that at issue in the main proceedings, which does not come within either of those two situations.’ Case C-375/11 Belgacom SA and Others v État belge, EU:C:2013:185, para 35. No requirement to establish a branch or legal entity separate from that located in the Member State of transmission of an electronic communications service to supply services in another Member State ‘Article 56 TFEU must be interpreted as meaning that: •

Member States are not precluded from requiring undertakings which supply electronic communications services, such as that at issue in the main proceedings, in their territory to register those services, provided that Member States act in compliance with the requirements set out in Article 3 of [the Authorisation Directive]; and

•

on the other hand, undertakings wishing to supply electronic communications services, such as that at issue in the main proceedings, in a Member State other than that in which they are established cannot be required to establish in that State a branch or a legal entity separate from that located in the Member State of transmission.’

Case C-475/12  UPC DTH Sàrl v Nemzeti Média-és Hírközlési Hatóság Elnökhelyettese, EU:C:2014:285, para 4 of the Court’s ruling. Taking into consideration analogue radio frequencies used unlawfully for the purposes of converting existing analogue channels to digital networks



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Case C-112/16 Persidera SpA v Autorità per le Garanzie nelle Comunicazioni and Ministero dello Sviluppo Economico delle Infrastrutture e dei Trasporti, EU:C:2017:597, para 1 the Court’s ruling (see annotations to Article 45). BEREC Guidance BEREC Guidelines for the notification template pursuant to article 12, paragraph 4 of Directive 2018/1972 of the European Parliament and of the Council, BoR (19) 259, 6 December 2019: ‘The [EECC] confirms the present EU legislator’s approach to the administrative regime for market entry in the electronic communications sector, as outlined in the Authorisation Directive (Directive 2002/20/EC). This means that the general authorisation system still constitutes the EU framework of reference regulating access to the market for undertakings wishing to provide electronic communications networks and services. Within such framework, the EECC still acknowledges the notification of the beginning of activity to the NRA or other competent authority as the only requirement that Member States might legitimately envisage for ECN or ECS providers subject to the general authorisation framework. Compared to Article  3 of the current Authorisation Directive, bearing an illustrative list of information potentially includable in a notification form, the EECC now introduces in Article  12, paragraph  4, an exhaustive list of such pieces of information. In this context, BEREC is called to ‘publish guidelines for the notification template’ and to set up, by December 2020, an EU database of the notifications transmitted to the competent authorities. To this end, BEREC built on previous work carried out in 2013 with a view to simplifying notification fulfilments for cross-border operators and adapted those reflections to the new legal context of reference. The present Guidelines are therefore meant to ensure the implementation of Article 12, paragraph 4 of the EECC, thereby contributing to achieving consistent notification-related requirements throughout the Union, to the benefit of the single market.’ Executive Summary. General Authorisation Database hosted by BEREC See gadb.berec.europa.eu/#!view=Providers&sort=ProviderName|ASC. Q&A  on Article  12(2): ‘In Article  12(2), providers other than providers of NIICS “may […] only be subject to a general authorisation”. As for NIICS and the obligations applicable to these services throughout the Code, does this mean there can be no (general or other) authorisation mechanism for these players, or would this wording allow that NIICS are subject to general authorisation and something else, or to separate “specific” authorisation?’ Reply: ‘The scope of the EECC, as provided in Article 1, covers all electronic communications services, i.e. including NIICS. The EECC harmonises the authorisation regime for all ECS, as explained in Article 12(1) “Member States shall ensure the freedom to provide electronic communications networks and services, subject to the conditions set out in this Directive”. More specifically, in 12(2), the EECC provides that “the provision of electronic communications networks or services, other than number-independent interpersonal communications services, may, without prejudice to the specific obligations referred to in Article 13(2) or rights of use referred to in Articles 46 and 94, be subject only to a general authorisation”. The relevant recital 44 explains the reason why NIICS are not subject to the general authorisation regime: “Contrary to the other categories of electronic communications networks and services as defined in this Directive, number-independent interpersonal

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communications services do not benefit from the use of public numbering resources and do not participate in a publicly assured interoperable ecosystem. It is therefore not appropriate to subject those types of services to the general authorisation regime”.’ Lastly, Article  12(3) provides that “[w]here a Member State considers that a notification requirement is justified for undertakings subject to a general authorisation, that Member State may require such undertakings only to submit a notification to the national regulatory or other competent authority”. The Article then includes a maximum list of information to be provided in this context. The implications of the general authorisation regime for the ECS which are subject to it is clear: they have the right to provide these services, negotiate access and interconnection, apply for rights of way. They may also be subject to the conditions provided in Annex I and if they do not comply with one of them, they may be prevented from providing the service. The general authorisation is however a facultative regime in the sense that Member States may allow the provision of the service unconditionally. The conditions of the general authorisation are the maximum they can require for the provision of the services. They are not obliged to impose however any of them. Not imposing conditions does not mean that the providers of those services do not have the rights linked to the general authorisation or that other obligations included in the Code do not apply to them. NIICS are ECS which by law may not be subject to a general authorisation. The qualification of ECS is not exclusive of other qualifications under EU law, in particular that of information society services. As provided in recital (10) EECC, “Certain electronic communications services under this Directive could also fall within the scope of the definition of ‘information society service’ set out in Article  1 of Directive (EU) 2015/1535 of the European Parliament and of the Council. The provisions of that Directive that govern information society services apply to those electronic communications services to the extent that this Directive or other Union legal acts do not contain more specific provisions applicable to electronic communications services.” Therefore, when an ECS could also fall in the definition of information society services, for the aspects not covered by the Code, Directive (EU) 2015/1535 shall apply, for the aspects not specifically covered by other Union law. The latter are defined in Directive (EU) 2015/1535 as “any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services. For the purposes of this definition: (i) ‘at a distance’ means that the service is provided without the parties being simultaneously present; (ii) ‘by electronic means’ means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means; (iii) ‘at the individual request of a recipient of services’ means that the service is provided through the transmission of data on individual request”. Voice telephony services or telex services do not fall in the definition of ISC, according to Annex I to this Directive. However, NIICS fall within the definition of information society services. Therefore, for the aspects not covered by the Code, the provisions applicable to information society services shall apply. Article  2(h) of Directive 2000/31/EC e- commerce Directive defines the coordinated field as “requirements laid down in Member States’ legal systems applicable to information society service providers or information society



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services, regardless of whether they are of a general nature or specifically designed for them. (i) The coordinated field concerns requirements with which the service provider has to comply in respect of: •

the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification,

•

the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including those applicable to advertising and contracts, or requirements concerning the liability of the service provider;” Article 4 of that Directive provides that “1. Member States shall ensure that the taking up and pursuit of the activity of an information society service provider may not be made subject to prior authorisation or any other requirement having equivalent effect. 2.

Paragraph 1 shall be without prejudice to authorisation schemes which are not specifically and exclusively targeted at information society services, or which are covered by Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services[…]” Lastly, under Article  12(4) last sub-§, “In order to approximate notification requirements, BEREC shall publish guidelines for the notification template and maintain a Union database of the notifications transmitted to the competent authorities”. This of course concerns only notifications under the general authorisation. As a consequence: It derives from the above provisions that Member States may not subject NIICS to general authorisation or any other prior authorisation or any other requirement having equivalent effect. As a consequence, they may not require the providers of these services to submit a notification under the General authorisation regime. BEREC shall maintain a data-base of notifications received in the context of the general authorisation only.’ Q&A on Article 12(3): ‘Can NI-ICS not be obliged to notify themselves to […] Member States under the rules of the Code? Can Member States therefore not impose [a] notification requirement on NI-ICS even for the purpose of monitoring compliance of those providers with the national obligations (stemming from the EECC or regarding legal interception in the broad sense)? Could such notification be justified on another legal basis than Article 12(3) (General Authorisation) and included in national legislation on ICS?’ Reply: ‘Member States cannot subject NI-ICS to general authorisation or to any other prior authorisation or any other requirement having equivalent effect. As a consequence, they may not require the providers of these services to submit a notification under the General authorisation regime. Drawing on these notifications, the data-base maintained by BEREC will hence not include providers of NIICS. The provision of NIICS is not subject to general authorisation, and by consequence to notification obligations. In addition, Article 4 of the e-Commerce Directive 2000/31/EC prohibits Member States to subject the taking up and pursuit of the activity of an information society service provider to prior authorisation or any other requirement having equivalent

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effect. Paragraph 2 of the same provision states that this is without prejudice to authorisation schemes covered by the framework for general authorisations and individual licences in the field of electronic communications services. As NI-ICS are also a type of Information Society Service, the information obligations of the eCommerce Directive apply. In particular, following Article 5 of the same directive, information society services providers have an obligation to render certain information easily, directly and permanently accessible to the recipients of the service and to competent authorities.’ Article 13 Conditions attached to the general authorisation and to the rights of use for radio spectrum and for numbering resources, and specific obligations 1.

The general authorisation for the provision of electronic communications networks or services and the rights of use for radio spectrum and rights of use for numbering resources may be subject only to the conditions listed in Annex I. Such conditions shall be non-discriminatory, proportionate and transparent. In the case of rights of use for radio spectrum, such conditions shall ensure the effective and efficient use thereof and be in accordance with Articles 45 and 51, and, in the case of rights of use for numbering resources, shall be in accordance with Article 94.

2.

Specific obligations which may be imposed on undertakings providing electronic communications networks and services under Article  61(1) and (5) and Articles 62, 68 and 83 or on those designated to provide universal service under this Directive shall be legally separate from the rights and obligations under the general authorisation. In order to achieve transparency, 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 contain only conditions which are specific for that sector and are set out in Parts A, B  and C  of Annex I  and shall not duplicate conditions which are applicable to undertakings by virtue of other national law.

4.

Member States shall not duplicate the conditions of the general authorisation where they grant the right of use for radio spectrum or for numbering resources. See: Recitals 45–48; 50; 51; 75; 125. Correlation with Authorisation Directive EECC Article 13 correlates with Directive 2002/20/EC, Article 6(1)–(4). Conditions (R&D) ‘[… R]equiring an operator to contribute to research and training in telecommunications, up to a minimum annual amount of 5% of the amount excluding tax of its investments telecommunications infrastructure, equipment and software cannot be considered proportionate to the objective set out in point 4.8 of Directive 97/13[51]. Indeed, a contribution in kind or financial to research, development and training actions favouring the development of telecommunications within the Community

Point 4.8 in the Annex to Directive 97/13 set out the following specific condition which may be attached to individual licenses, where justified and subject to the principle of proportionality: ‘requirements relating to the quality, availability and permanence of a service or network, including the financial, managerial and technical competence of the applicant and conditions setting a minimum period of operation and including, where appropriate and in accordance with Community law, the mandatory provision of publicly available telecommunications services and public telecommunications networks’.

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cannot have a real and practical effect on the capacities of operators to ensure quality, availability and permanence of the service or network. In this regard, less general and less restrictive measures, but more direct and more targeted in terms of their effects, such as those making it possible to ensure minimum standards as regards the technological level of the technical means used, would be more suited to the objective referred to in point 4.8 of the annex to Directive 97/13. The obligation to contribute provided for by the national provision at issue cannot therefore be justified under point 4.8 of the annex to Directive 97/13.’ Case C-104/04 Commission of the European Communities v French Republic, EU:C:2005:391, paras 45–48 (translated from French); see also paras 25–32 and 37–44 (not reported). Payment of tax on places of business Joined Cases C-256/13 Provincie Antwerpen v Belgacom NV van publiek recht and C-264/13 Provincie Antwerpen v Mobistar NV, EU:C:2014:2149, Court’s ruling (see annotations to Article 42). Charge on mobile telephony network transmission and reception pylons and/ or units Case C-517/13 Proximus SA  v Province of Namur, EU:C:2015:820, Court’s ruling (see annotations to Article 42). Article 14 Declarations to facilitate the exercise of rights to install facilities and rights of interconnection Competent authorities shall, within one week of the request of an undertaking, issue standardised declarations confirming, where applicable, that the undertaking has submitted a notification under Article  12(3). Those declarations shall detail the circumstances under which any undertaking providing electronic communications networks or services under the general authorisation has the right to apply for rights to install facilities, negotiate interconnection, and obtain access or interconnection, in order to facilitate the exercise of those rights, for instance at other levels of government or in relation to other undertakings. Where appropriate, such declarations may also be issued as an automatic reply following the notification referred to in Article 12(3). See: Recital 52. Correlation with Authorisation Directive EECC Article 14 correlates with Directive 2002/20/EC, Article 9. Section 2 General authorisation rights and obligations Article 15 Minimum list of rights derived from the general authorisation 1.

Undertakings subject to the general authorisation pursuant to Article  12, shall have the right to: (a)

provide electronic communications networks and services;

(b) have their application for the necessary rights to install facilities considered in accordance with Article 43; (c)

use, subject to Articles 13, 46 and 55, radio spectrum in relation to electronic communications networks and services;

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(d) 2.

have their application for the necessary rights of use for numbering resources considered in accordance with Article 94.

Where such undertakings provide electronic communications networks or services to the public, the general authorisation shall give them the right to: (a)

negotiate interconnection with and, where applicable, obtain access to, or interconnection from, other providers of public electronic communications networks or publicly available electronic communications services covered by a general authorisation in the Union in accordance with this Directive;

(b) be given an opportunity to be designated to provide different elements of the universal service or to cover different parts of the national territory in accordance with Article 86 or 87. See: Recitals 48; 49. Correlation with Authorisation Directive EECC Article 15 correlates with Directive 2002/20/EC, Article 4. Article 16 Administrative charges 1. Any administrative charges imposed on undertakings providing electronic communications networks or services under the general authorisation or to which a right of use has been granted shall: (a) cover, in total, only the administrative costs incurred in the management, control and enforcement of the general authorisation system and of the rights of use and of specific obligations as referred to in Article  13(2), which may include costs for international cooperation, harmonisation and standardisation, market analysis, monitoring compliance and other market control, as well as regulatory work involving preparation and enforcement of secondary legislation and administrative decisions, such as decisions on access and interconnection; and (b) be imposed upon the individual undertakings in an objective, transparent and proportionate manner which minimises additional administrative costs and associated charges. Member States may choose not to apply administrative charges to undertakings the turnover of which is below a certain threshold or the activities of which do not reach a minimum market share or have a very limited territorial scope. 2.

Where national regulatory or other competent authorities impose administrative charges, they shall publish an annual overview of their administrative costs and of the total sum of the charges collected. Where there is a difference between the total sum of the charges and the administrative costs, appropriate adjustments shall be made. See: Recitals 53; 54. Correlation with Authorisation Directive EECC Article 16 correlates with Directive 2002/20/EC, Article 12. Fees and charges other than and in addition to those allowed by the Directive (a) ‘Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences



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in the field of telecommunications services and, in particular, Article 11 thereof, [correlates with Articles  12 and 13 of the Authorisation Directive] prohibit Member States from imposing financial charges other than and in addition to those allowed by the directive, such as the contested charge in the main proceedings, on undertakings which hold individual licences in the telecommunications sector solely because they hold such licences.’ Joined Cases C-292/01 Albacom SpA and C-293/01 Infostrada SpA v Ministero del Tesoro, del Bilancio e della Programmazione Economica and Ministero delle Comunicazioni, EU:C:2003:480, Court’s ruling, and Joined Cases C-250/02 Telecom Italia Mobile SpA, C-251/02 Blu SpA, C-252/02 Telecom Italia SpA, C-253/02 Vodafone Omnitel SpA, formerly Omnitel Pronto Italia SpA, and C-256/02  WIND  Telecomunicazioni SpA  v Ministero dell’Economia e delle Finanze and Ministero delle Comunicazioni, EU:C:2004:335, Court’s ruling (in Italian). (b) Charges for the private use of a telecommunications network: ‘Article 11 of Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services [correlates with Articles 12 and 13 of the Authorisation Directive] precludes a national provision, such as that at issue in the main proceedings, which requires the holder of an individual licence for the provision of a public telecommunications network, for which it has paid a fee as provided for in that article, to pay an additional fee in respect of the private use of that network calculated in accordance with criteria which do not correspond to those laid down in that article.’ Case C-339/04 Nuova società di telecomunicazioni SpA  v Ministero delle Comunicazioni and ENI SpA, EU:C:2006:490, Court’s ruling Charges intended to cover the operating costs of the NRA (a) ‘Article 11(1) of Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services [correlates with Article 12 of the Authorisation Directive] precludes the application of a fee for individual licences calculated by taking into account the regulatory body’s general administrative costs linked to implementing those licences over a period of 30 years.’ Joined Cases C-392/04 i-21 Germany GmbH and C-422/04 Arcor AG & Co. KG v Bundesrepublik Deutschland, EU:C:2006:586, para 1 of the Court’s ruling. (b) ‘Article 12 of [the Authorisation Directive] must be interpreted as meaning that it does not preclude legislation of a Member State, such as that at issue in the main proceedings, pursuant to which undertakings providing electronic communications services or networks are liable to pay a charge intended to cover all the costs incurred by the NRA which are not financed by the State, the amount of which being determined according to the income received by those undertakings, provided that that charge is exclusively intended to cover the costs relating to the activities mentioned in Article  12(1)(a), that the totality of the income obtained in respect of that charge does not exceed the total costs relating to those activities and that that charge is imposed upon individual undertakings in an objective, transparent and proportionate manner, which is for the national court to ascertain.’ Joined Cases C-228/12 to C-232/12 and C-254/12 to C-258/12 Vodafone Omnitel NV and Others v Autorita per le Garanzie nelle Comunicazioni and Others, EU:C:2013:495, Court’s ruling.

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Government concession fees regarding subscription contracts for mobile telephone services The Authorisation Directive (in particular Articles 12 and 13) and the Framework Directive (in particular Article  9(1)), are not opposed to a tax such as the government concession tax. Case C-492/09 Agricola Esposito Srl v Agenzia delle Entrate – Ufficio di Taranto 2, EU:C:2010:766 (in Italian). One-off fees for grant and renewal of rights to use radio frequencies Case C-375/11 Belgacom SA and Others v État belge, EU:C:2013:185, para 1 of the Court’s ruling (see annotations to Article 42). Payment of excise duty calculated as a percentage of charges paid by users ‘Article 12 [of the Authorisation Directive] must be interpreted as not precluding the legislation of a Member State, such as the legislation at issue in the main proceedings, under which operators providing mobile telephony services are liable to pay ‘excise’ duty, calculated as a percentage of the charges paid to them by the users of those services, provided the trigger for that duty is not linked to the general authorisation procedure for access to the electronic communications services market but to the use of mobile telephony services provided by the operators and the duty is ultimately borne by the user of those services, which is a matter for the national court to identify.’ Case C-71/12 Vodafone Malta ltd and Mobisle Communications ltd v Avukat Ġenerali and Others, EU:C:2013:431, Court’s ruling. Free circulation of terminal equipment for terrestrial mobile telecommunications, tax on equipment and differential treatment of users ‘1. [Directive] 1999/5/EC of the European Parliament and of the Council of 9 March 1999 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity, in particular Article 8 [correlates with Article 9 of Directive 2014/53/EU] thereof[, the Access Directive, the Authorisation Directive, the Framework Directive and the Universal Service Directive] must be interpreted as not precluding national rules on the application of a charge such as the charge paid for a government licence under which the use of terminal equipment for terrestrial mobile radio communication under a subscription contract is subject to a general authorisation or a licence and to the payment of such a charge, provided that the subscription contract itself is equivalent to a licence or general authorisation and, accordingly, no intervention is required in that regard by the public administrative authorities. 2.

Article 20 of [the Universal Service Directive], and Article 8 of Directive 1999/5 must be interpreted as not precluding, for the purposes of the application of a charge such as the charge paid for a government licence, a subscription contract for mobile telephony services from being equated with a general authorisation or a radio station licence, which must moreover include details of the type of equipment concerned and the corresponding certification.

3.

In a case such as that in the main proceedings, European Union law, as laid down in Directives 1999/5, [the Access Directive, the Authorisation Directive, and the Framework Directive], and in Article 20 of the Charter of Fundamental Rights of the European Union, must be interpreted as not precluding differential treatment of users of terminal equipment for



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terrestrial mobile radio communication, depending on whether they conclude a subscription contract for mobile telephony services or purchase those services in the form of pay-as-you-go or top-up cards, under which only the former are subject to rules such as those establishing the charge paid for a government licence.’ Case C-416/14 Fratelli De Pra SpA and SAIV SpA v Agenzia Entrate – Direzione Provinciale Ufficio Controlli Belluno and Agenzia Entrate – Direzione Provinciale Ufficio Controlli Vicenza, EU:C:2015:617, paras 1-3 of the Court’s ruling. Charge on mobile telephony antennae Case C-454/13 Proximus SA v Commune d’Etterbeek, EU:C:2015:819, Court’s ruling (see annotations to Article 42). Article 17 Accounting separation and financial reports 1. Member States shall require undertakings providing public electronic communications networks or publicly available electronic communications services which have special or exclusive rights for the provision of services in other sectors in the same or another Member State to: (a) keep separate accounts for the activities associated with the provision of electronic communications networks or services, to the extent that would be required if those activities were carried out by legally independent entities, in order to identify all elements of cost and revenue, with the basis of their calculation and the detailed attribution methods used, related to such activities, including an itemised breakdown of fixed assets and structural costs; or (b) have structural separation for the activities associated with the provision of electronic communications networks or services. Member States may choose not to apply the requirements referred to in the first subparagraph to undertakings which have an annual turnover of less than EUR 50 million in activities associated with electronic communications networks or services in the Union. 2. Where undertakings providing public electronic communications networks or publicly available electronic communications services are not subject to the requirements of company law and do not satisfy the small and medium-sized enterprise criteria of Union law accounting rules, their financial reports shall be drawn up and submitted to independent audit and published. The audit shall be carried out in accordance with the relevant Union and national rules. The first subparagraph of this paragraph shall also apply to the separate accounts required under point (a) of the first subparagraph of paragraph 1. See: Recital 58. Correlation with Framework Directive EECC Article 17 correlates with Directive 2002/21/EC, Article 13. Audit rules Directive 2006/43/EC of the European Parliament and of the Council of 17 May 2006 on statutory audits of annual accounts and consolidated accounts, amending Council Directives 78/660/EEC and 83/349/EEC and repealing Council Directive 84/253/EEC (Text with EEA relevance) (OJ L 157, 9.6.2006, p.87).

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Section 3 Amendment and withdrawal Article 18 Amendment of rights and obligations 1.

Member States shall ensure that the rights, conditions and procedures concerning general authorisations and rights of use for radio spectrum or for numbering resources or rights to install facilities may be amended only in objectively justified cases and in a proportionate manner, taking into consideration, where appropriate, the specific conditions applicable to transferable rights of use for radio spectrum or for numbering resources.

2.

Except where proposed amendments are minor and have been agreed with the holder of the rights or of the general authorisation, notice shall be given in an appropriate manner of the intention to make such amendments. Interested parties, including users and consumers, shall be allowed a sufficient period of time to express their views on the proposed amendments. That period shall be no less than four weeks except in exceptional circumstances. Amendments shall be published, together with the reasons therefor. See: Recitals 55; 56. Correlation with Authorisation Directive EECC Article 18 correlates with Directive 2002/20/EC, Article 14(1). One-off fees for grant and renewal of rights to use radio frequencies ‘Article  14(1) of [the Authorisation Directive] must be interpreted as not precluding a Member State from charging a mobile telephone operator a fee such as that at issue in the main proceedings, provided that that amendment is objectively justified and effected in a proportionate manner and notice has been given to all interested parties in order to enable them to express their views, which it is for the national court to assess in the light of the circumstances at issue in the main proceedings.’ Case C-375/11 Belgacom SA and Others v État belge, EU:C:2013:185, para 2 of the Court’s ruling. Article 19 Restriction or withdrawal of rights 1.

Without prejudice to Article  30(5) and (6), Member States shall not restrict or withdraw rights to install facilities or rights of use for radio spectrum or for numbering resources before the expiry of the period for which they were granted, except where justified pursuant to paragraph  2 of this Article, and, where applicable, in accordance with Annex I, and to relevant national provisions regarding compensation for the withdrawal of rights.

2.

In line with the need to ensure the effective and efficient use of radio spectrum, or the implementation of the technical implementing measures adopted under Article 4 of Decision No 676/2002/EC, Member States may allow the restriction or withdrawal of rights of use for radio spectrum, including the rights referred to in Article  49 of this Directive, based on pre-established and clearly defined procedures, in accordance with the principles of proportionality and nondiscrimination. In such cases, the holders of the rights may, where appropriate and in accordance with Union law and relevant national provisions, be compensated appropriately.



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3.

A  modification in the use of radio spectrum as a result of the application of Article 45(4) or (5) shall not alone constitute grounds to justify the withdrawal of a right of use for radio spectrum.

4.

Any intention to restrict or withdraw rights under the general authorisation or individual rights of use for radio spectrum or for numbering resources without the consent of the holder of the rights shall be subject to consultation of the interested parties in accordance with Article 23. See: Recital 56. Correlation with Authorisation Directive EECC Article 19 correlates with Directive 2002/20/EC, Article 14(2). One-off fees for grant and renewal of rights to use radio frequencies ‘Article  14(2) of [the Authorisation Directive] must be interpreted as not precluding a Member State from charging a mobile telephone operator a fee such as that at issue in the main proceedings.’ Case C-375/11 Belgacom SA and Others v État belge, EU:C:2013:185, para 3 of the Court’s ruling. Q&A on Article 19: ‘Pursuant to Article 19, “Restriction or withdrawal rights”, Member States may anticipate a possibility of the compensation to the holder of the rights in the case of the restriction or withdrawal. Is it necessary to transpose such option, in light of the specificity of the market and national conditions?’ Reply: ‘Member States are not required to transpose a compensation mechanism in their national law. Article 345 TFEU generally provides that the Treaties shall in no way prejudice the rules in Member States governing the system of property ownership. Article 19 reads “(…) MS shall not restrict or withdraw rights to install facilities or rights of use for radio spectrum or for numbering resource before the expiry of the period for which they were granted, except where justified pursuant to (…) relevant national provisions regarding compensations for the withdrawal of rights”, and “[i]n such cases, the holders of the rights may, where appropriate and in accordance with Union law and relevant national provisions, be compensated appropriately”. The terminology used (where justified, where appropriate, in accordance with relevant national provisions) leaves the choice to MS whether to adopt national provisions on compensation or not. However, this being said, when restricting or withdrawing rights, even in the absence of a specific compensation mechanism, Member States need, in any case, to respect the principles of the Code, the general principles of EU law, in particular the principle of non-discrimination and more generally the fundamental rights, freedoms and principles protected by the Treaties and the Charter as interpreted by the CJEU.’ CHAPTER III Provision of information, surveys and consultation mechanism Article 20 Information request to undertakings

1.

Member States shall ensure that undertakings providing electronic communications networks and services, associated facilities, or associated services, provide all the information, including financial information, necessary for national regulatory authorities, other competent authorities and BEREC to ensure conformity with the provisions of, or decisions or opinions adopted in accordance with, this Directive and Regulation (EU) 2018/1971 of the European Parliament and of the

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Council52. In particular, national regulatory authorities and, where necessary for performing their tasks, other competent authorities shall have the power to require those undertakings to submit information concerning future network or service developments that could have an impact on the wholesale services that they make available to competitors, as well as information on electronic communications networks and associated facilities, which is disaggregated at local level and sufficiently detailed to enable the geographical survey and designation of areas in accordance with Article 22. Where the information collected in accordance with the first subparagraph is insufficient for national regulatory authorities, other competent authorities and BEREC to carry out their regulatory tasks under Union law, such information may be inquired from other relevant undertakings active in the electronic communications or closely related sectors. Undertakings designated as having significant market power on wholesale markets may also be required to submit accounting data on the retail markets that are associated with those wholesale markets. National regulatory and other competent authorities may request information from the single information points established pursuant to Directive 2014/61/EU. Any request for information shall be proportionate to the performance of the task and shall be reasoned. Undertakings shall provide the information requested promptly and in accordance with the timescales and level of detail required. 2.

Member States shall ensure that national regulatory and other competent authorities provide the Commission, after a reasoned request, with the information necessary for it to carry out its tasks under the TFEU. The information requested by the Commission shall be proportionate to the performance of those tasks. Where the information provided refers to information previously provided by undertakings at the request of the authority, such undertakings shall be informed thereof. To the extent necessary, and unless the authority that provides the information has made an explicit and reasoned request to the contrary, the Commission shall make the information provided available to another such authority in another Member State. Subject to the requirements of paragraph  3, Member States shall ensure that the information submitted to one authority can be made available to another such authority in the same or different Member State and to BEREC, after a substantiated request, where necessary to allow either authority, or BEREC, to fulfil its responsibilities under Union law.

3.

Where information gathered pursuant to paragraph  1, including information gathered in the context of a geographical survey, is considered to be confidential by a national regulatory or other competent authority in accordance with Union and national rules on commercial confidentiality, the Commission, BEREC and any other competent authorities concerned shall ensure such confidentiality. Such confidentiality shall not prevent the sharing of information between the competent authority, the Commission, BEREC and any other competent authorities concerned

Regulation (EU) 2018/1971 of the European Parliament and of the Council of 11  December 2018 establishing the Body of European Regulators for Electronic Communications (BEREC) and the Agency for Support for BEREC (BEREC Office), amending Regulation (EU) 2015/2120 and repealing Regulation (EC) No 1211/2009 (see page 1 of this Official Journal).

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in a timely manner for the purposes of reviewing, monitoring and supervising the application of this Directive. 4.

Member States shall ensure that, acting in accordance with national rules on public access to information and subject to Union and national rules on commercial confidentiality and protection of personal data, national regulatory and other competent authorities publish information that contributes to an open and competitive market.

5.

National regulatory and other competent authorities shall publish the terms of public access to information as referred to in paragraph 4, including the procedures for obtaining such access. See: Recitals 57; 58; 60; 61. Correlation with Framework Directive EECC Article 20 correlates with Directive 2002/21/EC, Article 5. Single information point Directive 2014/61/EU, Article 10(4) and see also Directive 2014/61/EU, Recitals 21, 22, 26 and 37, and Articles 4(2)–(4), 6(2) and (3), and 7(1) and (2) (see p 922 et seq). Commercial confidentiality Decisions are taken as openly as possible within the European Union – Consolidated version of the Treaty on European Union (OJ C 326, 26.10.2012, p. 13), Article  1, second subparagraph; This principle is reflected in Article 15 TFEU, which requires the Union’s institutions to conduct their work as openly as possible. The ability of the institutions to make acts which they adopt public is therefore the rule. EU law may provide for exceptions to this rule and prevent the disclosure of such acts or certain information contained therein: see Case T-345/12 Akzo Nobel NV and Others v European Commission, EU:T:2015:50, para  60; Case T-341/12 Evonik Degussa GmbH  v European Commission, EU:T:2015:51, para 89; Case T-198/03 Bank Austria Creditanstalt AG v Commission of the European Communities, EU:T:2006:136, para 69; see TFEU, Article 339. Q&A on Article 20: ‘Article 20 para 1 second subparagraph of the Code provides: ‘Where the information collected in accordance with the first subparagraph is insufficient for national regulatory authorities, other competent authorities and BEREC to carry out their regulatory tasks under Union law, such information may be inquired from other relevant undertakings active in the electronic communications or closely related sectors’. We would welcome your view and concrete examples, whom to consider as fulfilling the criterion of being undertakings active in the electronic communications or closely related sectors that are not undertakings providing electronic communications networks and services, associated facilities, or associated services to whom the reference is made in the first subparagraph.’ Reply: ‘Firstly, it should be clarified that any request for information from the NRAs, other competent authorities and BEREC to undertakings should be proportionate, strictly limited to the performance of their tasks and objectively justified. The objective of the information request to undertakings is to ensure that national regulatory authorities are able to carry out their tasks effectively and assess the implementation of the relevant telecoms regulatory framework and not to impose burdensome obligations on the undertakings. As mentioned in Article 20, in case of insufficient information (i.e. not sufficient for the NRA to perform its tasks), it may be necessary for NRAs, other competent authorities and

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BEREC to gather information exceptionally from other relevant undertakings active in the electronic communications or closely related sectors. A  concrete example of such undertakings are content providers (Recital 57 of the EECC), which create, acquire and distribute content and data usually with the help of a software platform such as online movie platforms, e-commerce platforms etc. Another example of undertakings could be developers of operating systems and/or manufacturers of hardware providers used in electronic communications networks and/or services.’ Article 21 Information required with regard to the general authorisation, rights of use and specific obligations 1.

Without prejudice to any information requested pursuant to Article  20 and information and reporting obligations under national law other than the general authorisation, national regulatory and other competent authorities may require undertakings to provide information with regard to the general authorisation, the rights of use or the specific obligations referred to in Article 13(2), which is proportionate and objectively justified in particular for the purposes of: (a)

verifying, on a systematic or case-by-case basis, compliance with condition 1 of Part A, conditions 2 and 6 of Part D, and conditions 2 and 7 of Part E, of Annex I and of compliance with obligations as referred to in Article 13(2);

(b) verifying, on a case-by-case basis, compliance with conditions as set out in Annex I  where a complaint has been received or where the competent authority has other reasons to believe that a condition is not complied with or in the case of an investigation by the competent authority on its own initiative; (c) carrying out procedures for and the assessment of requests for granting rights of use; (d) publishing comparative overviews of quality and price of services for the benefit of consumers; (e)

collating clearly defined statistics, reports or studies;

(f)

carrying out market analyses for the purposes of this Directive, including data on the downstream or retail markets associated with or related to the markets which are the subject of the market analysis;

(g) safeguarding the efficient use and ensuring the effective management of radio spectrum and of numbering resources; (h) evaluating future network or service developments that could have an impact on wholesale services made available to competitors, on territorial coverage, on connectivity available to end-users or on the designation of areas pursuant to Article 22; (i)

conducting geographical surveys;

(j) responding to reasoned requests for information by BEREC. The information referred to in points (a) and (b), and (d) to (j) of the first subparagraph shall not be required prior to, or as a condition for, market access. BEREC may develop templates for information requests, where necessary, to facilitate consolidated presentation and analysis of the information obtained.



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2.

As regards the rights of use for radio spectrum, the information referred to in paragraph  1 shall refer in particular to the effective and efficient use of radio spectrum as well as to compliance with any coverage and quality of service obligations attached to the rights of use for radio spectrum and their verification.

3.

Where national regulatory or other competent authorities require undertakings to provide information as referred to in paragraph 1, they shall inform them of the specific purpose for which this information is to be used.

4.

National regulatory or other competent authorities shall not duplicate requests of information already made by BEREC pursuant to Article 40 of Regulation (EU) 2018/1971 where BEREC has made the information received available to those authorities. See: Recitals 58; 59; 125. Correlation with Authorisation Directive EECC Article 21 correlates with Directive 2002/20/EC, Article 11. Information requests made by BEREC Regulation (EU) 2018/1971, Article 40 (see p. 584). Article 22 Geographical surveys of network deployments

1.

National regulatory and/or other competent authorities shall conduct a geographical survey of the reach of electronic communications networks capable of delivering broadband (‘broadband networks’) by 21 December 2023 and shall update it at least every three years thereafter. The geographical survey shall include a survey of the current geographic reach of broadband networks within their territory, as required for the tasks of national regulatory and/or other competent authorities under this Directive and for the surveys required for the application of State aid rules. The geographical survey may also include a forecast for a period determined by the relevant authority of the reach of broadband networks, including very high capacity networks, within their territory. Such forecast shall include all relevant information, including information on planned deployments by any undertaking or public authority, of very high capacity networks and significant upgrades or extensions of networks to at least 100 Mbps download speeds. For this purpose, national regulatory and/or other competent authorities shall request undertakings and public authorities to provide such information to the extent that it is available and can be provided with reasonable effort. The national regulatory authority shall decide, with respect to tasks specifically attributed to it under this Directive, the extent to which it is appropriate to rely on all or part of the information gathered in the context of such forecast. Where a geographical survey is not conducted by the national regulatory authority, it shall be done in cooperation with that authority to the extent it may be relevant for its tasks. The information collected in the geographical survey shall be at an appropriate level of local detail and shall include sufficient information on the quality of service and parameters thereof and shall be treated in accordance with Article 20(3).

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2.

National regulatory and/or other competent authorities may designate an area with clear territorial boundaries where, on the basis of the information gathered and any forecast prepared pursuant to paragraph 1, it is determined that, for the duration of the relevant forecast period, no undertaking or public authority has deployed or is planning to deploy a very high capacity network or significantly upgrade or extend its network to a performance of at least 100 Mbps download speeds. National regulatory and/or other competent authorities shall publish the designated areas.

3.

Within a designated area, the relevant authorities may invite undertakings and public authorities to declare their intention to deploy very high capacity networks over the duration of the relevant forecast period. Where this invitation results in a declaration by an undertaking or public authority of its intention to do so, the relevant authority may require other undertakings and public authorities to declare any intention to deploy very high capacity networks, or significantly upgrade or extend its network to a performance of at least 100 Mbps download speeds in this area. The relevant authority shall specify the information to be included in such submissions, in order to ensure at least a similar level of detail as that taken into consideration in any forecast pursuant to paragraph  1. It shall also inform any undertaking or public authority expressing its interest whether the designated area is covered or likely to be covered by a next-generation access network offering download speeds below 100 Mbps on the basis of the information gathered pursuant to paragraph 1.

4.

Measures pursuant to paragraph 3 shall be taken in accordance with an efficient, objective, transparent and non-discriminatory procedure, whereby no undertaking is excluded a priori.

5.

Member States shall ensure that national regulatory and other competent authorities, and local, regional and national authorities with responsibility for the allocation of public funds for the deployment of electronic communications networks, for the design of national broadband plans, for defining coverage obligations attached to rights of use for radio spectrum and for verifying availability of services falling within the universal service obligations in their territory take into account the results of the geographical survey and of any designated areas pursuant to paragraphs 1, 2 and 3. Member States shall ensure that the authorities conducting the geographical survey shall supply those results subject to the receiving authority ensuring the same level of confidentiality and protection of business secrets as the originating authority and inform the parties which provided the information. Those results shall also be made available to BEREC and the Commission upon their request and under the same conditions.

6.

If the relevant information is not available on the market, competent authorities shall make data from the geographical surveys which are not subject to commercial confidentiality directly accessible in accordance with Directive 2003/98/EC to allow for its reuse. They shall also, where such tools are not available on the market, make available information tools enabling end-users to determine the availability of connectivity in different areas, with a level of detail which is useful to support their choice of operator or service provider.

7.

By 21  June 2020, in order to contribute to the consistent application of geographical surveys and forecasts, BEREC shall, after consulting stakeholders and in close cooperation with the Commission and relevant national authorities,



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issue guidelines to assist national regulatory and/or other competent authorities on the consistent implementation of their obligations under this Article. See: Recitals 62-65. Reuse of non-confidential data from geographical surveys Directive 2003/98/EC ‘does not contain an obligation to allow re-use of documents. The decision whether or not to authorise re-use will remain with the Member States or the public sector body concerned. This Directive should apply to documents that are made accessible for re-use when public sector bodies license, sell, disseminate, exchange or give out information. To avoid crosssubsidies, re-use should include further use of documents within the organisation itself for activities falling outside the scope of its public tasks. Activities falling outside the public task will typically include supply of documents that are produced and charged for exclusively on a commercial basis and in competition with others in the market. The definition of “document” is not intended to cover computer programmes. The Directive builds on the existing access regimes in the Member States and does not change the national rules for access to documents. It does not apply in cases in which citizens or companies can, under the relevant access regime, only obtain a document if they can prove a particular interest. At Community level, Articles  41 (right to good administration) and 42 of the [Charter] recognise the right of any citizen of the Union and any natural or legal person residing or having its registered office in a Member State to have access to European Parliament, Council and Commission documents. Public sector bodies should be encouraged to make available for re-use any documents held by them. Public sector bodies should promote and encourage re-use of documents, including official texts of a legislative and administrative nature in those cases where the public sector body has the right to authorise their re-use.’ Directive 2003/98/EC, Recital 9. ‘[…] Member States shall ensure that documents to which this Directive applies in accordance with Article 1 shall be re-usable for commercial or non-commercial purposes in accordance with the conditions set out in Chapters III and IV.’ Directive 2003/98/EC, Article 3(1); see also Chapters III and IV. BEREC Guidance BEREC Guidelines on Geographical surveys of network deployments, BoR (20) 42, 5 March 2020: The scope of the Guidelines is described as follows: ‘10. A  geographical survey of broadband reach is a collection of data which characterises the capability of an ECN to deliver a broadband service of a certain quality that can be displayed with the use of a digital tool on a layer-based map, and at an appropriate resolution. 11. The Guidelines must provide NRAs and OCAs with: (a)

the specification of the relevant data to be produced by the Authority, using data collected from different data sources, mainly network operators (differentiating the specifications related to the current network reach on the one hand, and the future/forecasted reach on the other hand; similarly, specifying, when relevant, where fixed and mobile service approaches need to be distinct);

(b) guidance on how to collect these data; (c)

guidance on how to aggregate these data;

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(d) guidance on which data/aggregations of data should be deemed public or confidential; (e) guidance about the procedure to identify the intentions of agents to deploy VHCN or significantly upgrade or extend their networks to a performance of at least 100 Mbps download speeds in each area, so that this procedure ensures full transparency and non-discrimination with respect to relevant stakeholders. 12. Concerning the collection and use of data in respect of point a), BEREC distinguishes three different quality of service indicators.[53] Firstly, the Guidelines will use QoS-1 indicators to characterise the reach and performance of broadband networks. Secondly, the Guidelines will use QoS-2 and QoS-3 indicators as a means of verifying QoS-1 data.[54] 13. Moreover, BEREC considers that data on physical infrastructures (such as ducts, conduits, masts, manholes and so on) and data on broadband demand or take up do not fall within the scope of these Guidelines, because they do not fall within the concept of broadband reach. These kinds of data can also be geo-referenced, and it would be advisable for NRAs and OCAs to consider the value of maintaining a system of integrated spatial data of different kinds. Physical infrastructures support and enable the provision of electronic communication services, but the presence of a physical infrastructure does not imply the presence of an electronic communication network[55] Information on broadband take-up or demand can be very relevant for regulatory and policy functions, but broadband reach is a wider concept, as it implies the availability of connectivity, regardless of whether this connectivity is demanded or not’ (section 1.3). The Guidelines are issued in two phases: (a) phase one regarding QoS-1 information; (b) phase two “regarding verification of QoS-1 information, for example by QoS2 and QoS-3 measurements, and the procedures to invite undertakings and public authorities to declare their intention to deploy VHCN over the duration of the relevant forecast period for Article 22(3). The verification of QoS-1 information is very important to assess the validity of submitted data” (section 1.4). With respect to QoS-1 information, the content of the Guidelines includes the following: definitions (section 2.1); data sources and frequency of data collection (section 2.2); geographical spatial resolution of data (section 2.3); elements of characterisation of network connectivity or services for fixed and mobile broadband (section 2.4); ‘The European Broadband Mapping project developed three data categories for “Quality of Service” (“QoS”): QoS1/QoS2/QoS3. See definitions in section 2.1.” These categories are defined as follows: ‘– Data category QoS-1: Calculated availability of Service – Theoretical network performance of existing infrastructure – Data category QoS-2: Measured provision of Service – Measurements via panel probes or drive tests, excluding end user’s environment. – Data category QoS-3: Measured experience of Service – Measurements using internet access service including end user’s environment, for example via online speed tests’.”’ – fn 5 in the BEREC Guidelines. 54 ‘QoS-2 and QoS-3 may be used in some Member States to characterize broadband reach, but this is not a common occurrence’ – fn 6 in the BEREC Guidelines. 55 ‘The Broadband Cost Reduction Directive (“BCRD”) contains provisions related to physical infrastructure without generically mandating their mapping, as it establishes an obligation to make available to the single information point (but not as such to map) information regarding all existing physical infrastructures (not only those related to ECNs) for which the information has been requested by operators (not the rest)’ – fn 7 in the BEREC Guidelines. 53



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data characterisation of a geographical information system (section 2.5); forecast specificities (section 2.6); and publication, confidentiality issues and aggregation of data to provide information to third users (section 2.7).’ BEREC  Guidelines on Geographical surveys of network deployments. Article 22(2), 22(3) and 22(4), BoR (21) 32, 11 March 2021: The scope of the Guidelines is described in the Introduction as follows: ‘4.

In the current Guidelines, BEREC deals with the consistent implementation of Article  22, paragraphs 2, 3 and 4. These parts in the article describe some optional policies that NRAs/OCAs may undertake in order to inform private and public agents of the non-availability of existing or planned VHCN networks or networks offering at least 100 Mbps download speed in areas with precise boundaries (“designated areas”), and furthermore to invite agents to declare their intentions to deploy VHCNs in these areas.

5.

These Guidelines aim at providing a common understanding of these provisions, guidance on how to designate areas and on the procedures to be followed in publishing information and inviting agents to declare their intentions to invest in order to ensure that such procedures are efficient, objective, transparent and non-discriminatory, whereby no undertaking is excluded a priori (as required by Art 22 (4) EECC).

6.

In order to deliver these Guidelines, BEREC issued a questionnaire directed to NRAs/OCAs in order to obtain information about their current practices and views regarding Art 22 (2-4) of the EECC and also questioning about NRA/OCA experience in defining areas in other contexts, such as within a state aid or a market analysis procedure. BEREC obtained information from 22 Member States (hereafter, MS), and found out that no authority was “designating areas” or engaging on the procedures to invite agents to declare their intentions to deploy VHCN networks as required by Article 22. A few authorities were planning for this, and many had relevant experience in the context of state aid proceedings, where different kinds of areas are defined (white, grey, white-NGA, grey-NGA) and public consultations are carried out to find out about private agent’s plans to deploy broadband networks.’ The Guidelines further explain the following: ‘11. The procedures according to Article 22 paragraphs 2 – 4 EECC must not be confused with state aid procedures, as Article 22 and state aid proceedings are instruments with different objectives[.] However, the information gained as a result of the invitation procedure according to Article  22 paragraph 3 EECC could be useful within a state aid context, especially if no interest in investments is expressed (see Figure 1 [a step-by-step flux diagram]). 12. While the provisions of the EECC would anticipate and foster also state aid compliance, it is not their main objective to ensure compliance with state aid rules. NRAs/OCAs can use information collected under Article 22 to assist the state aid process but may also need to collect complementary information in line with the State Aid guidelines rules. […] 14. The transparency which the measures of Article 22 paragraph 2 – 4 EECC aim for can only be achieved if market participants respond truthfully and

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in good faith. While market participants can change their deployment plans for unforeseen, objective and justifiable reasons, competent authorities should intervene, including if public funding is affected (cf. Recital 63 and 64 of the EECC) and where appropriate according to Article 29 (2) EECC, impose penalties if, in the context of the procedures referred to in Art. 22 (3), an undertaking or public authority knowingly or grossly negligently provides misleading, erroneous or incomplete information.’ Draft BEREC  Guidelines on Geographical surveys. Verification of information, BoR (20) 230, 11  December 2020: final approval of these Guidelines is expected by June 2021. Q&A on Article 22: ‘Article 22(2) and (3) provides for a designation process to clarify plans to build in areas where there is no planned deployment of very high capacity networks. 1.

When drafting this article how did the Commission envision that the designation and accompanying clarification process could work in practice, and how will it address problems with deployment in these areas?

2.

What is the scope under this article? Is it to focus on specific kinds of VHCNs – [i.e.], full fibre or gigabit-capable networks?

3.

Article 22(4) states that the designation process should treat all providers equally. Is this symmetrical treatment intended to apply equally to all parts of the Article, or is there scope for differential treatment in other parts of the Article – e.g., the process for forecasting and making the information directly accessible. Which aspects of the process are symmetric or otherwise?’ Reply: ‘Regarding the first question, the relevance of the procedure originally envisaged by the Commission might be limited, given that the final version of this Article contains significant changes with respect to the Commission’s original proposal. It is clear however that one of the aims of the process is to create transparency for undertakings and public authorities that have an interest in deploying in specific areas, but face significant uncertainty not only in demand but also in supply conditions (i.e. regarding the competition they are likely to face, which may be decisive for the return on investment in an area where infrastructure competition would not be efficient). Irrespective of the provision on sanctions, it is expected that operators will reply in good faith to such surveys. Regarding the second question, given the complexity of the tasks deriving from different policy and regulatory environments both at national and EU level, geographical surveys will need to account for all types of network deployments including, but not limited to, existing infrastructure and future investments in: VHCN, NGA, significant upgrades, extension to a performance of at least 100 Mbps download speeds. In the same spirit, recital (62) states that surveys should include ‘both deployment of very high capacity networks, as well as significant upgrades or extensions of existing copper or other networks’. Ultimately, geographical surveys should reveal the details of all significant upgrades in quality of service with a view to supporting a wide range of policy and regulatory functions of relevant EU and national/regional authorities. Regarding the third question, there is [not] much room for different interpretations as the paragraph states clearly that it refers to measures pursuant to paragraph  3, meaning to the whole process of designation of designated



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areas. In any case, there is a general obligation of non-discrimination enshrined in Article  3 of the Code which does not leave much scope for a differential treatment of operators under this and any other Article of the Code. On the specific examples, the following remarks are made: although forecasts are not a mandatory component of geographical surveys, they are a necessary condition for the process of designation of areas as per paragraph 3. Moreover, they are also required under EU state aid rules, if/when a public authority wishes to identify an area affected by a market failure and intervene with public funds. It is also an important tool for market analysis in a forward-looking perspective. Therefore, when forecasts are part of the survey, they ‘shall include all relevant information, including information on planned deployments by any undertaking or public authority […]’. This suggests that a differential treatment is not possible. Similarly, regarding the accessibility of (non-confidential) information that has been collected in the context of geographical surveys, the text states that authorities ‘shall make data from the geographical surveys which are not subject to commercial confidentiality directly accessible […]’ and does not provide any exemption for specific types of undertakings. Therefore, also in this case, a differential treatment of undertakings does not appear to be possible.’ Further Q&A on Article 22: ‘In the EECC, there are several references (such as recital 24 and 63) regarding desirable download speeds in the networks, such as ‘a next-generation access network offering download speeds below 100 Mbps’, ‘performance of at least 100 Mbps download speeds in this area’ etc. Also in Article 22 par. 1, 2 and 3 there are similar references to next-generation access network offering download speeds at 100 Mbps. Regarding mobile networks, does the download speed of 100 Mbps correspond to availability per user or per macro base station cell?’ Reply: ‘Regarding mobile networks, the reference to 100 Mbps download speeds in article  22 of the Code corresponds to availability per user. The following references in the Code support this view: 1)

Article 22 of the EECC contains a reference to forecasts on the reach of broadband networks. Such forecast shall include all relevant information, including information on planned deployments of very high capacity networks and significant upgrades or extensions of networks to at least 100 Mbps download speeds. Since the final connection to the end-user in a network may be ensured both by wired and wireless technologies with different configurations and characteristics, the only point at which it is possible to objectively compare the speeds delivered by both types of networks is at user level.

2)

Moreover, leaving aside that the concept of “macro-cell” (or even “cell”) is not defined in the Code, there are wireless networks that are not cellular. If we would accept a cell-based approach for cellular wireless networks, this would leave a void for non-cellular ones.

3)

Lastly, the wording of recital 24 argues in favour of a per user target “the availability to all households in each Member State of electronic communications networks which are capable of providing at least 100 Mbps and which are promptly upgradeable to gigabit speeds”. The download speed is not linked to the macro base station cell and there is no specific target for mobile networks.’

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Article 23 Consultation and transparency mechanism 1.

Except in cases falling within Article 26 or 27 or Article 32(10), Member States shall ensure that, where national regulatory or other competent authorities intend to take measures in accordance with this Directive, or where they intend to provide for restrictions in accordance with Article 45(4) and (5), which have a significant impact on the relevant market, they give interested parties the opportunity to comment on the draft measure within a reasonable period, having regard to the complexity of the matter and, except in exceptional circumstances, in any event not shorter than 30 days.

2.

For the purposes of Article 35, the competent authorities shall inform the RSPG at the moment of publication about any draft measure which falls within the scope of the comparative or competitive selection procedure pursuant to Article 55(2) and relates to the use of radio spectrum for which harmonised conditions have been set by technical implementing measures in accordance with Decision No 676/2002/ EC in order to enable its use for wireless broadband electronic communications networks and services (‘wireless broadband networks and services’).

3.

National regulatory and other competent authorities shall publish their national consultation procedures. Member States shall ensure the establishment of a single information point through which all current consultations can be accessed.

4.

The results of the consultation procedure shall be made publicly available, except in the case of confidential information in accordance with Union and national rules on commercial confidentiality. See: Recitals 66; 116. Correlation with Framework Directive EECC Article 23 correlates with Directive 2002/21/EC, Article 6. Harmonised conditions set by technical implementing measures adopted under the Radio Spectrum Decision with respect to wireless broadband services See Annex III at pp 1365–70. Commercial confidentiality See annotations to Article 20. Q&A on Article 23: ‘Art. 23(2), Art. 35, Art 55(2) (peer review process) – the moment when the procedure involving the RSPG should start raises doubts. Should the procedure start at the moment of beginning consultations or during consultations?’ Reply: ‘Under Article  23  EECC, competent authorities have to inform the RSPG at the moment of its publication about any draft measure covered by Article  23(2). There are two types of peer review procedure: the voluntary and the exceptional procedure. The rules of procedure of the RSPG request the competent authority to indicate, when it informs the Group about a draft measure, whether and when it requests the convening of a peer review. In case no voluntary peer review is requested, the Group may decide to organise an exceptional peer review; this decision has to be made at the latest during the public consultation conducted pursuant to article  23. The details of the procedure for the RSPG are set forth in the RSPG rules of procedure (document RSPG19-028 final).’



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Article 24 Consultation of interested parties 1.

Member States shall ensure, as appropriate, that competent authorities in coordination, where relevant, with national regulatory authorities take account of the views of end-users, in particular consumers, and end-users with disabilities, manufacturers and undertakings that provide electronic communications networks or services on issues related to all end-user and consumer rights, including equivalent access and choice for end-users with disabilities, concerning publicly available electronic communications services, in particular where they have a significant impact on the market. Member States shall ensure that competent authorities in coordination, where relevant, with national regulatory authorities establish a consultation mechanism, accessible for end-users with disabilities, ensuring that in their decisions on issues related to end-user and consumer rights concerning publicly available electronic communications services, due consideration is given to consumer interests in electronic communications.

2.

Interested parties may develop, with the guidance of competent authorities in coordination, where relevant, with national regulatory authorities, mechanisms, involving consumers, user groups and service providers, to improve the general quality of service provision by, inter alia, developing and monitoring codes of conduct and operating standards.

3.

Without prejudice to national rules in accordance with Union law promoting cultural and media policy objectives, such as cultural and linguistic diversity and media pluralism, competent authorities in coordination, where relevant, with national regulatory authorities may promote cooperation between undertakings providing electronic communications networks or services and sectors interested in the promotion of lawful content in electronic communications networks and services. That cooperation may also include coordination of the public-interest information to be provided pursuant to Article 103(4). See: Recitals 7; 9; 67; 269; 270. Correlation with Universal Service Directive EECC Article 24 correlates with Directive 2002/22/EC, Article 33. Article 25 Out-of-court dispute resolution

1.

Member States shall ensure that the national regulatory authority or another competent authority responsible for, or at least one independent body with proven expertise in, the application of Articles 102 to 107 and Article 115 of this Directive is listed as an alternative dispute resolution entity in accordance with Article 20(2) of Directive 2013/11/EU with a view to resolving disputes between providers and consumers arising under this Directive and relating to the performance of contracts. Member States may extend access to alternative dispute resolution procedures provided by that authority or body to end-users other than consumers, in particular microenterprises and small enterprises.

2.

Without prejudice to Directive 2013/11/EU, where such disputes involve parties in different Member States, Member States shall coordinate their efforts with a view to bringing about a resolution of the dispute.

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See: Recital 68. Correlation with Universal Service Directive EECC Article 25 correlates with Directive 2002/22/EC, Article 34. ADR entities A dispute resolution entity qualifies as an ADR entity if it falls within the scope of Directive 2013/11/EU, complies with the quality requirements set out in Chapter II of that Directive and in national provisions implementing it. Directive 2013/11/EU, Article 20(1); 20(2). Definitions of micro, small and medium-sized enterprises Commission Recommendation 2003/361/EC, Article 2 and Annex; Case T-587/14 Crosfield Italia Srl v European Chemicals Agency (ECHA), EU:T:2016:475, paras 34–36; Case T-620/13  Marchi Industriale SpA  v European Chemicals Agency (ECHA), EU:T:2016:479, paras 30–32 (see annotations to Recital 68). Mandatory to attempt an out-of-court settlement ‘Article  34 of [the Universal Service Directive] must be interpreted as not precluding legislation of a Member State under which the admissibility before the courts of actions relating to electronic communications services between end-users and providers of those services, concerning the rights conferred by that directive, is conditional upon an attempt to settle the dispute out of court. Nor do the principles of equivalence and effectiveness or the principle of effective judicial protection preclude national legislation which imposes, in respect of such disputes, prior implementation of an out-of-court settlement procedure, provided that that procedure does not result in a decision which is binding on the parties, that it does not cause a substantial delay for the purposes of bringing legal proceedings, that it suspends the period for the time-barring of claims and that it does not give rise to costs – or gives rise to very low costs – for the parties, and only if electronic means is not the only means by which the settlement procedure may be accessed and interim measures are possible in exceptional cases where the urgency of the situation so requires.’ Joined Cases C-317/08 Rosalba Alassini v Telecom Italia SpA, C-318/08 Filomena Califano v Wind SpA, C-319/08 Lucia Anna Giorgia Iacono v Telecom Italia SpA and C-320/08 Multiservice Srl v Telecom Italia SpA, EU:C:2010:146, Court’s ruling. Directive on ADR ‘Article 13(1) and (2) of Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on consumer alternative dispute resolution and repealing Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on ADR) are to be interpreted as meaning that a trader who provides in an accessible manner on his website the general terms and conditions of sales or service contracts, but concludes no contracts with consumers via that website, must provide in his general terms and conditions information about the ADR entity or ADR entities by which that trader is covered, when that trader commits to or is obliged to use that entity or those entities to resolve disputes with consumers. It is not sufficient in that respect that the trader either provides that information in other documents accessible on his website, or under other tabs thereof, or provides that information to the consumer in a separate document from the general terms and conditions, upon conclusion of the contract subject to those general terms and conditions.’ Case C-380/19 Bundesverband der Verbraucherzentralen und Verbraucherverbände – Verbraucherzentrale Bundesverband eV  v Deutsche Apotheker – und Ärztebank eG , EU:C:2020:498, Court’s ruling.



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Article 26 Dispute resolution between undertakings 1.

In the event of a dispute arising in connection with existing obligations under this Directive between providers of electronic communications networks or services in a Member State, or between such undertakings and other undertakings in the Member State benefiting from obligations of access or interconnection or between providers of electronic communications networks or services in a Member State and providers of associated facilities, the national regulatory authority concerned shall, at the request of either party, and without prejudice to paragraph 2, issue a binding decision to resolve the dispute in the shortest possible time-frame on the basis of clear and efficient procedures, 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.

2.

Member States may make provision for national regulatory authorities to decline to resolve a dispute where other mechanisms, including mediation, exist that would better contribute to resolution of the dispute in a timely manner in accordance with the objectives set out in Article 3. The national regulatory authority shall inform the parties thereof without delay. If, after four months, the dispute is not resolved, and if the dispute has not been brought before the courts by the party seeking redress, the national regulatory authority shall issue, at the request of either party, a binding decision to resolve the dispute in the shortest possible time-frame and in any case within four months.

3.

In resolving a dispute, the national regulatory authority shall take decisions aimed at achieving the objectives set out in Article 3. Any obligations imposed on an undertaking by the national regulatory authority in resolving a dispute shall comply with this Directive.

4.

The decision of the national regulatory authority shall be made available to the public, having regard to the requirements of commercial confidentiality. The national regulatory authority shall provide the parties concerned with a full statement of the reasons on which the decision is based.

5.

The procedure referred to in paragraphs 1, 3 and 4 shall not preclude either party from bringing an action before the courts. See: Recital 69. Correlation with Framework Directive EECC Article 26 correlates with Directive 2002/21/EC, Article 20. Obligation to implement procedure on draft measures before imposing access obligations in the resolution of a dispute Case C-3/14 Prezes Urzędu Komunikacji Elektronicznej and Telefonia Dialog sp. z o.o. v T-Mobile Polska SA, EU:C:2015:232, para 1 of the Court’s ruling (see annotations to Article 32). Article 27 Resolution of cross-border disputes

1.

In the event of a dispute arising under this Directive between undertakings in different Member States, paragraphs 2, 3 and 4 of this Article shall apply. Those provisions shall not apply to disputes relating to radio spectrum coordination covered by Article 28.

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2.

Any party may refer the dispute to the national regulatory authority or authorities concerned. Where the dispute affects trade between Member States, the competent national regulatory authority or authorities shall notify the dispute to BEREC in order to bring about a consistent resolution of the dispute, in accordance with the objectives set out in Article 3.

3.

Where such a notification has been made, BEREC shall issue an opinion inviting the national regulatory authority or authorities concerned to take specific action in order to resolve the dispute or to refrain from action, in the shortest possible timeframe, and in any case within four months except in exceptional circumstances.

4.

The national regulatory authority or authorities concerned shall await BEREC’s opinion before taking any action to resolve the dispute. In exceptional circumstances, where there is an urgent need to act, in order to safeguard competition or protect the interests of end-users, any of the competent national regulatory authorities may, either at the request of the parties or on its own initiative, adopt interim measures.

5.

Any obligations imposed on an undertaking by the national regulatory authority as part of the resolution of the dispute shall comply with this Directive, take the utmost account of the opinion adopted by BEREC, and be adopted within one month of such opinion.

6.

The procedure referred to in paragraph  2 shall not preclude either party from bringing an action before the courts. See: Recitals 70; 71. Correlation with Framework Directive EECC  Article  27(1) correlates with Directive 2002/21/EC, Article  21(1); EECC  Article  27(2) correlates with Directive 2002/21/EC, Article  21(2) first and second subparas; EECC  Article  27(3) correlates with Directive 2002/21/ EC, Article  21(2) third subpara; EECC Article  27(4) correlates with Directive 2002/21/EC, Article  21(2) fourth and fifth subparas; EECC  Article  27(6) correlates with Directive 2002/21/EC, Article 21(4). Article 28 Radio Spectrum Coordination among Member States

1.

Member States and their competent authorities shall ensure that the use of radio spectrum is organised on their territory in a way that no other Member State is prevented from allowing on its territory the use of harmonised radio spectrum in accordance with Union law, especially due to cross-border harmful interference between Member States. Member States shall take all necessary measures to this effect without prejudice to their obligations under international law and relevant international agreements such as the ITU Radio Regulations and the ITU Radio Regional Agreements.

2.

Member States shall cooperate with each other, and, where appropriate, through the RSPG, in the cross-border coordination of the use of radio spectrum in order to: (a)

ensure compliance with paragraph 1;

(b) resolve any problem or dispute in relation to cross-border coordination or cross-border harmful interference between Member States, as well as with third countries, which prevent Member States from using the harmonised radio spectrum in their territory.



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3.

In order to ensure compliance with paragraph 1, any affected Member State may request the RSPG to use its good offices to address any problem or dispute in relation to cross-border coordination or cross-border harmful interference. Where appropriate, the RSPG may issue an opinion proposing a coordinated solution regarding such a problem or dispute.

4.

Where the actions referred to in paragraph 2 or 3 have not resolved the problem or dispute, and at the request of any affected Member State, the Commission may, taking utmost account of any opinion of the RSPG recommending a coordinated solution pursuant to paragraph 3, adopt decisions addressed to the Member States concerned by the unresolved harmful interference issue by means of implementing acts to resolve cross-border harmful interference between two or more Member States which prevent them from using the harmonised radio spectrum in their territory. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 118(4).

5.

The Union shall, upon the request of any affected Member State, provide legal, political and technical support to resolve radio spectrum coordination issues with countries neighbouring the Union, including candidate and acceding countries, in such a way that the Member States concerned can observe their obligations under Union law. In the provision of such assistance, the Union shall promote the implementation of Union policies. See: Recitals 72; 73; 118; 316. TITLE III IMPLEMENTATION Article 29 Penalties

1.

Member States shall lay down rules on penalties, including, where necessary, fines and non-criminal predetermined or periodic penalties, applicable to infringements of national provisions adopted pursuant to this Directive or of any binding decision adopted by the Commission, the national regulatory or other competent authority pursuant to this Directive, and shall take all measures necessary to ensure that they are implemented. Within the limits of national law, national regulatory and other competent authorities shall have the power to impose such penalties. The penalties provided for shall be appropriate, effective, proportionate and dissuasive.

2.

Member States shall provide for penalties in the context of the procedure referred to in Article 22(3) only where an undertaking or public authority knowingly or grossly negligently provides misleading, erroneous or incomplete information. When determining the amount of fines or periodic penalties imposed on an undertaking or public authority for knowingly or grossly negligently providing misleading, erroneous or incomplete information in the context of the procedure referred to in Article 22(3), regard shall be had, inter alia, to whether the behaviour of the undertaking or public authority has had a negative impact on competition and, in particular, whether, contrary to the information originally provided or any update thereof, the undertaking or public authority either has deployed, extended or upgraded a network, or has not deployed a network and has failed to provide an objective justification for that change of plan.

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See: Recitals 64; 74; 248. Correlation with Framework Directive EECC Article 29 correlates with Directive 2002/21/EC, Article 21a. Article 30 Compliance with the conditions of the general authorisation or of rights of use for radio spectrum and for numbering resources and compliance with specific obligations 1.

Member States shall ensure that their relevant competent authorities monitor and supervise compliance with the conditions of the general authorisation or of rights of use for radio spectrum and for numbering resources, with the specific obligations referred to in Article  13(2) and with the obligation to use radio spectrum effectively and efficiently in accordance with Article 4, Article 45(1) and Article 47. Competent authorities shall have the power to require undertakings subject to the general authorisation or benefitting from rights of use for radio spectrum or for numbering resources to provide all information necessary to verify compliance with the conditions of the general authorisation or of rights of use for radio spectrum and for numbering resources or with the specific obligations referred to in Article 13(2) or Article 47, in accordance with Article 21.

2.

Where a competent authority finds that an undertaking does not comply with one or more of the conditions of the general authorisation or of rights of use for radio spectrum and for numbering resources, or with the specific obligations referred to in Article 13(2), it shall notify the undertaking of those findings and give the undertaking the opportunity to state its views, within a reasonable time limit.

3.

The competent authority shall have the power to require the cessation of the breach referred to in paragraph 2 either immediately or within a reasonable time limit and shall take appropriate and proportionate measures aimed at ensuring compliance. In this regard, Member States shall empower the competent authorities to impose: (a)

where appropriate, dissuasive financial penalties which may include periodic penalties with retroactive effect; and

(b) orders to cease or delay provision of a service or bundle of services which, if continued, would result in significant harm to competition, pending compliance with access obligations imposed following a market analysis carried out in accordance with Article 67. The competent authorities shall communicate the measures and the reasons on which they are based to the undertaking concerned without delay and shall stipulate a reasonable period for the undertaking to comply with the measures. 4.

Notwithstanding paragraphs 2 and 3 of this Article, Member States shall empower the competent authority to impose, where appropriate, financial penalties on undertakings for failure to provide information, in accordance with the obligations imposed under point (a) or (b) of the first subparagraph of Article  21(1) and Article 69, within a reasonable period set by the competent authority.

5.

In the case of a serious breach or repeated breaches of the conditions of the general authorisation or of the rights of use for radio spectrum and for numbering resources, or of the specific obligations referred to in Article 13(2) or Article 47 (1)



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or (2), where measures aimed at ensuring compliance as referred to in paragraph 3 of this Article have failed, Member States shall empower competent authorities to prevent an undertaking from continuing to provide electronic communications networks or services or suspend or withdraw those rights of use. Member States shall empower the competent authority to impose penalties which are effective, proportionate and dissuasive. Such penalties may be applied to cover the period of any breach, even if the breach has subsequently been rectified. 6.

Notwithstanding paragraphs 2, 3 and 5 of this Article, the competent authority may take urgent interim measures to remedy the situation in advance of reaching a final decision, where it has evidence of a breach of the conditions of the general authorisation, of the rights of use for radio spectrum and for numbering resources, or of the specific obligations referred to in Article 13(2) or Article 47(1) or (2) which represents an immediate and serious threat to public safety, public security or public health or risks creating serious economic or operational problems for other providers or users of electronic communications networks or services or other users of the radio spectrum. The competent authority shall give the undertaking concerned a reasonable opportunity to state its views and propose any remedies. Where appropriate, the competent authority may confirm the interim measures, which shall be valid for a maximum of three months, but which may, in circumstances where enforcement procedures have not been completed, be extended for a further period of up to three months.

7.

Undertakings shall have the right to appeal against measures taken under this Article in accordance with the procedure referred to in Article 31. See: Recital 74. Correlation with Authorisation Directive EECC Article 30 correlates with Directive 2002/20/EC, Article 10. Article 31 Right of appeal

1.

Member States shall ensure that effective mechanisms exist at national level under which any user or undertaking providing electronic communications networks or services or associated facilities who is affected by a decision of a competent authority has the right of appeal against that decision to an appeal body that is independent of the parties involved and of any external intervention or political pressure liable to jeopardise its independent assessment of matters coming before it. This body, which may be a court, shall have the appropriate expertise to enable it to carry out its functions effectively. Member States shall ensure that the merits of the case are duly taken into account. Pending the outcome of the appeal, the decision of the competent authority shall stand, unless interim measures are granted in accordance with national law.

2.

Where the appeal body referred to in paragraph 1 of this Article is not judicial in character, it shall always give written reasons for its decision. Furthermore, in such a case, its decision shall be subject to review by a court or a tribunal within the meaning of Article 267 TFEU. Member States shall ensure that the appeal mechanism is effective.

3.

Member States shall collect information on the general subject matter of appeals, the number of requests for appeal, the duration of the appeal proceedings and the

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number of decisions to grant interim measures. Member States shall provide such information, as well as the decisions or judgments, to the Commission and to BEREC upon their reasoned request. See: Recitals 76-78. Correlation with Framework Directive EECC Article 31 correlates with Directive 2002/21/EC, Article 4. Review by a court or a tribunal ‘The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a)

the interpretation of the Treaties;

(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court. If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.’ TFEU, Article 267. See also Case C-53/03 Synetairismos Farmakopoion Aitolias & Akarnanias (Syfait) and Others v GlaxoSmithKline plc and GlaxoSmithKline AEVE, ECLI:EU:C:2005:333, para  29: ‘According to settled case-law, in order to determine whether a body making a reference is a court or tribunal for the purposes of Article 234 EC [now 267 TFEU], which is a question governed by Community law alone, the Court takes account of a number of factors, such as whether the body is established by law, whether it is permanent, whether its jurisdiction is compulsory, whether its procedure is inter partes, whether it applies rules of law and whether it is independent (see, in particular, Case C54/96  Dorsch Consult  [1997]  ECR  I-4961, paragraph  23, Joined Cases C-110/98 to C-147/98 Gabalfrisa and Others [2000] ECR I-1577, paragraph 33, Case C-195/98  Österreichischer Gewerkschaftsbund  [2000]  ECR I10497, paragraph 24, and Case C-516/99 Schmid [2002] ECR I-4573, paragraph 34).’ Meaning of undertaking ‘affected’ by a decision of a NRA (a) ‘1.  The terms user ‘affected’ or undertaking “affected” for the purposes of Article 4(1) of [the Framework Directive] and the term party ‘affected’ within the meaning of Article 16(3) of that directive must be interpreted as being applicable not only to an undertaking (formerly) having significant power on the relevant market which is subject to a decision of a national regulatory authority taken in the context of a market analysis procedure referred to in Article 16 of that directive and which is the addressee of that decision, but also to users and undertakings in competition with such an undertaking which are not themselves addressees of that decision but the rights of which are adversely affected by it. 2.

A provision of national law which, in the context of non-adversarial market analysis proceedings, grants party status only to undertakings (formerly) having significant power on the relevant market and in respect of which



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specific regulatory obligations are imposed, amended or withdrawn is not, in principle, contrary to Article 4 of [the Framework Directive]. However, it is for the national court to ensure that national procedural law guarantees the safeguarding of the rights which users and undertakings in competition with an undertaking (formerly) having significant power on the relevant market derive from the Community legal order in a manner which is not less favourable than that in which comparable domestic rights are safeguarded and which does not prejudice the effectiveness of the legal protection of those users and undertakings guaranteed in Article  4 of [the Framework Directive].’ Case C-426/05 Tele2 Telecommunication GmbH v Telekom-Control-Kommission, EU:C:2008:103, paras 1 and 2 of the Court’s ruling; (b) ‘Articles 4(1) and 9b of [the Framework Directive], and Article 5(6) of [the Authorisation Directive], must be interpreted as meaning that an undertaking, in circumstances such as those of the case before the referring court, may be regarded as a person “affected”, for the purposes of Article 4(1) of [the Framework Directive], where that undertaking, which provides electronic communications networks or services, is a competitor of the undertaking or undertakings party to a procedure for the authorisation of a transfer of rights to use radio frequencies provided for in Article  5(6) and the addressees of the decision of the national regulatory authority, and where that decision is likely to have an impact on that first undertaking’s position on the market.’ Case C-282/13  T-Mobile Austria GmbH  v Telekom-Control-Kommission, EU:C:2015:24, Court’s ruling. National legislature acting as NRA Case C-389/08 Base NV and Others v Ministerraad, EU:C:2010:584, para 1 of the Court’s ruling (see annotations to Article 6). National court departing from Commission Recommendation when reviewing NRA’s decision ‘1. Article  4(1) of [the Framework Directive], read in conjunction with Articles 8 and 13 of [the Access Directive], must be interpreted as meaning that a national court, hearing a dispute concerning the legality of a tariff obligation imposed by the national regulatory authority for the provision of fixed and mobile call termination services, may depart from Commission Recommendation 2009/396/EC of 7 May 2009 on the regulatory treatment of fixed and mobile termination rates in the EU advocating the “pure Bulric” (Bottom-Up Long-Run Incremental Costs) cost model as the appropriate price regulation measure in the termination market only where it considers that this is required on grounds related to the facts of the individual case, in particular the specific characteristics of the market of the Member State in question. 2.

EU law must be interpreted as meaning that a national court hearing a dispute concerning the legality of a tariff obligation imposed by the national regulatory authority for the provision of fixed and mobile call termination services can assess the proportionality of that obligation in the light of the objectives set out in Article 8 of [the Framework Directive], and Article 13 of [the Access Directive], and take into account the fact that the obligation has the effect of promoting the interests of end-users on a retail market which has not been earmarked for regulation. A national court may not, when carrying out a judicial review of a decision of the national regulatory authority, require that authority to demonstrate that the

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obligation actually attains the objectives set out in Article 8 of [the Framework Directive].’ Case C-28/15 Koninklijke KPN NV and Others v Autoriteit Consument en Markt (ACM), EU:C:2016:692, paras 1 and 2 of the Court’s ruling. Possibility of annulling a decision of the NRA with retroactive effect ‘Article  4(1), first subparagraph, first and third sentences, and second subparagraph, of [the Framework Directive], in conjunction with Article  47 of the [Charter], is to be interpreted as meaning that a national court hearing an appeal against a decision of the national regulatory authority must be able to annul that decision with retroactive effect if it finds that to be necessary in order to provide effective protection for the rights of the undertaking which has brought the appeal.’ Case C-231/15 Prezes Urzędu Komunikacji Elektronicznej and Petrotel sp. z o.o. w Płocku v Polkomtel sp. z o.o, EU:C:2016:769, Court’s ruling. TITLE IV INTERNAL MARKET PROCEDURES CHAPTER I Article 32 Consolidating the internal market for electronic communications 1.

In carrying out their tasks under this Directive, national regulatory authorities shall take the utmost account of the objectives set out in Article 3.

2.

National regulatory authorities shall contribute to the development of the internal market by working with each other and with the Commission and BEREC, in a transparent manner, in order to ensure the consistent application, in all Member States, of this Directive. To this end, they shall, in particular, work with the Commission and BEREC to identify the types of instruments and remedies best suited to address particular types of situations in the market.

3.

Except where otherwise provided in recommendations or guidelines adopted pursuant to Article  34 upon completion of the public consultation, if required under Article 23, where a national regulatory authority intends to take a measure which: (a)

falls within the scope of Article 61, 64, 67, 68 or 83; and

(b) would affect trade between Member States, it shall publish the draft measure and communicate it to the Commission, to BEREC, and to the national regulatory authorities in other Member States, at the same time, stating the reasons for the measure, in accordance with Article 20(3). National regulatory authorities, BEREC and the Commission may comment on that draft measure within one month. The one-month period shall not be extended. 4.

The draft measure referred to in paragraph 3 of this Article shall not be adopted for a further two months, where that measure aims to: (a) define a relevant market which is different from those defined in the recommendation referred to in Article 64(1); or [(b) decide whether or not to designate an undertaking as having, either individually or jointly with others, significant market power, under Article 67(3) or (4);]



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and it would affect trade between Member States, and the Commission has indicated to the national regulatory authority that it considers that the draft measure would create a barrier to the internal market or if it has serious doubts as to its compatibility with Union law and in particular the objectives referred to in Article 3. That two-month period shall not be extended. The Commission shall inform BEREC and national regulatory authorities of its reservations in such a case and simultaneously make them public. 5.

BEREC shall publish an opinion on the Commission’s reservations referred to in paragraph 4, indicating whether it considers that the draft measure should be maintained, amended or withdrawn and shall, where appropriate, provide specific proposals to that end.

6.

Within the two-month period referred to in paragraph  4, the Commission may either: (a) take a decision requiring the national regulatory authority concerned to withdraw the draft measure; or (b) take a decision to lift its reservations referred to in paragraph 4. The Commission shall take utmost account of the opinion of BEREC before taking a decision. Decisions referred to in point (a) of the first subparagraph shall be accompanied by a detailed and objective analysis of why the Commission considers that the draft measure is not to be adopted, together with specific proposals for amending it.

7.

Where the Commission has adopted a decision in accordance with point (a) of the first subparagraph of paragraph 6 of this Article requiring the national regulatory authority to withdraw a draft measure, the national regulatory authority shall amend or withdraw the draft measure within six months of the date of the Commission’s decision. Where the draft measure is amended, the national regulatory authority shall undertake a public consultation in accordance with Article 23, and shall notify the amended draft measure to the Commission in accordance with paragraph 3 of this Article.

8.

The national regulatory authority concerned shall take the utmost account of comments of other national regulatory authorities, of BEREC and of the Commission and may, except in the cases covered by paragraph 4 and point (a) of paragraph  6, adopt the resulting draft measure and shall, where it does so, communicate it to the Commission.

9.

The national regulatory authority shall communicate to the Commission and to BEREC all adopted final measures which fall under points (a) and (b) of paragraph 3.

10. In exceptional circumstances, where a national regulatory authority considers that there is an urgent need to act, in order to safeguard competition and protect the interests of users, by way of derogation from the procedure set out in paragraphs 3 and 4, it may immediately adopt proportionate and provisional measures. It shall, without delay, communicate those measures, with full reasons, to the Commission, to the other national regulatory authorities, and to BEREC. A  decision of the national regulatory authority to render such measures permanent or extend the period for which they are applicable shall be subject to paragraphs 3 and 4. 11. A national regulatory authority may withdraw a draft measure at any time.

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See: Recitals 66, 79-83; 85-87; 176. Correlation with Framework Directive EECC Article 32 correlates with Directive 2002/21/EC, Article 7. Corrigendum Article 32(4)(b) amended (as shown) by Article 1 of the Corrigendum to Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (OJ  L  334, 27.12.2019, p. 164). Notifications, Commission decisions and adopted measures See database available at: https://circabc.europa.eu/faces/jsp/extension/wai/ navigation/container.jsp; or https://circabc.europa.eu/ui/group/2328c58f-1fed4402-a6cc-0f0237699dc3/library/a943382e-4c71-4297-817e-f49c443d3165. Commission’s methodology for estimating the weighted average cost of capital (WACC) Communication from the Commission, Commission Notice on the calculation of the cost of capital for legacy infrastructure in the context of the Commission’s review of national notifications in the EU electronic communications sector (Text with EEA relevance) 2019/C 375/01 (OJ C 375, 6.11.2019, p. 1). Obligation to implement procedure on draft measures before imposing access obligations in the resolution of a dispute ‘1. Articles  7(3) and 20 of [the Framework Directive] must be interpreted as meaning that a national regulatory authority is required to implement the procedure laid down in the former of those provisions if, in resolving a dispute between undertakings providing electronic communications networks or services in a Member State, it intends to impose obligations designed to ensure access to non-geographic numbers in accordance with Article 28 of [the Universal Service Directive] and those obligations may affect trade between Member States. 2.

Article 7(3) of [the Framework Directive] must be interpreted as meaning that a measure adopted by a national regulatory authority in order to ensure that end-users have access to non-geographic numbers in accordance with Article 28 of [the Universal Service Directive] affects trade between Member States, within the meaning of that provision, if it may have, other than in an insignificant manner, an influence, direct or indirect, actual or potential, on that trade, this being a matter for the referring court to determine.’ Case C-3/14 Prezes Urzędu Komunikacji Elektronicznej and Telefonia Dialog sp. z o.o. v T-Mobile Polska SA, EU:C:2015:232, paras 1 and 2 of the Court’s ruling. Procedure for consolidating the internal market for electronic communications ‘Article 7(3) of [the Framework Directive] must be interpreted as meaning that, when an national regulatory authority has required an operator which has been designated as having significant market power to provide mobile call termination services and has made the fees charged for this subject to authorisation following the procedure laid down in that provision, that national regulatory authority is required to carry out the procedure again before each authorisation of those fees to that operator, where that authorisation is likely to affect trade between the Member States within the meaning of that provision.’ Case C-395/14 Vodafone GmbH v Bundesrepublik Deutschland, EU:C:2016:9, Court’s ruling. Commission’s comments on draft measures do not produce binding legal effects



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‘[…T]he requirement that the NRA concerned must “take the utmost account” of the comments made by the Commission under Article 7(3) of the Framework Directive does not mean that the contested measure produces binding legal effects. [… T]he contested measure does not amount to authorisation which would have enabled the ACM [Authority for Consumers and Markets, Netherlands] to adopt its draft measure and would thereby produce binding legal effects. [… T]he contested measure, which excludes the opening of the second phase of the European consultation procedure, does not affect the applicant’s procedural rights. [… N]either the legal context in which the contested measure was adopted nor the content of that measure demonstrate that the measure produces binding legal effects. [… T]he contested measure, which does not produce any binding legal effects and is preparatory in nature, is not a measure which may be the subject of an action by the applicant before the EU Courts under Article 263 TFEU, for the purposes of challenging a failure to open the second phase of the European consultation procedure.’ Case T-660/18 VodafoneZiggo Group BV  v European Commission, EU:T:2019:546, paras 54, 63, 85, 105 and 120 of the Order of the General Court (First Chamber) of 9 July 2019; see also paras 41–43 and 103. Article 33 Procedure for the consistent application of remedies 1.

Where an intended measure covered by Article 32(3) aims to impose, amend or withdraw an obligation on an undertaking in application of Article  61 or 67 in conjunction with Articles 69 to 76 and Article 83, the Commission may, within the one-month period referred to in Article 32(3), notify the national regulatory authority concerned and BEREC of its reasons for considering that the draft measure would create a barrier to the internal market or of its serious doubts as to its compatibility with Union law. In such a case, the draft measure shall not be adopted for a further three months following the Commission’s notification. In the absence of such notification, the national regulatory authority concerned may adopt the draft measure, taking utmost account of any comments made by the Commission, BEREC or any other national regulatory authority.

2.

Within the three-month period referred to in paragraph  1 of this Article, the Commission, BEREC and the national regulatory authority concerned shall cooperate closely to identify the most appropriate and effective measure in light of the objectives laid down in Article 3, whilst taking due account of the views of market participants and the need to ensure the development of consistent regulatory practice.

3.

Within six weeks from the beginning of the three-month period referred to in paragraph  1, BEREC shall issue an opinion on the Commission’s notification referred to in paragraph 1, indicating whether it considers that the draft measure should be amended or withdrawn and, where appropriate, provide specific proposals to that end. That opinion shall provide reasons and be made public.

4.

If in its opinion, BEREC shares the serious doubts of the Commission, it shall cooperate closely with the national regulatory authority concerned to identify the most appropriate and effective measure. Before the end of the three-month period referred to in paragraph 1, the national regulatory authority may either:

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(a) amend or withdraw its draft measure taking utmost account of the Commission’s notification referred to in paragraph  1 and of BEREC’s opinion; or (b) maintain its draft measure. 5.

The Commission may, within one month following the end of the three-month period referred to in paragraph  1 and taking utmost account of the opinion of BEREC, if any: (a) issue a recommendation requiring the national regulatory authority concerned to amend or withdraw the draft measure, including specific proposals to that end and providing reasons for its recommendation, in particular where BEREC does not share the Commission’s serious doubts; (b) take a decision to lift its reservations indicated in accordance with paragraph 1; or (c) for draft measures falling under the second subparagraph of Article 61(3) or under Article  76(2), take a decision requiring the national regulatory authority concerned to withdraw the draft measure, where BEREC shares the serious doubts of the Commission, accompanied by a detailed and objective analysis of why the Commission considers that the draft measure should not be adopted, together with specific proposals for amending the draft measure, subject to the procedure referred to in Article 32(7), which shall apply mutatis mutandis.

6.

Within one month of the Commission issuing the recommendation in accordance with point (a) of paragraph 5 or lifting its reservations in accordance with point (b) of paragraph 5, the national regulatory authority concerned shall communicate to the Commission and to BEREC the adopted final measure. That period may be extended to allow the national regulatory authority to undertake a public consultation in accordance with Article 23.

7.

Where the national regulatory authority decides not to amend or withdraw the draft measure on the basis of the recommendation issued under point (a) of paragraph 5, it shall provide reasons.

8.

The national regulatory authority may withdraw the proposed draft measure at any stage of the procedure. See: Recitals 81-83; 85-87; 201. Correlation with Framework Directive EECC Article 33 correlates with Directive 2002/21/EC, Article 7a. Notifications, Commission decisions and adopted measures See database available at: https://circabc.europa.eu/faces/jsp/extension/wai/ navigation/container.jsp; or https://circabc.europa.eu/ui/group/2328c58f-1fed4402-a6cc-0f0237699dc3/library/a943382e-4c71-4297-817e-f49c443d3165.

Article 34 Implementing provisions After public consultation and after consulting the national regulatory authorities and taking utmost account of the opinion of BEREC, the Commission may adopt recommendations or guidelines in relation to Article  32 that lay down the form, content and level of detail to be given in the notifications required in accordance with



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Article 32(3), the circumstances in which notifications would not be required, and the calculation of the time-limits. See: Recitals 84; 317. Commission Recommendation Commission Recommendation (EU) 2021/554 of 30  March 2021 on the form, content, time limits and level of detail to be given in notifications under the procedures set in Article  32 of Directive (EU) 2018/1972 of the European Parliament and of the Council establishing the European Electronic Communications Code (OJ L 112, 31.3.2021, p. 5) (see p 1233). CHAPTER II Consistent radio spectrum assignment Article 35 Peer review process 1.

Where the national regulatory or other competent authority intends to undertake a selection procedure in accordance with Article 55(2) in relation to radio spectrum for which harmonised conditions have been set by technical implementing measures in accordance with Decision No  676/2002/EC in order to enable its use for wireless broadband networks and services, it shall, pursuant to Article 23, inform the RSPG about any draft measure which falls within the scope of the comparative or competitive selection procedure pursuant to Article  55(2) and indicate whether and when it is to request the RSPG to convene a Peer Review Forum. When requested to do so, the RSPG shall organise a Peer Review Forum in order to discuss and exchange views on the draft measures transmitted and shall facilitate the exchange of experiences and best practices on those draft measures. The Peer Review Forum shall be composed of the members of the RSPG and organised and chaired by a representative of the RSPG.

2.

At the latest during the public consultation conducted pursuant to Article 23, the RSPG may exceptionally take the initiative to convene a Peer Review Forum in accordance with the rules of procedure for organising it in order to exchange experiences and best practices on a draft measure relating to a selection procedure where it considers that the draft measure would significantly prejudice the ability of the national regulatory or other competent authority to achieve the objectives set in Articles 3, 45, 46 and 47.

3.

The RSPG shall define in advance and make public the objective criteria for the exceptional convening of the Peer Review Forum.

4.

During the Peer Review Forum, the national regulatory authority or other competent authority shall provide an explanation on how the draft measure: (a)

promotes the development of the internal market, the cross-border provision of services, as well as competition, and maximises the benefits for the consumer, and overall achieves the objectives set in Articles 3, 45, 46 and 47 of this Directive, as well as in Decisions No 676/2002/EC and No 243/2012/ EU;

(b) ensures effective and efficient use of radio spectrum; and

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(c) ensures stable and predictable investment conditions for existing and prospective radio spectrum users when deploying networks for the provision of electronic communications services which rely on radio spectrum. 5.

The Peer Review Forum shall be open to voluntary participation by experts from other competent authorities and from BEREC.

6.

The Peer Review Forum shall be convened only once during the overall national preparation and consultation process of a single selection procedure concerning one or several radio spectrum bands, unless the national regulatory or other competent authority requests that it is reconvened.

7.

At the request of the national regulatory or other competent authority that requested the meeting, the RSPG may adopt a report on how the draft measure achieves the objectives provided in paragraph  4, reflecting the views exchanged in the Peer Review Forum.

8.

The RSPG shall publish in February each year a report concerning the draft measures discussed pursuant to paragraphs 1 and 2. The report shall indicate experiences and best practices noted.

9.

Following the Peer Review Forum, at the request of the national regulatory or other competent authority that requested the meeting, the RSPG may adopt an opinion on the draft measure. See: Recital 88. Objectives of the Radio Spectrum Decision Decision No 676/2002/EC, Article 1(1) and (2) (see pp 1082–83). Objectives of the Multiannual Radio Spectrum Policy Programme Decision Decision No 243/2012/EU, Articles 1(1) and 3 (see pp 1109–10).

Article 36 Harmonised assignment of radio spectrum Where the use of radio spectrum has been harmonised, access conditions and procedures have been agreed, and undertakings to which the radio spectrum shall be assigned have been selected in accordance with international agreements and Union rules, Member States shall grant the right of use for such radio spectrum in accordance therewith. Provided that all national conditions attached to the right to use the radio spectrum concerned have been satisfied in the case of a common selection procedure, Member States shall not impose any further conditions, additional criteria or procedures which would restrict, alter or delay the correct implementation of the common assignment of such radio spectrum. See: Recitals 89; 100; 123. Correlation with Authorisation Directive EECC Article 36 correlates with Directive 2002/20/EC, Article 8. Article 37 Joint authorisation process to grant individual rights of use for radio spectrum Two or several Member States may cooperate with each other and with the RSPG, taking into account any interest expressed by market participants, by jointly establishing the common aspects of an authorisation process and, where appropriate, also jointly conducting the selection process to grant individual rights of use for radio spectrum. When designing the joint authorisation process, Members States may take into consideration the following criteria:



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(a)

the individual national authorisation processes shall be initiated and implemented by the competent authorities in accordance with a jointly agreed schedule;

(b)

it shall provide, where appropriate, for common conditions and procedures for the selection and granting of individual rights of use for radio spectrum among the Member States concerned;

(c) it shall provide, where appropriate, for common or comparable conditions to be attached to the individual rights of use for radio spectrum among the Member States concerned, inter alia allowing users to be assigned similar radio spectrum blocks; (d) it shall be open at any time to other Member States until the joint authorisation process has been conducted. Where, in spite of the interest expressed by market participants, Member States do not act jointly, they shall inform those market participants of the reasons explaining their decision. See: Recital 90. CHAPTER III Harmonisation procedures Article 38 Harmonisation procedures 1.

Where the Commission finds that divergences in the implementation by the national regulatory or other competent authorities of the regulatory tasks specified in this Directive could create a barrier to the internal market, the Commission may, taking the utmost account of the opinion of BEREC or, where relevant, the RSPG, adopt recommendations or, subject to paragraph  3 of this Article, decisions by means of implementing acts to ensure the harmonised application of this Directive and in order to further the achievement of the objectives set out in Article 3.

2.

Member States shall ensure that national regulatory and other competent authorities take the utmost account of the recommendations referred to in paragraph  1 in carrying out their tasks. Where a national regulatory or other competent authority chooses not to follow a recommendation, it shall inform the Commission, giving the reasons for its position.

3.

The decisions adopted pursuant to paragraph 1 shall include only the identification of a harmonised or coordinated approach for the purpose of addressing the following matters: (a)

the inconsistent implementation of general regulatory approaches by national regulatory authorities on the regulation of electronic communications markets in the application of Articles 64 and 67, where it creates a barrier to the internal market; such decisions shall not refer to specific notifications issued by the national regulatory authorities pursuant to Article 32; in such a case, the Commission shall propose a draft decision only: (i) after at least two years following the adoption of a Commission recommendation dealing with the same matter; and (ii) taking utmost account of an opinion from BEREC on the case for adoption of such a decision, which shall be provided by BEREC within three months of the Commission’s request;

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(b)

numbering, including number ranges, portability of numbers and identifiers, number and address translation systems, and access to emergency services through the single European emergency number ‘112’.

4.

The implementing acts referred to in paragraph 1 of this Article shall be adopted in accordance with the examination procedure referred to in Article 118(4).

5.

BEREC may, on its own initiative, advise the Commission on whether a measure should be adopted pursuant to paragraph 1.

6.

If the Commission has not adopted a recommendation or a decision within one year from the date of adoption of an opinion by BEREC indicating the existence of divergences in the implementation by the national regulatory or other competent authorities of the regulatory tasks specified in this Directive that could create a barrier to the internal market, it shall inform the European Parliament and the Council of its reasons for not doing so, and make those reasons public. Where the Commission has adopted a recommendation in accordance with paragraph 1, but the inconsistent implementation creating barriers to the internal market persists for two years thereafter, the Commission shall, subject to paragraph 3, adopt a decision by means of implementing acts in accordance with paragraph 4. Where the Commission has not adopted a decision within a further year from any recommendation adopted pursuant to the second subparagraph, it shall inform the European Parliament and the Council of its reasons for not doing so, and make those reasons public. See: Recitals 91; 123; 176; 316; 317. Correlation with Framework Directive EECC Article 38 correlates with Directive 2002/21/EC, Article 19. Article 39 Standardisation

1.

The Commission shall draw up and publish in the Official Journal of the European Union a list of non-compulsory standards or specifications to serve as a basis for encouraging the harmonised provision of electronic communications networks, electronic communications services and associated facilities and associated services. Where necessary, the Commission may, following consultation of the Committee established by Directive (EU) 2015/1535, request that standards be drawn up by the European standardisation organisations (European Committee for Standardisation (CEN), European Committee for Electrotechnical Standardisation (Cenelec), and European Telecommunications Standards Institute (ETSI)).

2.

Member States shall encourage the use of the standards or specifications referred to in paragraph  1 for the provision of services, technical interfaces or network functions, to the extent strictly necessary to ensure interoperability of services, end-to-end connectivity, facilitation of provider switching and portability of numbers and identifiers, and to improve freedom of choice for users. In the absence of publication of standards or specifications in accordance with paragraph 1, Member States shall encourage the implementation of standards or specifications adopted by the European standardisation organisations. In the absence of such standards or specifications, Member States shall encourage the implementation of international standards or recommendations adopted by



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the International Telecommunication Union (ITU), the European Conference of Postal and Telecommunications Administrations (CEPT), the International Organisation for Standardisation (ISO) and the International Electrotechnical Commission (IEC). Where international standards exist, Member States shall encourage the European standardisation organisations to use them, or the relevant parts of them, as a basis for the standards they develop, except where such international standards or relevant parts would be ineffective. Any standards or specifications referred to in paragraph  1 or in this paragraph shall not prevent access as may be required under this Directive, where feasible. 3.

If the standards or specifications referred to in paragraph 1 have not been adequately implemented so that interoperability of services in one or more Member States cannot be ensured, the implementation of such standards or specifications may be made compulsory under the procedure laid down in paragraph 4, to the extent strictly necessary to ensure such interoperability and to improve freedom of choice for users.

4.

Where the Commission intends to make the implementation of certain standards or specifications compulsory, it shall publish a notice in the Official Journal of the European Union and invite public comment by all parties concerned. The Commission shall, by means of implementing acts, make implementation of the relevant standards compulsory by making reference to them as compulsory standards in the list of standards or specifications published in the Official Journal of the European Union.

5.

Where the Commission considers that the standards or specifications referred to in paragraph  1 no longer contribute to the provision of harmonised electronic communications services, no longer meet consumers’ needs or hamper technological development, it shall remove them from the list of standards or specifications referred to in paragraph 1.

6.

Where the Commission considers that the standards or specifications referred to in paragraph  4 no longer contribute to the provision of harmonised electronic communications services, no longer meet consumers’ needs, or hamper technological development, it shall, by means of implementing acts, remove those standards or specifications from the list of standards or specifications referred to in paragraph 1.

7.

The implementing acts referred to in paragraphs 4 and 6 of this Article shall be adopted in accordance with the examination procedure referred to in Article 118(4).

8.

This Article does not apply in respect of any of the essential requirements, interface specifications or harmonised standards to which Directive 2014/53/EU applies. See: Recitals 8; 33; 92; 93; 111; 148; 286; 303; 305; 316. Correlation with Framework Directive EECC Article 39 correlates with Directive 2002/21/EC, Article 17. List of standards and specifications Commission Decision of 11  December 2006 establishing a list of standards and/or specifications for electronic communications networks, services and associated facilities and services and replacing all previous versions (notified under document number C(2006) 6364) (Text with EEA relevance) (2007/176/ EC) (OJ L 086, 27.3.2007, p.11) (see p. 1086).

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Committee established by the Single Market Transparency Directive Technical Regulations Standing Committee (X01900) – Directive (EU) 2015/1535, Articles 2 and 3 (see p. 945). Essential requirements to which the Radio Equipment Directive applies Directive 2014/53/EU, Article 3 (see p. 891). Interface specifications to which the Radio Equipment Directive applies Directive 2014/53/EU, Article 8 (see p. 893). Harmonised standards to which the Radio Equipment Directive applies (a)

Directive 2014/53/EU, Article 16 (see p. 898).

(b) ‘“[H]armonised standard” means a European standard adopted on the basis of a request made by the Commission for the application of Union harmonisation legislation’. Directive 2014/53/EU, Article 2(1)(18) and Regulation (EU) No 1025/2012, Article 2(1)(c). (c) Commission Implementing Decision (EU) 2020/167 of 5 February 2020 on the harmonised standards for radio equipment drafted in support of Directive 2014/53/EU of the European Parliament and of the Council (OJ L 34, 6.2.2020, p. 46). (d) Commission communication in the framework of the implementation of Directive 1999/5/EC of the European Parliament and of the Council on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity and Directive 2014/53/EU of the European Parliament and of the Council of 16 April 2014 on the harmonisation of the laws of the Member States relating to the making available on the market of radio equipment and repealing Directive 1999/5/ EC (Publication of titles and references of harmonised standards under Union harmonisation legislation) (Text with EEA relevance) (OJ  C  326, 14.9.2018, p. 114). TITLE V SECURITY Article 40 Security of networks and services 1.

Member States shall ensure that providers of public electronic communications networks or of publicly available electronic communications services take appropriate and proportionate technical and organisational measures to appropriately manage the risks posed to the security of networks and services. Having regard to the state of the art, those measures shall ensure a level of security appropriate to the risk presented. In particular, measures, including encryption where appropriate, shall be taken to prevent and minimise the impact of security incidents on users and on other networks and services. The European Union Agency for Network and Information Security (‘ENISA’) shall facilitate, in accordance with Regulation (EU) No 526/2013 of the European Parliament and of the Council56, the coordination of Member States to avoid

Regulation (EU) No 526/2013 of the European Parliament and of the Council of 21 May 2013 concerning the European Union Agency for Network and Information Security (ENISA) and repealing Regulation (EC) No 460/2004 (OJ L 165, 18.6.2013, p. 41). [Repealed by the EU Cybersecurity Act.]

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diverging national requirements that may create security risks and barriers to the internal market. 2.

Member States shall ensure that providers of public electronic communications networks or of publicly available electronic communications services notify without undue delay the competent authority of a security incident that has had a significant impact on the operation of networks or services. In order to determine the significance of the impact of a security incident, where available the following parameters shall, in particular, be taken into account: (a)

the number of users affected by the security incident;

(b) the duration of the security incident; (c)

the geographical spread of the area affected by the security incident;

(d) the extent to which the functioning of the network or service is affected; (e)

the extent of impact on economic and societal activities.

Where appropriate, the competent authority concerned shall inform the competent authorities in other Member States and ENISA. The competent authority concerned may inform the public or require the providers to do so, where it determines that disclosure of the security incident is in the public interest. Once a year, the competent authority concerned shall submit a summary report to the Commission and to ENISA on the notifications received and the action taken in accordance with this paragraph. 3.

Member States shall ensure that in the case of a particular and significant threat of a security incident in public electronic communications networks or publicly available electronic communications services, providers of such networks or services shall inform their users potentially affected by such a threat of any possible protective measures or remedies which can be taken by the users. Where appropriate, providers shall also inform their users of the threat itself.

4.

This Article is without prejudice to Regulation (EU) 2016/679 and Directive 2002/58/EC.

5.

The Commission, taking utmost account of ENISA’s opinion, may adopt implementing acts detailing the technical and organisational measures referred to in paragraph 1, as well as the circumstances, format and procedures applicable to notification requirements pursuant to paragraph  2. They shall be based on European and international standards to the greatest extent possible, and shall not prevent Member States from adopting additional requirements in order to pursue the objectives set out in paragraph 1. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 118(4). See: Recitals 94-98; 316. Correlation with Framework Directive EECC Article 40(1)–(3) correlates with Directive 2002/21/EC, Articles 13a(1)– (3). The EU Cybersecurity Act Regulation (EU) 2019/881 of the European Parliament and of the Council of 17 April 2019 on ENISA (the European Union Agency for Cybersecurity) and

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on information and communications technology cybersecurity certification and repealing Regulation (EU) No  526/2013 (Cybersecurity Act) (Text with EEA relevance) (OJ L 151, 7.6.2019, p. 15) (see p. 596). Security requirements under the ePrivacy Directive Directive 2002/58/EC, Article 4 (see p. 724). Confidentiality of communications under the ePrivacy Directive Directive 2002/58/EC, Article 15 (see p. 713). Article 41 Implementation and enforcement 1.

Member States shall ensure that, in order to implement Article 40, the competent authorities have the power to issue binding instructions, including those regarding the measures required to remedy a security incident or prevent one from occurring when a significant threat has been identified and time-limits for implementation, to providers of public electronic communications networks or publicly available electronic communications services.

2.

Member States shall ensure that competent authorities have the power to require providers of public electronic communications networks or publicly available electronic communications services to: (a) provide information needed to assess the security of their networks and services, including documented security policies; and (b) submit to a security audit carried out by a qualified independent body or a competent authority and make the results thereof available to the competent authority; the cost of the audit shall be paid by the provider.

3.

Member States shall ensure that the competent authorities have all the powers necessary to investigate cases of non-compliance and the effects thereof on the security of the networks and services.

4.

Member States shall ensure that, in order to implement Article 40, the competent authorities have the power to obtain the assistance of a Computer Security Incident Response Team (‘CSIRT’) designated pursuant to Article  9 of Directive (EU) 2016/1148 in relation to issues falling within the tasks of the CSIRTs pursuant to point 2 of Annex I to that Directive.

5.

The competent authorities shall, where appropriate and in accordance with national law, consult and cooperate with the relevant national law enforcement authorities, the competent authorities within the meaning of Article  8(1) of Directive (EU) 2016/1148 and the national data protection authorities. See: Recital 98. Correlation with Framework Directive EECC Articles 41(1)-(3) correlate with Directive 2002/21/EC, Articles 13b(1)(3); EECC Article 41(7) correlates with Directive 2002/21/EC, Article 13b(4). CSIRTs’ tasks under the NIS Directive Directive (EU) 2016/1148, Annex I(2) (see p. 985). Meaning of ‘competent authority’ Directive (EU) 2016/1148, Article 8(1) and Annexes II and III (see pp 974 and 985–88).



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PART II NETWORKS TITLE I MARKET ENTRY AND DEPLOYMENT CHAPTER I Fees Article 42 Fees for rights of use for radio spectrum and rights to install facilities 1.

Member States may allow the competent authority to impose fees for the rights of use for radio spectrum or rights to install facilities on, over or under public or private property that are used for the provision of electronic communications networks or services and associated facilities which ensure the optimal use of those resources. Member States shall ensure that such fees are objectively justified, transparent, non-discriminatory and proportionate in relation to their intended purpose and shall take into account the general objectives of this Directive.

2.

With respect to rights of use for radio spectrum, Member States shall seek to ensure that applicable fees are set at a level which ensures efficient assignment and use of radio spectrum, including by: (a)

setting reserve prices as minimum fees for rights of use for radio spectrum by having regard to the value of those rights in their possible alternative uses;

(b) taking into account costs entailed by conditions attached to those rights; and (c)

applying, to the extent possible, payment arrangements linked to the actual availability for use of the radio spectrum.

See: Recitals 32; 99–102. Correlation with Authorisation Directive EECC Article 42 correlates with Directive 2002/20/EC, Article 13. Non-discrimination Case C-462/99 Connect Austria Gesellschaft für Telekommunikation GmbH  v Telekom-Control-Kommission, EU:C:2003:297, paras 113–118 (see annotations to Article 48). Fees and charges other than and in addition to those allowed by the Directive Joined Cases C-292/01 Albacom SpA and C-293/01 Infostrada SpA v Ministero del Tesoro, del Bilancio e della Programmazione Economica and Ministero delle Comunicazioni, EU:C:2003:480, Court’s ruling; Joined Cases C-250/02 Telecom Italia Mobile SpA, C-251/02 Blu SpA, C-252/02 Telecom Italia SpA, C-253/02 Vodafone Omnitel SpA, formerly Omnitel Pronto Italia SpA, and C-256/02  WIND  Telecomunicazioni SpA  v Ministero dell’Economia e delle Finanze and Ministero delle Comunicazioni, EU:C:2004:335, Court’s ruling (in Italian); Case C-339/04, Nuova società di telecomunicazioni SpA v Ministero delle Comunicazioni and ENI SpA, EU:C:2006:490, Court’s ruling (see annotations to Article 16). Municipal taxes on transmission pylons, masts and antennae for GSM ‘[…T]he event which gives rise to the taxes on communications infrastructures is not the issue of a licence. Therefore, Directive 97/13 […] is not applicable to the facts of the case.’ Joined Cases C-544/03 Mobistar SA  v Commune de Fléron and C-545/03 Belgacom Mobile SA v Commune de Schaerbeek EU:C:2005:518, para 37.

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Value added tax (a) ‘Article 4(2) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment [correlates with Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, Article 9(1)], is to be interpreted as meaning that the allocation, by auction by the national regulatory authority responsible for spectrum assignment, of rights such as rights to use frequencies in the electromagnetic spectrum with the aim of providing the public with mobile telecommunications services does not constitute an economic activity within the meaning of that provision and, consequently, does not fall within the scope of that directive.’ Case C-284/04 T-Mobile Austria GmbH and Others v Republik Österreich, EU:C:2007:381, Court’s ruling; see also paras 36, 39–45 and 49. (b) ‘Article 4(1) and (2) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment [correlates with Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, Article 9(1)] is to be interpreted as meaning that the issuing of licences, such as third generation mobile telecommunications licences known as “UMTS”, by auction by the national regulatory authority responsible for spectrum assignment of the rights to use telecommunications equipment does not constitute an economic activity within the meaning of that provision and, consequently, does not fall within the scope of that directive.’ Case C-369/04 Hutchison 3G UK  Ltd and Others v Commissioners of Customs and Excise, EU:C:2007:382, Court’s ruling; see also paras 30, 33–39 and 43. Government concession fees regarding subscription contracts for mobile telephone services Case C-492/09 Agricola Esposito Srl v Agenzia delle Entrate – Ufficio di Taranto 2, EU:C:2010:766 (see annotation to Article 16). Fees for rights of use and to install facilities where undertakings are not proprietors of the facilities ‘1.

Article 13 of [the Authorisation Directive] must be interpreted as precluding the imposition of a fee for the right to install facilities on, over or under public or private property on operating undertakings which, without being proprietors of those facilities, use them to provide mobile telephony services.

2.

Article 13 of [the Authorisation Directive] has direct effect and therefore it grants individuals the right to rely upon it before the national courts to dispute the application of a decision by the public authority that is incompatible with that article.’

Joined Cases C-55/11 Vodafone España SA  v Ayuntamiento de Santa Amalia, C-57/11 Vodafone España SA  v Ayuntamiento de Tudela and C-58/11 France Telecom España SA v Ayuntamiento de Torremayor, EU:C:2012:446, paras 1 and 2 of the Court’s ruling. One-off fees for grant and renewal of rights to use radio frequencies



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‘1. Articles  12 and 13 of [the Authorisation Directive], must be interpreted as not precluding a Member State from charging mobile telephone operators holding rights of use for radio frequencies a one-off fee payable for both a new acquisition of rights of use for radio frequencies and for renewals of those rights, in addition to an annual fee for making the frequencies available, intended to encourage optimal use of the resources, and also to a fee covering the cost of managing the authorisation, provided that those fees genuinely are intended to ensure optimal use of the resource made up of those radio frequencies and are objectively justified, transparent, non‑discriminatory and proportionate in relation to their intended purpose and take into account the objectives in Article 8 of [the Framework Directive], which it is for the national court to assess. Subject to that same condition, the fixing of the amount of a one-off fee for rights of use for radio frequencies by reference either to the amount of the former oneoff licence fee calculated on the basis of the number of frequencies and months to which the rights of use relate, or to the amounts raised through auction, may be an appropriate method for determining the value of the radio frequencies.’ Case C-375/11 Belgacom SA and Others v État belge, EU:C:2013:185, para 1 of the Court’s ruling. Payment of excise duty calculated as a percentage of charges paid by users ‘[…] Article 13 of the Authorisation Directive lays down the conditions under which fees may be imposed for the rights of use for radio frequencies or numbers or rights to install facilities on, over or under public or private property. However, as is apparent from the order for reference, the levying of a charge referred to as “excise duty” on all payments received by mobile telephony operators for their services, such as the charge at issue in the main proceedings, is linked to the “provision of mobile telephony services”. As a consequence, Article 13 of the Authorisation Directive is irrelevant for the purpose of the main proceedings.’ Case C-71/12 Vodafone Malta ltd and Mobisle Communications ltd. v Avukat Ġenerali and Others, EU:C:2013:431, para 19 (see also annotations to Article 16). Payment of tax on places of business ‘Articles  6 and 13 of [the Authorisation Directive] must be interpreted as not precluding operators providing electronic communications networks or services from being subject to a general tax on establishments, on account of the presence on public or private property of cellular telephone communication masts, pylons or antennae which are necessary for their activity.’ Joined Cases C-256/13 Provincie Antwerpen v Belgacom NV van publiek recht and C-264/13 Provincie Antwerpen v Mobistar NV, EU:C:2014:2149, Court’s ruling. Municipal regulations making owners of mobile telephone transmission pylons and masts subject to payment of a tax ‘Article 13 of [the Authorisation Directive] must be interpreted as not precluding a tax, such as that at issue in the main proceedings, being imposed on the owner of free-standing structures, such as transmission pylons or masts intended to support the antennas required for the functioning of the mobile telecommunication network, and which it was not possible to place on an existing site.’ Case C-346/13 Ville de Mons v Base Company S  A, EU:C:2015:649, Court’s ruling. Charge on mobile telephony antennae ‘Articles 12 and 13 [of the Authorisation Directive] must be interpreted as not precluding a charge, such as that at issue in the main proceedings, being imposed on any natural or legal persons who are proprietors of a right in rem over, or of a right to operate, a mobile telephony antenna.’

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Case C-454/13 Proximus SA v Commune d’Etterbeek, EU:C:2015:819, Court’s ruling. Charge on mobile telephony network transmission and reception pylons and/ or units ‘Articles  6 and 13 of [the Authorisation Directive] must be interpreted as not precluding a charge, such as that at issue in the main proceedings, being imposed on any natural or legal persons operating a mobile telephony network transmission and reception pylons and/or units.’ Case C-517/13 Proximus SA  v Province of Namur, EU:C:2015:820, Court’s ruling. CHAPTER II Access to land Article 43 Rights of way 1.

Member States shall ensure that, when a competent authority considers an application for the granting of rights: •

to install facilities on, over or under public or private property to an undertaking authorised to provide public electronic communications networks, or

•

to install facilities on, over or under public property to an undertaking authorised to provide electronic communications networks other than to the public,

that competent authority: (a) acts on the basis of simple, efficient, transparent and publicly available procedures, applied without discrimination and without delay, and in any event makes its decision within six months of the application, except in the case of expropriation; and (b) follows the principles of transparency and non-discrimination in attaching conditions to any such rights. The procedures referred to in points (a) and (b) may differ depending on whether the applicant is providing public electronic communications networks or not. 2.

Member States shall ensure that, where public or local authorities retain ownership or control of undertakings providing public electronic communications networks or publicly available electronic communications services, there is an effective structural separation of the function responsible for granting the rights referred to in paragraph 1 from the activities associated with ownership or control. See: Recitals 100; 103; 104. Correlation with Framework Directive EECC Article 43 correlates with Directive 2002/21/EC, Article 11. Article 44 Co-location and sharing of network elements and associated facilities for providers of electronic communications networks

1.

Where an operator has exercised the right under national law to install facilities on, over or under public or private property, or has taken advantage of a procedure for the expropriation or use of property, competent authorities may impose co-



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location and sharing of the network elements and associated facilities installed on that basis, in order to protect the environment, public health, public security or to meet town- and country-planning objectives. Co-location or sharing of network elements and facilities installed and sharing of property may be imposed only after an appropriate period of public consultation, during which all interested parties shall be given an opportunity to express their views and only in the specific areas where such sharing is considered to be necessary with a view to pursuing the objectives provided in the first subparagraph. Competent authorities may impose the sharing of such facilities or property, including land, buildings, entries to buildings, building wiring, masts, antennae, towers and other supporting constructions, ducts, conduits, manholes, cabinets or measures facilitating the coordination of public works. Where necessary, a Member State may designate a national regulatory or other competent authority for one or more of the following tasks: (a)

coordinating the process provided for in this Article;

(b) acting as a single information point; (c) 2.

setting down rules for apportioning the costs of facility or property sharing and of civil works coordination.

Measures taken by a competent authority in accordance with this Article shall be objective, transparent, non-discriminatory, and proportionate. Where relevant, these measures shall be carried out in coordination with the national regulatory authorities. See: Recitals 105; 106. Correlation with Framework Directive EECC  Article  44(1) correlates with Directive 2002/21/EC, Article  12(1); EECC Article 44(2) correlates with Directive 2002/21/EC, Article 12(5). Commission Decisions on mobile network sharing under EU antitrust rules See Case 38.369  T-Mobile Deutschland/O2 Germany: Network Sharing Rahmenvertrag OJ  2004 L75/32 (and on appeal Case T-328/03); Case 38.369 O2 UK Limited/T-Mobile UK Limited (UK Network Sharing Agreement) OJ 2003 L200/59; Case M.9674 VODAFONE ITALIA / TIM / INWIT JV. Regulated access to Next Generation Access Networks 2010/572/EU: Commission Recommendation of 20 September 2010 on regulated access to Next Generation Access Networks (NGA) (Text with EEA relevance) (OJ L 251, 25.9.2010, p. 35) (see p. 1160). BEREC Guidance BEREC Common position on mobile infrastructure sharing, BoR (19) 110, 13 June 2019: ‘This Common Position describes criteria which can be taken into account by NRAs in assessing mobile infrastructure sharing agreements where NRAs have competence to do so. It is intended to provide NRAs, stakeholders and interested parties with information relating to the treatment of such agreements in Europe. To this end, this document provides ‘background information’ relevant to the consideration of infrastructure sharing agreements which do not (on their own) constitute a Common Position. This includes information on relevant legal frameworks relating to the treatment of infrastructure sharing agreements and information on the potential benefits and drawbacks of infrastructure sharing agreements.

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The Common Position itself consists of: •

common definitions of different infrastructure sharing types: passive sharing, co-location, site sharing, mast sharing, active sharing, RAN sharing, MORAN sharing, MOCN sharing, frequency (or spectrum) pooling, national/local roaming, core network sharing and backhaul sharing;

•

common important objectives which NRAs should consider when assessing infrastructure sharing agreements (providing that it is within their competence to do so): effective competition, better connectivity and efficient use of spectrum;

•

common factors which NRAs should consider when assessing infrastructure sharing agreements (providing that it is within their competence to do so): competitive market forces evolution, the feasible level of competition, type of sharing, shared information between the sharing parties and its impact on their ability to compete, reversibility and contractual implementation. It should be noted that consideration of these factors, their relative importance to one another, and the relevance of potentially significant other factors not listed here are likely to be highly context specific. In all instances, therefore, assessing infrastructure sharing agreements will require evidence-based analysis on a caseby-case basis. Finally, this document provides a description of potential treatment of specific infrastructure sharing types.’ Executive Summary. CHAPTER III Access to radio spectrum Section 1 Authorisations Article 45 Management of radio spectrum 1.

Taking due account of the fact that radio spectrum is a public good that has an important social, cultural and economic value, Member States shall ensure the effective management of radio spectrum for electronic communications networks and services in their territory in accordance with Articles  3 and 4. They shall ensure that the allocation of, the issuing of general authorisations in respect of, and the granting of individual rights of use for radio spectrum for electronic communications networks and services by competent authorities are based on objective, transparent, pro-competitive, non-discriminatory and proportionate criteria. In applying this Article, Member States shall respect relevant international agreements, including the ITU Radio Regulations and other agreements adopted in the framework of the ITU applicable to radio spectrum, such as the agreement reached at the Regional Radiocommunications Conference of 2006, and may take public policy considerations into account.

2.

Member States shall promote the harmonisation of use of radio spectrum by electronic communications networks and services across the Union, consistent with the need to ensure effective and efficient use thereof and in pursuit of benefits for the consumer such as competition, economies of scale and interoperability of networks and services. In so doing, they shall act in accordance with Article 4 of this Directive and with Decision No 676/2002/EC, inter alia, by:



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(a) pursuing wireless broadband coverage of their national territory and population at high quality and speed, as well as coverage of major national and European transport paths, including trans-European transport network as referred to in Regulation (EU) No 1315/2013 of the European Parliament and of the Council57; (b) facilitating the rapid development in the Union of new wireless communications technologies and applications, including, where appropriate, in a cross-sectoral approach; (c)

ensuring predictability and consistency in the granting, renewal, amendment, restriction and withdrawal of rights of use for radio spectrum in order to promote long-term investments;

(d) ensuring the prevention of cross-border or national harmful interference in accordance with Articles 28 and 46 respectively, and taking appropriate preemptive and remedial measures to that end; (e) promoting the shared use of radio spectrum between similar or different uses of radio spectrum in accordance with competition law; (f) applying the most appropriate and least onerous authorisation system possible in accordance with Article  46 in such a way as to maximise flexibility, sharing and efficiency in the use of radio spectrum; (g)

applying rules for the granting, transfer, renewal, modification and withdrawal of rights of use for radio spectrum that are clearly and transparently laid down in order to guarantee regulatory certainty, consistency and predictability;

(h) pursuing consistency and predictability throughout the Union regarding the way the use of radio spectrum is authorised in protecting public health taking into account Recommendation 1999/519/EC. For the purpose of the first subparagraph, and in the context of the development of technical implementing measures for a radio spectrum band under Decision No  676/2002/EC, the Commission may request the RSPG to issue an opinion recommending the most appropriate authorisation regimes for the use of radio spectrum in that band or parts thereof. Where appropriate and taking utmost account of such opinion, the Commission may adopt a recommendation with a view to promoting a consistent approach in the Union with regard to the authorisation regimes for the use of that band. Where the Commission is considering the adoption of measures in accordance with Article  39(1), (4), (5) and (6), it may request the opinion of the RSPG with regard to the implications of any such standard or specification for the coordination, harmonisation and availability of radio spectrum. The Commission shall take utmost account of the RSPG’s opinion in taking any subsequent steps. 3.

In the case of a national or regional lack of market demand for the use of a band in the harmonised radio spectrum, Member States may allow an alternative use of all or part of that band, including the existing use, in accordance with paragraphs 4 and 5 of this Article, provided that:

Regulation (EU) No 1315/2013 of the European Parliament and of the Council of 11 December 2013 on Union guidelines for the development of the trans-European transport network and repealing Decision No 661/2010/EU (OJ L 348 20.12.2013, p. 1).

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(a)

the finding of a lack of market demand for the use of such a band is based on a public consultation in accordance with Article 23, including a forwardlooking assessment of market demand;

(b) such alternative use does not prevent or hinder the availability or the use of such a band in other Member States; and (c)

the Member State concerned takes due account of the long-term availability or use of such a band in the Union and the economies of scale for equipment resulting from using the harmonised radio spectrum in the Union.

Any decision to allow alternative use on an exceptional basis shall be subject to a regular review and shall in any event be reviewed promptly upon a duly justified request by a prospective user to the competent authority for use of the band in accordance with the technical implementing measure. The Member State shall inform the Commission and the other Member States of the decision taken, together with the reasons therefor, as well as of the outcome of any review. 4.

Without prejudice to the second subparagraph, Member States shall ensure that all types of technology used for the provision of electronic communications networks or services may be used in the radio spectrum declared available for electronic communications services in their National Frequency Allocation Plan in accordance with Union law. Member States may, however, provide for proportionate and non-discriminatory restrictions to the types of radio network or wireless access technology used for electronic communications services where this is necessary to: (a)

avoid harmful interference;

(b) protect public health against electromagnetic fields, taking utmost account of Recommendation 1999/519/EC; (c)

ensure technical quality of service;

(d) ensure maximisation of radio spectrum sharing; (e)

safeguard efficient use of radio spectrum; or

(f) ensure the fulfilment of a general interest objective in accordance with paragraph 5. 5.

Without prejudice to the second subparagraph, Member States shall ensure that all types of electronic communications services may be provided in the radio spectrum declared available for electronic communications services in their National Frequency Allocation Plan in accordance with Union law. Member States may, however, provide for proportionate and non-discriminatory restrictions to the types of electronic communications services to be provided, including, where necessary, to fulfil a requirement under the ITU Radio Regulations. Measures that require an electronic communications service to be provided in a specific band available for electronic communications services shall be justified in order to ensure the fulfilment of a general interest objective as laid down by the Member States in accordance with Union law, including, but not limited to: (a)

safety of life;

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

the avoidance of inefficient use of radio spectrum; or



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(d) the promotion of cultural and linguistic diversity and media pluralism, for example the provision of radio and television broadcasting services. A measure which prohibits the provision of any other electronic communications service in a specific band may be provided for only where justified by the need to protect the safety of life services. Member States may, on an exceptional basis, also extend such a measure in order to fulfil other general interest objectives as laid down by the Member States in accordance with Union law. 6.

Member States shall regularly review the necessity of the restrictions referred to in paragraphs 4 and 5, and shall make the results of those reviews public.

7.

Restrictions established prior to 25 May 2011 shall comply with paragraphs 4 and 5 by 20 December 2018. See: Recitals 30; 33; 41; 106-119; 123; 125; 316. Correlation with Framework Directive EECC Articles 45(1) and (2) correlate with Directive 2002/21/EC, Articles 9(1) and (2); EECC Article 45(4) correlates with Directive 2002/21/EC, Article 9(3); EECC Articles 45(5) and (6) correlate with Directive 2002/21/EC, Articles 9(4) and (5). Trans-European transport network ‘The trans-European transport network comprises transport infrastructure and telematic applications as well as measures promoting the efficient management and use of such infrastructure and permitting the establishment and operation of sustainable and efficient transport services.’ Regulation (EU) No 1315/2013, Article 2(1) and Annex I. The transport infrastructure comprises the infrastructure for railway transport, inland waterway transport, road transport, maritime transport, air transport and multimodal transport –  see Regulation (EU) No  1315/2013, Article  2(2) and Chapter I. Development of technical implementing measures under the Radio Spectrum Decision Decision No 676/2002/EC, Recital 4, and see also Recital 6 and Article 4 (see pp 1078 and 1083). Commission Recommendations Commission Recommendation of 20  March 2003 on the harmonisation of the provision of public R-LAN access to public electronic communications networks and services in the Community (Text with EEA relevance) (OJ L 78, 25.3.2003, p. 12) (see p. 1145); Commission Recommendation of 19 March 2010 on the authorisation of systems for mobile communication services on board vessels (MCV services) (Text with EEA relevance) (OJ L 72, 20.3.2010, p. 42) (see p. 1155). ITU Regional Radiocommunications Conferences See https://www.itu.int/pub/R-ACT-RRC. RSPG Opinions See https://rspg-spectrum.eu/rspg-opinions-main-deliverables/. Allocation of radio frequencies for terrestrial analogue television broadcasting Case C-380/05 Centro Europa 7 Srl v Ministero delle Comunicazioni e Autorità per le garanzie nelle comunicazioni and Direzione generale per le concessioni e le autorizzazioni del Ministero delle Comunicazioni, EU:C:2008:59, Court’s ruling (see annotations to Article 48). Government concession fees regarding subscription contracts for mobile telephone services

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The concession fees regarding subscription contracts for mobile telephone services govern a completely different situation from that falling within the scope of the Article 9(1) of the Framework Directive. Case C-492/09 Agricola Esposito Srl v Agenzia delle Entrate – Ufficio di Taranto 2, EU:C:2010:766, see paras 39-43 (in Italian). Limiting the number of rights of use of digital terrestrial broadcasting radio frequencies Case C-376/13, European Commission v Republic of Bulgaria, EU:C:2015:266, paras 2 and 3 of the Court’s ruling (see annotations to Article 55). Annulment of a free of charge on-going selection procedure (‘beauty contest’) and substitution of a fee-based auction for that procedure ‘2. Article  9 of [the Framework Directive], Articles  3, 5 and 7 of [the Authorisation Directive], and Articles  2 and 4 of Commission Directive 2002/77/EC of 16  September 2002 on competition in the markets for electronic communications networks and services, must be interpreted as not precluding a selection procedure for the allocation of radio frequencies free of charge, which was commenced in order to remedy the unlawful exclusion of certain operators from the market, from being replaced by a fees-based procedure initiated under an amended Radio Frequency Allocation Plan subsequent to a reduction in their number, provided that the new selection procedure is based on objective, transparent, non-discriminatory and proportionate criteria and that it is in line with the objectives laid down in Article 8(2) to (4) of Directive 2002/21, as amended. It is for the referring court to ascertain, taking into account all the relevant circumstances of the case, whether the conditions set out in the fee-based selection procedure are such as to allow an actual entry of new entrants into the digital television market without unduly favouring analogue or digital incumbents. 3.

The principle of legitimate expectations must be interpreted as not precluding the annulment of a selection procedure for the allocation of radio frequencies on the sole ground that operators, such as the applicants in the main proceedings, had been invited to tender and, as the only tenderers, would have been granted rights to use digital terrestrial broadcasting frequencies for radio and television had the procedure not been annulled.’ Case C-560/15 Europa Way Srl and Persidera SpA v Autorità per le Garanzie nelle Comunicazioni and Others, EU:C:2017:593, paras 2 and 3 of the Court’s ruling. Allocation of radio spectrum based on non-discriminatory and proportionate criteria ‘1. Article  9 of [the Framework Directive], Articles  3, 5 and 7 of [the Authorisation Directive], and Articles  2 and 4 of Directive 2002/77/ EC of 16  September 2002 on competition in the markets for electronic communications networks and services must be interpreted to the effect that they preclude a national provision which, for the purposes of converting existing analogue channels into digital networks, takes into consideration unlawfully managed analogue channels, where that leads to an unfair competitive advantage being prolonged, or even reinforced. 2.

The principles of non-discrimination and proportionality must be interpreted to the effect that they preclude a national provision which, on the basis of the same conversion criterion, leads to a proportionately larger reduction in the number of digital networks assigned compared with the number of analogue channels operated to the detriment of one operator compared to its competitors, unless it is objectively justified and proportionate to



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its objective. The continuity of television output constitutes a legitimate objective capable of justifying such a difference in treatment. However, a provision which would lead to operators already present on the market being assigned a number of digital radio frequencies which is greater than the number that is sufficient to ensure the continuity of their television output would go beyond what is necessary to achieve that objective and would, thus, be disproportionate.’ Case C-112/16 Persidera SpA v Autorità per le Garanzie nelle Comunicazioni and Ministero dello Sviluppo Economico delle Infrastrutture e dei Trasporti, EU:C:2017:597, paras 1 and 2 of the Court’s ruling. Precautionary principle Case C-344/09 Dan Bengtsson, EU:C:2011:174, para  26 of the Order of the Court (Fifth Chamber) of 24 March 2011 (see annotations to Recital 106). Article 46 Authorisation of the use of radio spectrum 1.

Member States shall facilitate the use of radio spectrum, including shared use, under general authorisations and limit the granting of individual rights of use for radio spectrum to situations where such rights are necessary to maximise efficient use in light of demand and taking into account the criteria set out in the second subparagraph. In all other cases, they shall set out the conditions for the use of radio spectrum in a general authorisation. To that end, Member States shall decide on the most appropriate regime for authorising the use of radio spectrum, taking account of: (a)

the specific characteristics of the radio spectrum concerned;

(b) the need to protect against harmful interference; (c) the development of reliable conditions for radio spectrum sharing, where appropriate; (d) the need to ensure technical quality of communications or service; (e)

objectives of general interest as laid down by Member States in accordance with Union law;

(f)

the need to safeguard efficient use of radio spectrum.

When considering whether to issue general authorisations or to grant individual rights of use for the harmonised radio spectrum, taking into account technical implementing measures adopted in accordance with Article  4 of Decision No  676/2002/EC, Member States shall seek to minimise problems of harmful interference, including in cases of shared use of radio spectrum on the basis of a combination of general authorisation and individual rights of use. Where appropriate, Member States shall consider the possibility to authorise the use of radio spectrum based on a combination of general authorisation and individual rights of use, taking into account the likely effects of different combinations of general authorisations and individual rights of use and of gradual transfers from one category to the other on competition, innovation and market entry. Member States shall seek to minimise restrictions on the use of radio spectrum by taking appropriate account of technological solutions for managing harmful interference in order to impose the least onerous authorisation regime possible.

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When taking a decision pursuant to paragraph  1 with a view to facilitating the shared use of radio spectrum, the competent authorities shall ensure that the conditions for the shared use of radio spectrum are clearly set out. Such conditions shall facilitate efficient use of radio spectrum, competition and innovation. See: Recitals 41; 118-124. Correlation with Authorisation Directive EECC Article 46(1) correlates with Directive 2002/20/EC, Article 5(1). Technical implementing measures adopted under the Radio Spectrum Decision See Annex III at pp 1365–70. Allocation of radio frequencies for terrestrial analogue television broadcasting Case C-380/05 Centro Europa 7 Srl v Ministero delle Comunicazioni e Autorità per le garanzie nelle comunicazioni and Direzione generale per le concessioni e le autorizzazioni del Ministero delle Comunicazioni, EU:C:2008:59, Court’s ruling (see annotations to Article 48). Allocation of radio spectrum based on non-discriminatory and proportionate criteria Case C-112/16 Persidera SpA v Autorità per le Garanzie nelle Comunicazioni and Ministero dello Sviluppo Economico delle Infrastrutture e dei Trasporti, EU:C:2017:597, paras 1 and 2 of the Court’s ruling (see annotations to Article 45). Article 47 Conditions attached to individual rights of use for radio spectrum

1.

Competent authorities shall attach conditions to individual rights of use for radio spectrum in accordance with Article  13(1) in such a way as to ensure optimal and the most effective and efficient use of radio spectrum. They shall, before the assignment or renewal of such rights, clearly establish any such conditions, including the level of use required and the possibility to fulfil that requirement through trading or leasing, in order to ensure the implementation of those conditions in accordance with Article 30. Conditions attached to renewals of right of use for radio spectrum shall not provide undue advantages to existing holders of those rights. Such conditions shall specify the applicable parameters, including any deadline for exercising the rights of use, the non-fulfilment of which would entitle the competent authority to withdraw the right of use or impose other measures. Competent authorities shall, in a timely and transparent manner, consult and inform interested parties regarding conditions attached to individual rights of use before their imposition. They shall determine in advance and inform interested parties, in a transparent manner, of the criteria for the assessment of the fulfilment of those conditions.

2.

When attaching conditions to individual rights of use for radio spectrum, competent authorities may, in particular with a view to ensuring effective and efficient use of radio spectrum or promoting coverage, provide for the following possibilities: (a) sharing passive or active infrastructure which relies on radio spectrum or radio spectrum; (b) commercial roaming access agreements; (c) joint roll-out of infrastructures for the provision of networks or services which rely on the use of radio spectrum.



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Competent authorities shall not prevent the sharing of radio spectrum in the conditions attached to the rights of use for radio spectrum. Implementation by undertakings of conditions attached pursuant to this paragraph shall remain subject to competition law. See: Recitals 121; 122; 124. Q&A on Article 47: ‘Art 47 / Art 13(1), Annex I(D): is it possible to have bandrelated obligations (in contrast to company/operator-specific conditions) and, if yes, which conditions are/can be operator specific and/or band-specific?’ Reply: ‘It seems that, apart from Article 52 where conditions may be operatorspecific, the question should be also as to whether conditions can be band- or spectrum-specific or right-specific. This question should be distinguished from operator (in singular or plural)- specific conditions, which could happen •

under the rules of the Code on access, interconnection and significant market power,

•

in relation to the application of article 52 of the Code on competition, or

•

where the right to use spectrum has been granted pursuant to Article 48(2) of the Code based on specific national criteria and procedures to providers of radio or television broadcast content services with a view to pursuing general interest objectives. The general question must be put in context and is linked to the difference between individual rights and general authorisations. The Radio Spectrum Decision, Recital 11, distinguishes spectrum management that involves harmonisation and allocation of spectrum, from assignment and licensing. Under allocation measures and the Radio Spectrum Decision, the use of spectrum may be subject to technical conditions for the availability and efficient use of radio spectrum. In case of harmonisation under the Radio Spectrum Decision, these are generally defined in relation to a specific frequency band through Commission implementing acts to be implemented in the national frequency table and in the technical conditions for the use of spectrum. Where general technical rules have been defined, in certain cases through harmonised conditions under the Radio Spectrum decision, for the use of one or several spectrum bands, the right to use such spectrum can be envisaged under three regulatory regimes: •

Unlicensed spectrum: the conditions could be considered as spectrumspecific in the case of so-called ‘unlicensed’ spectrum, where no authorisation is necessary to use the spectrum in addition to the compliance with the essential requirements of the Radio Equipment Directive 2014/53/ EU (RED) (which include efficient use of spectrum and protection of health and safety of persons). This can also refer to technical conditions which have been harmonised under the 2002 Radio Spectrum Decision. In other words, as provided by Article 7 RED, where the equipment complies with the Radio Equipment Directive and is properly installed, maintained and used for its intended purpose, Member States shall in principle ‘allow the putting into service and use of radio equipment’. Hence the use of the spectrum occurs on an ‘unlicensed basis’, without additional general authorisation or individual right requirement.

•

However, under Article 7 RED, MS may also apply additional requirements for reasons related to the effective and efficient use of the radio spectrum,

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avoidance of harmful interference or of electromagnetic disturbances or for public health, in the limits allowed by the principles of technological and service neutrality of articles 9(3) and 9(4) of the Framework Directive (articles  45(4) and (5) of the Code); this could be done in the form of general authorisations or individual rights to use spectrum. The use of spectrum can be subject to a general authorisation; general authorisation is defined in Article 2(22) of the Code, as a legal framework ensuring rights for the provision of ecn/ecs and laying down sector specific obligations that may apply to all or to specific types of ecn/ecs, and in article 46(1) par.2; these conditions go beyond the applicable conditions set by the Radio Equipment Directive and do not apply to the equipment but may apply to the use of the spectrum as such. These can apply in relation to a specific band or to a mix of bands. (see annex I B(3) and (6) of the Code). They are generally applicable and no operator is identified in particular. •

Individual rights to use spectrum include specific conditions and are applicable to all operators using spectrum in the same band pursuant to the principle of non-discrimination; such conditions can apply to a specific band or a mix of bands. The conditions should be considered specific to the spectrum usage right, and not to the right holder even if the right holder can be identified. As an evidence thereof, these rights or licenses are normally tradable, with all the rights and obligations that attach thereto. Therefore, any specific obligation, for example those linked to the financial status of the right holder, should be set in general terms in such a way that they would not be attached ‘intuitu personae’ to a specific right holder (application of non-discriminatory and objective criteria), even in case of commitments made under Annex I D(7). This includes also the possibility to apply in an objective and non-discriminatory way the eligibility criteria that would be set in advance under Article 48(4). The only exception seems to be where the right has been granted pursuant to Article 48(2) to providers of radio or television broadcast content services with a view to pursuing general interest objectives; the same logic is at the basis of the possibility under Article 51(1) 2nd sup-par. to exclude from trading spectrum which has been assigned for broadcasting; and finally, also under article 52 ex post – to remedy distortions of competition, to exclude certain providers from procedures, or to promote new entry.’ Q&A on Article 47(2): ‘Paragraph (2) provides: “2. When attaching conditions to individual rights of use for radio spectrum, competent authorities may, in particular with a view to ensuring effective and efficient use of radio spectrum or promoting coverage, provide for the following possibilities: (a)

sharing passive or active infrastructure which relies on radio spectrum or radio spectrum;

(b) commercial roaming access agreements; (c) joint roll-out of infrastructures for the provision of networks or services which rely on the use of radio spectrum. Competent authorities shall not prevent the sharing of radio spectrum in the conditions attached to the rights of use for radio spectrum. Implementation



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by undertakings of conditions attached pursuant to this paragraph shall remain subject to competition law.” 1.

What’s the meaning of “provide for the following possibilities”? Does this [mean] that the NRAs may “allow” providers to do (a), (b) and (c), or NRAs may “impose” these obligations? If these [need] to be “allowed”, does it [mean] that if [they are] not allowed (a), (b) and (c) are forbidden? If [they need] to be “allowed” why is the last subparagraph of article 47 stating that “sharing of radio spectrum” (included in subparagraph (a)) cannot be prevented?

2.

Is it possible to “impose” these conditions (any or all of (a), (b) and (c)) after the granting of rights of use? Under which provisions can that happen? Is Article 61(4) one of those cases? Article 61(4) only refers to “local roaming”. Under what circumstance [may “national roaming”] be imposed?

3.

Article 52(2)(a) allows for “national or regional roaming” as a condition of the rights of use. [May] this condition […] only be imposed when granting the right of use under Article 47(1) or can [it] also be imposed later? If it can be imposed later, [does] it [have] to be limited to the basis of Article 61(4) (insurmountable economic or physical obstacles) and restricted to local roaming?’ Reply: ‘The purpose of Article  47(2) of the Code is to ensure that each Competent Authority has indeed the possibility to allow spectrum usage right holders to take such actions if such authority sees the need, and without prejudice to the assessment of the legality under competition law of specific agreements. In other words, MS may not forbid nor oblige Competent Authorities to do so. If provided, such possibility requires an assessment by the competent authority and has to be clearly exercised and formulated, for reasons of legal certainty, and cannot be provided directly for all cases in national law. Moreover, the same provision also provides that Competent Authorities cannot prevent the sharing of radio spectrum. On the other hand, Article  61(4) is meant to empower Competent Authorities to impose passive or active infrastructure sharing or obligations to conclude roaming access agreements with a view to bring or significantly improve wireless connectivity in a specific localised area subject to a number of conditions; however, the exact terms of such agreements remain to be negotiated by the parties. Under 61(4), the possibility to impose certain obligations of sharing or local roaming must be clearly provided for when rights are granted, while the imposition itself could take place after the granting of the rights. This would fit into the logic that it only takes place where market-driven deployment of infrastructure is proven to be facing insurmountable obstacles. Article 61(4) allows Competent Authorities to impose not only local roaming but also passive and active sharing agreements. Only local roaming is covered by this provision which relates to the need for local provision of services. Imposition of national roaming obligations may take place only under Article 52 (2)(a). This obligation can be imposed when granting, amending or renewing rights of use, subject where applicable to the requirements of Articles 18 and 19 of the Code. If it is done under Article 52, it does not have to be limited to local roaming obligation. The purpose of Article 52 is to promote competition or avoid distortion of competition, while article 61(4) is to ensure access to networks and services to end-users despite insurmountable economic or physical obstacles.’

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Section 2 Rights of use Article 48 Granting of individual rights of use for radio spectrum 1.

Where it is necessary to grant individual rights of use for radio spectrum, Member States shall grant such rights, upon request, to any undertaking for the provision of electronic communications networks or services under the general authorisation referred to in Article 12, subject to Article 13, to point (c) of Article 21(1) and to Article 55 and to any other rules ensuring the efficient use of those resources in accordance with this Directive.

2.

Without prejudice to specific criteria and procedures adopted by Member States to grant individual rights of use for radio spectrum to providers of radio or television broadcast content services with a view to pursuing general interest objectives in accordance with Union law, the individual rights of use for radio spectrum shall be granted through open, objective, transparent, non-discriminatory and proportionate procedures, and in accordance with Article 45.

3.

An exception to the requirement of open procedures may apply where the granting of individual rights of use for radio spectrum to the providers of radio or television broadcast content services is necessary to achieve a general interest objective as laid down by Member States in accordance with Union law.

4.

Competent authorities shall consider applications for individual rights of use for radio spectrum in the context of selection procedures pursuant to objective, transparent, proportionate and non-discriminatory eligibility criteria that are set out in advance and reflect the conditions to be attached to such rights. Competent authorities shall be able to request all necessary information from applicants in order to assess, on the basis of those criteria, their ability to comply with those conditions. Where the competent authority concludes that an applicant does not possess the required ability, it shall provide a duly reasoned decision to that effect.

5.

When granting individual rights of use for radio spectrum, Member States shall specify whether those rights can be transferred or leased by the holder of the rights, and under which conditions. Articles 45 and 51 shall apply.

6.

The competent authority shall take, communicate and make public the decisions on the granting of individual rights of use for radio spectrum as soon as possible after the receipt of the complete application and within six weeks in the case of radio spectrum declared available for electronic communications services in their National Frequency Allocation Plan. That time limit shall be without prejudice to Article 55(7) and to any applicable international agreements relating to the use of radio spectrum or of orbital positions. See: Recitals 125-127. Correlation with Authorisation Directive EECC  Article  48(1) correlates with Directive 2002/20/EC, Article  5(2) first subparagraph; EECC  Article  48(2) correlates with Directive 2002/20/EC, Article 5(2) second subparagraph first sentence; EECC Article 48(3) correlates with Directive 2002/20/EC, Article 5(2) second subparagraph second sentence; EECC  Article  48(5) correlates with Directive 2002/20/EC, Article  5(2) third subparagraph; EECC  Article  48(6) correlates with Directive 2002/20/EC, Article 5(3). Procedures



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‘[…] Article  9(2), second indent, of [Directive 97/13/EC, which correlates with Article  5(3) of the Authorisation Directive] confirms in clear terms the Community legislature’s desire to limit the time which Member States may spend in examining individual licence applications. […] It follows from Article 9(2) that the Member State is required to inform an applicant of its decision within a period no longer than six weeks. The requirements that decisions be taken quickly by the competent authorities, as demanded by the directive, and the absence of any reference to the decision as being interim in nature show that the second indent of Article 9(2) is to be interpreted as meaning that the decisions which must be taken within the period which it lays down are to be definitive. […]’ Case C-448/99 Commission of the European Communities v Grand Duchy of Luxembourg, EU:C:2001:39, paras 17 and 19. Non-discrimination ‘The national court asks whether the prohibition on discrimination laid down in Articles 9(2) and 11(2) of Directive 97/13 [correlates with Articles 5(2) and 13 of the Authorisation Directive] precludes national legislation such as that at issue in the main proceedings, under which additional frequencies in the DCS 1800 band may be allocated to existing holders of a GSM  900 licence without the imposition of a separate fee, whereas the holder of a DCS 1800 licence must pay a fee to obtain it. In that regard, it should be observed that […] Articles 9(2) and 11(2) of Directive 97/13 are, as regards their content, unconditional and sufficiently precise and may therefore, in accordance with settled case-law (see, inter alia, Case 8/81 Becker [1982] ECR 53, paragraph 25, and Case C-141/00 Kügler [2002] ECR I-6833, paragraph  51), in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive or in so far as the provisions define rights which individuals are able to assert against the State. It should also be recalled that it is settled case-law that discrimination consists in particular in treating like cases differently, involving a disadvantage for some operators in relation to others, without that difference in treatment being justified by the existence of substantial objective differences (see, inter alia, Joined Cases 17/61 and 20/61 Klöckner-Werke and Hoesch v High Authority [1962] ECR 325, at 345, and Case C-351/98 Spain v Commission [2002] ECR I-8031, paragraph 57). Without it being necessary to rule on whether Article  9(2) of Directive 97/13 applies only to the granting of licences, or also to the allocation of additional frequencies, it must be observed that if the fee imposed on existing operators for their GSM 900 licence, including the subsequent allocation without additional payment of additional frequencies in the DCS 1800 band, appears to be equivalent in economic terms to the fee imposed on the operator which was granted the DCS 1800 licence, that allocation does not amount to like cases being treated differently. It is for the national court, on the basis of the guidance provided by the Court in paragraphs 92 to 94 of the present judgment, to determine whether such is the situation in the case in the main proceedings. It follows that the prohibition on discrimination laid down in Articles 9(2) and 11(2) of Directive 97/13 does not preclude national legislation such as that at issue in the main proceedings, under which additional frequencies in the frequency band reserved for the DCS 1800 standard may be allocated to existing holders of a GSM 900 licence without the imposition of a separate fee, whereas

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the operator which was granted a DCS  1800 licence has had to pay a fee, if the fee charged to existing operators for their GSM 900 licence, including the subsequent allocation without additional payment of additional frequencies in the frequency band reserved for the DCS 1800 standard, appears to be equivalent in economic terms to the fee imposed on the operator which holds the DCS 1800 licence.’ Case C-462/99 Connect Austria Gesellschaft für Telekommunikation GmbH  v Telekom-Control-Kommission, EU:C:2003:297, paras 113–118. Allocation of radio frequencies for terrestrial analogue television broadcasting ‘Article 49 EC [now Article 56 of the TFEU] and, from the date on which they became applicable, Article  9(1) of [the Framework Directive], Article  5(1), the second subparagraph of Article 5(2) and Article 7(3) of [the Authorisation Directive], and Article 4 of Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services must be interpreted as precluding, in television broadcasting matters, national legislation the application of which makes it impossible for an operator holding rights to broadcast in the absence of broadcasting radio frequencies granted on the basis of objective, transparent, non-discriminatory and proportionate criteria.’ Case C-380/05 Centro Europa 7 Srl v Ministero delle Comunicazioni e Autorità per le garanzie nelle comunicazioni and Direzione generale per le concessioni e le autorizzazioni del Ministero delle Comunicazioni, EU:C:2008:59, Court’s ruling. Annulment of a free of charge on-going selection procedure (‘beauty contest’) and substitution of a fee-based auction for that procedure Case C-560/15 Europa Way Srl and Persidera SpA v Autorità per le Garanzie nelle Comunicazioni and Others, EU:C:2017:593, para 2 of the Court’s ruling (see annotations to Article 45). Q&A on Article 48(1): ‘Two provisions of the Authorisation Directive (2002/20/ EC) appear not to be mentioned in the EECC. That is: (i)

Article 5(2), 5th subparagraph. “Where individual rights to use radio frequencies are granted for 10 years or more and such rights may not be transferred or leased between undertakings pursuant to Article 9b of Directive 2002/21/EC (Framework Directive) the competent national authority shall ensure that the criteria to grant individual rights of use apply and are complied with for the duration of the licence, in particular upon a justified request of the holder of the right. If those criteria are no longer applicable, the individual right of use shall be changed into a general authorisation for the use of radio frequencies, subject to prior notice and after a reasonable period, or shall be made transferable or leaseable between undertakings in accordance with Article 9b of Directive 2002/21/EC (Framework Directive).”

(ii) Article 7(1), and specifically the reference to extension of the right of use (not the reference to the limit of the number of rights)). “1. Where a Member State is considering whether to limit the number of rights of use to be granted for radio frequencies or whether to extend the duration of existing rights other than in accordance with the terms specified in such rights, it shall inter alia:



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a)

give due weight to the need to maximise benefits for users and to facilitate the development of competition;

b)

give all interested parties, including users and consumers, the opportunity to express their views on any limitation in accordance with Article 6 of Directive 2002/21/EC (Framework Directive);

c)

publish any decision to limit the granting of rights of use or the renewal of rights of use, stating the reasons therefor;

d)

after having determined the procedure, invite applications for rights of use; and

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e)

review the limitation at reasonable intervals or at the reasonable request of affected undertakings.” National Legislation includes specific paragraphs that adopt these two provisions. One paragraph refers to individual rights of use of radio frequencies that are granted for 10 years or more and such rights may not be transferred or leased between undertakings and also a paragraph for the extension of the duration of the existing rights. Can you please confirm that these two provisions are not included in the EEEC? And if so, since these two provisions are not included in the EECC, is it possible to delete them from our national legislation?’ Reply: ‘Indeed Article  5(2) and the reference in Article  7(1)  AUD that you mention in your question do not exist anymore as such and the transposing national measures should hence be withdrawn. However, the Code contains provisions regulating matters falling in the scope of these two Articles and these provisions must be transposed: •

as regards Article 5(2) 5th par., the transfer and lease of individual rights is governed by Article 51 that provides that ‘Member States shall ensure that undertakings may transfer or lease to other undertakings individual rights of use for radio spectrum’.

•

as regards Article 7(1), on the extension of the duration of existing rights, – Article 50 regulates the renewal of individual rights of use for harmonised radio spectrum. For renewal of rights to use other non harmonised spectrum, the general competition rules as provided under Article 52 shall apply, as well as the principles set in Article 45(1) of objective, transparent, pro-competitive, non-discriminatory and proportionate criteria, and of Article 45(2)(g) that requires MS to apply rules for the renewal of rights of use that are clearly and transparently laid down in order to guarantee regulatory certainty, consistency and predictability.’ Article 49 Duration of rights

1.

Where Member States authorise the use of radio spectrum through individual rights of use for a limited period, they shall ensure that the right of use is granted for a period that is appropriate in light of the objectives pursued in accordance with Article 55(2), taking due account of the need to ensure competition, as well as, in particular, effective and efficient use of radio spectrum, and to promote innovation and efficient investments, including by allowing for an appropriate period for investment amortisation.

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Where Member States grant individual rights of use for radio spectrum for which harmonised conditions have been set by technical implementing measures in accordance with Decision No 676/2002/EC in order to enable its use for wireless broadband electronic communications services (‘wireless broadband services’) for a limited period, they shall ensure regulatory predictability for the holders of the rights over a period of at least 20 years regarding conditions for investment in infrastructure which relies on the use of such radio spectrum, taking account of the requirements referred to in paragraph 1 of this Article. This Article is subject, where relevant, to any modification of the conditions attached to those rights of use in accordance with Article 18. To that end, Member States shall ensure that such rights are valid for a duration of at least 15 years and include, where necessary to comply with the first subparagraph, an adequate extension thereof, under the conditions laid down in this paragraph. Member States shall make available the general criteria for an extension of the duration of rights of use, in a transparent manner, to all interested parties in advance of granting rights of use, as part of the conditions laid down under Article 55(3) and (6). Such general criteria shall relate to: (a) the need to ensure the effective and efficient use of the radio spectrum concerned, the objectives pursued in points (a) and (b) of Article 45(2), or the need to fulfil general interest objectives related to ensuring safety of life, public order, public security or defence; and (b) the need to ensure undistorted competition. At the latest two years before the expiry of the initial duration of an individual right of use, the competent authority shall conduct an objective and forward-looking assessment of the general criteria laid down for extension of the duration of that right of use in light of point (c) of Article  45(2). Provided that the competent authority has not initiated enforcement action for non-compliance with the conditions of the rights of use pursuant to Article 30, it shall grant the extension of the duration of the right of use unless it concludes that such an extension would not comply with the general criteria laid down in point (a) or (b) of the third subparagraph of this paragraph. On the basis of that assessment, the competent authority shall notify the holder of the right as to whether the extension of the duration of the right of use is to be granted. If such extension is not to be granted, the competent authority shall apply Article 48 for granting rights of use for that specific radio spectrum band. Any measure under this paragraph shall be proportionate, non-discriminatory, transparent and reasoned. By way of derogation from Article 23, interested parties shall have the opportunity to comment on any draft measure pursuant to the third and the fourth subparagraphs of this paragraph for a period of at least three months. This paragraph is without prejudice to the application of Articles 19 and 30. When establishing fees for rights of use, Member States shall take account of the mechanism provided for under this paragraph.

3.

Where duly justified, Member States may derogate from paragraph  2 of this Article in the following cases:



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(a) in limited geographical areas, where access to high-speed networks is severely deficient or absent and this is necessary to ensure achievement of the objectives of Article 45(2); (b) for specific short-term projects; (c)

for experimental use;

(d) for uses of radio spectrum which, in accordance with Article 45(4) and (5), can coexist with wireless broadband services; or (e) 4.

for alternative use of radio spectrum in accordance with Article 45(3).

Member States may adjust the duration of rights of use laid down in this Article to ensure the simultaneous expiry of the duration of rights in one or several bands. See: Recitals 127; 128. Harmonised conditions set by technical implementing measures adopted under the Radio Spectrum Decision with respect to wireless broadband services See Annex III at pp 1365–70. Q&A on Article 49: ‘(a) Can a Member State predict in advance a fixed duration for granting rights, e.g. exactly 20 years? (b) Is it possible not to introduce in the national regulations the possibility of extending the rights at all, if the time limit for granting rights is set to a minimum of 20 years, due to the fact that regulatory certainty is guaranteed for 20 years?’ Reply: ‘1. A  distinction should be drawn between individual rights covered by Article 49(2) and any other right under Article 49(1). Under Article 49(1), any law governing the duration of rights should allow the competent authorities to adapt the duration so that the period is appropriate in light of the objectives pursued in accordance with Article  55(2), taking into account the need to ensure competition and effective and efficient use of spectrum, and to promote innovation and efficient investments, including by allowing for an appropriate period for investment amortisation. 2.

Article 49 requires regulatory predictability of at least 20 years. National law could provide for competent authorities to fix a non-extendable period of 20 years where they consider that this is sufficient to fulfil the conditions of par.2, which itself refers to the requirements of par.1. A duration of more than 20 years might indeed be necessary, for example for satellite wireless broadband electronic communications services; this could be achieved either by allowing the competent authorities to set longer the duration from the start, or by allowing them to extend the initial duration beyond 20 years.’ Article 50 Renewal of individual rights of use for harmonised radio spectrum

1.

National regulatory or other competent authorities shall take a decision on the renewal of individual rights of use for harmonised radio spectrum in a timely manner before the duration of those rights expired, except where, at the time of assignment, the possibility of renewal has been explicitly excluded. For that

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purpose, those authorities shall assess the need for such renewal at their own initiative or upon request by the holder of the right, in the latter case not earlier than five years prior to expiry of the duration of the rights concerned. This shall be without prejudice to renewal clauses applicable to existing rights. 2.

In taking a decision pursuant to paragraph 1 of this Article, competent authorities shall consider, inter alia: (a) the fulfilment of the objectives set out in Article  3, Article  45(2) and Article 48(2), as well as public policy objectives under Union or national law; (b) the implementation of a technical implementing measure adopted in accordance with Article 4 of Decision No 676/ 2002/EC; (c) the review of the appropriate implementation of the conditions attached to the right concerned; (d) the need to promote, or avoid any distortion of, competition in line with Article 52; (e) the need to render the use of radio spectrum more efficient in light of technological or market evolution; (f)

3.

the need to avoid severe service disruption.

When considering possible renewal of individual rights of use for harmonised radio spectrum for which the number of rights of use is limited pursuant to paragraph 2 of this Article, competent authorities shall conduct an open, transparent and nondiscriminatory procedure, and shall, inter alia: (a) give all interested parties the opportunity to express their views through a public consultation in accordance with Article 23; and (b) clearly state the reasons for such possible renewal. The national regulatory or other competent authority shall take into account any evidence arising from the consultation pursuant to the first subparagraph of this paragraph of market demand from undertakings other than those holding rights of use for radio spectrum in the band concerned when deciding whether to renew the rights of use or to organise a new selection procedure in order to grant the rights of use pursuant to Article 55.

4.

A decision to renew the individual rights of use for harmonised radio spectrum may be accompanied by a review of the fees as well as of the other terms and conditions attached thereto. Where appropriate, national regulatory or other competent authorities may adjust the fees for the rights of use in accordance with Article 42. See: Recitals 129–131. Q&A  on Article  50: ‘We would like to exclude any renewal of rights of use harmonized for the provision of wireless broadband electronic communications services (that are always assigned via an auction) by the Electronic Communication Act. If this is possible, is it possible not to transpose Article 50 at all, as all other harmonized frequencies are used under general authorization.’ Reply: ‘Member States have to transpose Article 50; MS cannot automatically exclude any renewal of rights of use of spectrum harmonized for the provision of wireless broadband electronic communications services, since the legislator made renewal one of the instruments to increase stability, consistency and



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predictability of investments (see article  45(2)(c) of the Code). Recital 129 clearly includes renewal as a possibility which should be available to investors. So exclusion of renewal of rights is allowed only where it was explicitly done at the time of assignment of a specific band as provided by 50(1).’ Article 51 Transfer or lease of individual rights of use for radio spectrum 1.

Member States shall ensure that undertakings may transfer or lease to other undertakings individual rights of use for radio spectrum. Member States may determine that this paragraph does not apply where the undertaking’s individual right of use for radio spectrum was initially granted free of charge or assigned for broadcasting.

2.

Member States shall ensure that an undertaking’s intention to transfer or lease rights of use for radio spectrum, as well as the effective transfer thereof is notified in accordance with national procedures to the competent authority and is made public. In the case of harmonised radio spectrum, any such transfer shall comply with such harmonised use.

3.

Member States shall allow the transfer or lease of rights of use for radio spectrum where the original conditions attached to the rights of use are maintained. Without prejudice to the need to ensure the absence of a distortion of competition, in particular in accordance with Article 52, Member States shall: (a)

submit transfers and leases to the least onerous procedure possible;

(b) not refuse the lease of rights of use for radio spectrum where the lessor undertakes to remain liable for meeting the original conditions attached to the rights of use; (c) not refuse the transfer of rights of use for radio spectrum unless there is a clear risk that the new holder is unable to meet the original conditions for the right of use. Any administrative charge imposed on undertakings in connection with processing an application for the transfer or lease of rights of use for radio spectrum shall comply with Article 16. Points (a), (b) and (c) of the first subparagraph are without prejudice to the Member States’ competence to enforce compliance with the conditions attached to the rights of use at any time, both with regard to the lessor and the lessee, in accordance with their national law. Competent authorities shall facilitate the transfer or lease of rights of use for radio spectrum by giving consideration to any request to adapt the conditions attached to the rights in a timely manner and by ensuring that those rights or the relevant radio spectrum may to the best extent be partitioned or disaggregated. In light of any transfer or lease of rights of use for radio spectrum, competent authorities shall make relevant details relating to tradable individual rights publicly available in a standardised electronic format when the rights are created and keep those details for as long as the rights exist. The Commission may adopt implementing acts specifying those relevant details.

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Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 118(4). See: Recital 132. Correlation with Framework Directive EECC Article 51(1) and (2) correlates with Directive 2002/21/EC, Article 9b(1) and (2); EECC Article 51(4) correlates with Directive 2002/21/EC, Article 9b(3). Reallocation of rights to use radio frequencies following the merger of two undertakings Case C-282/13  T-Mobile Austria GmbH  v Telekom-Control-Kommission, EU:C:2015:24, Court’s ruling (see annotations to Article 31). Article 52 Competition 1.

National regulatory and other competent authorities shall promote effective competition and avoid distortions of competition in the internal market when deciding to grant, amend or renew rights of use for radio spectrum for electronic communications networks and services in accordance with this Directive.

2.

When Member States grant, amend or renew rights of use for radio spectrum, their national regulatory or other competent authorities upon the advice provided by national regulatory authority may take appropriate measures such as: (a) limiting the amount of radio spectrum bands for which rights of use are granted to any undertaking, or, in justified circumstances, attaching conditions to such rights of use, such as the provision of wholesale access, national or regional roaming, in certain bands or in certain groups of bands with similar characteristics; (b) reserving, if appropriate and justified with regard to a specific situation in the national market, a certain part of a radio spectrum band or group of bands for assignment to new entrants; (c)

refusing to grant new rights of use for radio spectrum or to allow new radio spectrum uses in certain bands, or attaching conditions to the grant of new rights of use for radio spectrum or to the authorisation of new uses of radio spectrum, in order to avoid the distortion of competition by any assignment, transfer or accumulation of rights of use;

(d) including conditions prohibiting, or imposing conditions on, transfers of rights of use for radio spectrum, not subject to Union or national merger control, where such transfers are likely to result in significant harm to competition; (e)

amending the existing rights in accordance with this Directive where this is necessary to remedy ex post a distortion of competition by any transfer or accumulation of rights of use for radio spectrum.

National regulatory and other competent authorities shall, taking into account market conditions and available benchmarks, base their decisions on an objective and forward-looking assessment of the market competitive conditions, of whether such measures are necessary to maintain or achieve effective competition, and of the likely effects of such measures on existing and future investments by market participants in particular for network roll-out. In doing so, they shall take into account the approach to market analysis as set out in Article 67(2).



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When applying paragraph 2 of this Article, national regulatory and other competent authorities shall act in accordance with the procedures provided in Articles 18, 19, 23 and 35. See: Recital 133. Correlation with Authorisation Directive EECC Article 52 correlates with Directive 2002/20/EC, Article 5(6). Reallocation of rights to use radio frequencies following the merger of two undertakings Case C-282/13  T-Mobile Austria GmbH  v Telekom-Control-Kommission, EU:C:2015:24, Court’s ruling (see annotations to Article 31). Q&A on Article 52: ‘1.

Does the provision apply only in the case of granting, renewal and amending of rights or can the fact of distortions of competition constitute a separate basis and initiate an amendment of individual right of use? (paragraphs 1 and 2)

2.

What “change of rights” (to what extent) is referred to in para. 2 (paragraphs 1 and 2)?

3.

Does paragraph 2(a) concern general limitation of the number of spectrum bands, imposition of conditions (e.g. in the documentation of the selection procedure), or intervention and a change in the scope of individual rights for a specific entity?

4.

Does the imposition of conditions apply only to the right of use and spectrum currently being awarded, or can obligations be imposed on another band with similar characteristics previously owned by an entity which e.g. has just received a new spectrum resource (paragraph 2(a))?

5.

What conditions are referred to in paragraph 2(c)? Are these the same or different conditions than in paragraph a (wholesale access, national or regional roaming)?

6.

To what extent the current rights can be changed in the scope of paragraph  2(e)? What does the indication “in accordance with this Directive” mean?

7.

Does the last subparagraph of paragraph  2 mean that de facto the same procedure as the market analysis should be carried out?’

Reply: ‘1.

In Article 52(1) the scope is defined as “when deciding to grant, amend or renew rights”. Again, paragraph (2) refers to the same hypothesis. Member States may decide to amend a right of use of radio-frequency in case of distortions of competition (e.g. acquisition of a dominant position). In any event, such amendment of existing individual rights of use would be subject to the requirements of Articles 18 and 19 of the Code.

2.

An amendment of a right of use for whatever reason in compliance with the Code could have an impact on competition such as where it would lead to a relaxation of the conditions, or more flexibility allowed to the holder to provide certain services or use different technologies, e.g. when allowing the use of a band for a new technology generation while other holders might not. Moreover, to restore competition which has been distorted for

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any reason, Member States may amend a right of use through one of the measures enumerated in (a) to (e). 3.

This relates to a measure addressing specific bands or certain groups of similar bands, no matter the holder of the rights; spectrum caps for example. This provision also refers to limiting the amount of radio spectrum bands to “any undertaking”.

4.

Considering the need for stability and predictability of existing rights, the imposition of conditions should apply to the new rights of use being awarded. Member States may amend already assigned rights of use of radio spectrum following the procedures of Articles 18 and 19. In such a case, Article 52 applies. This should be distinguished from the case where competent authorities allow assignees to fulfil their obligations (e.g. for coverage) not only with the acquired spectrum, but [with] all spectrum they hold. This does not require an amendment of RoU.

5.

The conditions referred to in Article  52(2)(c) may be similar with the ones referred in (a). As the measures referred to in paragraph  (2) are not limitatively defined, additional conditions could be considered by the competent authorities. This could also include conditions currently covered by Article 5(6) of the Authorisation Directive in case of transfer or accumulation of rights, such as mandating the sale or the lease of rights of use.

6.

There is no specific restriction to the content of the amendment, as long as it is necessary and proportionate to remedy ex post a distortion of competition by any transfer or accumulation of rights of use for radio spectrum. However, the amendment should be in line with the requirements of Articles 18 and 19 of the Code.

7.

Indeed, Article 67(2) applies from a substance point of view. The procedure foreseen in Article 52(2) would be similar with the one followed in market analyses.’ Q&A  on Article  52(2): ‘Article  52(2) establishes that “When Member States grant, amend or renew rights of use for radio spectrum, their national regulatory or other competent authorities upon the advice provided by national regulatory authority may take appropriate measures”. One of those measures – bullet (e) – is the possibility of “amending the existing rights in accordance with this Directive where this is necessary to remedy ex post a distortion of competition by any transfer or accumulation of rights of use for radio spectrum.” […] Is this bullet (e) only applicable when there is a case of granting, amending or renewing rights of use (which seems odd since we are talking about ex post remedy)? In any case, whatever the interpretation given to question 1, may we set bullet (e) as an independent NRA power, that is to say, can we use ex ante measures in any circumstance and not only when the NRA is granting, amending or renewing rights, under article 52?’ Reply: ‘While Article  52(2) is non-exhaustive and NRAs may adopt other measures, to fulfil the objectives identified in Article 52(1), the latter limits the scope of the Article to granting, amending or renewing rights of use of radio spectrum. The solution provided in this provision is not only an ex post remedy, but also an ex ante remedy where the conditions thereof are set by the competent authority



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in advance of granting rights of use, as part of the procedure to grant those rights, which become conditions attached to the rights of use. The answer to the question raised is provided in Article 52 (2) d) which speaks about “conditions prohibiting or imposing conditions on transfers” which are set as part of the procedure to grant those rights, therefore ex ante. Article 52 (2) e) serves cases where such conditions were not imposed as part of the initial procedure and they are required by the changes in the market, therefore as ex post remedies’. Section 3 Procedures Article 53 Coordinated timing of assignments 1.

Member States shall cooperate in order to coordinate the use of harmonised radio spectrum for electronic communications networks and services in the Union taking due account of the different national market situations. This may include identifying one, or, where appropriate, several common dates by which the use of specific harmonised radio spectrum is to be authorised.

2.

Where harmonised conditions have been set by technical implementing measures in accordance with Decision No 676/2002/EC in order to enable the radio spectrum use for wireless broadband networks and services, Member States shall allow the use of that radio spectrum, as soon as possible and at the latest 30 months after the adoption of that measure, or as soon as possible after the lifting of any decision to allow alternative use on an exceptional basis pursuant to Article 45(3) of this Directive. This is without prejudice to Decision (EU) 2017/899 and to the Commission’s right of initiative to propose legislative acts.

3.

A Member State may delay the deadline provided for in paragraph 2 of this Article for a specific band under the following circumstances: (a) to the extent justified by a restriction to the use of that band based on the general interest objective provided in point (a) or (d) of Article 45(5); (b)

in the case of unresolved cross-border coordination issues resulting in harmful interference with third countries, provided the affected Member State has, where appropriate, requested Union assistance pursuant to Article 28(5);

(c)

safeguarding national security and defence; or

(d) force majeure. The Member State concerned shall review such a delay at least every two years. 4.

A Member State may delay the deadline provided for in paragraph 2 for a specific band to the extent necessary and up to 30 months in the case of: (a)

unresolved cross-border coordination issues resulting in harmful interference between Member States, provided that the affected Member State takes all necessary measures in a timely manner pursuant to Article 28(3) and (4);

(b) the need to ensure, and the complexity of ensuring, the technical migration of existing users of that band. 5.

In the event of a delay under paragraph 3 or 4, the Member State concerned shall inform the other Member States and the Commission in a timely manner, stating the reasons.

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See: Recital 134. Technical implementing measures adopted under the Radio Spectrum Decision with respect to wireless broadband services See Annex III at pp 1365–70. Use of the 700 Mhz and sub-700 MHz frequency bands Decision (EU) 2017/899 (see p. 1118). Q&A on Article 53: ‘Article 53(2), (3) and (4) requires actions from Member States, in case conditions have been set by technical implementing measures in accordance with Decision no. 676/2002/CE in order to enable the spectrum use for wireless broadband networks and services. As provided in Article 124(2), these provisions are already in force since 20 December 2018. Taking into account that 53(2), (3) and (4) are already applicable, what exactly is to be achieved by the transposition of this article?’ Reply: ‘Under Article 288 TFEU, Member States have the competence to decide on the form and means for the implementation of the Directive. Member States may consider that certain general rules and procedures have to be set in national law in order to make sure that where harmonised conditions have been set by a technical implementing measure, the result of the article 53 paragraphs (2) to (4) is achieved i.e. allowing the use of the relevant radio spectrum within 30 months. However, similarly to Article  54, it could be sufficient for Member States to implement those paragraphs through the adoption of specific national measures necessary to achieve the result each time a spectrum band has been subject to a new specific technical implementing measure.’ Article 54 Coordinated timing of assignments for specific 5G bands 1.

By 31  December 2020, for terrestrial systems capable of providing wireless broadband services, Member States shall, where necessary in order to facilitate the roll-out of 5G, take all appropriate measures to: (a) reorganise and allow the use of sufficiently large blocks of the 3,4-3,8 GHz band; (b) allow the use of at least 1 GHz of the 24,25-27,5 GHz band, provided that there is clear evidence of market demand and of the absence of significant constraints for migration of existing users or band clearance.

2.

Member States may, however, extend the deadline laid down in paragraph 1 of this Article, where justified, in accordance with Article 45(3) or Article 53(2), (3) or (4).

3.

Measures taken pursuant paragraph  1 of this Article shall comply with the harmonised conditions set by technical implementing measures in accordance with Article 4 of Decision No 676/2002/EC. See: Recital 135. Technical implementing measures adopted under the Radio Spectrum Decision with respect to the 3,4-3,8 GHz frequency band and the 24,25-27,5 GHz frequency band (wireless broadband services) See Annex III at pp 1365–70. Q&A on Article 54: ‘Article 54 refers to measures that Member States will have to accomplish in a scheduled timeframe. Furthermore, this article has already entered into force as provided in Article 124(2).



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Does this Article need to be transposed into the national law or does it only require the adoption of the adequate measures in order to accomplish its provisions?’ Reply: ‘Article 54 requires specific action in relation to specific spectrum bands within a specific deadline. It therefore can be implemented by Member States only adopting the specific appropriate national measures necessary to achieve the obligations defined by Article 54 in relation to those spectrum bands.’ Article 55 Procedure for limiting the number of rights of use to be granted for radio spectrum 1.

Without prejudice to Article  53, where a Member State concludes that a right to use radio spectrum cannot be subject to a general authorisation and where it considers whether to limit the number of rights of use to be granted for radio spectrum, it shall, inter alia: (a)

clearly state the reasons for limiting the rights of use, in particular by giving due weight to the need to maximise benefits for users and to facilitate the development of competition, and review, as appropriate, the limitation at regular intervals or at the reasonable request of affected undertakings;

(b) give all interested parties, including users and consumers, the opportunity to express their views on any limitation through a public consultation in accordance with Article 23. 2.

When a Member State concludes that the number of rights of use is to be limited, it shall clearly establish, and give reasons for, the objectives pursued by means of a competitive or comparative selection procedure under this Article, and where possible quantify them, giving due weight to the need to fulfil national and internal market objectives. The objectives that the Member State may set out with a view to designing the specific selection procedure shall, in addition to promoting competition, be limited to one or more of the following: (a)

promoting coverage;

(b) ensuring the required quality of service; (c)

promoting efficient use of radio spectrum, including by taking into account the conditions attached to the rights of use and the level of fees;

(d) promoting innovation and business development. The national regulatory or other competent authority shall clearly define and justify the choice of the selection procedure, including any preliminary phase to access the selection procedure. It shall also clearly state the outcome of any related assessment of the competitive, technical and economic situation of the market and provide reasons for the possible use and choice of measures pursuant to Article 35. 3.

Member States shall publish any decision on the selection procedure chosen and the related rules, clearly stating the reasons therefor. It shall also publish the conditions that are to be attached to the rights of use.

4.

After having determined the selection procedure, the Member State shall invite applications for rights of use.

5.

Where a Member State concludes that additional rights of use for radio spectrum or a combination of general authorisation and individual rights of use can be

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granted, it shall publish that conclusion and initiate the process of granting such rights. 6.

Where the granting of rights of use for radio spectrum needs to be limited, Member States shall grant such rights on the basis of selection criteria and a selection procedure which are objective, transparent, non-discriminatory and proportionate. Any such selection criteria shall give due weight to the achievement of the objectives and requirements of Articles 3, 4, 28 and 45.

7.

Where competitive or comparative selection procedures are to be used, Member States may extend the maximum period of six weeks referred to in Article 48(6) for as long as necessary to ensure that such procedures are fair, reasonable, open and transparent to all interested parties, but by no longer than eight months, subject to any specific timetable established pursuant to Article 53. Those time limits shall be without prejudice to any applicable international agreements relating to the use of radio spectrum and satellite coordination.

8.

This Article is without prejudice to the transfer of rights of use for radio spectrum in accordance with Article 51. See: Recitals 125; 136. Correlation with Authorisation Directive EECC Article 55 correlates with Directive 2002/20/EC, Article 7. Allocation of radio frequencies for terrestrial analogue television broadcasting Case C-380/05 Centro Europa 7 Srl v Ministero delle Comunicazioni e Autorità per le garanzie nelle comunicazioni and Direzione generale per le concessioni e le autorizzazioni del Ministero delle Comunicazioni, EU:C:2008:59, Court’s ruling (see annotations to Article 48). Limiting the number of rights of use of digital terrestrial broadcasting radio frequencies ‘1. By limiting, in accordance with point 5a, paragraphs 1 and 2, of the transitional and final provisions of the [Bulgarian] Law on Electronic Communications (Zakon za elektronnite saobshteniya), to two the number of companies to which a right of use can be attributed of frequencies in the digital terrestrial broadcasting radio spectrum and for which an authorisation to provide corresponding electronic communications services has been issued, the Republic of Bulgaria has failed to fulfill its obligations under Article 2(1) of Directive 2002/77/EC of the Commission of 16  September 2002 on competition in the markets for electronic communications networks and services. 2.

By prohibiting, by virtue of Articles  47a, paragraphs 1 and 2, and 48, paragraph  3, of the Law on Electronic Communications, to television content providers whose programs are not broadcast in Bulgaria and to persons who are bound to participate in calls for candidates for the allocation of rights to use frequencies of the digital terrestrial radio spectrum and to provide the corresponding services, the Republic of Bulgaria has failed to fulfill its obligations under Article  7(3) of [the Authorisation Directive], Article 9(1) of [the Framework Directive], as well as Articles 2(2) and 4(2) of Directive 2002/77.

3. By prohibiting, under Article  48, paragraph  5, of the Electronic Communications Act, the successful tenderers of rights to use the



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frequencies of the digital terrestrial broadcasting radio spectrum from the establishment of electronic communications networks for the broadcasting of radio and television programs, the Republic of Bulgaria has failed to fulfill its obligations under Article  7(3) of [the Authorisation Directive], Article 9(1) of [the Framework Directive], as well as Articles 2(2) and 4(2) of Directive 2002/77.’ Case C-376/13 European Commission v Republic of Bulgaria, EU:C:2015:266, paras 1-3 of the Court’s ruling (translation). CHAPTER IV Deployment and use of wireless network equipment Article 56 Access to radio local area networks 1.

Competent authorities shall allow the provision of access through RLANs to a public electronic communications network, as well as the use of the harmonised radio spectrum for that provision, subject only to applicable general authorisation conditions relating to radio spectrum use as referred to in Article 46(1). Where that provision is not part of an economic activity or is ancillary to an economic activity or a public service which is not dependent on the conveyance of signals on those networks, any undertaking, public authority or end-user providing such access shall not be subject to any general authorisation for the provision of electronic communications networks or services pursuant to Article  12, to obligations regarding end-users rights pursuant to Title II of Part III, or to obligations to interconnect their networks pursuant to Article 61(1).

2.

Article 12 of Directive 2000/31/EC shall apply.

3. Competent authorities shall not prevent providers of public electronic communications networks or publicly available electronic communications services from allowing access to their networks to the public, through RLANs, which may be located at an end-user’s premises, subject to compliance with the applicable general authorisation conditions and the prior informed agreement of the end-user. 4.

In accordance in particular with Article  3(1) of Regulation (EU) 2015/2120, competent authorities shall ensure that providers of public electronic communications networks or publicly available electronic communications services do not unilaterally restrict or prevent end-users from: (a)

accessing RLANs of their choice provided by third parties; or

(b) allowing reciprocally or, more generally, accessing the networks of such providers by other end-users through RLANs, including on the basis of third-party initiatives which aggregate and make publicly accessible the RLANs of different end-users. 5.

Competent authorities shall not limit or prevent end-users from allowing access, reciprocally or otherwise, to their RLANs by other end-users, including on the basis of third-party initiatives which aggregate and make the RLANs of different end-users publicly accessible.

6.

Competent authorities shall not unduly restrict the provision of access to RLANs to the public:

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(a) by public sector bodies or in public spaces close to premises occupied by such public sector bodies, when that provision is ancillary to the public services provided on those premises; (b) by initiatives of non-governmental organisations or public sector bodies to aggregate and make reciprocally or more generally accessible the RLANs of different end-users, including, where applicable, the RLANs to which public access is provided in accordance with point (a). See: Recitals 137; 138. ‘Mere conduit’ exemption under the Directive on Electronic Commerce applies Directive 2000/31/EC, Article  12 (see p. 708) and Case C-484/14 Tobias Mc Fadden v Sony Music Entertainment Germany GmbH, EU:C:2016:689, paras 1–6 of the Court’s ruling; see also Directive 2000/31/EC, Article 15 and Case C-275/06 Productores de Música de España (Promusicae) v Telefónica de España SAU, EU:C:2008:54, Court’s ruling; Case C-70/10 Scarlet Extended SA v Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM), EU:C:2011:771, Court’s ruling; Case C-360/10 Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v Netlog NV., EU:C:2012:85, Court’s ruling; Case C-18/18 Eva Glawischnig-Piesczek v Facebook Ireland Ltd, EU:C:2019:821, Court’s ruling; Case C-291/13 Sotiris Papasavvas v O  Fileleftheros Dimosia Etairia Ltd and Others, EU:C:2014:2209, paras 1–5 of the Court’s ruling; Case C-521/17 Coöperatieve Vereniging SNB-REACT  U.A. v Deepak Mehta, EU:C:2018:639, paragraph  2 of the Court’s ruling (see annotations to Recital 138). End-users’ rights under the Open Internet Regulation (a)

Regulation (EU) 2015/2120, Article 3(1) (see p. 518)

(b) ‘22. Article 3(1) sets out the end-users’ rights with regard to the open internet. […] “Access and distribute information and content” 23. Firstly, end-users have the right to access and distribute information and content.”Access and distribute” means that the provisions of this Regulation apply to both sending and receiving data over the IAS [Internet Access Service]. “Information and content” is intended to cover any form of data that can be sent or received over the IAS. “Use and provide applications and services” 24. Secondly, end-users have the right to use and provide applications and services. “Use and provide” means that the right applies both to consumption and provision of applications and services. “Applications and services” means both applications (including client and server software) as well as services. ‘Use terminal equipment of their choice’ 25. Thirdly, end-users have the right to use terminal equipment of their choice. Directive 2008/63/EC defines “terminal equipment” as “equipment directly or indirectly connected to the interface of a public telecommunication network”. The right to choose terminal



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equipment therefore covers equipment which connects to the interface of the public telecommunications network. This interface, the network termination point (NTP)[58], is defined in Article 2 [(9) of the EECC] meaning the physical point at which a subscriber is provided with access to a public communications network. 26. In considering whether end-users may use the terminal equipment of their choice, NRAs should assess whether an ISP provides equipment for its subscribers and restricts the end-users’ ability to replace that equipment with their own equipment, i.e. whether it provides “obligatory equipment”. 27. Moreover, NRAs should consider whether there is an objective technological necessity for the obligatory equipment to be considered as part of the ISP network. If there is not, and if the choice of terminal equipment is limited, the practice would be in conflict with the Regulation. For example, the practice of restricting tethering[59] is likely to constitute a restriction on choice of terminal equipment because ISPs “should not impose restrictions on the use of terminal equipment connecting to the network in addition to those imposed by manufacturers or distributors of terminal equipment in accordance with Union law” (Recital 5). Legislation related to the lawfulness of the content, applications or services 28. Article  3(1) second subparagraph specifies that Union law, and national law that complies with Union law, related to the lawfulness of content, applications or services still applies. The Regulation does not seek to regulate the lawfulness of the content, applications or services (ref. Recital 6). 29. Whereas Article 3(1) second subparagraph contains a clarification with regard to the applicability of such legislation, Article 3(3) (a) provides for an exception for ISPs to implement measures going beyond reasonable traffic management measures in order to comply with legislation or measures as specified in that exception.’ BEREC Guidelines on the Implementation of the Open Internet Regulation, BoR (20) 112, 11 June 2020, paras 22–29. Article 57 Deployment and operation of small-area wireless access points 1.

Competent authorities shall not unduly restrict the deployment of small-area wireless access points. Member States shall seek to ensure that any rules governing the deployment of small-area wireless access points are nationally consistent. Such rules shall be published in advance of their application.

‘For further information please refer to BoR (20) 46, BEREC Guidelines on Common Approaches to the Identification of the Network Termination Point in different Network Topologies, 5 March 2020’ – fn 11 in the Guidelines. 59 ‘Tethering allows an end-user to share the internet connection of a phone or tablet with other devices such as laptops’ – fn 13 in the Guidelines. 58

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In particular, competent authorities shall not subject the deployment of smallarea wireless access points complying with the characteristics laid down pursuant to paragraph 2 to any individual town planning permit or other individual prior permits. By way of derogation from the second subparagraph of this paragraph, competent authorities may require permits for the deployment of small-area wireless access points on buildings or sites of architectural, historical or natural value protected in accordance with national law or where necessary for public safety reasons. Article 7 of Directive 2014/61/EU shall apply to the granting of those permits. 2.

The Commission shall, by means of implementing acts, specify the physical and technical characteristics, such as maximum size, weight, and where appropriate emission power of small-area wireless access points. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 118(4). The first such implementing act shall be adopted by 30 June 2020.

3.

This Article is without prejudice to the essential requirements laid down in Directive 2014/53/EU and to the authorisation regime applicable for the use of the relevant radio spectrum.

4.

Member States shall, by applying, where relevant, the procedures adopted in accordance with Directive 2014/61/EU, ensure that operators have the right to access any physical infrastructure controlled by national, regional or local public authorities, which is technically suitable to host small-area wireless access points or which is necessary to connect such access points to a backbone network, including street furniture, such as light poles, street signs, traffic lights, billboards, bus and tramway stops and metro stations. Public authorities shall meet all reasonable requests for access on fair, reasonable, transparent and non-discriminatory terms and conditions, which shall be made public at a single information point.

5.

Without prejudice to any commercial agreements, the deployment of small-area wireless access points shall not be subject to any fees or charges going beyond the administrative charges in accordance with Article 16. See: Recitals 8; 139; 140; 316. Permit-granting procedure under the Broadband Cost Reduction Directive Directive 2014/61/EU, Article 7 (see p. 937). Commission Implementing Act Commission Implementing Regulation (EU) 2020/1070 of 20  July 2020 on specifying the characteristics of small-area wireless access points pursuant to Article 57 paragraph 2 of Directive (EU) 2018/1972 of the European Parliament and the Council establishing the European Electronic Communications Code (Text with EEA relevance) (OJ L 234, 21.7.2020, p. 11) (see p. 669). Essential requirements under the Radio Equipment Directive Directive 2014/53/EU, Article 3 (see p. 891). Access to existing physical infrastructure under the Broadband Cost Reduction Directive Directive 2014/61/EU, Recital 13, and Articles 3; 4 (see pp 924 and 933–34). Q&A on Article 57: ‘Should Article 57(1) sub.§ 2 be interpreted as not allowing the owner of a property to condition the deployment of a small cell to an authorisation for the use of public land in the form of a decree or contract?



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Should Article 57(5) be interpreted as not allowing to condition the deployment of a small cell to the payment of a public domain occupancy fee resulting from the granting of an authorisation to occupy the public domain?’ Reply: ‘In the case of an implementing act of the Commission defining those small area wireless access points which should not be subject to any individual permit, this regulatory regime should not be considered as a tacit authorisation, but as an authorisation granted by law. On the second question, it was the clear intention of the EU legislator to only subject the deployment of such access points to administrative charges at the exclusion of fees or charges. Article  16  EECC restrictively defines administrative charges as administrative costs incurred in the management, control and enforcement of the general authorisation system and of the rights of use and of specific obligations as referred to in Article 13(2). A contrario, ensuring the optimal use of resources is a characteristic of fees as defined in article 42 for a.o. rights to install facilities on public property (fees should reflect the economic and technical situation of the market concerned as well as any other significant factor determining their value as stated in recital 100). Therefore, a reference to advantages of all nature drawn from the authorisation to use the public domain would not be valid under Articles 16 and 57 EECC as clearly excluded from the scope of administrative charges in these articles; a reference to advantages of all nature would rather fall under the definition of fees under Article 42 EECC, which are prohibited, as explained, by Article 57(1) second sub-paragraph. Recital 139 confirms that any administrative charge involved should be limited to the administrative costs relating to the processing of the application. Moreover, as small area access points covered by an implementing act under Article 57(2) would not require any application for an individual town planning permit or other individual prior permit, unless the third sub-paragraph of Article  57(1) applies, there would be no right of use or prior individual town planning permit or other individual prior permit which could justify the imposition of an administrative charge. Such administrative charge could only be imposed if it can be demonstrated that the management, control or enforcement of the regulatory regime created by the Commission implementing act adopted pursuant to Article 57(2) would justify such an imposition, for example in view to the monitoring of the fulfilment of the conditions set by the Commission implementing act. It should be noted that the imposition of charges and fees relating to the use of the spectrum is not covered by Article 57 and is subject to the provisions of Articles 16 and 42.’ Further Q&A on Article 57: ‘(a) Paragraph 5 states that the deployment of small-area wireless access points ‘shall not be subject to any fees or charges going beyond the administrative charges’ – does this paragraph apply only to fees charged by public authorities ([e.g.] whether it relates to fees for planning permits), or to charges by private landowners as well ([e.g.] it relates to rental charges for occupation of the land). (b) Does paragraph  5 prohibit landowners from charging rent to telecoms operators for the use of their land?

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(c) What is the intention of the European Commission [by] stating that paragraph 5 is ‘without prejudice to any commercial agreements’? What sort of commercial agreements does the European Commission consider exempt from paragraph 5? (d) Is paragraph 5 of Article 57 intended to apply only to public sector land, or is it intended to apply to both public and private land? (It follows after paragraph  4, which applies only to public sector land – but unlike paragraph 4 it contains no reference to public sector land.)’ Reply: ‘(a) It was the clear intention of the EU legislator to only subject the deployment of small-area wireless access points to administrative charges imposed by public authorities at the exclusion of fees or other charges imposed by public authorities. Article  16  EECC restrictively defines administrative charges as administrative costs incurred in the management, control and enforcement of the general authorisation system and of the rights of use and of specific obligations as referred to in Article  13(2). This does not exclude rental charges as article 57 provides that it is ‘without prejudice to any commercial agreements’. (b) There is no such prohibition in the Code. Recital 139 provides that this is without prejudice to private property rights set out in Union or national law. (c)

This may include rental agreements, for example with owners of physical infrastructure.

(d) This provision does not distinguish between public and private property.’ Article 58 Technical regulations on electromagnetic fields The procedures laid down in Directive (EU) 2015/1535 shall apply with respect to any draft measure by a Member State that would impose on the deployment of small-area wireless access points different requirements with respect to electromagnetic fields than those provided for in Recommendation 1999/519/EC. See: Recitals 110; 139. Notification procedure in the Single Market Transparency Directive See Directive (EU) 2015/1535, Articles 5-7 (see pp 946–49). Limitation of exposure of the general public to electromagnetic fields (0 Hz to 300 GHz) Recommendation 1999/519/EC (see p. 1133). TITLE II ACCESS CHAPTER I General provisions, access principles Article 59 General framework for access and interconnection 1.

Member States shall ensure that there are no restrictions which prevent undertakings in the same Member State or in different Member States from negotiating between themselves agreements on technical and commercial arrangements for access or interconnection, in accordance with Union law. The undertaking requesting access or interconnection does not need to be authorised to operate in the Member State



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where access or interconnection is requested, if it is not providing services and does not operate a network in that Member State. 2.

Without prejudice to Article  114, Member States shall not maintain legal or administrative measures which require undertakings, when granting access or interconnection, to offer different terms and conditions to different undertakings for equivalent services or measures imposing obligations that are not related to the actual access and interconnection services provided without prejudice to the conditions set out in Annex I. See: Recitals 141–143. Correlation with Access Directive EECC Article 59 correlates with Directive 2002/19/EC, Article 3. Abuse of dominant position with respect to access by third party undertakings to the incumbent operator’s local loop Case T-851/14 Slovak Telekom, a.s. v European Commission, EU:T:2018:929, with respect to Commission Decision C(2014) 7465 final of 15  October 2014 relating to proceedings under Article  102  TFEU and Article  54 of the EEA Agreement (Case AT.39523 – Slovak Telekom). Article 60 Rights and obligations of undertakings

1.

Operators of public electronic communications networks shall have a right and, when requested by other undertakings so authorised in accordance with Article  15, an obligation to negotiate with each other interconnection for the purpose of providing publicly available electronic communications services, in order to ensure provision and interoperability of services throughout the Union. Operators shall offer access and interconnection to other undertakings on terms and conditions consistent with obligations imposed by the national regulatory authority pursuant to Articles 61, 62 and 68.

2.

Without prejudice to Article  21, Member States shall require that undertakings which acquire information from another undertaking before, during or after the process of negotiating access or interconnection arrangements use that information solely for the purpose for which it was supplied and respect at all times the confidentiality of information transmitted or stored. Such undertakings shall not pass on the received information to any other party, in particular other departments, subsidiaries or partners, for whom such information could provide a competitive advantage.

3.

Member States may provide for negotiations to be conducted through neutral intermediaries when conditions of competition so require. See: Recitals 141; 143; 147. Correlation with Access Directive EECC Article 60 correlates with Directive 2002/19/EC, Article 4. Obligation of undertaking without SMP to negotiate interconnection in good faith ‘1.

Article 4(1) of [the Access Directive] read in conjunction with recitals 5, 6, 8 and 19 in its preamble and with Articles 5 and 8 thereof, precludes national legislation […] in so far as it does not restrict the possibility of relying on the obligation to negotiate on the interconnection of networks

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solely to operators of public communications networks. It is for the national court to determine, having regard to the status and nature of the operators concerned in the main proceedings, they may be classified as operators of public communications networks. 2.

A  national regulatory authority may take the view that the obligation to negotiate an interconnection has been breached where an undertaking which does not have significant market power proposes interconnection to another undertaking under unilateral conditions likely to hinder the emergence of a competitive market at the retail level where those conditions prevent the clients of the second undertaking from benefiting from its services.

3.

A national regulatory authority may require an undertaking which does not have significant market power but which controls access to end-users to negotiate in good faith with another undertaking for either interconnection of the two networks concerned if the undertaking which requests such access must be classified as an operator of public communications networks, or interoperability of SMS and MMS message services if that undertaking is not covered by that classification.’

Case C-192/08 TeliaSonera Finland Oyj, EU:C:2009:696, paras 1–3 of the Court’s ruling. CHAPTER II Access and interconnection Article 61 Powers and responsibilities of the national regulatory and other competent authorities with regard to access and interconnection [1. National regulatory authorities or, in the case of points (b) and (c) of the first subparagraph of paragraph 2 of this Article, national regulatory authorities or other competent authorities shall, acting in pursuit of the objectives set out in Article 3,] encourage and, where appropriate, ensure, in accordance with this Directive, adequate access and interconnection, and the interoperability of services, exercising their responsibility in a way that promotes efficiency, sustainable competition, the deployment of very high capacity networks, efficient investment and innovation, and gives the maximum benefit to end-users. They shall provide guidance and make publicly available the procedures applicable to gain access and interconnection to ensure that small and medium-sized enterprises and operators with a limited geographical reach can benefit from the obligations imposed. [2. In particular, without prejudice to measures that may be taken regarding undertakings designated as having significant market power in accordance with Article 68, national regulatory authorities or, in the case of points (b) and (c) of this subparagraph, national regulatory authorities or other competent authorities shall be able to impose:] (a) to the extent necessary to ensure end-to-end connectivity, obligations on undertakings subject to general authorisation that control access to endusers, including, in justified cases, the obligation to interconnect their networks where this is not already the case; (b) in justified cases and to the extent necessary, obligations on undertakings subject to general authorisation that control access to end-users to make their services interoperable;



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(c) in justified cases, where end-to-end connectivity between end-users is endangered due to a lack of interoperability between interpersonal communications services, and to the extent necessary to ensure end-toend connectivity between end-users, obligations on relevant providers of number-independent interpersonal communications services which reach a significant level of coverage and user uptake, to make their services interoperable; (d) to the extent necessary to ensure accessibility for end-users to digital radio and television broadcasting services and related complementary services specified by the Member State, obligations on operators to provide access to the other facilities referred to in Part II of Annex II on fair, reasonable and non-discriminatory terms. The obligations referred to in point (c) of the first subparagraph shall be imposed only: (i) to the extent necessary to ensure interoperability of interpersonal communications services and may include proportionate obligations on providers of those services to publish and allow the use, modification and redistribution of relevant information by the authorities and other providers, or to use and implement standards or specifications listed in Article  39(1) or of any other relevant European or international standards; (ii) where the Commission, after consulting BEREC and taking utmost account of its opinion, has found an appreciable threat to end-toend connectivity between end-users throughout the Union or in at least three Member States and has adopted implementing measures specifying the nature and scope of any obligations that may be imposed. The implementing measures referred to in point (ii) of the second subparagraph shall be adopted in accordance with the examination procedure referred to in Article 118(4). 3.

In particular, and without prejudice to paragraphs 1 and 2, national regulatory authorities may impose obligations, upon reasonable request, to grant access to wiring and cables and associated facilities inside buildings or up to the first concentration or distribution point as determined by the national regulatory authority, where that point is located outside the building. Where it is justified on the grounds that replication of such network elements would be economically inefficient or physically impracticable, such obligations may be imposed on providers of electronic communications networks or on the owners of such wiring and cables and associated facilities, where those owners are not providers of electronic communications networks. The access conditions imposed may include specific rules on access to such network elements and to associated facilities and associated services, on transparency and non-discrimination and on apportioning the costs of access, which, where appropriate, are adjusted to take into account risk factors. Where a national regulatory authority concludes, having regard, where applicable, to the obligations resulting from any relevant market analysis, that the obligations imposed in accordance with the first subparagraph do not sufficiently address high and non-transitory economic or physical barriers to replication which underlie an

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existing or emerging market situation significantly limiting competitive outcomes for end-users, it may extend the imposition of such access obligations, on fair and reasonable terms and conditions, beyond the first concentration or distribution point, to a point that it determines to be the closest to end-users, capable of hosting a sufficient number of end-user connections to be commercially viable for efficient access seekers. In determining the extent of the extension beyond the first concentration or distribution point, the national regulatory authority shall take utmost account of relevant BEREC guidelines. If justified on technical or economic grounds, national regulatory authorities may impose active or virtual access obligations. National regulatory authorities shall not impose obligations in accordance with the second subparagraph on providers of electronic communications networks where they determine that: (a)

the provider has the characteristics listed in Article 80(1) and makes available a viable and similar alternative means of reaching end-users by providing access to a very high capacity network to any undertaking, on fair, nondiscriminatory and reasonable terms and conditions; national regulatory authorities may extend that exemption to other providers offering, on fair, non-discriminatory and reasonable terms and conditions, access to a very high capacity network; or

(b) the imposition of obligations would compromise the economic or financial viability of a new network deployment, in particular by small local projects. By way of derogation from point (a) of the third subparagraph, national regulatory authorities may impose obligations on providers of electronic communications networks fulfilling the criteria laid down in that point where the network concerned is publicly funded. By 21  December 2020, BEREC shall publish guidelines to foster a consistent application of this paragraph, by setting out the relevant criteria for determining: (a)

the first concentration or distribution point;

(b) the point, beyond the first concentration or distribution point, capable of hosting a sufficient number of end-user connections to enable an efficient undertaking to overcome the significant replicability barriers identified; (c)

which network deployments can be considered to be new;

(d) which projects can be considered to be small; and (e) which economic or physical barriers to replication are high and nontransitory. 4.

Without prejudice to paragraphs 1 and 2, Member States shall ensure that competent authorities have the power to impose on undertakings providing or authorised to provide electronic communications networks obligations in relation to the sharing of passive infrastructure or obligations to conclude localised roaming access agreements, in both cases if directly necessary for the local provision of services which rely on the use of radio spectrum, in accordance with Union law and provided that no viable and similar alternative means of access to end-users is made available to any undertaking on fair and reasonable terms and conditions. Competent authorities may impose such obligations only where this possibility is clearly provided for when granting the rights of use for radio spectrum and where



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justified on the grounds that, in the area subject to such obligations, the marketdriven deployment of infrastructure for the provision of networks or services which rely on the use of radio spectrum is subject to insurmountable economic or physical obstacles and therefore access to networks or services by end-users is severely deficient or absent. In those circumstances where access and sharing of passive infrastructure alone does not suffice to address the situation, national regulatory authorities may impose obligations on sharing of active infrastructure. Competent authorities shall have regard to: (a) the need to maximise connectivity throughout the Union, along major transport paths and in particular territorial areas, and to the possibility to significantly increase choice and higher quality of service for end-users; (b) the efficient use of radio spectrum; (c)

the technical feasibility of sharing and associated conditions;

(d) the state of infrastructure-based as well as service-based competition; (e)

technological innovation;

(f) the overriding need to support the incentive of the host to roll out the infrastructure in the first place. In the event of dispute resolution, competent authorities may, inter alia, impose on the beneficiary of the sharing or access obligation, the obligation to share radio spectrum with the infrastructure host in the relevant area. 5.

Obligations and conditions imposed in accordance with paragraphs 1 to 4 of this Article shall be objective, transparent, proportionate and non-discriminatory, they shall be implemented in accordance with the procedures referred to in Articles 23, 32 and 33. The national regulatory and other competent authorities which have imposed such obligations and conditions shall assess the results thereof by five years after the adoption of the previous measure adopted in relation to the same undertakings and assess whether it would be appropriate to withdraw or amend them in light of evolving conditions. Those authorities shall notify the outcome of their assessment in accordance with the procedures referred to in Articles 23, 32 and 33.

6.

For the purpose of paragraphs 1 and 2 of this Article, Member States shall ensure that the national regulatory authority is empowered to intervene on its own initiative where justified in order to secure the policy objectives of Article 3, in accordance with this Directive and, in particular, with the procedures referred to in Articles 23 and 32.

7.

By 21 June 2020 in order to contribute to a consistent definition of the location of network termination points by national regulatory authorities, BEREC shall, after consulting stakeholders and in close cooperation with the Commission, adopt guidelines on common approaches to the identification of the network termination point in different network topologies. National regulatory authorities shall take utmost account of those guidelines when defining the location of network termination points. See: Recitals 19; 144–159. Correlation with Framework Directive EECC Article 61(2) correlates with Directive 2002/21/EC, Article 12(3).

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Correlation with Access Directive EECC Article 61 correlates with Directive 2002/19/EC, Article 5. Corrigenda Article 61(1) and (2) amended (as shown) by Articles 2 and 3 of the Corrigendum to Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (OJ L 334, 27.12.2019, p. 164). Regulated access to Next Generation Access Networks 2010/572/EU: Commission Recommendation of 20 September 2010 on regulated access to Next Generation Access Networks (NGA) (Text with EEA relevance) (OJ L 251, 25.9.2010, p. 35) (see p. 1160). Obligation of undertaking without SMP to negotiate interconnection in good faith Case C-192/08 TeliaSonera Finland Oyj, EU:C:2009:696, paras 1–3 of the Court’s ruling (see annotations to Article 60), see also paras 52 and 58–60. Obligation to meet reasonable requests for access to and use of specific network elements and associated facilities Case C-556/12, TDC A/S v Teleklagenævnet, EU:C:2014:2009, paras 1 and 2 of the Court’s ruling (see annotations to Article 68). Obligation to implement procedure on draft measures before imposing access obligations in the resolution of a dispute ‘[…T]he measures which an NRA envisages adopting, on the basis of the provisions of Article  20 of the Framework Directive in conjunction with Article 5 of the Access Directive, on access and interconnection in the context of a dispute between undertakings providing electronic communications networks or services in a Member State, must be made subject to the procedure laid down in Article  7(3) of the Framework Directive if they may affect trade between Member States. A measure, such as that at issue in the main proceedings, which is adopted in the context of a dispute between undertakings and is designed to ensure access to non-geographic numbers in accordance with Article  28 of the Universal Service Directive, falls within the scope of the obligations which an NRA may impose, under Article 5 of the Access Directive, to ensure adequate access and interconnection, and interoperability of services […]’ Case C-3/14 Prezes Urzędu Komunikacji Elektronicznej and Telefonia Dialog sp. z o.o. v T-Mobile Polska SA, EU:C:2015:232, paras 40 and 41. Imposing obligations on undertakings that control access to end-users Case C-397/14 Polkomtel sp. z o.o. v Prezes Urzędu Komunikacji Elektronicznej, EU:C:2016:256, para 2 of the Court’s ruling (see annotations to Article 97). Abuse of dominant position with respect to access by third party undertakings to the incumbent operator’s local loop Case T-851/14 Slovak Telekom, a.s. v European Commission, EU:T:2018:929, with respect to Commission Decision C(2014) 7465 final of 15  October 2014 relating to proceedings under Article  102  TFEU and Article  54 of the EEA Agreement (Case AT.39523 – Slovak Telekom). BEREC Guidance (a) Article  61(3): BEREC  Guidelines on the Criteria for a Consistent Application of Article 61(3), BoR (20) 225, 10 December 2020: (i)

The first concentration or distribution point: ‘The first concentration or distribution point, pursuant to Art. 61(3)



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subparagraph 1 EECC, is the point situated closest to the end-user that i.

is accessible or can be made accessible without unreasonable effort by the ECN provider or network owner, which in particular a. entails a dedicated facility for concentration or distribution of network cables, e.g. a dedicated space in the basement of a building or a street cabinet, that can be accessed by the access seeker on a regular basis, b.

entails network infrastructure that can be unbundled without unreasonable effort by the access seeker, e.g. because there is a detachable connection, and

ii. is the first accessible concentration or distribution point located inside a building or the first subsequent accessible concentration or distribution point located outside a building’ (paragraph 39); (ii) High and non-transitory economic or physical barriers to replication: ‘High and non-transitory economic or physical barriers to replication, pursuant to Art. 61 (3) subparagraph 2 EECC, entail obstacles which create a level of risk that deters efficient network operators from replicating a network, or part of a network, and which are unlikely to disappear or significantly diminish in the short term. In particular, high and non-transitory barriers i.

include significant costs, especially sunk costs associated with civil infrastructure works, for network replication,

ii.

are present if the prospect of cost recovery is low because an efficient access seeker is not able to obtain sufficient retail and, where relevant, wholesale revenues,

iii. include technical, legal or administrative requirements and restrictions that hinder network replication, as well as the impossibility to gain physical access to buildings or soil’ (paragraph 68); (iii) The point beyond the first concentration or distribution point: ‘The point beyond the first concentration or distribution point, pursuant to Art.61(3) subparagraph 2 EECC, is the first subsequent access point: i.

that is located closest to the end-user, whilst providing for a commercially viable business case for an efficient access seeker, effectively allowing the access seeker to attain sufficient revenues over the time horizon of the investment that at least equal the expected incremental costs, including capital costs, for network deployment,

ii.

that is accessible, as described in paragraphs 31-36, for the purpose of imposing access to physical network infrastructure, or allows for network hand-over and if necessary the possibility for collocation, for the purpose of imposing active or virtual

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access, where this would be justified on technical or economic grounds, iii. that, if access is granted, would allow an efficient access seeker to overcome the high and non-transitory economic or physical barriers identified by the NRA. If the NRA determines it appropriate to segment the network into different clusters, the access points beyond the first concentration or distribution point may differ between those clusters, in order to meet the criteria set out in points i–iii above’ (paragraph 85); (iv) Network deployments to be considered new: ‘Network deployments to be considered new, pursuant to subparagraph 3 (b) EECC: i. are limited to networks that were recently deployed, meaning that service provision to customers started no longer than five years ago, and ii. normally does not include upgrades of existing networks, unless the investments in physical infrastructure, e.g. new ducts and wiring – such as fibre lines – are significant and if the take-up or market share of the network is expected to be limited, thus requiring a first mover advantage’ (paragraph 94); (v) Projects to be considered small: ‘Projects to be considered small, pursuant to Art. 61(3) subparagraph 3 (b) EECC i. should only include projects carried out by undertakings which are not active in the whole or a major part of the broadband market, e.g. projects undertaken by small municipal networks, co-operative end-user built networks or networks rolled out by new entrants in the market, ii. should only include projects carried out by undertakings of a limited size on the broadband market, whereas the size of the undertaking in question should be measured relative to the total turnover and/or total number of active or passive connections on the national broadband market, iii. as a presumption include projects carried out by undertakings which have less than 500 potential end-users connected to their network’ (paragraph 105); Network Termination Point: BEREC Guidelines on Common Approaches to the Identification of the Network Termination Point in different Network Topologies, BoR (20) 46, 5 March 2020: The Guidelines contribute to the harmonisation of defining the location of Network Termination Points (‘NTPs’) in the EU, including the following: ‘The term ‘NTP’ refers to the point of access to the public network for end-users only’ (section 2.1); ‘the NTP represents a boundary, for regulatory purposes, between the regulatory framework for electronic communication networks and services on one side, and the regulation of telecommunications terminal equipment (TTE) on the other’ (section 2.2); ‘the NTP location has an impact on whether a piece of equipment is part of the public network or part of the TTE’ (section 2.3); and characteristics of the NTP (section 2.4);



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(i) Location of the fixed NTP: ‘NRAs shall take into account the following criteria when defining the location of the fixed NTP: a.

Conformity of the definition of the fixed NTP location with the legal provisions (section 3.1);

b.

Impact on TTE market (section 3.2);

c. Assessment whether there is an objective technological necessity for equipment to be part of the public network (section 3.3); i. Interoperability between public network and telecommunications terminal equipment (TTE) (section 3.3.1); ii.

Simplicity of the operation of the public network (section 3.3.2);

iii.

Network security (section 3.3.3);

iv.

Data protection (section 3.3.4);

v.

Local traffic (section 3.3.5);

vi. Fixed-line services based on wireless technology (section 3.3.6)’ (paragraph 15 and see section 3); (ii) Location of the mobile NTP: ‘[…] NRAs when defining the mobile NTP location shall determine that the mobile NTP is at a location (e.g. the air interface between mobile equipment and base station) which permits end-users to (continue to) use their own mobile equipment’ (paragraph 146 and see section 4). Q&A  on Article  61: ‘Article  61(1) second paragraph states that “to ensure that small and medium-sized enterprises and operators… can benefit from the obligations imposed”, but we are at wholesale level and the beneficiaries of these obligations are always operators of electronic communication networks and services. Thus, SMEs cannot benefit from wholesale access if they are not, at the same time, undertakings providing publicly available electronic communications services, covered by Articles 59 and 60. Can you confirm this interpretation?’ Reply: ‘Beneficiaries may be also providers of services, which are not “operators”. We agree with the interpretation as expressed in the second sentence.’ Q&A on Article 61(2)(b): ‘Article 61(2)(b) sets out powers to impose obligations on undertakings subject to General Authorisation that control access to endusers to make their services interoperable. 61(2)(c) provides powers to impose interoperability on number-independent interpersonal communications providers (when certain conditions are met). Both these powers can be exercised by NRAs or by other competent authorities, in contrast to the powers in Article 61(2)(a) and (d) which are exercisable by NRAs only. Were these powers designed to potentially be used together – i.e., for services subject to general authorisation to be interoperable with NIICS, and for NIICS to be required to be interoperable with services subject to general authorisation? Article 61(2) ii) states the conditions under which interoperability can be imposed on NIICS. Are these meant to be read as cumulative – [i.e.], an “and” statement?’ Reply: ‘The idea of the second paragraph was to ensure, if certain conditions are met, that number-independent interpersonal communication services (NIICS), which fulfil certain conditions, are also interoperable with number based

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interpersonal communications services (NBICS). If more than one NIICS fulfil the conditions then all those would need to be interoperable with NBICS and with each other. In any event, interoperability should ensure two way communication. The conditions of Article 61(2) (i) and (ii) are cumulative.’ Q&A  on Article  61(2)(c): National regulatory authorities or other competent authorities shall be able to impose ‘[o]bligations on relevant providers of numberindependent interpersonal communications which reach a significant level of coverage and user uptake, to make their services interoperable. This would mean securing the interoperability of OTT-services. What sort of logic is behind this Article, is it at this point in time mostly meant as a future safeguard? (as hinted in i(i)): “where the Commission, after consulting BEREC and taking utmost account of its opinion, has found an appreciable threat to endto-end connectivity between end-users throughout the Union or in at least three Member States and has adopted implementing measures specifying the nature and scope of any obligations that may be imposed.”’ Reply: ‘This paragraph was indeed intended to be a future safeguard. It is intended to kick-in in case one or several number independent interpersonal communication services become de facto the primary or only means of interpersonal communications for a significant number of end-users. Such endusers would rely for interpersonal communications only on services running on top of their internet access service without subscribing to a number-based electronic communications service. In such a case, interoperability of services could be endangered, in the absence of solutions developed by the market on its own motion. There are two steps before such a symmetric (independent from significant market power) obligation may be imposed by competent authorities: 1) The Commission, following an opinion of BEREC, should first find an appreciable threat to endto-end connectivity between end-users throughout the Union or at least in three Member States; 2) The Commission should first adopt implementing measures specifying the nature and scope of any obligations which may be imposed by the competent authorities. This provision should be read in parallel with Article 123 which requires BEREC to issue by 21 December 2021 and every 3 years thereafter or on reasoned request by at least 2 Member States an opinion inter alia on the extent to which effective access to emergency services is appreciably threatened due to an increased use of NIICS by lack of interoperability or technological developments’. Q&A  on Article  61(4): ‘In certain cases, competent authorities may impose obligation to share spectrum with the infrastructure host. What sort of exceptional situation[s] or case[s] were thought of when drafting the article? When could it be necessary to impose [those] kind of duties?’ Reply: ‘The exact wording of the last subparagraph of Art. 61(4) is: “In the event of dispute resolution, competent authorities may, inter alia, impose on the beneficiary of the sharing or access obligation, the obligation to share radio spectrum with the infrastructure host in the relevant area”. The market situations described in Article  61(4) are more likely to be found in less densely populated areas. In such areas, the Code acknowledges (Rec. 124) that network infrastructure sharing, and in some instances radio spectrum sharing, can allow for a more effective and efficient use of radio spectrum and ensure the rapid deployment of networks. Recital 191 explains that “[n]ational regulatory authorities should be able to impose technical and operational conditions on the provider or beneficiaries of mandated access in accordance with Union law.” Article  26(1) allows NRAs



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to impose a counter-obligation of access to the beneficiary of an obligation of access to spectrum. Therefore, where an operator is subject to an access (localized roaming) or sharing obligation under this Article, the addition of spectrum held by beneficiaries to the access or sharing scheme may contribute to the proportionality of the obligation and bring benefits to all end-users. As an example while a local access or sharing obligation may be imposed because other mobile network operators face severe economic obstacles to deploying necessary passive and active equipment to serve a more remote area, the MNOs benefiting from such an obligation may hold spectrum in a band that has favourable radio propagation characteristics. This spectrum may help [with] achieving better coverage for both hosting and hosted operators without negative effects for competition. In other cases, the spectrum contributed by beneficiaries may help [with] meeting the increased capacity requirements due to hosting and may help avoiding a degradation of the services that the hosting operator provides to its own end-users.’ Q&A on Article 61(5): With respect to the “[r]elationship between the CRD and Art 61(5) requirements for procedures preparing decision under art 61(3) and (4), is there a requirement for an EU co-ordination procedure for (each and every) individual decision”? Reply: ‘Article 61(5) concerns exclusively measures imposing obligations and conditions under Art. 61(1) to 61(4). There is no requirement for notifying dispute settlement decisions adopted by the respective bodies established under the Broadband Cost Reduction Directive.’ Article 62 Conditional access systems and other facilities 1.

Member States shall ensure that the conditions laid down in Part I of Annex II apply in relation to conditional access to digital television and radio services broadcast to viewers and listeners in the Union, irrespective of the means of transmission.

2.

Where, as a result of a market analysis carried out in accordance with Article 67(1), a national regulatory authority finds that one or more undertakings do not have significant market power on the relevant market, it may amend or withdraw the conditions with respect to those undertakings, in accordance with the procedures referred to in Articles 23 and 32, only to the extent that: (a)

accessibility for end-users to radio and television broadcasts and broadcasting channels and services specified in accordance with Article 114 would not be adversely affected by such amendment or withdrawal; and

(b) the prospects for effective competition in the following markets would not be adversely affected by such amendment or withdrawal: (i)

retail digital television and radio broadcasting services; and

(ii) conditional access systems and other associated facilities. An appropriate notice period shall be given to parties affected by such amendment or withdrawal of conditions. 3.

Conditions applied in accordance with this Article are without prejudice to the ability of Member States to impose obligations in relation to the presentational aspect of EPGs and similar listing and navigation facilities.

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Notwithstanding paragraph  1 of this Article, Member States may allow their national regulatory authority, as soon as possible after 20  December 2018 and periodically thereafter, to review the conditions applied in accordance with this Article, by undertaking a market analysis in accordance with Article  67(1) to determine whether to maintain, amend or withdraw the conditions applied. See: Recitals 159; 160. Correlation with Access Directive EECC Article 62 correlates with Directive 2002/19/EC, Article 6. CHAPTER III Market analysis and significant market power Article 63 Undertakings with significant market power

1.

Where this Directive requires national regulatory authorities to determine whether undertakings have significant market power in accordance with the procedure referred to in Article 67, paragraph 2 of this Article shall apply.

2.

An undertaking shall be deemed to have significant market power if, either individually or jointly with others, it enjoys a position equivalent to dominance, namely a position of economic strength affording it the power to behave to an appreciable extent independently of competitors, customers and ultimately consumers. In particular, national regulatory authorities shall, when assessing whether two or more undertakings are in a joint dominant position in a market, act in accordance with Union law and take into the utmost account the guidelines on market analysis and the assessment of significant market power published by the Commission pursuant to Article 64.

3.

Where an undertaking has significant market power on a specific market, it may also be designated as having significant market power on a closely related market, where the links between the two markets allow the market power held on the specific market to be leveraged into the closely related market, thereby strengthening the market power of the undertaking. Consequently, remedies aiming to prevent such leverage may be applied in the closely related market pursuant to Articles 69, 70, 71 and 74. See: Recitals 161–164. Correlation with Framework Directive EECC Article 63 correlates with Directive 2002/21/EC, Article 14. SMP Guidelines Communication from the Commission, Guidelines on market analysis and the assessment of significant market power under the EU regulatory framework for electronic communications networks and services (OJ  C  159, 7.5.2018, p. 1) (see p. 1204); Cf Communication from the Commission ‘Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty [now Article 102 TFEU] to abusive exclusionary conduct by dominant undertakings’ C (2009) 864 final, OJ 2009 C45/7; Case 85/76 Hoffmann-La Roche v Commission [1979] ECR 461, para 38, the European Court of Justice has consistently defined a dominant position under Article 102 TFEU (which is equivalent to the concept of SMP under Article  63  EECC) as ‘a position of economic strength enjoyed by an undertaking which enables it to hinder the maintenance of effective competition on the relevant market by allowing it to behave to an appreciable



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extent independently of its competitors and customers and ultimately of its consumers’; in Case T-210/01 General Electric v Commission [2006] ECR II5575, para 117, the General Court found that the existence of a dominant position does not require that all competition has been eliminated on the relevant market, but merely that it has been weakened: indeed, a dominant position may exist even if there is ‘lively competition’; for the development of the case law on joint or collective dominance, see C-68/94 and C30/95 France v Commission Kali & Salz) [1998] ECR I-1375, Case T-102/96 Gencor v Commission [1999] ECR II753, Case T-342/09 Airtours v Commission [2002] ECR II-2585, Case T-464/04 Impala v Commission [2006]  ECR II-2289 and Case C-413/06  P  Sony and Bertelsmann v Impala [2008]  ECR  I-4951; as regards dominance in closely related markets, see Case T-83/91 Tetra Pack International v Commission (Tetra Pack II) [1994] ECR II-755. Article 64 Procedure for the identification and definition of markets 1.

After public consultation including with national regulatory authorities and taking the utmost account of the opinion of BEREC, the Commission shall adopt a Recommendation on Relevant Product and Service Markets (‘the Recommendation’). The Recommendation shall identify those product and service markets within the electronic communications sector the characteristics of which may be such as to justify the imposition of regulatory obligations set out in this Directive, without prejudice to markets that may be defined in specific cases under competition law. The Commission shall define markets in accordance with the principles of competition law. The Commission shall include product and service markets in the Recommendation where, after observing overall trends in the Union, it finds that each of the three criteria listed in Article 67(1) is met. The Commission shall review the Recommendation by 21 December 2020 and regularly thereafter.

2.

After consulting BEREC, the Commission shall publish guidelines for market analysis and the assessment of significant market power (‘the SMP guidelines’) which shall be in accordance with the relevant principles of competition law. The SMP guidelines shall include guidance to national regulatory authorities on the application of the concept of significant market power to the specific context of ex ante regulation of electronic communications markets, taking account of the three criteria listed in Article 67(1).

3. National regulatory authorities shall, taking the utmost account of the Recommendation and the SMP guidelines, define relevant markets appropriate to national circumstances, in particular relevant geographic markets within their territory by taking into account, inter alia, the degree of infrastructure competition in those areas, in accordance with the principles of competition law. National regulatory authorities shall, where relevant, also take into account the results of the geographical survey conducted in accordance with Article 22(1). They shall follow the procedures referred to in Articles 23 and 32 before defining the markets that differ from those identified in the Recommendation. See: Recitals 164; 165; 179; 316; 317. Correlation with Framework Directive EECC Article 64(1)-(3) correlates with Directive 2002/21/EC, Article 15(1)-(3).

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Commission Recommendation on relevant product and service markets The European Commission has identified two wholesale markets as susceptible to regulation at EU level: Market 1: Wholesale local access provided at a fixed location; Market 2: Wholesale dedicated capacity – Commission Recommendation (EU) 2020/2245 of 18  December 2020 on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive (EU) 2018/1972 of the European Parliament and of the Council establishing the European Electronic Communications Code (notified under document C(2020) 8750) (Text with EEA relevance) (OJ L 439, 29.12.2020, p. 23), Annex (see p. 1224). SMP Guidelines Communication from the Commission, Guidelines on market analysis and the assessment of significant market power under the EU regulatory framework for electronic communications networks and services (OJ C 159, 7.5.2018, p. 1) (see p. 1204). Competition law – product market Case T-340/03 France Télécom v Commission [2007] ECR II-107, para 78 (upheld on appeal in Case C-202/07  P): ‘According to settled case-law (Case 322/81 Michelin v Commission [1983]  ECR  3461, para  37; Case T-65/96 Kish Glass v Commission [2000]  ECR II-1885, para  62; and Case T-219/99 British Airways v Commission [2003]  ECR II-5917, para  91), for the purposes of investigating the possibly dominant position of an undertaking on a given product market, the possibilities of competition must be judged in the context of the market comprising the totality of the products or services which, with respect to their characteristics, are particularly suitable for satisfying constant needs and are only to a limited extent interchangeable with other products or services. Moreover, since the determination of the relevant market is useful in assessing whether the undertaking concerned is in a position to prevent effective competition from being maintained and to behave to an appreciable extent independently of its competitors and, in this case, of its service providers, an examination to that end cannot be limited solely to the objective characteristics of the relevant services, but the competitive conditions and the structure of supply and demand on the market must also be taken into consideration.’; the standard theoretical framework to assess demand and supplyside substitution is the analysis of customers’ responses to a hypothetical small (in the range of 5–10 per cent) but permanent price increase in the product and geographic area to be considered: this is assessed using the SSNIP test. Commission Notice on the definition of the relevant market for the purposes of competition law, OJ 1997 C372/5 (at the time of writing of this handbook, the notice is being updated and revised by the European Commission but the new updated and revised version is not yet available). The ‘three criteria’ test In addition to the SNIPP test which is used to define the relevant market, the Commission and the NRAs must rely on the so-called ‘three criteria’ test to select markets that are susceptible to ex ante regulation in accordance with Article 67(1) EECC. Competition law – geographic market A geographic market is an area in which: (i) businesses enter into competition with each other; and (ii) the objective conditions of competition applying to the products or services in question are similar for all traders – Case 27/6 United Brands v Commission [1978] ECR 207, para 44.



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In some cases, the Commission has adopted a different approach towards geographic segmentation when applying sector-specific regulation (endorsing regional or narrower markets than national) and competition law (under which the Commission has generally assessed markets as being national). Conclusion of a contract contingent on the conclusion of a contract for the supply of other services Case C-522/08 Telekomunikacja Polska SA w Warszawie v Prezes Urzędu Komunikacji Elektronicznej, ECLI:EU:C:2010:135, Court’s ruling (see annotations to Article 88). BEREC Guidance See BEREC Common Position on geographic aspects of market analysis (definition and remedies), BoR (14) 73, 5 June 2014, noting that the EU Commission has redefined the product market boundaries in its Recommendations on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation. Article 65 Procedure for the identification of transnational markets 1.

If the Commission or at least two national regulatory authorities concerned submit a reasoned request, including supporting evidence, BEREC shall conduct an analysis of a potential transnational market. After consulting stakeholders and taking utmost account of the analysis carried out by BEREC, the Commission may adopt decisions identifying transnational markets in accordance with the principles of competition law and taking utmost account of the Recommendation and SMP guidelines adopted in accordance with Article 64.

2.

In the case of transnational markets identified in accordance with paragraph 1 of this Article, the national regulatory authorities concerned shall jointly conduct the market analysis taking the utmost account of the SMP guidelines and, in a concerted fashion, shall decide on any imposition, maintenance, amendment or withdrawal of regulatory obligations referred to in Article  67(4). The national regulatory authorities concerned shall jointly notify to the Commission their draft measures regarding the market analysis and any regulatory obligations pursuant to Articles 32 and 33. Two or more national regulatory authorities may also jointly notify their draft measures regarding the market analysis and any regulatory obligations in the absence of transnational markets, where they consider that market conditions in their respective jurisdictions are sufficiently homogeneous. See: Recitals 166; 316. SMP Guidelines Communication from the Commission, Guidelines on market analysis and the assessment of significant market power under the EU regulatory framework for electronic communications networks and services (OJ C 159, 7.5.2018, p. 1) (see p.1204). Article 66 Procedure for the identification of transnational demand

1.

BEREC shall conduct an analysis of transnational end-user demand for products and services that are provided within the Union in one or more of the markets listed in the Recommendation, if it receives a reasoned request providing supporting

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evidence from the Commission or from at least two of the national regulatory authorities concerned indicating that there is a serious demand problem to be addressed. BEREC may also conduct such analysis if it receives a reasoned request from market participants providing sufficient supporting evidence and considers that there is a serious demand problem to be addressed. BEREC’s analysis is without prejudice to any findings of transnational markets in accordance with Article 65(1) and to any findings of national or sub-national geographical markets by national regulatory authorities in accordance with Article 64(3). That analysis of transnational end-user demand may include products and services that are supplied within product or service markets that have been defined in different ways by one or more national regulatory authorities when taking into account national circumstances, provided that those products and services are substitutable to those supplied in one of the markets listed in the Recommendation. 2.

If BEREC concludes that a transnational end-user demand exists, is significant and is not sufficiently met by supply provided on a commercial or regulated basis, it shall, after consulting stakeholders and in close cooperation with the Commission, issue guidelines on common approaches for national regulatory authorities to meet the identified transnational demand, including, where appropriate, when they impose remedies in accordance with Article  68. National regulatory authorities shall take into utmost account those guidelines when performing their regulatory tasks within their jurisdiction. Those guidelines may provide the basis for interoperability of wholesale access products across the Union and may include guidance for the harmonisation of technical specifications of wholesale access products capable of meeting such identified transnational demand. See: Recital 167. Article 67 Market analysis procedure

1.

National regulatory authorities shall determine whether a relevant market defined in accordance with Article  64(3) is such as to justify the imposition of the regulatory obligations set out in this Directive. Member States shall ensure that an analysis is carried out, where appropriate, in collaboration with the national competition authorities. National regulatory authorities shall take utmost account of the SMP guidelines and shall follow the procedures referred to in Articles 23 and 32 when conducting such analysis. A market may be considered to justify the imposition of regulatory obligations set out in this Directive if all of the following criteria are met: (a) high and non-transitory structural, legal or regulatory barriers to entry are present; (b)

there is a market structure which does not tend towards effective competition within the relevant time horizon, having regard to the state of infrastructurebased competition and other sources of competition behind the barriers to entry;

(c) competition law alone is insufficient to adequately address the identified market failure(s). Where a national regulatory authority conducts an analysis of a market that is included in the Recommendation, it shall consider that points (a), (b) and (c) of



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the second subparagraph have been met, unless the national regulatory authority determines that one or more of such criteria is not met in the specific national circumstances. 2. Where a national regulatory authority conducts the analysis required by paragraph 1, it shall consider developments from a forward-looking perspective in the absence of regulation imposed on the basis of this Article in that relevant market, and taking into account all of the following: (a)

market developments affecting the likelihood of the relevant market tending towards effective competition;

(b) all relevant competitive constraints, at the wholesale and retail levels, irrespective of whether the sources of such constraints are considered to be electronic communications networks, electronic communications services, or other types of services or applications which are comparable from the perspective of the end-user, and irrespective of whether such constraints are part of the relevant market; (c) other types of regulation or measures imposed and affecting the relevant market or related retail market or markets throughout the relevant period, including, without limitation, obligations imposed in accordance with Articles 44, 60 and 61; (d) regulation imposed on other relevant markets on the basis of this Article. 3.

Where a national regulatory authority concludes that a relevant market does not justify the imposition of regulatory obligations in accordance with the procedure in paragraphs 1 and 2 of this Article, or where the conditions set out in paragraph 4 of this Article are not met, it shall not impose or maintain any specific regulatory obligations in accordance with Article 68. Where there already are sector specific regulatory obligations imposed in accordance with Article 68, it shall withdraw such obligations placed on undertakings in that relevant market. National regulatory authorities shall ensure that parties affected by such a withdrawal of obligations receive an appropriate notice period, defined by balancing the need to ensure a sustainable transition for the beneficiaries of those obligations and end-users, end-user choice, and that regulation does not continue for longer than necessary. When setting such a notice period, national regulatory authorities may determine specific conditions and notice periods in relation to existing access agreements.

4.

Where a national regulatory authority determines that, in a relevant market the imposition of regulatory obligations in accordance with paragraphs 1 and 2 of this Article is justified, it shall identify any undertakings which individually or jointly have a significant market power on that relevant market in accordance with Article 63. The national regulatory authority shall impose on such undertakings appropriate specific regulatory obligations in accordance with Article  68 or maintain or amend such obligations where they already exist if it considers that the outcome for end-users would not be effectively competitive in the absence of those obligations.

5.

Measures taken in accordance with paragraphs 3 and 4 of this Article shall be subject to the procedures referred to in Articles 23 and 32. National regulatory authorities shall carry out an analysis of the relevant market and notify the corresponding draft measure in accordance with Article 32:

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(a)

within five years from the adoption of a previous measure where the national regulatory authority has defined the relevant market and determined which undertakings have significant market power; that five-year period may, on an exceptional basis, be extended for up to one year, where the national regulatory authority has notified a reasoned proposal for an extension to the Commission no later than four months before the expiry of the fiveyear period, and the Commission has not objected within one month of the notified extension;

(b) within three years from the adoption of a revised Recommendation on relevant markets, for markets not previously notified to the Commission; or (c) within three years from their accession, for Member States which have newly joined the Union. 6.

Where a national regulatory authority considers that it may not complete or has not completed its analysis of a relevant market identified in the Recommendation within the time limit laid down in paragraph  5 of this Article, BEREC shall, upon request, provide assistance to the national regulatory authority concerned in completing the analysis of the specific market and the specific obligations to be imposed. With this assistance, the national regulatory authority concerned shall, within six months of the limit laid down in paragraph 5 of this Article, notify the draft measure to the Commission in accordance with Article 32. See: Recitals 160; 168–177. Correlation with Framework Directive EECC Article 67 correlates with Directive 2002/21/EC, Article 16. Regulated access to Next Generation Access Networks 2010/572/EU: Commission Recommendation of 20 September 2010 on regulated access to Next Generation Access Networks (NGA) (Text with EEA relevance) (OJ L 251, 25.9.2010, p. 35) (see p. 1160). Commission Recommendation on relevant product and service markets The European Commission has identified two wholesale markets as susceptible to regulation at EU level: Market 1: Wholesale local access provided at a fixed location; Market 2: Wholesale dedicated capacity – Commission Recommendation (EU) 2020/2245 of 18  December 2020 on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive (EU) 2018/1972 of the European Parliament and of the Council establishing the European Electronic Communications Code (notified under document C(2020) 8750) (Text with EEA relevance) (OJ L 439, 29.12.2020, p. 23), Annex (see p. 1224). SMP Guidelines Communication from the Commission, Guidelines on market analysis and the assessment of significant market power under the EU regulatory framework for electronic communications networks and services (OJ C 159, 7.5.2018, p. 1) (see p. 1204). Emerging markets Recital 163, Case T-328/03 O2 Germany v Commission [2006]  ECR II-1231, para 72 (3G could, in the early 2000s, have been an emerging market), and Case C-424/07 Commission v Germany, paras 64 and 73: ‘In that connection, it must be observed that, under Article  16 of the Framework Directive, the NRAs are to carry out an analysis of the relevant markets in accordance with Article  15 thereof, in order to determine whether those markets must be subject to ex ante



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regulation. Those articles relate to the electronic communications sector in general and do not exclude new markets or any other markets from their scope. […] It is clear from all the foregoing that, although recital 27 in the preamble to the Framework Directive, point 32 of the guidelines and recital 15 in the preamble to the Commission recommendation propose that, as regards the new markets, the NRAs should proceed cautiously, the fact remains that those provisions do not lay down any general principle of non-regulation with respect to those markets.’ Party ‘affected’ by NRA’s decision to withdraw obligations Case C-426/05 Tele2 Telecommunication GmbH v Telekom-Control-Kommission, EU:C:2008:103, para 1 of the Court’s ruling (see annotations to Article 31). Conclusion of a contract contingent on the conclusion of a contract for the supply of other services Case C-522/08 Telekomunikacja Polska SA w Warszawie v Prezes Urzędu Komunikacji Elektronicznej, ECLI:EU:C:2010:135, Court’s ruling (see annotations to Article 88). Imposing obligations to ensure cost orientation of prices ‘[…I]t follows from a joint reading of Article 8(2)(a) and (b) and Article 16(4) of the Framework Directive, on the one hand, and from Article  8(4) and Article 13(1) and (2) of the Access Directive, on the other, that it is for the NRA, when imposing an obligation in regard to cost orientation of prices in accordance with Article 13 of that latter directive, to require, as a rule, the termination rate to be set on the basis of the costs incurred by an efficient operator, including the rate of return on adequate capital employed by it, to which Article 13(1) and (3) of the Access Directive refers.’ Case C-277/16 Polkomtel sp. z o.o. v Prezes Urzędu Komunikacji Elektronicznej, EU:C:2017:989, para  38; see also paras 1 and 2 of the Court’s ruling (see annotations to Article 74). Q&A  on Article  67: ‘According to Article  [67(5)(a)] National regulatory authorities shall carry out an analysis of the relevant market and notify the corresponding draft measure in accordance with Article  32 […] within five years from the adoption of a previous measure where the national regulatory authority has defined the relevant market and determined which undertakings have significant market power; The EECC defines the market analysis review period in five years. Therefore we would like to ask the following questions: 1.

How this period is applicable in case of market analysis reviews that have been notified before the entry into force of the Code (in the “thee-yearsperiod era”)?

[2.] Do these reviews have to be re-analysed and notified also within 5 years?’ Reply: ‘The intervals for the notification of market reviews are governed by Article 67(5) of the Code. The general rule according to Article  67(5)(a) is that a market needs to be reviewed “within five years from the adoption of a previous measure where the national regulatory authority has defined the relevant market and determined which undertakings have significant market power;” Or According to Article 67(5)(b) “within three years from the adoption of a revised Recommendation on relevant markets, for markets not previously notified to the Commission”

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This means that for market reviews that were adopted under the old framework (3year period era) will – after the code enters into force – fall under the 5 year rule of Article 67 (5)(a). Since the recommendation on relevant markets is set to be reviewed by 21  December 2020, the code enters into force, potential new markets not previously notified to the Commission would have to be notified within 3 years from the adoption of the revised recommendation according to Article 67 (5)(b).’ CHAPTER IV Access remedies imposed on undertakings with significant market power Article 68 Imposition, amendment or withdrawal of obligations 1.

Member States shall ensure that national regulatory authorities are empowered to impose the obligations set out in Articles 69 to 74 and Articles 76 to 81.

2.

Where an undertaking is designated as having significant market power on a specific market as a result of a market analysis carried out in accordance with Article 67, national regulatory authorities shall, as appropriate, impose any of the obligations set out in Articles 69 to 74 and Articles 76 and 80. In accordance with the principle of proportionality, a national regulatory authority shall choose the least intrusive way of addressing the problems identified in the market analysis.

3.

National regulatory authorities shall impose the obligations set out in Articles 69 to 74 and Articles 76 and 80 only on undertakings that have been designated as having significant market power in accordance with paragraph 2 of this Article, without prejudice to: (a)

Articles 61 and 62;

(b) Articles 44 and 17 of this Directive, Condition 7 in Part D of Annex I as applied by virtue of Article  13(1) of this Directive, Articles  97 and 106 of this Directive and the relevant provisions of Directive 2002/58/EC containing obligations on undertakings other than those designated as having significant market power; or (c)

the need to comply with international commitments.

In exceptional circumstances, where a national regulatory authority intends to impose on undertakings designated as having significant market power obligations for access or interconnection other than those set out in Articles  69 to 74 and Articles 76 and 80, it shall submit a request to the Commission. The Commission shall, taking utmost account of the opinion of BEREC, adopt decisions by means of implementing acts, authorising or preventing the national regulatory authority from taking such measures. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 118(3). 4.

Obligations imposed in accordance with this Article shall be: (a) based on the nature of the problem identified by a national regulatory authority in its market analysis, where appropriate taking into account the identification of transnational demand pursuant to Article 66; (b) proportionate, having regard, where possible, to the costs and benefits;



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justified in light of the objectives laid down in Article 3; and

(d) Imposed following consultation in accordance with Articles 23 and 32. 5.

In relation to the need to comply with international commitments referred to in paragraph 3 of this Article, national regulatory authorities shall notify decisions to impose, amend or withdraw obligations on undertakings to the Commission, in accordance with the procedure referred to in Article 32.

6. National regulatory authorities shall consider the impact of new market developments, such as in relation to commercial agreements, including coinvestment agreements, influencing competitive dynamics. If those developments are not sufficiently important to require a new market analysis in accordance with Article 67, the national regulatory authority shall assess without delay whether it is necessary to review the obligations imposed on undertakings designated as having significant market power and amend any previous decision, including by withdrawing obligations or imposing new obligations, in order to ensure that such obligations continue to meet the conditions set out in paragraph 4 of this Article. Such amendments shall be imposed only after consultations in accordance with Articles 23 and 32. See: Recitals 170; 173; 178; 179; 181. Correlation with Access Directive EECC Article 68 correlates with Directive 2002/19/EC, Article 8. Obligation of undertaking without SMP to negotiate interconnection in good faith Case C-192/08 TeliaSonera Finland Oyj, EU:C:2009:696, paras 1–3 of the Court’s ruling (see annotations to Article 60). Proportionality of the obligation to meet reasonable requests for access to and use of specific network elements and associated facilities ‘1.  Articles  2(a), 8 and 12 of [the Access Directive] must be interpreted as meaning that the national regulatory authority has the power to impose on an electronic communications operator that has significant market power on a specific market, pursuant to the obligation to meet reasonable requests for access to, and use of, specific network elements and associated facilities, an obligation to install, at the request of competing operators, a drop cable not exceeding 30 metres in length connecting the distribution frame of an access network to the network termination point at the end-users’ premises, as long as that obligation is based on the nature of the problem identified, proportionate and justified in light of the objectives set out in Article 8(1) of [the Framework Directive], which is a matter for the referring court to verify. 2.

Articles 8 and 12 of [the Access Directive] must be interpreted as meaning that a national regulatory authority, when minded to require an electronic communications operator that has significant market power on a specific market to install drop cables for the purpose of connecting the end-user to a network, has to take into account the initial investment made by the operator concerned and the existence of a price control that makes it possible to recover the costs of installation.’ Case C-556/12 TDC A/S v Teleklagenævnet, EU:C:2014:2009, paras 1 and 2 of the Court’s ruling.

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Price controls on undertaking providing telephone call transit services without SMP with respect to higher tariffs being charged for calls to non-geographic numbers ‘According to Article 8(1) of the Access Directive, Member States must ensure that NRAs are empowered to impose the obligations identified in Articles 9 to 13a of that directive, including the obligations related to price control under Article 13 of that directive. Under Article 8(2) of that directive, where an operator is designated as having significant market power on a specific market as a result of a market analysis carried out in accordance with Article 16 of the Framework Directive, NRAs are required to impose those obligations on that operator. In accordance with Article  8(3) of the Access Directive, without prejudice to certain provisions, including Article  28 of the Universal Service Directive, containing obligations on undertakings other than those designated as having significant market power, the NRAs may impose obligations relating to price control, as defined in particular in Article 13 of the Access Directive, only on operators designated as having significant power, in accordance with Article 8(2) of that directive. Consequently, as the Advocate General stated in point 47 of his Opinion, Article 8(3) of the Access Directive should be interpreted as meaning that, except under certain provisions, including in particular Article  28 of the Universal Service Directive, NRAs may not impose obligations related to price control such as those laid down in Article 13 of the Access Directive on operators which do not have significant power on a given market. Accordingly, Article  8(3) of the Access Directive does not preclude the imposition of obligations related to price controls, such as those referred to in Article 13(1) of that directive, on an operator which does not have significant market power on the relevant market under Article 28 of the Universal Service Directive, provided that the conditions for the application of that provision are met. It follows that NRAs may, under Article 28 of the Universal Service Directive, impose tariff obligations comparable to those referred to in Article 13(1) of the Access Directive on an operator which does not have significant market power but which controls access to end-users, if such an obligation constitutes a necessary and proportionate measure to ensure that end-users can access services using non-geographic numbers in the European Union, this being a matter for the national court to determine, having regard to all relevant circumstances, including the effect of the tariffs at issue on end-users’ access to such services.’ Case C-85/14 KPN BV v Autoriteit Consument en Markt (ACM), EU:C:2015:610, paras 40–43 (see also annotations to Article 97). Imposing price control obligations regarding authorisation of mobile call termination fees Case C-395/14 Vodafone GmbH v Bundesrepublik Deutschland, EU:C:2016:9, paras 35 and 44; see also paras 32–34, 36–43, 45 and 46 (see annotations to Article 74). Imposing obligations on undertakings that control access to end-users Case C-397/14 Polkomtel sp. z o.o. v Prezes Urzędu Komunikacji Elektronicznej, EU:C:2016:256, para 2 of the Court’s ruling (see annotations to Article 97). Tariff obligations imposed for the provision of fixed and mobile termination rates Case C-28/15 Koninklijke KPN NV and Others v Autoriteit Consument en Markt (ACM), EU:C:2016:692, paras 1 and 2 of the Court’s ruling (see annotations to Article 31).



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Obligation to ensure cost orientation of prices – prices set below the costs incurred by the operator for the provision of voice call termination services on mobile networks Case C-277/16 Polkomtel sp. z o.o. v Prezes Urzędu Komunikacji Elektronicznej, EU:C:2017:989, paras 1 and 2 of the Court’s ruling (see annotations to Article 74). Relationship between ex ante and ex post tools to regulate access Case T-827/14 Deutsche Telekom AG v Commission, and Case T-851/14 Slovak Telekom a.s. v Commission, Judgments of 13 December 2018 – Granting access to a product or service, which is required under sector specific regulation, on unfair, unreasonably complicated or delayed terms amounts to constructive refusal to supply, without the need to demonstrate that the regulated access product or service is an indispensable input. In addition, a margin squeeze test, to assess whether the difference between wholesale and retail prices is negative, should be carried out on a year-by-year basis, and not on a multi-period basis. BEREC Guidance See BEREC’s Common Positions and Methodologies issued from 2012 to 2016, noting that the EU  Commission has redefined the product market boundaries in its Recommendations on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation: (a)

BEREC’s review and update of the Common Positions on wholesale local access, wholesale broadband access and wholesale leased lines (Cover Note), BoR (12) 125a, 7 December 2012;

(b) Revised BEREC  Common Position on best practices in remedies as a consequence of a SMP position in the relevant markets for wholesale leased lines, BoR (12) 126, 26 November 2012; (c) Revised BEREC  Common Position on best practice in remedies on the market for Wholesale (Physical) Network Infrastructure Access (including shared of fully unbundled access) at a Fixed Location imposed as a consequence of a position of significant market power in the relevant market, BoR (12) 12, 8 December 2012; (d) Revised BEREC  Common Position on best practice in remedies on the market for Wholesale Broadband Access (including bitstream access) imposed as a consequence of a position of significant market power in the relevant market, BoR (12) 128, 8 December 2012; (e) Glossary of Terms in relation to the BEREC draft Common Positions on WLA, WBA and WLL, BoR (12) 129, 26 November 2012; (f) Methodology for monitoring the application of the BEREC common positions on WLA, WBA and WLL, BoR (13) 108, 16 September 2013; (g) BEREC  Common Position on geographic aspects of market analysis (definition and remedies), BoR (14) 73, 5 June 2014; and (h) BEREC Common Position on Layer 2 Wholesale Access Products, BoR (16) 162, 6 October 2016. Q&A  on Article  68(6): ‘Art 67 and 68 on market analysis and remedies: flexibility regarding new markets developments (and obligation for NRAs to take them into account under Art. 68 (6)): Where exactly can these be taken into account – at the level of market definitions / market analysis or rather at the level of the remedies?’

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Reply: ‘New market developments can affect the competitive situation in different ways and degrees. For instance, a new product launch or a new network deployment may affect product and/or geographical market definition and market power. Commercial agreements, including co-investment agreements, as well as certain regulatory developments may also have the same effect. If the NRA considers that a market development does not give rise to a (full) market review (e.g. the development does not affect the finding of SMP), it should nevertheless consider if an adaptation of current remedies is appropriate.’ Further Q&A on Article 68(6): ‘Article 68(6) requires the NRA to consider the impact of new market developments influencing market dynamics. If they are not sufficiently important to require a new market review, the NRA must assess without delay whether it should review and amend SMP obligations. The NRA would have to consult on these amendments. We would like to understand how the Commission intended for this clause to work in practice. •

•

What does the Commission consider to be a trigger for considering a new market development influencing competitive dynamics? For example, would the NRA be required to do this every time a stakeholder brings a new development to its attention?

Can the Commission comment on, or provide examples as to, when market developments will be “sufficiently important” to require a new market analysis?’ Reply: ‘In the experience of the Commission, it is not uncommon for NRAs to notify amendments to previously notified measures or implementation of remedies already imposed without changing the underlying market definition or SMP finding. In line with this experience, the provision of Article 68(6) clarifies [an] NRA’s ability – and obligation – to react, when necessary, to important market developments. This is also in line with the extension of the default time frame between market reviews from 3 years (Article  16(6)a FD) to 5. Article  68(6) reflects the need to ensure on the one hand predictability of the regulatory framework and on the other hand the need to adapt the regulation to the changes occurred in the market during the longer market review period without necessarily carrying out a market analysis provided that the modifications of the remedies would be consistent with the result of the market analysis. Article 68(6) was therefore designed to capture changes in market dynamics not foreseen at the stage of the last market analysis. Regarding the first question, the answer may depend on different national administrative law principles. The national administrative law may require NRAs to take a formal decision (either positive or negative), whenever a stakeholder formally requests a change of SMP obligations due to changed market circumstances. This is however not required by the Code. In that sense, this is not a change vis-à-vis the old framework. The Code however requires the NRA to monitor the market and to act when there is an objective need. This may be either upon request by stakeholders, or indeed as a result of continuous market monitoring undertaken by the NRA. The answer to the second question cannot be exhaustive, as different types of market developments may justify a new market analysis, depending also on national circumstances. The assessment of such cases would be undertaken case by case, by the NRA, exercising its margin of discretion, in light of this provision



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and the objectives included in Article  3. Already in the past, the Commission has, in the context of Article 7/7a decisions, called on regulators to conduct the market review before the end of the 3-year period in light of important changes of the competitive situation in the market. An example of a market development triggering the need to review the market analysis would be the voluntary separation of a vertically integrated undertaking that holds SMP. Other examples can be found in the recently assessed cases AT/2018/2092, IT/2016/1880 and HR/2018/2132 where the Commission suggested a review before the end of the standard regulatory period, in view of expected technological and significant changes to market structure or to the state of competition.’ Article 69 Obligation of transparency 1.

National regulatory authorities may, in accordance with Article  68, impose obligations of transparency in relation to interconnection or access, requiring undertakings to make public specific information, such as accounting information, prices, technical specifications, network characteristics and expected developments thereof, as well as terms and conditions for supply and use, including any conditions altering access to or use of services and applications, in particular with regard to migration from legacy infrastructure, where such conditions are allowed by Member States in accordance with Union law.

2.

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

3.

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

4.

By 21  December 2019, in order to contribute to the consistent application of transparency obligations, BEREC shall, after consulting stakeholders and in close cooperation with the Commission, issue guidelines on the minimum criteria for a reference offer and shall review them where necessary in order to adapt them to technological and market developments. In providing such minimum criteria, BEREC shall pursue the objectives in Article  3, and shall have regard to the needs of the beneficiaries of access obligations and of end-users that are active in more than one Member State, as well as to any BEREC guidelines identifying transnational demand in accordance with Article 66 and to any related decision of the Commission. Notwithstanding paragraph 3 of this Article, where an undertaking has obligations under Article  72 or 73 concerning wholesale access to network infrastructure, national regulatory authorities shall ensure the publication of a reference offer taking utmost account of the BEREC guidelines on the minimum criteria for a reference offer, shall ensure that key performance indicators are specified, where relevant, as well as corresponding service levels, and closely monitor and ensure compliance with them. In addition, national regulatory authorities may, where

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necessary, predetermine the associated financial penalties in accordance with Union and national law. See: Recitals 182; 183. Correlation with Access Directive EECC Article 69 correlates with Directive 2002/19/EC, Article 9. BEREC Guidance BEREC Guidelines on the minimum criteria for a reference offer, BoR (19) 238, 5 December 2019: ‘3. Minimum criteria for a reference offer A reference offer shall contain a description of the relevant offerings for access, broken down into components according to market needs, and the associated terms and conditions, including prices. The reference offer shall also be sufficiently unbundled in order to ensure that undertakings are not required to pay for products, services or facilities which are not necessary for the service requested. The reference offer should (amongst other relevant things required by a NRA) as minimum include the following core elements. As general rule the reference offer should contain all elements required to make effective use of the service requested and be published. The reference offer or certain elements of it may also, upon the NRA’s discretion, be made available via a website (or corresponding electronic methods) with restricted access for reasons such as security. 3.1. Terms and conditions for the provision of network access •

a description of the network access products, services and facilities to be provided, including technical characteristics (which shall include information on network configuration where necessary to make effective use of network access);

•

any relevant technical standards for network access (including any technical usage restrictions and other security issues);

•

the locations at which network access will be provided;

•

a procedure including conditions to request relevant information for the provision of the relevant regulated access product or service;

•

terms and conditions, description and processes for co-location;

•

any relevant ancillary, supplementary and advanced services (including operational support systems, information systems or databases for preordering, provisioning, ordering, maintenance and repair requests and billing), including their technical usage restrictions and procedures to access those services;

• relevant charges, terms of payment and billing procedures. 3.2. Details of operational processes •

pre-ordering, ordering and provisioning;

•

migration from legacy products and infrastructure, incl. moves and ceases;

•

rules of allocation of space between the parties when supply facilities or co-location space is limited;

•

repair and maintenance;

•

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details of the necessary interoperability tests[60];

• specifications of equipment to be used on the network. 3.3. Service supply and quality conditions •

service level agreements (SLAs) for ordering, delivery, service (availability) and maintenance (repair), including specific time scales for the acceptance or refusal of a request for supply and for completion, testing and hand-over or delivery of services and facilities, for provision of support services (such as fault handling and repair);

•

the quality standards that each party must meet when performing its contractual obligations including the specification of key performance indicators (KPIs) with respect to SLAs, where relevant;

•

service level guarantees (SLGs) for ordering, delivery, service (availability) and maintenance (repair), including the amount of compensation payable by one party to another for failure to perform contractual commitments as well as the conditions for eligibility for compensation;

•

procedures in the event of amendments being proposed to the service offerings, which may include a requirement for notification to the NRA for such amendments, for example, launch of new services, changes to existing services or change to prices. 3.4. General terms and conditions of the agreement •

a dispute resolution procedure to be used between the parties;

•

details of duration, renegotiation and causes of termination of agreements as well as other associated contractual terms;

•

a definition and limitation of liability and indemnity;

•

all relevant terms and conditions;

•

glossary of terms relevant to the wholesale inputs and other items concerned.’ Section 3. Article 70 Obligations of non-discrimination 1.

A  national regulatory authority may, in accordance with Article  68, impose obligations of non-discrimination, in relation to interconnection or access.

2.

Obligations of non-discrimination shall ensure, in particular, that the undertaking applies equivalent conditions in equivalent circumstances to other providers of equivalent services, and provides services and information to others under the same conditions and of the same quality as it provides for its own services, or those of its subsidiaries or partners. National regulatory authorities may impose on that undertaking obligations to supply access products and services to all undertakings, including to itself, on the same timescales, terms and conditions, including those relating to price and service levels, and by means of the same systems and processes, in order to ensure equivalence of access.

‘This minimum requirement does not apply to interoperability tests to be carried out during trial periods of new products being brought to market by an SMP operator.’ – fn 14 in the BEREC Guidelines.

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See: Recitals 184; 185. Correlation with Access Directive EECC Article 70 correlates with Directive 2002/19/EC, Article 10. Consistent non-discrimination obligations and costing methodologies to promote competition and enhance the broadband investment environment Commission Recommendation 2013/466/EU (see p. 1178). BEREC Guidance BEREC  Guidance on the regulatory accounting approach to the economic replicability test (i.e. ex-ante/sector specific margin squeeze tests), BoR (14) 190, 5 December 2014: ‘The purpose of this Guidance document is to provide guidance to NRAs from the regulatory accounting point of view on how to understand and deal with the relevant provisions of the Recommendation on consistent non-discrimination obligations and costing methodologies to promote competition and enhance the broadband investment environment 2013/466/EU[…] related to the so called ex-ante economic replicability test (in a framework of an EoI or equivalent procedure) and how to run such an ex-ante economic replicability test according to Annex II. […] The Guidance document is structured as follows. Chapter 2 deals with the objective, the definition and the parameters of the ERT [“Economic Replicability Test”] as foreseen in the Commission’s Recommendation on consistent non-discrimination obligations and costing methodologies to promote competition and enhance the broadband investment environment (hereinafter: the Recommendation). In Chapter 3 the NRAs’ current practice of ex ante margin squeeze tests including relevant regulatory cost standards used is described based on a questionnaire circulated among BEREC NRAs. Chapter  4 sets out the economic rationale and implementation of the ex-ante ERT of the Recommendation in practice (synthesis of Chapter 2 and 3). Chapter 5 looks in detail at the procedural issues of applying an ex-ante margin squeeze test. Chapter  6 summarizes the case law and application of margin squeeze tests in competition law (i.e. in the expost con-text). Chapter  7 contains the conclusions (including guidance on the application of ex-ante margin squeeze tests).’ Introduction. Q&A on Article 70(2): ‘Article 70(2) refers to the equivalence of access, which includes EoI and EoO, in accordance with Recommendation 2013/466/EU. However, Recital 185 only refers to equivalence of input and the wording of Article 70(2) mentions “same systems and processes”. Could you confirm that NRAs, when applying Article 70(2) may impose obligations to ensure either EoI or EoO.’ Reply: ‘We can confirm that Article 70 (2) in principle allows NRAs to impose either EoI or EoO and is not limited to EoI. However, NRA’s have to take their decision in compliance with Article  68 (4) and should take account of recital 185, making a proportionality assessment and weighing the benefits of EoI vs the additional implementation costs. In particular, for new systems, implementation costs are expected to be relatively low and thus would likely not outweigh the benefits. By contrast, the imposition of EoI might be disproportionate in cases of small scale SMP undertakings.’



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Article 71 Obligation of accounting separation 1.

A  national regulatory authority may, in accordance with Article  68, impose obligations for accounting separation in relation to specified activities related to interconnection or access. In particular, a national regulatory authority may require a vertically integrated undertaking to make transparent its wholesale prices and its internal transfer prices, inter alia to ensure compliance where there is an obligation of non-discrimination under Article  70 or, where necessary, to prevent unfair cross-subsidy. National regulatory authorities may specify the format and accounting methodology to be used.

2.

Without prejudice to Article 20, to facilitate the verification of compliance with obligations of transparency and non-discrimination, national regulatory authorities shall have the power to require that accounting records, including data on revenues received from third parties, are provided on request. National regulatory authorities may publish information that would contribute to an open and competitive market, while complying with Union and national rules on commercial confidentiality. See: Recital 186. Correlation with Access Directive EECC Article 71 correlates with Directive 2002/19/EC, Article 11. Commercial confidentiality See annotations to Article 20. Article 72 Access to civil engineering

1.

A  national regulatory authority may, in accordance with Article  68, impose obligations on undertakings to meet reasonable requests for access to, and use of, civil engineering including, but not limited to, buildings or entries to buildings, building cables, including wiring, antennae, towers and other supporting constructions, poles, masts, ducts, conduits, inspection chambers, manholes, and cabinets, in situations where, having considered the market analysis, the national regulatory authority concludes that denial of access or access given under unreasonable terms and conditions having a similar effect would hinder the emergence of a sustainable competitive market and would not be in the end-user’s interest.

2.

National regulatory authorities may impose obligations on an undertaking to provide access in accordance with this Article, irrespective of whether the assets that are affected by the obligation are part of the relevant market in accordance with the market analysis, provided that the obligation is necessary and proportionate to meet the objectives of Article 3. See: Recital 187. Q&A on Article 72: ‘[W]hen checking the proportionality of access obligations [does] Art. 72 [prevail] over Art. 73?’ Reply: ‘Indeed, pursuant to the last subparagraph of Art. 73(2), the imposition of obligations under Art. 73 requires NRAs to establish that obligations under Art. 72 alone would not be a proportionate means to solve the identified competition problem.’

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Article 73 Obligations of access to, and use of, specific network elements and associated facilities 1.

National regulatory authorities may, in accordance with Article  68, impose obligations on undertakings to meet reasonable requests for access to, and use of, specific network elements and associated facilities, in situations where the national regulatory authorities consider 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, and would not be in the end-user’s interest. National regulatory authorities may require undertakings inter alia: (a)

to give third parties access to, and use of, specific physical network elements and associated facilities, as appropriate, including unbundled access to the local loop and sub-loop;

(b)

to give third parties access to specific active or virtual network elements and services;

(c)

to negotiate in good faith with undertakings requesting access;

(d) not to withdraw access to facilities already granted; (e)

to provide specific services on a wholesale basis for resale by third parties;

(f) to grant open access to technical interfaces, protocols or other key technologies that are indispensable for the interoperability of services or virtual network services; (g) to provide co-location or other forms of associated facilities sharing; (h) to provide specific services needed to ensure interoperability of end-to-end services to users, or roaming on mobile networks; (i)

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

(j)

to interconnect networks or network facilities;

(k) to provide access to associated services such as identity, location and presence service. National regulatory authorities may subject those obligations to conditions covering fairness, reasonableness and timeliness. 2.

Where national regulatory authorities consider the appropriateness of imposing any of the possible specific obligations referred to in paragraph 1 of this Article, and in particular where they assess, in accordance with the principle of proportionality, whether and how such obligations are to be imposed, they shall analyse whether other forms of access to wholesale inputs, either on the same or on a related wholesale market, would be sufficient to address the identified problem in the enduser’s interest. That assessment shall include commercial access offers, regulated access pursuant to Article  61, or existing or planned regulated access to other wholesale inputs pursuant to this Article. National regulatory authorities shall take account in particular of the following factors: (a) the technical and economic viability of using or installing competing facilities, in light of the rate of market development, taking into account



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the nature and type of interconnection or access involved, including the viability of other upstream access products, such as access to ducts; (b) the expected technological evolution affecting network design and management; (c)

the need to ensure technology neutrality enabling the parties to design and manage their own networks;

(d) the feasibility of providing the access offered, in relation to the capacity available; (e) the initial investment by the facility owner, taking account of any public investment made and the risks involved in making the investment, with particular regard to investments in, and risk levels associated with, very high capacity networks; (f)

the need to safeguard competition in the long term, with particular attention to economically efficient infrastructure-based competition and innovative business models that support sustainable competition, such as those based on co-investment in networks;

(g) where appropriate, any relevant intellectual property rights; (h) the provision of pan-European services. Where a national regulatory authority considers, in accordance with Article 68, imposing obligations on the basis of Articles 72 or of this Article, it shall examine whether the imposition of obligations in accordance with Article 72 alone would be a proportionate means by which to promote competition and the end-user’s interest. 3.

When imposing obligations on an undertaking to provide access in accordance with this Article, national regulatory authorities may lay down technical or operational conditions to be met by the provider or the beneficiaries of such access, where necessary to ensure normal operation of the network. Obligations to follow specific technical standards or specifications shall comply with the standards and specifications laid down in accordance with Article 39. See: Recitals 188-191. Correlation with Access Directive EECC Article 73 correlates with Directive 2002/19/EC, Article 12. Proportionality of the obligation to meet reasonable requests for access to and use of specific network elements and associated facilities Case C-556/12 TDC A/S v Teleklagenævnet, EU:C:2014:2009, paras 1 and 2 of the Court’s ruling (see annotations to Article 68). Article 74 Price control and cost accounting obligations

1.

A  national regulatory authority may, in accordance with Article  68, impose obligations relating to cost recovery and price control, including obligations for cost orientation of prices and obligations concerning cost-accounting systems, for the provision of specific types of interconnection or access, in situations where a market analysis indicates that a lack of effective competition means that the undertaking concerned may sustain prices at an excessively high level, or may apply a price squeeze, to the detriment of end-users.

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In determining whether price control obligations would be appropriate, national regulatory authorities shall take into account the need to promote competition and long-term end-user interests related to the deployment and take-up of nextgeneration networks, and in particular of very high capacity networks. In particular, to encourage investments by the undertaking, including in next-generation networks, national regulatory authorities shall take into account the investment made by the undertaking. Where the national regulatory authorities consider price control obligations to be appropriate, they shall allow the undertaking a reasonable rate of return on adequate capital employed, taking into account any risks specific to a particular new investment network project. National regulatory authorities shall consider not imposing or maintaining obligations pursuant to this Article, where they establish that a demonstrable retail price constraint is present and that any obligations imposed in accordance with Articles 69 to 73, including, in particular, any economic replicability test imposed in accordance with Article 70, ensures effective and non-discriminatory access. When national regulatory authorities consider it appropriate to impose price control obligations on access to existing network elements, they shall also take account of the benefits of predictable and stable wholesale prices in ensuring efficient market entry and sufficient incentives for all undertakings to deploy new and enhanced networks. 2.

National regulatory authorities shall ensure that any cost recovery mechanism or pricing methodology that is mandated serves to promote the deployment of new and enhanced networks, efficiency and sustainable competition and maximises sustainable end-user benefits. In this regard, national regulatory authorities may also take account of prices available in comparable competitive markets.

3.

Where an undertaking has an obligation regarding the cost orientation of its prices, the burden of proof that charges are derived from costs, including a reasonable rate of return on investment, shall lie with the undertaking concerned. For the purpose of calculating the cost of efficient provision of services, national regulatory authorities may use cost accounting methods independent of those used by the undertaking. National regulatory authorities may require an undertaking to provide full justification for its prices, and may, where appropriate, require prices to be adjusted.

4.

National regulatory authorities shall ensure that, where implementation of a costaccounting system is mandated in order to support price control, a description of the cost-accounting system is made publicly available, showing at least the main categories under which costs are grouped and the rules used for the allocation of costs. A  qualified independent body shall verify compliance with the costaccounting system and shall publish annually a statement concerning compliance. See: Recitals 180; 192–194. Correlation with Access Directive EECC Article 74 correlates with Directive 2002/19/EC, Article 13. Regulated access to Next Generation Access Networks 2010/572/EU: Commission Recommendation of 20 September 2010 on regulated access to Next Generation Access Networks (NGA) (Text with EEA relevance) (OJ L 251, 25.9.2010, p. 35) (see p. 1160). Consistent non-discrimination obligations and costing methodologies to promote competition and enhance the broadband investment environment



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Commission Recommendation 2013/466/EU (see p. 1178) and BEREC Guidance on the regulatory accounting approach to the economic replicability test (i.e. exante/sector specific margin squeeze tests), BoR (14) 190, 5 December 2014 (see annotations to Article 70). Proportionality of the obligation to meet reasonable requests for access to and use of specific network elements and associated facilities Case C-556/12 TDC A/S v Teleklagenævnet, EU:C:2014:2009, paras 1 and 2 of the Court’s ruling (see annotations to Article 68). Price controls on undertaking providing telephone call transit services without SMP with respect to higher tariffs being charged for calls to non-geographic numbers Case C-85/14 KPN BV v Autoriteit Consument en Markt (ACM), EU:C:2015:610, paras 40–43 (see annotations to Articles 68 and 97). Price control obligations regarding authorisation of mobile call termination fees ‘Thus, it follows from a combined reading of Article 7(3) and Article 16(4) of the Framework Directive and Articles 8(2) and 13(1) of the Access Directive that, where an NRA proposes to adopt, in respect of an operator designated as having significant power on a given market, a measure which imposes “obligations relating to cost recovery and price controls, including obligations for cost orientation of prices and obligations concerning cost accounting systems, for the provision of specific types of interconnection and/or access”, which affect trade between Member States, that NRA is required to carry out the consolidation procedure provided for in Article 7(3). […] With regard to the wording of that provision, it must be noted, first of all, that it follows from the term “including” used in Article 13(1) of the Access Directive that the “obligations for cost orientation of prices” are merely examples of the “obligations relating to cost recovery and price controls” referred to in that provision. Accordingly, it is appropriate at the outset to reject Vodafone’s line of argument that the issue of a mobile call termination fees authorisation is not covered by Article 13(1) of the Access Directive and, accordingly, by Article 8(2) of that directive and Article 7(3)(a) of the Framework Directive, on the ground that it is not an “obligation for cost orientation of prices”. Next, it is clear that the concept of “obligations relating to … price controls” has a broad meaning and that, having regard to the usual meaning of the terms used in it, it encompasses, of necessity, a measure such as the issue of a mobile call termination fees authorisation, given that such a measure concerning a specific operator, prior to the implementation of the fees in question, is, by its nature, a price control. Finally, it is also apparent from the wording of Article  13(1) of the Access Directive that the “obligations relating to … price controls” to which it refers must concern “the provision of specific types of interconnection and/or access”. Firstly, interconnection is defined in Article 2(b) of that directive as consisting, in particular of “the physical and logical linking of public communications networks used by the same or a different undertaking in order to allow the users of one undertaking to communicate with users of the same or another undertaking, or to access services provided by another undertaking”. Secondly, according to the observations lodged by the Commission before the Court, the mobile call termination is the service which enables a telephone call to reach the subscriber requested. It follows of necessity that the issue of a mobile call termination fees

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authorisation concerns “the provision of specific types of interconnection and/or access” within the meaning of Article 13(1) of the Access Directive. It thus follows from the wording of that provision that the issue of a mobile call termination fees authorisation is one of the obligations relating to price control referred to in that provision which the NRAs are, by virtue of Article  8(2) of the Access Directive, entitled to impose on an operator with significant power on the mobile telephone market and which, if they are proposed and in so far as they will affect trade between the Member States, can be imposed, pursuant to Article 8(4) thereof, only following the procedure provided for in Article 7 of the Framework Directive. That interpretation of Article 13(1) of the Access Directive is strengthened by the context of which that provision forms part. Apart from the heading of Article 13, which expressly refers to “price control”, Article  13(2) refers in particular to the “pricing methodology that is mandated” by an NRA. Moreover, recital 20 in the preamble to the Access Directive states, in essence, that, in the context of price control, “the regulatory intervention may be relatively light … or much heavier …”. Also to that effect, Article 16(4) of the Framework Directive, read in conjunction with paragraph 2 of that article, refers to the “appropriate specific regulatory obligations”, also referred to in Article 8 of the Access Directive. Both the Access Directive and the Framework Directive therefore envisage that the precise obligations relating to price control, as specific as the issue of a mobile call termination fees authorisation, may be included in the obligations referred to in Article 13(1) of the Access Directive which the NRAs may impose on operators with significant market power.’ Case C-395/14 Vodafone GmbH v Bundesrepublik Deutschland, EU:C:2016:9, paras 35 and 41–46; see also paras 32–40 and 47–53. Imposing price control obligations on undertakings that control access to endusers Case C-397/14 Polkomtel sp. z o.o. v Prezes Urzędu Komunikacji Elektronicznej, EU:C:2016:256, para 2 of the Court’s ruling (see annotations to Article 97). Obligation to ensure cost orientation of prices – prices set below the costs incurred by the operator for the provision of voice call termination services on mobile networks ‘1. Article 8(4) and Article 13 of [the Access Directive] must be interpreted as meaning that, where an obligation in regard to cost orientation of prices is imposed by a national regulatory authority on an operator, designated as having significant market power on a specific market, that national regulatory authority may, in order to promote efficiency and sustainable competition, set the prices of the services covered by such an obligation below the level of the costs incurred by that operator to provide them, if those costs are higher than the costs of an efficient operator, which is for the referring court to verify. 2.

Article 8(4) and Article 13(3) of [the Access Directive], read in combination with Article  16 of the [Charter], must be interpreted as meaning that a national regulatory authority may require an operator, designated as having significant market power on a specific market and under an obligation in regard to cost orientation of prices, to set its prices annually on the basis of the most up-to-date data and to submit those prices to it for verification together with justification before they become applicable, provided that such obligations are based on the nature of the problem identified, are proportionate and are justified in the light of the objectives laid down in



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Article 8 of [the Framework Directive], which is for the referring court to verify. 3.

Article  13(3) of [the Access Directive] must be interpreted as meaning that, where an obligation in regard to cost orientation of prices has been imposed on an operator on the basis of Article 13(1) of that directive, that operator may be required to adjust its prices before or after it has started to apply them.’ Case C-277/16 Polkomtel sp. z o.o. v Prezes Urzędu Komunikacji Elektronicznej, EU:C:2017:989, paras 1–3 of the Court’s ruling. BEREC Guidance See BEREC  Common Position on Layer 2 Wholesale Access Products, BoR (16) 162, 6  October 2016, noting that the EU  Commission has redefined the product market boundaries in its Recommendations on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation. Q&A  on Article  74: ‘[W]ould there [be] a possibility to forego strict pricing obligations and to apply an economic replicability test instead, as a default for VHC networks?’ Reply: ‘The Code provides this possibility to regulators. The choice of obligations to be imposed has to follow the market analysis process and has to be duly justified. But this is an assessment to be made not by the legislator, but by the regulator (also taking into account the guidance provided in the Commission Recommendation on consistent non-discrimination obligations and costing methodologies).’ Q&A  on Article  74(1): ‘Does the procedure described in Article  74 (1) subparagraph 3 […] concern the market analysis stage or the stage of imposing regulatory obligations regarding the price control? Could you please confirm at what stage the test should be carried out?’ Reply: ‘The procedure described in […] Art. 74(1) subparagraph 3 concerns the stage where remedies are considered for imposition on undertakings designated as SMP. They do not concern the market analysis stage.’ Article 75 Termination rates 1.

By 31 December 2020, the Commission shall, taking utmost account of the opinion of BEREC, adopt a delegated act in accordance with Article 117 supplementing this Directive by setting a single maximum Union-wide mobile voice termination rate and a single maximum Union-wide fixed voice termination rate (together referred to as ‘the Union-wide voice termination rates’), which are imposed on any provider of mobile voice termination or fixed voice termination services, respectively, in any Member State. To that end, the Commission shall: (a)

comply with the principles, criteria and parameters provided in Annex III;

(b) when setting the Union-wide voice termination rates for the first time, take into account the weighted average of efficient costs in fixed and mobile networks established in accordance with the principles provided in Annex III, applied across the Union; the Union-wide voice termination rates in the first delegated act shall not be higher than the highest rate among the rates that were in force six months before the adoption of that delegated act in

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all Member States, after any necessary adjustment for exceptional national circumstances; (c)

take into account the total number of end-users in each Member State, in order to ensure a proper weighting of the maximum termination rates, as well as national circumstances which result in significant differences between Member States when determining the maximum termination rates in the Union;

(d) take into account market information provided by BEREC, national regulatory authorities or, directly, by undertakings providing electronic communications networks and services; and (e) consider the need to allow for a transitional period of no longer than 12 months in order to allow adjustments in Member States where this is necessary on the basis of rates previously imposed. 2.

Taking utmost account of the opinion of BEREC, the Commission shall review the delegated act adopted pursuant to this Article every five years and shall consider on each such occasion, by applying the criteria listed in Article  67(1), whether setting Union-wide voice termination rates continue to be necessary. Where the Commission decides, following its review in accordance with this paragraph, not to impose a maximum mobile voice termination rate or a maximum fixed voice termination rate, or neither, national regulatory authorities may conduct market analyses of voice termination markets in accordance with Article 67, to assess whether the imposition of regulatory obligations is necessary. If a national regulatory authority imposes, as a result of such analysis, cost-oriented termination rates in a relevant market, it shall follow the principles, criteria and parameters set out in Annex III and its draft measure shall be subject to the procedures referred to in Articles 23, 32 and 33.

3.

National regulatory authorities shall closely monitor, and ensure compliance with, the application of the Union-wide voice termination rates by providers of voice termination services. National regulatory authorities may, at any time, require a provider of voice termination services to amend the rate it charges to other undertakings if it does not comply with the delegated act referred to in paragraph 1. National regulatory authorities shall annually report to the Commission and to BEREC with regard to the application of this Article. See: Recitals 195–197 and 315. Delegated Regulation Commission Delegated Regulation (EU) 2021/654 of 18  December 2020 supplementing Directive (EU) 2018/1972 of the European Parliament and of the Council by setting a single maximum Union-wide mobile voice termination rate and a single maximum Union-wide fixed voice termination rate (Text with EEA relevance) (see p. 681). Tariff obligations imposed for the provision of fixed and mobile termination rates Case C-28/15 Koninklijke KPN NV and Others v Autoriteit Consument en Markt (ACM), EU:C:2016:692, paras 1 and 2 of the Court’s ruling (see annotations to Article 31). Q&A  on Article  75: ‘According to that article, the Commission is only empowered to take a decision on what the EU termination rate should be, but it cannot in that decision impose an obligation to actually terminate traffic or other terms and conditions on EU operators.



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At the same time, NRAs cannot perform a market analysis and base a specific interconnection obligation (or other related obligations) on an SMP operator in the market for termination when the Commission has taken a decision to set the EU termination price according to Article 75. Consequently, there is the risk of a gap where there is no specific obligation to terminate traffic, while at the same time a specific termination price has been set. A potential solution could be the use by NRAs of Article 61 (general interconnection obligation) as/where necessary but in any case we thought this issue merits some clarification. Given the issue outlined above, what is the Commission Services’ view, if any, on the division of competences as regards termination between the Commission and the NRAs, and consequently what should be required of the NRA in ensuring that termination takes place at the regulated EU price?’ Reply: ‘The Commission’s view is that the imposition of the single maximum Union-wide voice termination rates will not prohibit NRAs from defining and analysing termination markets. The relevant steps for such analysis will depend on the next revision of the Commission’s Recommendation on Relevant Markets (RRM), planned for adoption by 21 Dec 2020. If termination markets are excluded from the RRM (a point on which the Commission is still finalising its position), NRAs will have to justify the necessity for ex-ante regulation by means of the three-criteria test. Where imposition of ex-ante regulation is justified, NRAs will be able to designate SMP and impose relevant obligations (e.g. non-discrimination), excluding obligations related to pricing that are set by the Delegated Act. NRAs can also impose ex ante obligations under Article 61(2) of the Code on access, interconnection and interoperability of services in order to ensure the policy objectives of Article  3, including the promotion of competition in the provision of electronic communications networks and associated facilities, the development of the internal market by favouring the provision, availability and interoperability of pan-European services, and end-to-end connectivity, and the promotion of the interests of the citizens of the Union by enabling maximum benefits in terms of choice, price and quality on the basis of competition. Transparency and non- discrimination obligations could also be imposed under this provision when necessary to achieve end-to-end connectivity. In this regard, the Commission acknowledged in its Article 7 practice that Article 5 of the Access Directive (corresponding to Article 61 of the Code) could be the legal basis to impose obligations of transparency and non-discrimination. It should also be noted that Article  61 could also be the legal basis for imposing obligations in the context of the settlement of a dispute arising between terminating operators. Furthermore, in case of anticompetitive conducts, general competition provisions apply.’ Further Q&A on Article 75: ‘Art. 75 and Annex III [termination rates] – if the European Commission adopt a delegated act setting a single maximum Unionwide voice termination [rate], can NRA impose other regulatory obligations (regulate the market in other respects)?’ Reply: ‘Yes, NRAs may regulate market 1 and market 2 in aspects other than pricing, if the relevant conditions are met (i.e. if termination markets are part of the Recommendation on Relevant Markets or alternatively, in case the termination markets are not longer included in the Recommendation, if the three-criteria test is passed). The Delegated Act will set a single maximum mobile termination rate and a single maximum fixed termination.’

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Article 76 Regulatory treatment of new very high capacity network elements 1.

Undertakings which have been designated as having significant market power in one or several relevant markets in accordance with Article  67 may offer commitments, in accordance with the procedure set out in Article 79 and subject to the second subparagraph of this paragraph, to open the deployment of a new very high capacity network that consists of optical fibre elements up to the end-user premises or base station to co-investment, for example by offering coownership or long-term risk sharing through co-financing or through purchase agreements giving rise to specific rights of a structural character by other providers of electronic communications networks or services. When the national regulatory authority assesses those commitments, it shall determine, in particular, whether the offer to co-invest complies with all of the following conditions: (a)

it is open at any moment during the lifetime of the network to any provider of electronic communications networks or services;

(b) it would allow other co-investors which are providers of electronic communications networks or services to compete effectively and sustainably in the long term in downstream markets in which the undertaking designated as having significant market power is active, on terms which include: (i) fair, reasonable and non-discriminatory terms allowing access to the full capacity of the network to the extent that it is subject to coinvestment; (ii) flexibility in terms of the value and timing of the participation of each co-investor; (iii) the possibility to increase such participation in the future; and (iv) reciprocal rights awarded by the co-investors after the deployment of the co-invested infrastructure; (c)

it is made public by the undertaking in a timely manner and, if the undertaking does not have the characteristics listed in Article 80(1), at least six months before the start of the deployment of the new network; that period may be prolonged based on national circumstances;

(d) access seekers not participating in the co-investment can benefit from the outset from the same quality, speed, conditions and end-user reach as were available before the deployment, accompanied by a mechanism of adaptation over time confirmed by the national regulatory authority in light of developments on the related retail markets, that maintains the incentives to participate in the co-investment; such mechanism shall ensure that access seekers have access to the very high capacity elements of the network at a time, and on the basis of transparent and non-discriminatory terms, which reflect appropriately the degrees of risk incurred by the respective co-investors at different stages of the deployment and take into account the competitive situation in retail markets; (e)

it complies at a minimum with the criteria set out in Annex IV and is made in good faith.



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If the national regulatory authority concludes, taking into account the results of the market test conducted in accordance with Article 79(2), that the co-investment commitment offered complies with the conditions set out in paragraph 1 of this Article, it shall make that commitment binding pursuant to Article 79(3), and shall not impose any additional obligations pursuant to Article 68 as regards the elements of the new very high capacity network that are subject to the commitments, if at least one potential co-investor has entered into a co-investment agreement with the undertaking designated as having significant market power. The first subparagraph shall be without prejudice to the regulatory treatment of circumstances that do not comply with the conditions set out in paragraph 1 of this Article, taking into account the results of any market test conducted in accordance with Article  79(2), but that have an impact on competition and are taken into account for the purposes of Articles 67 and 68. By way of derogation from the first subparagraph of this paragraph, a national regulatory authority may, in duly justified circumstances, impose, maintain or adapt remedies in accordance with Articles  68 to 74 as regards new very high capacity networks in order to address significant competition problems on specific markets, where the national regulatory authority establishes that, given the specific characteristics of these markets, those competition problems would not otherwise be addressed.

3.

National regulatory authorities shall, on an ongoing basis, monitor compliance with the conditions set out in paragraph  1 and may require the undertaking designated as having significant market power to provide it with annual compliance statements. This Article shall be without prejudice to the power of a national regulatory authority to take decisions pursuant to Article 26(1) in the event of a dispute arising between undertakings in connection with a co-investment agreement considered by it to comply with the conditions set out in paragraph 1 of this Article.

4. BEREC, after consulting stakeholders and in close cooperation with the Commission, shall publish guidelines to foster the consistent application by national regulatory authorities of the conditions set out in paragraph 1, and the criteria set out in Annex IV. See: Recitals 181; 198-201. BEREC Guidance BEREC  Guidelines to foster the consistent application of the conditions and criteria for assessing co-investments in new very high capacity network elements (Article  76 (1) and Annex IV EECC), BoR (20) 232, 11  December 2020: ‘According to the first paragraph of Article 76, operators that have been designated as having SMP may offer commitments to open the deployment of a “new very high capacity network that consists of optical fibre elements up to the end-user premises or base station” to co-investment. Article  76 deals with the co-investment offers of undertakings that have been designated – at the time the offer is made – as having SMP. Operators not holding SMP are thus not subject to this provision[61].’ – paragraphs 7 and 8.

‘It will always be up to the SMP operator to decide whether to engage in the procedure contemplated under Article 76 of the EECC by voluntarily offering commitments under Article 79’ – footnote 3 in the Guidelines.

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The Guidelines address the following: (a)

Which Very High Capacity Networks (VHCN) fall in the scope of Article 76 (see section 2.1.1);

(b) What is a new VHCN for the purposes of Article 76 (see section 2.1.2); (c)

Timing for making an offer to co-invest (see section 2.1.3);

(d) Type of investments which may be covered by Article  76 (see section 2.1.4); (e) Co-investment models which may be covered by Article  76 (see section 2.1.5); (f)

The requirement for an open offer and any existing limitations of openness of the co-investment offer need to be considered in the context of jointventure models, reciprocal access models, one-way access models and mixed-form models (see section 2.2.1);

(g) The expected commercial lifetime of the co-investment scheme should be included in the proposal made by the SMP operator as part of the submission for regulatory exemptions under Article 76 (see section 2.2.2); (h) Implementing fair, reasonable and non-discriminatory terms is essential to safeguard the interests of the other co-investors after NRAs decide not to impose further obligations on the SMP operator according to Articles 76 and 79 (see section 2.3.1); (i)

Access to the full capacity of the network to the extent that it is subject to co-investment implies that the granted access can only be limited by technical circumstances that equally affect all co-investors, including the SMP operator (see section 2.3.1.2);

(j) The flexibility provided in the offer, considerations to safeguard the economic viability of the investment project, the minimum share and timing of participation (see section 2.3.2); (k)

The flexibility for existing co-investors to increase the level and/or share of their participation (see section 2.3.3);

(l)

Reciprocal rights of access to the co-invested infrastructure (not just under the reciprocal access model) (see section 2.3.4);

(m) The publication of the co-investment offer is done in a timely manner in order to allow potentially interested providers of ECN/ECS to compete with the SMP operator from the outset (see section 2.4); (n) Maintaining the competitiveness of the markets by granting access to third parties not part of the co-investment, whilst balancing the incentives to those participating in the co-investment (see section 2.5); and (o) No relevant issues regarding the condition of a co-investment being made in good faith have yet been identified (see section 26); Q&A on Article 76: ‘Is this Article only applied to fibre construction/deployment or also to building base stations (to which fibre is connected)? Could you explain the meaning of the first paragraph: “very high capacity network that consists of optical fibre elements up to the end-user premises or base station”.



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Does the Article apply only to SMP undertakings?’ Reply: ‘In principle, the Article is applicable also to mobile or other wireless networks, provided that the respective operator holds SMP (not a common situation in European markets, but which may be relevant, e.g. in the event that fixed-line SMP operators deploy 5G fixed wireless solutions at the edge of their fixed networks in lieu of a fibre drop line). Article 3 defines very high capacity networks as networks which either: •

consist wholly of optical fibre elements at least up to the distribution point at the serving location OR

• are capable of delivering similar network performance. Article 76 provides for a specific regulatory treatment of a subset of very high capacity networks, namely with a scope that covers only the first part of the definition under Article 3. This means that only networks that consist of optical fibre elements up to the serving location near or at the end-user premises or base stations are included. By contrast, very high capacity networks that use other technologies, even when providing similar performance, are not eligible for the regulatory treatment under Article 76. The article applies only to SMP undertakings, which will be relieved from regulatory obligations in exchange for commitments which meet the necessary conditions in Article  76. Other undertakings will indirectly benefit from the application of this article, in the form of opportunities for co-investment or access agreements.’ Further Q&A on Article 76: ‘•

Do the first and second subparagraphs of Article  76(2) of the EECC mean that the NRA may impose remedies if the conditions laid out in Article 76(1), which affect competition and are likely to serve the objectives set out in Articles 67 and 68 of the EECC, are not fulfilled?

•

We understand that for an offer that to some extent does not meet the conditions of Article 76(1), it is still possible to accept such obligations that meet the conditions, and for the remainder it is possible for the NRAs to impose appropriate remedies, taking into account the results of the market test under Article 79(2) of the EECC.

•

Is a separate basis under national law necessary to oblige an undertaking designated as having significant market power to provide an annual statement of compliance under Article 76(3) of the EECC where the NRA has broader powers to request the necessary statements and reports [also in relation to monitoring of the compliance with the obligations approved under Article 79(3) EECC]?

•

Should Article 76(1)(d) of the EECC be understood as meaning that: –

an access seeker not participating in the co-investment is to be granted access under the existing terms and conditions to the old network or, if dismantled, to comparable access products, and

–

an access seeker not participating in the co-investment is to be provided with access to the new very high speed network (VHCN) under transparent and non-discriminatory conditions, which are complemented by a mechanism of adaptation, i.e. incentives to enter into co-investment. This mechanism does not apply to access to the old network.

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The mechanism of adaptation (co-investment incentives) should be understood as more favourable price conditions for access for co-investors than for those not participating in co-investment. If above presented interpretation is not correct, we kindly ask to clarify what is meant by the mechanism of adaptation and by the concept of incentives under Article 76(1)(d)?’ Reply: ‘On the two sub-questions: •

Article 76(1) sets out conditions under which an undertaking with SMP can benefit from deregulation. If these conditions are not fulfilled, then as provided in Art. 68 the NRA shall (rather than may) impose appropriate obligations. In the case of co-investments, it should have regard in particular to Art. 68(6) and assess the impact of these co-investments on competitive dynamics.

•

Yes, note however that this case would fall under Article  79(1)(a), i.e. “cooperative arrangements relevant to the assessment of appropriate and proportionate obligations pursuant to Article 68”.

•

Yes, we consider that a separate legal basis would be necessary. NRA will have powers to request information from undertakings under Article  20. However, Article  76(3) refers to statements of compliance, which may entail more than just information.

•

The mechanism of adaptation refers to the evolution of conditions for access seekers. These conditions may include qualitative aspects, pricing aspects and timing aspects (e.g. time of access to the very high capacity elements). The incentives refer to all factors that would favour a decision to co-invest, rather than to pursue other courses of action, such as relying on the conditions provided for access seekers under Art. 76(1)(d), rolling out an independent network, not offering services in the specific area etc. Please also note the following:

•

The mechanism of adaptation can apply also to the legacy network (see Recital 200: “This should be achieved through the maintenance of existing access products or, where legacy network elements are dismantled in due course, through the imposition of access products with at least comparable functionality and quality to those previously available on the legacy infrastructure, in both cases subject to an appropriate adaptable mechanism validated by the national regulatory authority that does not undermine the incentives for co-investors.”

•

The purpose of the mechanism of adaptation is to maintain the competitiveness of the market. It is reasonable to expect that the mechanism of adaptation is going to be one of the factors influencing the incentives to co-invest, but it is unlikely to be the only factor. In any event, it has to be devised in a way that does not undermine these incentives. Depending on the model of co-investment, maintaining incentives may necessitate more favourable access conditions (in terms of price, quality etc.) for coinvestors compared to those provided to access seekers. Finally, please note that BEREC is planning to publish its guidelines on the consistent application of the conditions set out in Art. 76(1) by the end of 2020, which are likely to cover these aspects in more detail.’ Relationship with competition law Co-investment agreements are also subject to competition law as a form of coproduction agreement (Communication from the Commission – Guidelines on



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the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements, OJ 2011 C 11/1, section 4), see e.g. the Italian competition authority’s decision to close an investigation under competition law into the co-investment between TIM and Fastweb subject to the following commitments offered by the parties to ensure the compatibility of their co-investment arrangement with competition law: •

Commitment no 1: realisation of the new FTTH network in defined time delays, according to the following predefined yearly objectives: 30% by 2017; 70% by 2018; 85% by 2019 and 95% by 2020. The Parties are committed to nominate, following consultation and agreement of the Italian Competition Authority, a third independent subject, to certify the realization of the plan in the defined delay;

•

Commitment no 2: (a) removal of the preemption right, in favour of the Parties on the Flash Fiber network, from the remaining co-investment agreement compared to the industrial requirements of Telecom and Fastweb; (b) availability of a guaranteed number of optical fibres for each optical distributor for third party subjects; (c) obligation to conclude agreements for the access to the vertical segments with third party subjects.

•

Commitment no 3: predisposition of independent offers of VULA and NGA bitstream services from Telecom Italia and Fastweb with nondiscriminatory conditions; access to laying infrastructures through exchange agreements of the available rights on respective infrastructures or concession agreements of the IRU rights with transparent, nondiscriminatory, fair and reasonable conditions;

•

Commitment no 4: backdating of the closing date of the common company Flash Fiber to 2035, only for the time estimated necessary to recover the investment and nomination, after consultation and approval of the Italian Competition Authority, of a third independent subject to verify the attainment of the recovery point of the investments;

•

Commitment no 5: (a) modification of art. 7.3 of the co-investment agreement, with limitations only to the minimum amounts provided by the business plan of the obligation for the Parties to use network infrastructures realised in common; (b)

limitation only to the central areas of the 29 cities of the geographical project in which there is a contractual obligation assumed by the Parties to refrain from signing agreements with other companies;

(c) elimination of art. 7.5 of the co-investment agreement (possibility to use Flash Fiber as an instrument of combined participation in the Infratel tenders for the non-covered areas of the territory); (d) elimination of art. 8 of the co-investment agreement (collaboration between the Parties in the combined implementation of vectoring technologies in the areas, outside the 29 cities, where fibre to cabinet – FTTC networks have been realised).

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Commitment no. 6: measures to hinder the exchange of commercially sensitive information between the Parties using Flash Fibre.

•

Article 77 Functional separation 1.

Where the national regulatory authority concludes that the appropriate obligations imposed under Articles 69 to 74 have failed to achieve effective competition and that there are important and persisting competition problems or market failures identified in relation to the wholesale provision of certain access product markets, it may, on an exceptional basis, in accordance with the second subparagraph of Article  68(3), impose an obligation on vertically integrated undertakings to place activities related to the wholesale provision of relevant access products in a business entity operating independently. That business entity shall supply access products and services to all undertakings, including to other business entities within the parent company, on the same timescales, terms and conditions, including those relating to price and service levels, and by means of the same systems and processes.

2.

When a national regulatory authority intends to impose an obligation of functional separation, it shall submit a request to the Commission that includes: (a) evidence justifying the conclusions of the national regulatory authority as referred to in paragraph 1; (b)

a reasoned assessment concluding that there is no or little prospect of effective and sustainable infrastructure-based competition within a reasonable timeframe;

(c) an analysis of the expected impact on the national regulatory authority, on the undertaking, in particular on the workforce of the separated undertaking, and on the electronic communications sector as a whole, and on incentives to invest therein, in particular with regard to the need to ensure social and territorial cohesion, and on other stakeholders including, in particular, the expected impact on competition and any potential resulting effects on consumers; (d) an analysis of the reasons justifying that this obligation would be the most efficient means to enforce remedies aimed at addressing the competition problems or the markets failures identified. 3.

The draft measure shall include the following elements: (a)

the precise nature and level of separation, specifying in particular the legal status of the separate business entity;

(b)

an identification of the assets of the separate business entity, and the products or services to be supplied by that entity;

(c) the governance arrangements to ensure the independence of the staff employed by the separate business entity, and the corresponding incentive structure; (d) rules for ensuring compliance with the obligations;



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(e) rules for ensuring transparency of operational procedures, in particular towards other stakeholders; (f)

a monitoring programme to ensure compliance, including the publication of an annual report.

Following the Commission’s decision taken in accordance with Article 68(3) on that draft measure, the national regulatory authority shall conduct a coordinated analysis of the different markets related to the access network in accordance with the procedure set out in Article  67. On the basis of that analysis, the national regulatory authority shall impose, maintain, amend or withdraw obligations, in accordance with the procedures set out in Articles 23 and 32. 4.

An undertaking on which functional separation has been imposed may be subject to any of the obligations referred to in Articles 69 to 74 in any specific market where it has been designated as having significant market power in accordance with Article 67, or any other obligations authorised by the Commission pursuant to Article 68(3). See: Recitals 202; 203. Correlation with Access Directive EECC Article 77 correlates with Directive 2002/19/EC, Article 13a. BEREC Guidance See BEREC  Guidance on functional separation under Articles  13a and 13b of the revised Access Directive and national experiences, BoR (10) 44 Rev 1, 14 February 2011. Article 78 Voluntary separation by a vertically integrated undertaking

1.

Undertakings which have been designated as having significant market power in one or several relevant markets in accordance with Article  67 shall inform the national regulatory authority at least three months before any intended transfer of their local access network assets or a substantial part thereof to a separate legal entity under different ownership, or establishment of a separate business entity in order to provide all retail providers, including its own retail divisions, with fully equivalent access products. Those undertakings shall also inform the national regulatory authority of any change of that intent, as well as the final outcome of the process of separation. Such undertakings may also offer commitments regarding access conditions that are to apply to their network during an implementation period after the proposed form of separation is implemented, with a view to ensuring effective and nondiscriminatory access by third parties. The offer of commitments shall include sufficient details, including in terms of timing of implementation and duration, in order to allow the national regulatory authority to conduct its tasks in accordance with paragraph  2 of this Article. Such commitments may extend beyond the maximum period for market reviews set out in Article 67(5).

2.

The national regulatory authority shall assess the effect of the intended transaction, together with the commitments offered, where applicable, on existing regulatory obligations under this Directive.

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For that purpose, the national regulatory authority shall conduct an analysis of the different markets related to the access network in accordance with the procedure set out in Article 67. The national regulatory authority shall take into account any commitments offered by the undertaking, having regard in particular to the objectives set out in Article 3. In so doing, the national regulatory authority shall consult third parties in accordance with Article 23, and shall address, in particular, those third parties which are directly affected by the intended transaction. On the basis of its analysis, the national regulatory authority shall impose, maintain, amend or withdraw obligations, in accordance with the procedures set out in Articles 23 and 32, applying, if appropriate, Article 80. In its decision, the national regulatory authority may make the commitments binding, wholly or in part. By way of derogation from Article 67 (5), the national regulatory authority may make the commitments binding, wholly or in part, for the entire period for which they are offered. 3.

Without prejudice to Article  80, the legally or operationally separate business entity that has been designated as having significant market power in any specific market in accordance with Article 67 may be subject, as appropriate, to any of the obligations referred to in Articles 69 to 74 or any other obligations authorised by the Commission pursuant to Article 68(3), where any commitments offered are insufficient to meet the objectives set out in Article 3.

4.

The national regulatory authority shall monitor the implementation of the commitments offered by the undertakings that it has made binding in accordance with paragraph  2 and shall consider their extension when the period for which they are initially offered has expired. See: Recital 204. Correlation with Access Directive EECC Article 78 correlates with Directive 2002/19/EC, Article 13b. BEREC Guidance See BEREC  Guidance on functional separation under Articles  13a and 13b of the revised Access Directive and national experiences, BoR (10) 44 Rev 1, 14 February 2011. Article 79 Commitments procedure

1.

Undertakings designated as having significant market power may offer to the national regulatory authority commitments regarding conditions for access, coinvestment, or both, applicable to their networks in relation, inter alia, to: (a) cooperative arrangements relevant to the assessment of appropriate and proportionate obligations pursuant to Article 68; (b) co-investment in very high capacity networks pursuant to Article 76; or (c) effective and non-discriminatory access by third parties pursuant to Article 78, both during an implementation period of voluntary separation by a vertically integrated undertaking and after the proposed form of separation is implemented. The offer for commitments shall be sufficiently detailed including as to the timing and scope of their implementation and their duration, to allow the national



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regulatory authority to undertake its assessment pursuant to paragraph 2 of this Article. Such commitments may extend beyond the periods for carrying out market analysis provided in Article 67(5). 2.

In order to assess any commitments offered by an undertaking pursuant to paragraph 1 of this Article, the national regulatory authority shall, except where such commitments clearly do not fulfil one or more relevant conditions or criteria, perform a market test, in particular on the offered terms, by conducting a public consultation of interested parties, in particular third parties which are directly affected. Potential co-investors or access seekers may provide views on the compliance of the commitments offered with the conditions provided, as applicable, in Article 68, 76 or 78 and may propose changes. As regards the commitments offered under this Article, the national regulatory authority shall, when assessing obligations pursuant to Article  68(4), have particular regard to: (a) evidence regarding the fair and reasonable character of the commitments offered; (b) the openness of the commitments to all market participants; (c)

the timely availability of access under fair, reasonable and non-discriminatory conditions, including to very high capacity networks, before the launch of related retail services; and

(d) the overall adequacy of the commitments offered to enable sustainable competition on downstream markets and to facilitate cooperative deployment and take-up of very high capacity networks in the interest of end-users. Taking into account all the views expressed in the consultation, and the extent to which such views are representative of different stakeholders, the national regulatory authority shall communicate to the undertaking designated as having significant market power its preliminary conclusions whether the commitments offered comply with the objectives, criteria and procedures set out in this Article and, as applicable, in Article  68, 76 or 78, and under which conditions it may consider making the commitments binding. The undertaking may revise its initial offer to take account of the preliminary conclusions of the national regulatory authority and with a view to satisfying the criteria set out in this Article and, as applicable, in Article 68, 76 or 78. 3.

Without prejudice to first subparagraph of Article 76(2), the national regulatory authority may issue a decision to make the commitments binding, wholly or in part. By way of derogation from Article 67(5), the national regulatory authority may make some or all commitments binding for a specific period, which may be the entire period for which they are offered, and in the case of co-investment commitments made binding pursuant to first subparagraph of Article 76(2), it shall make them binding for a period of minimum seven years. Subject to Article  76, this Article is without prejudice to the application of the market analysis procedure pursuant to Article 67 and the imposition of obligations pursuant to Article 68. Where the national regulatory authority makes commitments binding pursuant to this Article, it shall assess under Article 68 the consequences of that decision for

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market development and the appropriateness of any obligation that it has imposed or would, absent those commitments, have considered imposing pursuant to that Article or Articles  69 to 74. When notifying the relevant draft measure under Article 68 in accordance with Article 32, the national regulatory authority shall accompany the notified draft measure with the commitments decision. 4.

The national regulatory authority shall monitor, supervise and ensure compliance with the commitments that it has made binding in accordance with paragraph 3 of this Article in the same way in which it monitors, supervises and ensures compliance with obligations imposed under Article 68 and shall consider the extension of the period for which they have been made binding when the initial period expires. If the national regulatory authority concludes that an undertaking has not complied with the commitments that have been made binding in accordance with paragraph 3 of this Article, it may impose penalties on such undertaking in accordance with Article 29. Without prejudice to the procedure for ensuring compliance of specific obligations under Article 30, the national regulatory authority may reassess the obligations imposed in accordance with Article 68(6). See: Recitals 205-207, Q&A on Article 79: ‘Q1: Art 79 procedure for commitments: Is there a catalogue of basic/minimal requirements, with which the commitments under Art [79(1)(a)] have to comply (FRAND, openness)? Q2: What is the relationship between the terms “commercial agreements” under Art 68(6), “cooperative arrangements” under Art. [79(1)(a)] and “coinvestment” under Arts 76 and 79(1b)? Q3: Are there criteria that cooperative arrangements need to meet at a minimum to be assessed and made binding? While for Art 79 para  1 b) and c), (minimum) conditions are defined, this is not so clear for Art. 79 para 1 a) settings. In this regard, one could understand Art. 79 para 2 subpara 2 as a set of minimum conditions, yet the wording refers to the evaluation of the commitments in the assessment of obligations (at a possibly different stage) and does not suggest a strict test (“the NRA shall, when assessing obligations to Art 68(4), have particular regard to”). Q4: Could you clarify the relationship between the terms commercial agreements (Art 68 para  6), cooperative arrangements (Art 3 para  4 lit d, Art 79 para  1 lit a), co-investment (Art 76, Art 79 para  1 lit. b). Our current understanding is that commercial agreements is the “widest” term, encompassing the other two (possibly also including commercial access agreements that are limited to the rental of capacity referred to in recital 198); yet, since there is no reference in Art 79 to it, this raised the question for us whether there might be agreements with the SMP operator involved falling out of the procedure described by Art 79?’ Reply: ‘Q1: There is no such catalogue, other than what is provided in Art. 79(2). Q2: Co-investment agreements could be considered as a sub-category of commercial agreements (see wording in Art. 68(6)). In turn, commercial agreements could be considered as a sub-category of cooperative arrangements (the latter may be also less formal types of cooperation). Art.



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79 provides for a procedure for any kind of commitment that undertakings might offer and for the NRA to assess such offers. Q3: Indeed the list (a)-(d) provided in the second subparagraph of Art. 79(2) is not a minimum set of conditions to assess commitments, but rather a list of considerations that are relevant for the assessment of obligations pursuant to Art. 68(4). On the other hand, the first subparagraph of the same provision provides a procedure for assessing such commitments, in particular their compliance with Articles 68, 76 or 78, including through a public consultation. On this basis, regulators should be able to assess any commitments submitted by SMP operators which concern conditions for access, co-investments, or both, in the light of the particular market conditions. Q4: Co-investment agreements could be considered as a sub-category of commercial agreements (see wording in Art. 68(6)). In turn, commercial agreements could be considered as a sub-category of cooperative arrangements (the latter may be also less formal types of cooperation). As mentioned above, under Art. 79  SMP operators may submit commitments on conditions for access, co-investments, or both. The use of the wording “inter alia’ in the first subparagraph of Art. 79 (1) suggests that the list (a) – (c) is not exhaustive.’ Further Q&A on Article 79: ‘Should Articles 79(3) and 76(2) be interpreted as meaning that a NRA, in a decision which makes commitments binding, refers directly to existing regulatory obligations and accordingly revokes amends or maintains them? Given the wording of Article  79(3) subparagraph 4 of the EECC, should the NRA’s decision to make commitments binding be made subject to a consolidation procedure?’ Reply: ‘This may indeed be required, if the new very high capacity elements would, in absence of such decision, be subject to existing regulatory obligations. In addition, the NRA would have to take a decision that, during the period of commitments, no obligations will be imposed on the elements of the very high capacity network that are subject to these commitments. Yes, the decision should be notified under Art. 32, along with the decision not to impose obligations during the period of commitments on the elements of the very high capacity network that are subject to these commitments and, if appropriate, the decision to withdraw, amend or maintain existing regulatory obligations.’ Article 80 Wholesale-only undertakings 1.

A national regulatory authority that designates an undertaking which is absent from any retail markets for electronic communications services as having significant market power in one or several wholesale markets in accordance with Article 67 shall consider whether that undertaking has the following characteristics: (a)

all companies and business units within the undertaking, all companies that are controlled but not necessarily wholly owned by the same ultimate owner, and any shareholder capable of exercising control over the undertaking, only have activities, current and planned for the future, in wholesale markets for electronic communications services and therefore do not have activities in any retail market for electronic communications services provided to endusers in the Union;

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(b) the undertaking is not bound to deal with a single and separate undertaking operating downstream that is active in any retail market for electronic communications services provided to end-users, because of an exclusive agreement, or an agreement which de facto amounts to an exclusive agreement. 2.

If the national regulatory authority concludes that the conditions laid down in paragraph 1 of this Article are fulfilled, it may impose on that undertaking only obligations pursuant to Articles 70 and 73 or relative to fair and reasonable pricing if justified on the basis of a market analysis including a prospective assessment of the likely behaviour of the undertaking designated as having significant market power.

3.

The national regulatory authority shall review obligations imposed on the undertaking in accordance with this Article at any time if it concludes that the conditions laid down in paragraph 1 of this Article are no longer met and it shall, as appropriate, apply Articles  67 to 74. The undertakings shall, without undue delay, inform the national regulatory authority of any change of circumstance relevant to points (a) and (b) of paragraph 1 of this Article.

4.

The national regulatory authority shall also review obligations imposed on the undertaking in accordance with this Article if on the basis of evidence of terms and conditions offered by the undertaking to its downstream customers, the authority concludes that competition problems have arisen or are likely to arise to the detriment of end-users which require the imposition of one or more obligations provided in Article 69, 71, 72 or 74, or the amendment of the obligations imposed in accordance with paragraph 2 of this Article.

5.

The imposition of obligations and their review in accordance with this Article shall be implemented in accordance with the procedures referred to in Articles 23, 32 and 33. See: Recital 208. Q&A  on Article  80: ‘Para  1 (b) – the provision applies to the features of […] wholesale-only undertakings. In accordance with Art. 80 para  1 (b): ‘the undertaking is not bound to deal with a single and separate undertaking operating downstream that is active in any retail market for electronic communications services provided to end-users, because of an exclusive agreement, or an agreement which de facto amounts to an exclusive agreement.’ The concept of an ‘exclusive contract’ raises doubts. Is the wholesale-only undertaking ‘exclusive’ to the retail, or is the retail undertaking ‘exclusive’ to the wholesale-only undertaking? Para  2 – the provision concerns the possibility for the NRA to impose on the wholesale-only undertaking obligations related to reasonable and fair pricing. Are these obligations referred to obligations under Art. 74 (cost calculation, setting fees) or is Art. 80 para 2 referred to other, new obligations?’ Reply: ‘Article  80(1)(b) considers situations where exclusivity in the vertical relationship is binding for the wholesale-only operator, i.e. the wholesale-only operator cannot supply its services to more undertakings active in the retail market because of an exclusive agreement. In such a case, the conditions of Article 80(1) would not be met. Whether the agreement between the wholesale-only operator and an undertaking active on the retail market allows this undertaking to be supplied also by other wholesale operators is not relevant for the purposes of this provision.



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Article 74 provides for a range of price control and cost accounting obligations. Fair and reasonable pricing is a specific case within this range.’ Article 81 Migration from legacy infrastructure 1.

Undertakings which have been designated as having significant market power in one or several relevant markets in accordance with Article 67 shall notify the national regulatory authority in advance and in a timely manner when they plan to decommission or replace with a new infrastructure parts of the network, including legacy infrastructure necessary to operate a copper network, which are subject to obligations pursuant to Articles 68 to 80.

2.

The national regulatory authority shall ensure that the decommissioning or replacement process includes a transparent timetable and conditions, including an appropriate notice period for transition, and establishes the availability of alternative products of at least comparable quality providing access to the upgraded network infrastructure substituting the replaced elements if necessary to safeguard competition and the rights of end-users. With regard to assets which are proposed for decommissioning or replacement, the national regulatory authority may withdraw the obligations after having ascertained that the access provider: (a)

has established the appropriate conditions for migration, including making available an alternative access product of at least comparable quality as was available using the legacy infrastructure enabling the access seekers to reach the same end-users; and

(b) has complied with the conditions and process notified to the national regulatory authority in accordance with this Article. Such withdrawal shall be implemented in accordance with the procedures referred to in Articles 23, 32 and 33. 3.

This Article shall be without prejudice to the availability of regulated products imposed by the national regulatory authority on the upgraded network infrastructure in accordance with the procedures set out in Articles 67 and 68. See: Recital 209.

Article 82 BEREC guidelines on very high capacity networks By 21  December 2020, BEREC shall, after consulting stakeholders and in close cooperation with the Commission, issue guidelines on the criteria that a network is to fulfil in order to be considered a very high capacity network, in particular in terms of down- and uplink bandwidth, resilience, error-related parameters, and latency and its variation. The national regulatory authorities shall take those guidelines into utmost account. BEREC shall update the guidelines by 31  December 2025, and regularly thereafter. See: Recitals 13; 24; 62; 63; 209. BEREC Guidance BEREC  Guidelines on Very High Capacity Networks, BoR (20) 165, 1 October 2020.

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(a) Definition of the term ‘very high capacity network’ ‘13. […] [V]ery high capacity networks according to Art. 2(2) are: a.

Any network providing a fixed-line connection with fibre roll out at least up to the multi-dwelling building;

b.

Any network providing a wireless connection with fibre roll out up to the base station;

c.

Any network which provides a fixed-line connection and is capable of delivering under usual peak-time conditions a network performance equivalent to what is achievable by a network providing a fixedline connection with fibre roll-out up to the multi-dwelling building (performance thresholds 1); and

d.

Any network which provides a wireless connection and is capable of delivering under usual peak-time conditions a network performance equivalent to what is achievable by a network providing a wireless connection with fibre roll out up to the base station (performance thresholds 2).

14. Very high capacity networks are of importance since they are capable of providing end-user services with a particularly high quality of service (QoS). The EECC promotes the rollout of very high capacity networks to benefit end-users (Art. 3(2)a EECC). Therefore, the equivalent performance of the baseline scenario (see paragraphs 10, 13c and 13d) is considered with regard to the achievable end-user QoS of very high capacity networks. Moreover, the EECC defines a very high capacity network as a certain type of electronic communications network and not only as a segment of a network. Therefore, for the purposes of determining the network performance of equivalent networks, it is necessary to consider the network up to the end-user where the public network ends. Given also that the EECC does not provide a definition of the term ‘serving location’, a different approach might be arbitrary and even technically impossible to implement. In addition, if it would be considered that the baseline scenario does not include the access network this would mean that a legacy network with fibre to the local exchange (FTTEx) would have to be considered as a very high capacity network. BEREC considers that this is not the intention of the EECC. 15. For these reasons, the performance thresholds 1 and 2 need to be determined as follows: a.

Performance thresholds 1: The end-user QoS which is achievable under usual peak-time conditions by a network providing a fixed-line connection with a fibre roll out up to the multi-dwelling building.

b.

Performance thresholds 2: The end-user QoS which is achievable under usual peak-time conditions by a network providing a wireless connection with a fibre roll out up to the base station.

16. Performance thresholds 1 focus on fibre roll out up to the multi-dwelling building and not on fibre to the home (FTTH), since according to Recital 13 of the EECC, fibre roll out up to the multi-dwelling building should be the baseline scenario for the determination of the equivalent network performance to be considered as a very high capacity network. Other



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networks which do not qualify as very high capacity networks based on part 1 of Article 2(2) of the EECC (only) need to be capable to provide an end-user QoS achievable with fibre to the multi-dwelling building – and not the higher end-user QoS achievable with FTTH.’ Paragraphs 13–16. (b) Criteria that a network has to fulfil in order to be considered a VHCN ‘17. The term ‘very high capacity network’ is already defined in the EECC (see section 2) and the criteria provided in this section follow this definition. Criteria 1 and 2 below result directly from the first part of the definition, while criteria 3 and 4 below are based on the second part of the definition, using data collected from network operators (see section 4). 18. In accordance with the EECC, BEREC has determined that any network which fulfils one (or more) of the following four criteria is a very high capacity network: Criterion 1: Any network providing a fixed-line connection with a fibre roll out at least up to the multi-dwelling building. Criterion 2: Any network providing a wireless connection with a fibre roll out up to the base station. Criterion 3: Any network providing a fixed-line connection which is capable of delivering, under usual peak-time conditions, services to endusers with the following quality of service (performance thresholds 1): a.

Downlink data rate ≥ 1000 Mbps

b.

Uplink data rate ≥ 200 Mbps

c.

IP packet error ratio (Y.1540) ≤ 0.05%

d.

IP packet loss ratio (Y.154) ≤ 0.0025%

e.

Round-trip IP packet delay (RFC 2681) ≤ 10 ms

f.

IP packet delay variation (RFC 3393) ≤ 2 ms

g.

IP service availability (Y.1540) ≥ 99.9% per year

Criterion 4: Any network providing a wireless connection which is capable of delivering, under usual peak-time conditions, services to endusers with the following quality of service (performance thresholds 2). a.

Downlink data rate ≥ 150 Mbps

b.

Uplink data rate ≥ 50 Mbps

c.

IP packet error ratio (Y.1540) ≤ 0.01%

d.

IP packet loss ratio (Y.1540) ≤ 0.005%

e.

Round-trip IP packet delay (RFC 2681) ≤ 25 ms

f.

IP packet delay variation (RFC 3393) ≤ 6 ms

g. IP service availability (Y.1540) ≥ 99.81% per year.’ Paragraphs 17 and 18. See also: section 4 which, together with Annex 2 and 4, describes how BEREC determined the performance thresholds 1 and 2; and section 5 which sets out the application of the criteria 1 to 4.

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CHAPTER V Regulatory control of retail services Article 83 Regulatory control of retail services 1.

Member States may ensure that national regulatory authorities impose appropriate regulatory obligations on undertakings identified as having significant market power on a given retail market in accordance with Article 63, where: (a)

as a result of a market analysis carried out in accordance with Article 67, a national regulatory authority determines that a given retail market identified in accordance with Article 64 is not effectively competitive; and

(b) the national regulatory authority concludes that obligations imposed under Articles 69 to 74 would not result in the achievement of the objectives set out in Article 3. 2.

Obligations imposed under paragraph 1 of this Article shall be based on the nature of the problem identified and be proportionate and justified in light of the objectives laid down in Article 3. The obligations imposed may include requirements that the identified undertakings do not charge excessive prices, inhibit market entry or restrict competition by setting predatory prices, show undue preference to specific end-users or unreasonably bundle services. National regulatory authorities may apply to such undertakings appropriate retail price cap measures, measures to control individual tariffs, or measures to orient tariffs towards costs or prices on comparable markets, in order to protect end-user interests whilst promoting effective competition.

3.

National regulatory authorities shall ensure that, where an undertaking is subject to retail tariff regulation or other relevant retail controls, the necessary and appropriate cost-accounting systems are implemented. National regulatory authorities may specify the format and accounting methodology to be used. Compliance with the cost-accounting system shall be verified by a qualified independent body. National regulatory authorities shall ensure that a statement concerning compliance is published annually.

4.

Without prejudice to Articles 85 and 88, national regulatory authorities shall not apply retail control mechanisms under paragraph 1 of this Article to geographical or retail markets where they are satisfied that there is effective competition. See: Recital 194. PART III SERVICES TITLE I UNIVERSAL SERVICE OBLIGATIONS Article 84 Affordable universal service

1.

Member States shall ensure that all consumers in their territories have access at an affordable price, in light of specific national conditions, to an available adequate broadband internet access service and to voice communications services at the quality specified in their territories, including the underlying connection, at a fixed location.



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2.

In addition, Member States may also ensure the affordability of the services referred to in paragraph  1 that are not provided at a fixed location where they consider this to be necessary to ensure consumers’ full social and economic participation in society.

3.

Each Member State shall, in light of national conditions and the minimum bandwidth enjoyed by the majority of consumers within the territory of that Member State, and taking into account the BEREC report on best practices, define the adequate broadband internet access service for the purposes of paragraph 1 with a view to ensuring the bandwidth necessary for social and economic participation in society. The adequate broadband internet access service shall be capable of delivering the bandwidth necessary for supporting at least the minimum set of services set out in Annex V. By 21  June 2020, BEREC shall, in order to contribute towards a consistent application of this Article, after consulting stakeholders and in close cooperation with the Commission, taking into account available Commission (Eurostat) data, draw up a report on Member States’ best practices to support the defining of adequate broadband internet access service pursuant to the first subparagraph. That report shall be updated regularly to reflect technological advances and changes in consumer usage patterns.

4.

When a consumer so requests, the connection referred to in paragraph  1 and, where applicable, in paragraph 2 may be limited to support voice communications services.

5.

Member States may extend the scope of application of this Article to end-users that are microenterprises and small and medium-sized enterprises and not-forprofit organisations. See: Recitals 210–217; 228. Definitions of micro, small and medium-sized enterprises Commission Recommendation 2003/361/EC, Article 2 and Annex; Case T-587/14 Crosfield Italia Srl v European Chemicals Agency (ECHA), EU:T:2016:475, paras 34–36; Case T-620/13  Marchi Industriale SpA  v European Chemicals Agency (ECHA), EU:T:2016:479, paras 30–32 (see annotations to Recital 68). BEREC Guidance BEREC  Report on Member States’ best practices to support the defining of adequate broadband internet access service, BoR (20) 99, 11 June 2020: ‘3. [The] report examines how MS [Member States] that have introduced a broadband Universal Service Obligation (“USO”), under the legislative framework provided for in [the Universal Service Directive] hereinafter referred to as the “current legislative framework” which includes “functional internet access” under universal service, is to be determined by MS “taking into account prevailing technologies used by the majority of subscribers and technological feasibility.”[62] This report offers insight into the practices of nine MS (Belgium, Croatia, Finland, Latvia, Malta,

‘Article 4(2) of Directive 2009/136/EC and Directive 2002/22/EC’ – fn 2 in the BEREC Report.

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Slovenia, Spain, Sweden and the United Kingdom[63]) that have to date introduced broadband under a USO. It is worth pointing out that these nine MS did so under the “current legislative framework” and not under the EECC as the measures for the transposition of the EECC will become applicable on 21 December 2020 in MS. 4.

The key areas addressed in this best practices report are: •

the policy principle – Article 84 of the EECC;

•

relevant experience that BEREC can draw on;

•

common principles with respect to bandwidth, evaluation, eligibility designation mechanism, quality of service (QoS), monitoring of compliance and affordability measures, universal service providers (USPs), and the nature of funding across MS that have introduced a broadband USO; and

•

recommendations for future reports.

This report contains the following Annexes: •

ANNEX  1 – ‘Glossary of terms’ sets out the relevant terms used in Article 84 of the EECC (where provided in EECC, or European Commission, COCOM and BEREC documents), where they are associated with any broadband USO to date;

•

ANNEX 2 – ‘Relevant experience that BEREC may draw on’ sets out the specific documents and data references;

•

ANNEX 3 – Broadband universal service – nine MS;

•

ANNEX  4 – Common principles across MS that have introduced a Broadband USO – additional information and references; and ANNEX 5 – Consultation Questions BoR (19) 260.

5.

The report has been drafted in close cooperation with the European Commission, in particular, with regard to the data sources referenced in the report.

6.

In the development of this report, research was conducted on the nine MS which have introduced a broadband USO, in cooperation with the National Regulatory Authorities (NRAs) of these MS. The report outlines a set of common principles which have been identified based on information provided by the NRAs of the nine MS with a broadband USO. No MS has implemented an adequate broadband internet access service USO under the EECC, and accordingly, adequate broadband internet access service best practices are not yet defined. In identifying common principles and detailing how the nine MS[64] have to date (“current legislative framework”) introduced a broadband USO, this report aims to contribute towards the

‘The United Kingdom left the European Union on 31 January 2020. In accordance with the Agreement on the Withdrawal of the United Kingdom from the EU, the UK is a third country to the EU. During the transition period (until 31 December 2020, subject to extension) EU law continues to apply to the UK. At the time of the data collection and drafting of this best practices report (2019) the UK was a Member State of the EU and its data is included and referred to in this report’ – fn 3 in the BEREC Report. 64 ‘Belgium, Croatia, Finland, Latvia, Malta, Slovenia, Spain, Sweden and the United Kingdom’ – fn 4 in the BEREC Report. 63



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consistent application of Article 84 of the EECC by MS in the introduction of adequate broadband internet access service under universal service. 7.

In accordance with Article 84(3) of the EECC, this report will be updated regularly, in order to reflect technological advances and changes in consumer usage patterns. The update should also reflect new MS practices in accordance with the forthcoming implementation of the EECC. Additionally, and as outlined later in this report, there are a number of other BEREC reports and work streams which are related to this report, and future updates may therefore be planned accordingly[65].

8.

This report, subject to public consultation in December 2019, has been adopted at the BEREC  Plenary 2 (June 2020) prior to publication, and taking into account the public feedback.

9.

This report is a best practices report and as such, it does not aim to interpret or provide formal implementation guidance as regards the universal service rules that are included in the EECC. According to Article 84 of the EECC, it is for the MS, taking into account this BEREC report on best practices, to define adequate broadband internet access in light of national conditions and the minimum bandwidth enjoyed by the majority of consumers within a MS territory to ensure an adequate level of social inclusion and participation in the digital economy and society in the MS territory. The adequate broadband internet access should have bandwidth to support at least the minimum set of services defined in Annex V of the EECC, which thus sets a common (minimum) EU level for the universal service internet access.’ Executive Summary, paras 3–9. Q&A on Article 84: ‘According to Annex XIII [EECC], Article 11 of Directive 2002/22/EC (quality of service of designated undertakings) has no corresponding Article in [the EECC]. Could you please provide us with information if this prevents Member States from maintaining provision in national legislation regarding determining quality of universal service?’ Reply: ‘Article  84(1) of the EECC provides that Member States shall ensure access at an affordable price, in light of specific national conditions, to an available adequate broadband internet access service and to voice communication services at the quality specified in their territories. Member States are thus required to specify the quality and can maintain rules on the quality of universal service regarding these two services. Article 104 refers to technical QoS requirements and entitles NRAs to require providers to publish comprehensive, comparable, reliable, user-friendly and up-to-date information on QoS, which is to be specified by NRAs. Pursuant to Article 104(1) providers may be required to publish information on the quality of their services, to the extent that they control at least some elements of the network either directly or by virtue of a service level agreement to that effect. Crucially, Article 104 is a transparency provision and the EECC does not indicate minimum QoS levels to be ensured by ECS providers.’. Further Q&A on Article 84: ‘Would it be possible to define USO by referring to the services listed in Annex V, without defining a minimum speed/ bandwidth for the USO service?’

‘See Section 5 of this Report’ – fn 5 in the BEREC Report.

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Reply: ‘The EECC Article  84(3) requires that each Member State define the adequate broadband internet access service. The service shall be capable of delivering the bandwidth necessary for supporting at least the services set out in Annex V. The EECC does not oblige the Member States to define specifically the adequate broadband access service in terms of speed/bandwidth as such. However, as Article  84(3) requires that the definition of the service to take into account national conditions, minimum bandwidth enjoyed by the majority of consumers, taking into account the BEREC report and with a view to ensuring the bandwidth necessary for social and economic participation in society, using (only) a reference to supporting the services listed in Annex V would not meet the requirements in this provision and would not provide sufficient clarity as regards the conditions for the provision of such a service.’ Further Q&A on Article 84: ‘Where would be the limit for a publicly financed universal service / above which quality parameters the service would have to be considered an additional service under Art 92 for which no compensation mechanisms involving specific undertakings can be used? The universal service obligations are included in Articles 84 to 87. Recital 245 also explains that Member States are not permitted to impose on market participants financial contributions which relate to measures which are not part of the universal service obligations.’ Reply: ‘Member States define the adequate broadband internet access (at a quality specified in their territories) with a view to ensuring the bandwidth necessary for social and economic participation. Member States are to take into account also national conditions, the minimum bandwidth enjoyed by the majority of consumers within that Member State and the BEREC best practice report. Furthermore, the service is to have the necessary bandwidth for supporting at least the minimum set of services set out in Annex V. In this context, additional services (and not a universal service) would be those that ensure an internet service that exceeds this (bandwidth of) adequate broadband internet access or other services not included in articles 84 – 87. BEREC report on best practices […] includes details from Member States that have already included broadband connection in the universal service obligation under the current rules’. Q&A on Article 84(1): ‘1.  Can the requirement to have access [to] electronic communications services at a fixed location be ensured to be provided not only via fixed networks (but also mobile networks), especially taken into account the technological neutrality? 2.

In case we concentrate on fixed networks, can the services provided via mobile networks be evaluated as substitutes, if parameters of the services are met?

3.

Could you provide your insight about the affordability requirement. Can this requirement be imposed, even if there is no problem with availability of the service and no undertaking is designated as universal service provider. If yes, can it also be imposed on all the providers, including mobile operators?’

Reply: ‘1.  Article 84(1) refers to consumers having access to an available adequate broadband internet access ‘and voice communications services at a fixed



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location. The article does not limit the technical means by which the connection at a fixed location is provided. Recital 230 includes that there should be no constraints on the technical means by which the adequate broadband internet access and voice communications services at a fixed location are provided, allowing for wired or wireless technologies. 2.

The above also means that services provided via mobile networks can be used for the access at a fixed location.

3.

Affordability of adequate broadband internet access service and voice communications to all consumers is the focus of the EECC’s universal service obligations. The affordability obligation can be, and in many cases indeed will be, imposed even if there is no problem with availability of the service and without designation. Where Member States establish that retail prices for services referred to in Article 84(1) (adequate broadband internet access and voice communications services at a fixed location) are not affordable because consumers with a low income or special social needs are prevented from accessing them, they shall take measures to ensure affordability. To that end, Member States may ensure support to such consumers or may require providers of broadband internet access and voice communications to offer tariff options or packages and apply common tariffs to those consumers.

According to Article 84(2) Member States may also ensure the affordability of the services that are not provided at a fixed location where they consider this to be necessary to ensure consumers’ full social and economic participation in society’. Q&A on Article 84(2): ‘When Article 84(2) refers to the possibility of adequate broadband Internet access service and voice communications services being provided through connections other than at a fixed location, must it be understood that such connections are provided through mobile access or, rather, through any wireless system?’ Reply: ‘Article  84(2) refers to providing affordability of adequate broadband internet access and voice communications services not at a fixed location. This gives Member States a new possibility of ensuring affordability of these services to citizens on the move as clarified in recital 204, where Member States consider that this is necessary to ensure consumers’ full social and economic participation in society. The article does not limit the technical means by which the connection not at a fixed location is provided.’ Q&A  on Article  84(3): ‘Is there a difference between the words used/ enjoyed: “prevailing technologies used by the majority of subscribers” [current USD Article 4(2)] – “minimum bandwidth enjoyed by the majority of consumers” [EECC Art 84(3)]?’ Reply: ‘No important difference is to be understood in practice between the terms “used” and “enjoyed”. The EECC refers to minimum bandwidth enjoyed by the majority of consumers, which can be understood as the speed that consumers actually subscribe to. The subscribed speed can present a slight difference to the bandwidth that consumers actually use. Note that Art 122(2) EECC on the universal service review refers to “prevailing technologies used by the majority of end-users”. A  difference in the provisions is that “consumers” are individuals, whereas subscribers/end-users include also legal persons. Therefore, the result in these terms may be different.

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The minimum bandwidth enjoyed by the majority of consumers within the territory of the Member States is one of the aspects to be taken into consideration when Member States define the adequate broadband internet access according to Art 84(3) of the EECC. Other aspects include national conditions, BEREC report on best practices, ensuring bandwidth necessary for social and economic participation in society and supporting the services set out in Annex V. The list of services in Annex V ensures a common European minimum level of universal service internet access.’ Article 85 Provision of affordable universal service 1.

National regulatory authorities in coordination with other competent authorities shall monitor the evolution and level of retail prices of the services referred to in Article 84(1) available on the market, in particular in relation to national prices and national consumer income.

2.

Where Member States establish that, in light of national conditions, retail prices for the services referred to in Article 84(1) are not affordable, because consumers with a low income or special social needs are prevented from accessing such services, they shall take measures to ensure affordability for such consumers of adequate broadband internet access service and voice communications services at least at a fixed location. To that end, Member States may ensure that support is provided to such consumers for communication purposes or require providers of such services to offer to those consumers tariff options or packages different from those provided under normal commercial conditions, or both. For that purpose, Member States may require such providers to apply common tariffs, including geographic averaging, throughout the territory. In exceptional circumstances, in particular where the imposition of obligations under the second subparagraph of this paragraph on all providers would result in a demonstrated excessive administrative or financial burden for providers or the Member State, a Member State may, on an exceptional basis, decide to impose the obligation to offer those specific tariff options or packages only on designated undertakings. Article 86 shall apply to such designations mutatis mutandis. Where a Member State designates undertakings, it shall ensure that all consumers with a low-income or special social needs benefit from a choice of undertakings offering tariff options addressing their needs, unless ensuring such choice is impossible or would create an excessive additional organisational or financial burden. Member States shall ensure that consumers entitled to such tariff options or packages have a right to conclude a contract either with a provider of the services referred to in Article 84(1), or with an undertaking designated in accordance with this paragraph, and that their number remains available to them for an adequate period and unwarranted disconnection of the service is avoided.

3.

Member States shall ensure that undertakings which provide tariff options or packages to consumers with a low income or special social needs pursuant to paragraph 2 keep the national regulatory and other competent authorities informed of the details of such offers. National regulatory authorities in coordination with other competent authorities shall ensure that the conditions under which undertakings provide tariff options or packages pursuant to paragraph 2 are fully transparent and are published and applied in accordance with the principle of



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non-discrimination. National regulatory authorities in coordination with other competent authorities may require such tariff options or packages to be modified or withdrawn. 4.

Member States shall ensure, in light of national conditions, that support is provided, as appropriate, to consumers with disabilities, and that other specific measures are taken, where appropriate, with a view to ensuring that related terminal equipment, and specific equipment and specific services that enhance equivalent access, including where necessary total conversation services and relay services, are available and affordable.

5.

When applying this Article, Member States shall seek to minimise market distortions.

6.

Member States may extend the scope of application of this Article to end-users that are microenterprises and small and medium-sized enterprises and not-forprofit organisations. See: Recitals 9; 210–212; 214; 217–228; 298. Correlation with Universal Service Directive EECC  Article  85 broadly correlates with Directive 2002/22/EC, Article  9 although the provision is substantially different (not shown in Annex XIII). Applicability of social tariff obligations and financing mechanisms to mobile communication and internet subscription services ‘[The Universal Service Directive], must be interpreted as meaning that the special tariffs and the financing mechanism provided for in Articles 9 and 13(1) (b) of that directive respectively apply to internet subscription services requiring a connection to the internet at a fixed location, but not to mobile communication services, including internet subscription services provided by means of those mobile communication services. If those services are made publicly available within the national territory as “additional mandatory services” for the purposes of Article 32 of [the Universal Service Directive], they cannot be financed, under national law, by a mechanism involving specific undertakings.’ Case C-1/14 Base Company NV and Mobistar NV v Ministerraad, EU:C:2015:378, Court’s ruling. Definitions of micro, small and medium-sized enterprises Commission Recommendation 2003/361/EC, Article 2 and Annex; Case T-587/14 Crosfield Italia Srl v European Chemicals Agency (ECHA), EU:T:2016:475, paras 34–36; Case T-620/13  Marchi Industriale SpA  v European Chemicals Agency (ECHA), EU:T:2016:479, paras 30–32 (see annotations to Recital 68). Q&A  on Article  85: ‘Is the availability of numbers mentioned in the fourth paragraph of Article 85(2) only justified in the context of number portability? If not, what other situations should be considered in this context?’ Reply: ‘Member States are to ensure the availability of the number for an adequate period to consumers entitled to tariff options or packages under universal service. Member States are to ensure the availability of a number for a reasonable period also during periods of non-use of voice communications services, so this availability is not only justified in the context of number portability.’ Q&A on Article 85(2): ‘In Article 85(2), the EECC sets out […] four options for providing an affordable universal service to consumers with special social needs: 1. The state provides social allowances or vouchers for those consumers; 2. All operators must provide special tariff options or packages for those consumers; 3. Combination of the first and the second option; and 4. Only one predetermined

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universal service provider is obliged to offer specific tariff options or packages for those consumers). Is it necessary to transpose and define all four options mentioned above or is it sufficient to define only the selected option?’ Reply: ‘According to Article  85(2), Member States must take measures to ensure affordability. To do so, they may transpose one or several of the options provided in sub-§ 2, i.e. support to consumers or tariff options or packages from all providers, or both, or any other solution which ensures the fulfilment of the obligation of paragraph 1. Member States may designate undertakings only in exceptional circumstances, which have to be proven at the time when imposing the obligation and cannot be ex lege and cannot be the default obligation forever, but only as long as those exceptional circumstances remain valid. The analysis has to be undertaken each time before they rely on this exception (which normally has to be interpreted narrowly, and cannot become the default option).’ Article 86 Availability of universal service 1.

Where a Member State has established, taking into account the results, where available, of the geographical survey conducted in accordance with Article 22(1), and any additional evidence where necessary, that the availability at a fixed location of an adequate broadband internet access service as defined in accordance with Article 84(3) and of voice communications services cannot be ensured under normal commercial circumstances or through other potential public policy tools in its national territory or different parts thereof, it may impose appropriate universal service obligations to meet all reasonable requests by end-users for accessing those services in the relevant parts of its territory.

2.

Member States shall determine the most efficient and appropriate approach for ensuring the availability at a fixed location of an adequate broadband internet access service as defined in accordance with Article 84(3) and of voice communications services, whilst respecting the principles of objectivity, transparency, nondiscrimination and proportionality. Member States shall seek to minimise market distortions, in particular the provision of services at prices or subject to other terms and conditions which depart from normal commercial conditions, whilst safeguarding the public interest.

3.

In particular, where Member States decide to impose obligations to ensure for endusers the availability at a fixed location of an adequate broadband internet access service as defined in accordance with Article 84(3) and of voice communications services, they may designate one or more undertakings to guarantee such availability throughout the national territory. Member States may designate different undertakings or sets of undertakings to provide an adequate broadband internet access service and voice communications services at a fixed location or to cover different parts of the national territory.

4.

When Member States designate undertakings in part or all of the national territory to ensure availability of services in accordance with paragraph 3 of this Article, they shall use an efficient, objective, transparent and non-discriminatory designation mechanism, whereby no undertaking is a priori excluded from being designated. Such designation methods shall ensure that an adequate broadband internet access service and voice communications services at a fixed location are provided in a cost-effective manner and may be used as a means of determining the net cost of the universal service obligations in accordance with Article 89.



5.

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When an undertaking designated in accordance with paragraph 3 of this Article intends to dispose of a substantial part or all of its local access network assets to a separate legal entity under different ownership, it shall inform the national regulatory or other competent authority in advance and in a timely manner, in order to allow that authority to assess the effect of the intended transaction on the provision at a fixed location of an adequate broadband internet access service as defined in accordance with Article 84(3) and of voice communications services. The national regulatory or other competent authority may impose, amend or withdraw specific obligations in accordance with Article 13(2). See: Recitals 221; 228-234. Correlation with Universal Service Directive EECC Article  86(1) and (2) correlates with Directive 2002/22/EC, Article  3; EECC  Article  86(3) correlates with Directive 2002/22/EC, Article  8(1); EECC  Article  86(4) correlates with Directive 2002/22/EC, Article  8(2); EECC Article 86(5) correlates with Directive 2002/22/EC, Article 8(3). Specific obligations imposed on the designated undertaking ‘Article 8(1) of [the Universal Service Directive] permits Member States, where they decide to designate one or more undertakings under that provision to guarantee the provision of universal service, or different elements of universal service, as identified in Articles 4 to 7 and 9(2) of that same directive, to impose on such undertakings only the specific obligations, provided for in the directive, which are associated with the provision of that service, or elements thereof, to end‑users by the designated undertakings themselves.’ Case C-16/10 The Number (UK) Ltd and Conduit Enterprises Ltd v Office of Communications and British Telecommunications plc., EU:C:2011:92, Court’s ruling.

Article 87 Status of the existing universal service Member States may continue to ensure the availability or affordability of other services than adequate broadband internet access service as defined in accordance with Article 84(3) and voice communications services at a fixed location that were in force on 20 December 2018, if the need for such services is established in light of national circumstances. When Member States designate undertakings in part or all of the national territory for the provision of those services, Article 86 shall apply. Financing of those obligations shall comply with Article 90. Member States shall review the obligations imposed pursuant to this Article by 21 December 2021, and every three years thereafter. See: Recital 235. Q&A  on Article  87: ‘Article  87 refers that MS may continue to ensure the availability or affordability of the so-called “legacy” services that were in place on 20.12.2018. Should [the following] be considered as covered by this provision[:] (i) the services that are being provided under contracts entered into with the designated providers and still in execution and/or (ii) the services that, under the current law, fall within the scope of the universal service, even if the validity of those contracts has expired on 20.12.2018?’ Reply: ‘Article  87 provides that Member States may continue [to] ensure the availability or affordability of other services than adequate broadband internet access service and voice communications services that were in force on 20  December 2018 if the need for such services is established in light of

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national circumstances. (These services concern, for example, public payphones or directory enquiry services). As clarified by recital (235), this Article does not refer to the validity of designation contracts but to services that were included in the scope of Member States’ universal service obligations 20 December 2018 on the basis of Directive 2002/22/EC, if the need is demonstrated, provided those services or comparable services are not available under normal commercial circumstances.’ Article 88 Control of expenditure 1.

Member States shall ensure that, in providing facilities and services additional to those referred to in Article 84, providers of an adequate broadband internet access service and of voice communications services in accordance with Articles 84 to 87 establish terms and conditions in such a way that the end-user is not obliged to pay for facilities or services which are not necessary or not required for the service requested.

2.

Member States shall ensure that the providers of an adequate broadband internet access service and of voice communications services referred to in Article 84 that provide services pursuant to Article 85 offer the specific facilities and services set out in Part A of Annex VI as applicable, in order that consumers can monitor and control expenditure. Member States shall ensure that such providers put in place a system to avoid unwarranted disconnection of voice communications services or of an adequate broadband internet access service with regard to consumers as referred to in Article 85, including an appropriate mechanism to check continued interest in using the service. Member States may extend the scope of application of this paragraph to end-users that are microenterprises and small and medium-sized enterprises and not-forprofit organisations.

3.

Each Member State shall ensure that the competent authority is able to waive the requirements of paragraph 2 in all or part of its national territory if the competent authority is satisfied that the facility is widely available. See: Recitals 216; 217; 222; 236; 237. Correlation with Universal Service Directive EECC Article 88 correlates with Directive 2002/22/EC, Article 10. Definitions of micro, small and medium-sized enterprises Commission Recommendation 2003/361/EC, Article 2 and Annex; Case T-587/14 Crosfield Italia Srl v European Chemicals Agency (ECHA), EU:T:2016:475, paras 34–36; Case T-620/13  Marchi Industriale SpA  v European Chemicals Agency (ECHA), EU:T:2016:479, paras 30–32 (see annotations to Recital 68). Conclusion of a contract contingent on the conclusion of a contract for the supply of other services Articles  15 and 16 of the Framework Directive and Articles  10 and 17 of the Universal Service Directive ‘must be interpreted as not precluding national legislation, such as Article 57(1)(1) of the Polish Law on Telecommunications (ustawa – Prawo telekomunikacyjne) of 16 July 2004, in the version applicable to the facts in the main proceedings, which prohibits making the conclusion of a contract for the provision of services contingent on the conclusion, by the end‑user, of a contract for the provision of other services.



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However, Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business‑to‑consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No  2006/2004 of the European Parliament and of the Council (“Unfair Commercial Practices Directive”) must be interpreted as precluding national legislation which, with certain exceptions, and without taking account of the specific circumstances, imposes a general prohibition of combined offers made by a vendor to a consumer.’ Case C-522/08 Telekomunikacja Polska SA w Warszawie v Prezes Urzędu Komunikacji Elektronicznej, ECLI:EU:C:2010:135, Court’s ruling. Q&A on Article 88: ‘How can we ensure cost control and cost transparency for prepay customers? Would a list of individual connections specifying also the costs be sufficient as a means for prepaid-customers to control their expenditure, or is a settlement bill (itemised bill) required? At what point in time or how often does this information need to be given to the consumer with a view to the fact that user behaviour can fluctuate greatly and that there may be no use / no consumption for weeks or months. We would like to know the Commission’s view on how to ensure that users receive sufficient information regarding usage expenses especially with regard to the ETSI requirements on prepaid account credit correctness complaints (ETSI EG 202 057-1, No. 5.12) and recital 236 of the code that mentions the possibility for customers to control expenditure via pre-payment means. Are there best practice examples from other MS?’ Reply: ‘The provisions on control of expenditure in Article  88 are applicable on providers of universal service affordable adequate broadband and voice communications (pursuant to Article  85 on affordable universal service). As motivated in recital 236, affordability is also related to the information which users receive regarding usage expenses. Providers of affordable universal service are required to offer the specific facilities and services of part A of Annex VI to the customers benefiting from universal service. This is regardless [of] whether the service is on pre-paid terms or not. These facilities include itemised billing. Beyond universal service, Article  115 mandates that Member States are able to require providers to make available all or part of the additional facilities in Annex VI Part A (and Part B), subject to technical feasibility. This means that it is for the Member States [to determine] whether to require itemised billing for other customers than those benefiting from the universal service affordability obligation. If the list of individual connections would allow verification and control of the charges incurred and include explicit mention of identity of the supplier and of the duration of the services charged by premium numbers this would fulfil the requirements in Annex VI part A (a) for universal service customers. Article 115 and Annex VI do not rule on the frequency of providing this, but state that the aim is to allow end-users to “exercise a reasonable degree of control over their bills”. As long as this goal is ensured, for example, by coinciding with the billing periods, Member States can decide on the frequency or this can be left at the providers’ discretion. We do not have best practice examples from other Member States.’

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Article 89 Cost of universal service obligations 1.

Where national regulatory authorities consider that the provision of an adequate broadband internet access service as defined in accordance with Article  84(3) and of voice communications services as set out in Articles 84, 85 and 86 or the continuation of the existing universal service as set out in Article 87 may represent an unfair burden on providers of such services that request compensation, national regulatory authorities shall calculate the net costs of such provision. For that purpose, national regulatory authorities shall: (a)

calculate the net cost of the universal service obligations, taking into account any market benefit which accrues to a provider of an adequate broadband internet access service as defined in accordance with Article  84(3) and voice communications services as set out in Articles 84, 85 and 86 or the continuation of the existing universal service as set out in Article  87, in accordance with Annex VII; or

(b) make use of the net costs of providing universal service identified by a designation mechanism in accordance with Article 86(4). 2.

The accounts and other information serving as the basis for the calculation of the net cost of universal service obligations under point (a) of the second subparagraph of paragraph 1 shall be audited or verified by the national regulatory authority or a body independent of the relevant parties and approved by the national regulatory authority. The results of the cost calculation and the conclusions of the audit shall be publicly available. See: Recitals 224; 238-241. Correlation with Universal Service Directive EECC Article 89 correlates with Directive 2002/22/EC, Article 12. Determination of whether an ‘unfair burden’ exists (a)‘– [F]irst, by failing to take into consideration, in the calculation of the net cost of provision of the social component of universal service, the market benefits, including intangible benefits, accruing to the undertakings responsible, and – second, by making a general finding on the basis of the calculation of the net costs of the erstwhile sole provider of universal service that all undertakings now responsible for the provision of universal service are in fact subject to an unfair burden on account of that provision and by having done so without carrying out a specific assessment both of the net cost which the provision of universal service represents for each operator concerned and of all the characteristics particular to each operator, including the quality of its equipment or its economic and financial situation, the Kingdom of Belgium has failed to fulfil its obligations under Articles 12(1) and 13(1) of [the Universal Service Directive]’. Case C-222/08 European Commission v Kingdom of Belgium, EU:C:2010:583, para 1 of the Court’s ruling; (b)‘2. Article 12 of [the Universal Service Directive] does not preclude a national regulatory authority from determining generally and on the basis of the calculation of the net costs of the universal service provider which was previously the sole provider of that service that the provision of universal



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service may represent an ‘unfair burden’ for those undertakings designated as universal service providers. 3.

Article  13 of [the Universal Service Directive] precludes that authority from deciding in the same way and on the basis of the same calculation that those undertakings are effectively subject to an unfair burden because of that provision, without having undertaken a specific examination of the situation of each of them.’ Case C-389/08 Base NV and Others v Ministerraad, EU:C:2010:584, paras 2 and 3 of the Court’s ruling. Net cost of universal service obligations taking into account the rate of return on equity capital ‘1.

Articles 12 and 13 of [the Universal Service Directive] must be interpreted as not precluding the net cost of the universal service obligation including the ‘reasonable profit’ of the provider of that service, fixed at the rate of return on equity capital that would be required by an undertaking comparable to the universal service provider considering whether or not to provide the service of general economic interest for the whole duration of the period of entrustment, taking into account the level of risk.

2.

Articles 12 and 13 of [the Universal Service Directive] must be interpreted as having direct effect and they may be relied on directly before a national court by individuals to challenge a decision of a national regulatory authority.’ Case C-508/14 Český telekomunikační úřad v T-Mobile Czech Republic a.s. and Vodafone Czech Republic a.s., EU:C:2015:657, paras 1 and 2 of the Court’s ruling. Additional mandatory services and compensation mechanisms Case C-1/14 Base Company NV and Mobistar NV v Ministerraad, EU:C:2015:378, Court’s ruling (see annotations to Article  85) and Case C-327/15  TDC  A/S  v Teleklagenævnet and Erhvervs- og Vækstministeriet, EU:C:2016:974, para 3 of the Court’s ruling (see annotations to Article 92). Article 90 Financing of universal service obligations 1. Where, on the basis of the net cost calculation referred to in Article 89, national regulatory authorities find that a provider is subject to an unfair burden, Member States shall, upon request from the provider concerned, decide to do one or both of the following: (a)

introduce a mechanism to compensate that provider for the determined net costs under transparent conditions from public funds;

(b) share the net cost of universal service obligations between providers of electronic communications networks and services. 2.

Where the net cost is shared in accordance with point (b) of paragraph 1 of this Article, Member States shall establish a sharing mechanism administered by the national regulatory authority or a body independent from the beneficiaries under the supervision of the national regulatory authority. Only the net cost, as determined in accordance with Article 89, of the obligations laid down in Articles 84 to 87 may be financed.

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The sharing mechanism shall respect the principles of transparency, least market distortion, non-discrimination and proportionality, in accordance with the principles set out in Part B of Annex VII. Member States may choose not to require contributions from undertakings the national turnover of which is less than a set limit. Any charges related to the sharing of the cost of universal service obligations shall be unbundled and identified separately for each undertaking. Such charges shall not be imposed on, or collected from, undertakings that are not providing services in the territory of the Member State that has established the sharing mechanism. See: Recitals 229; 239; 240; 242; 243. Correlation with Universal Service Directive EECC Article 90 correlates with Directive 2002/22/EC, Article 13. Determination of whether an ‘unfair burden’ exists Case C-222/08 European Commission v Kingdom of Belgium, EU:C:2010:583, para  1 of the Court’s ruling and Case C-389/08, Base NV and Others v Ministerraad, EU:C:2010:584, paras 2 and 3 of the Court’s ruling (see annotations to Article 89). Applicability of social tariff obligations and financing mechanisms to mobile communication and internet subscription services Case C-1/14 Base Company NV and Mobistar NV v Ministerraad, EU:C:2015:378, Court’s ruling (see annotations to Article 85). Net cost of universal service obligations taking into account the rate of return on equity capital Case C-508/14 Český telekomunikační úřad v T-Mobile Czech Republic a.s. and Vodafone Czech Republic a.s., EU:C:2015:657, paras 1 and 2 of the Court’s ruling (see annotations to Article 89). Q&A on Article 90: ‘Would a provision stating that “[t]he recovery of net costs may not be requested by the universal service operator with more than 70% share in the total revenue earned on the market of these services” be compatible with the EECC?’ Reply: ‘If NRAs consider that the provision of universal service may be an unfair burden on provider(s) that request universal services may represent an unfair burden to a provider, and the NRA may well conclude that there is no unfair compensation, NRAs calculate the net costs (Art 89). It is for the NRAs to assess whether provision of the burden to an operator with more than 70% share in the total revenue earned on the market of these services. However, it would not be possible to exclude the assessment of the existence of the unfair burden by the independent NRA by an absolute presumption in national law. The unfair burden assessment is to take into account factors beyond the market share (see also recital 238 and Annex VII on net cost calculation). Moreover, Article 5(1)(f) EECC provides that the competence of assessing the unfair burden and the net cost of the provision of the US is a task to be carried out exclusively by NRAs. Recital 13 of the Better Regulation Directive and 37 of the EECC clarify however that “a national legislative body [is] unsuited to act as a national regulatory authority under the regulatory framework”.’ Further Q&A on Article 90: ‘Can a Member State exclude a category or group of providers, such as for instance providers of number independent interpersonal communications services, from sharing the net cost of the provision of the universal service, or limit their contribution?’



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Reply: ‘According to Article  90  EECC  Member States can decide to “share the net cost of universal service obligations between providers of electronic communications networks and services”. Art 90(2) gives conditions for the sharing mechanism. The mechanism shall respect the principles of transparency, least market distortion, non-discrimination and proportionality, in accordance with the principles set out in Part B of Annex VII. Part B of Annex VII includes the principle that sharing mechanism based on a fund shall use a transparent and neutral means for collecting contributions. Article 90(2) also rules that Member States may choose not to require contributions from undertakings the national turnover of which is less than a set limit. Recital 243 confirms that the method of allocation amongst providers is to be based on objective and non-discriminatory criteria and in accordance with the principle of proportionality. Linked to the possibility in Article  90(2) of not requiring contributions from undertakings with turnover below a set limit the recital includes that the criteria does not prevent Member States from exempting new entrants, which have not achieved any significant market presence. Should a Member State choose to finance the universal service obligations with funding from the sector, Article  90(1)(b) requires sharing the net cost between providers of electronic communications networks and services. Groups of providers are a priori not excluded from the sharing. Any exclusion of a group of providers, if not done based on a set turnover limit, can only be done if based on principles of transparency, least market distortion, non-discrimination and proportionality.’ Article 91 Transparency 1.

Where the net cost of universal service obligations is to be calculated in accordance with Article 89, national regulatory authorities shall ensure that the principles for net cost calculation, including the details of methodology to be used are publicly available. Where a mechanism for sharing the net cost of universal service obligations as referred to in Article  90(2) is established, national regulatory authorities shall ensure that the principles for cost sharing and compensation of the net cost are publicly available.

2.

Subject to Union and national rules on commercial confidentiality, national regulatory authorities shall publish an annual report providing the details of calculated cost of universal service obligations, identifying the contributions made by all undertakings involved, including any market benefits that may have accrued to the undertakings pursuant to universal service obligations laid down in Articles 84 to 87. See: Recitals 240; 244. Correlation with Universal Service Directive EECC Article 91 correlates with Directive 2002/22/EC, Article 14. Commercial confidentiality See annotations to Article 20.

Article 92 Additional mandatory services Member States may decide to make services additional to those included in the universal service obligations referred to in Articles 84 to 87, publicly available on their territories.

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In such cases, no compensation mechanism involving specific undertakings shall be imposed. See: Recital 245. Correlation with Universal Service Directive EECC Article 92 correlates with Directive 2002/22/EC, Article 32. Additional mandatory services and compensation mechanisms (a) Case C-1/14 Base Company NV and Mobistar NV  v Ministerraad, EU:C:2015:378, Court’s ruling (see annotations to Article 85); (b)  ‘1. The provisions of [the Universal Service Directive] and, in particular, Article 32 thereof, must be interpreted as precluding national legislation which provides for a compensation mechanism for the provision of additional mandatory services by virtue of which an undertaking is not entitled to compensation from the Member State for the net cost of the provision of an additional mandatory service where the profits made by that undertaking on other services related to the universal service obligation are greater than the loss arising from the provision of the additional mandatory service. 2.

[The Universal Service Directive] must be interpreted as precluding national legislation under which an undertaking designated as the provider of additional mandatory services is entitled to compensation from the Member State for the net cost of providing those services only if that cost constitutes an unfair burden on that undertaking.

3.

[The Universal Service Directive] must be interpreted as precluding national legislation under which the net cost borne by an undertaking designated to fulfil a universal service obligation is the result of the difference between all the revenue and all the costs connected with the provision of the service in question, including the revenue and the costs which the undertaking would also have registered had it not been a universal service operator.

4.

In circumstances such as those at issue in the main proceedings, the fact that the undertaking entrusted with an additional mandatory service, within the meaning of Article 32 of [the Universal Service Directive], provides that service not only on the territory of Denmark but also on that of Greenland does not make any difference to the interpretation of the provisions of that directive.

5.

Article  32 of [the Universal Service Directive] must be interpreted as having direct effect, inasmuch as it prohibits the Member States from making the undertaking responsible for providing an additional mandatory service bear all or part of the costs connected with the provision of that service.

6.

The principles of good faith, equivalence and effectiveness must be interpreted as not precluding legislation, such as that at issue in the main proceedings, which makes the submission of applications for compensation for the loss in the previous financial year by the operator responsible for a universal service subject to a time limit of three months running from the expiry of the period within which that operator is required to send an annual report to the competent national authority, provided that that time limit is no less favourable than that provided for in national law for an analogous application and that it is not such as to render impossible in practice or



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excessively difficult the exercise of rights conferred on undertakings by [the Universal Service Directive], which is for the referring court to ascertain.’ Case C-327/15 TDC A/S v Teleklagenævnet and Erhvervs- og Vækstministeriet, EU:C:2016:974, paras 1–6 of the Court’s ruling. TITLE II NUMBERING RESOURCES Article 93 Numbering resources 1.

Member States shall ensure that national regulatory or other competent authorities control the granting of rights of use for all national numbering resources and the management of the national numbering plans and that they provide adequate numbering resources for the provision of publicly available electronic communications services. Member States shall ensure that objective, transparent and non-discriminatory procedures for granting rights of use for national numbering resources are established.

2.

National regulatory or other competent authorities may also grant rights of use for numbering resources from the national numbering plans for the provision of specific services to undertakings other than providers of electronic communications networks or services, provided that adequate numbering resources are made available to satisfy current and foreseeable future demand. Those undertakings shall demonstrate their ability to manage the numbering resources and to comply with any relevant requirements set out pursuant to Article 94. National regulatory or other competent authorities may suspend the further granting of rights of use for numbering resources to such undertakings if it is demonstrated that there is a risk of exhaustion of numbering resources. By 21 June 2020, in order to contribute to the consistent application of this paragraph, BEREC shall adopt, after consulting stakeholders and in close cooperation with the Commission, guidelines on common criteria for the assessment of the ability to manage numbering resources and of the risk of exhaustion of numbering resources.

3.

National regulatory or other competent authorities shall ensure that national numbering plans and procedures are applied in a manner that gives equal treatment to all providers of publicly available electronic communications services and the undertakings eligible in accordance with paragraph 2. In particular, Member States shall ensure that an undertaking to which the right of use for numbering resources has been granted does not discriminate against other providers of electronic communications services as regards the numbering resources used to give access to their services.

4.

Each Member State shall ensure that national regulatory or other competent authorities make available a range of non-geographic numbers which may be used for the provision of electronic communications services other than interpersonal communications services, throughout the territory of the Union, without prejudice to Regulation (EU) No 531/2012 and Article 97(2) of this Directive. Where rights of use for numbering resources have been granted in accordance with paragraph 2 of this Article to undertakings other than providers of electronic communications networks or services, this paragraph shall apply to the specific services for the provision of which the rights of use have been granted.

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National regulatory or other competent authorities shall ensure that the conditions listed in Part E of Annex I that may be attached to the rights of use for numbering resources used for the provision of services outside the Member State of the country code, and their enforcement, are as stringent as the conditions and enforcement applicable to services provided within the Member State of the country code, in accordance with this Directive. National regulatory or other competent authorities shall also ensure in accordance with Article 94(6) that providers using numbering resources of their country code in other Member States comply with consumer protection and other national rules related to the use of numbering resources applicable in those Member States where the numbering resources are used. This obligation is without prejudice to the enforcement powers of the competent authorities of those Member States. BEREC shall assist national regulatory or other competent authorities, at their request, in coordinating their activities to ensure the efficient management of numbering resources with a right of extraterritorial use within the Union. In order to facilitate the monitoring by the national regulatory or other competent authorities of compliance with the requirements of this paragraph, BEREC shall establish a database on the numbering resources with a right of extraterritorial use within the Union. For this purpose, national regulatory or other competent authorities shall transmit the relevant information to BEREC. Where numbering resources with a right of extraterritorial use within the Union are not granted by the national regulatory authority, the competent authority responsible for their granting or management shall consult the national regulatory authority. 5.

Member States shall ensure that the ‘00’ code is the standard international access code. Special arrangements for the use of number-based interpersonal communications services between locations adjacent to one another across borders between Member States may be established or continued. Member States may agree to share a common numbering plan for all or specific categories of numbers. End-users affected by such arrangements or agreements shall be fully informed.

6.

Without prejudice to Article  106, Member States shall promote over-the-air provisioning, where technically feasible, to facilitate switching of providers of electronic communications networks or services by end-users, in particular providers and end-users of machine-to-machine services.

7.

Member States shall ensure that the national numbering plans, and all subsequent additions or amendments thereto, are published, subject only to limitations imposed on the grounds of national security.

8.

Member States shall support the harmonisation of specific numbers or numbering ranges within the Union where it promotes both the functioning of the internal market and the development of pan-European services. Where necessary to address unmet cross-border or pan-European demand for numbering resources, the Commission shall, taking utmost account of the opinion of BEREC, adopt implementing acts harmonising specific numbers or numbering ranges. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 118(4).



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See: Recitals 100; 246–251. Correlation with Framework Directive EECC  Article  93(1), (3), (7) and (8) correlates with Directive 2002/21/EC, Article 10(1)–(4) (Article 10(1)–(4) is incorrectly referenced in Annex XIII). Correlation with Authorisation Directive EECC Article 93(4) and (5) correlates with Directive 2002/20/EC, Article 5(4) and (5). BEREC Guidance BEREC guidelines on common criteria for the assessment of the ability to manage numbering resources by undertakings other than providers of electronic communications networks or services and of the risk of exhaustion of numbering resources if numbers are assigned to such undertakings, BoR (20) 50, 6 March 2020: ‘The demand for numbering resources has been dramatically increasing, mainly through the spread of Machine-to-Machine (M2M)[66] services and the development of connected devices and products equipping wearables, cars, homes, buildings, etc. The intensity of such growth is so significant that it could lead, in the medium term, to the scarcity of some numbering resources. A key feature of this high demand for numbers for the M2M service providers is that a significant proportion of connected devices and products should be able to freely circulate, and hence be able to connect locally to public electronic communications networks with suitable identifiers, such as numbering resources. The growth and innovative potential of M2M services relies on the setting of competitive market entry conditions, associated with the granting of numbering resources at consistent conditions throughout the Union.’ (Introduction, third paragraph). ‘[…] The provisions of Article  93(2) also imply that some National Regulatory Authorities or other Competent Authorities (NRAs/CAs) may decide not to assign any numbering resources to non-ECN/ECS entities, whereas others may decide to assign numbering resources to non-ECN/ECS entities but limit the assignment to specific types of numbering resources. Consequently, BEREC considers that each MS should decide which types of numbering resources, if any, may be assigned to the non-ECN/ECS entities on the basis of their needs. Where a MS opts for the assignment of numbering resources to non-ECN/ECS entities, these latter shall demonstrate their ability to manage the numbering resources and to comply with any relevant requirements set out pursuant to Article  94. These conditions are, in fact, pre-conditions that non-ECN/ECS entities have to meet in order to be eligible to receive the right to use numbering resources. This will allow non-ECN/ECS entities (e.g. providers of connected homes services, e-Health services, truck fleets or connected cars services, i.e. with potentially a huge customer base) to be assigned numbering resources directly by the NRAs/CAs independently of any ECN/ECS providers and thus support the general objective of contributing to the development of the internal market as set out in Article 3(2.c). MS should decide what type of numbering resources may be assigned. NRAs/CAs have to evaluate if it is necessary to grant individual rights of use for numbering resources, in accordance with Article 94(1), and may also suspend further granting of rights of use for numbering resources to such ‘M2M might include also the Internet of Things (IoT)’ – fn 1 in the Guidelines.

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undertakings, if it is demonstrated that there is a risk of exhaustion of numbering resources, in accordance with Article 93(2). As mentioned, NRAs/CAs shall ensure that national numbering plans and procedures are applied in a manner that ensures equal treatment to all providers of publicly available electronic communications services and non-ECN/ECS entities, when this latter is applicable. In particular, NRAs/CAs shall ensure that an undertaking to which the right of use for numbering resources has been granted does not discriminate against other providers of ECS as regards the numbering resources used to give access to their services, in accordance with Article 93(3). […]’ (section 1.1). ‘These guidelines only concern the assignment to non-ECN/ECS entities. This implies that these entities do not provide any publicly available ECN/ECS but use the assigned numbering resources for the provision of specific services, in accordance with the EECC. Therefore, these guidelines will not apply to the assignment of numbering resources to ECN/ECS providers. These guidelines are only applicable to those MS that opt to assign numbering resources to non-ECN/ ECS entities’ (section 1.2). ‘[…] The minimum criteria which should be met regardless of the respective numbering resources when a MS opts for the assignment of numbering resources to nonECN/ECS entities are set out [in section 3]. Additional criteria for the assessment of the ability to manage specific numbering resources by non-ECN/ECS entities might be imposed by MS[.] The criteria set out in section A refer to the information to be provided by the applicant in order to submit an eligible application. Further criteria to be assessed during the evaluation of the application for the assignment of the numbering resources are set out in section B. Moreover, section C sets out a criterion to be evaluated after the assignment’ (section 3). Section 4 of the Guidelines sets out the criteria for the assessment of the risk of exhaustion of numbering resources for non-ECN/ECS entities. BEREC will review the Guidelines by no later than 2023 (section 5). Database on the numbering resources with a right of extraterritorial use within the EU hosted by BEREC See berec.europa.eu/eng/about_berec/tasks/numbering_db_for_extra_territorial _use/. Q&A  on Articles  93(2) and 93(4): ‘Article  93(2) allows Member States to assign numbering to undertakings other than providers of electronic communications networks and services. Article 93(4) concerns the allocation of numbers for the purpose of providing electronic communications services other than interpersonal communications services throughout the EU. In the light of the above articles: a)

Does the provision of Article  93(4) also apply to entities referred to in Article 93(2)?

b)

Should separate numbering be established for the purposes of Article 93(2), and if so, should ECS / ECN suppliers also be entitled to such numbering (and numbering for the purposes of Article 93(4))?

c)

Can separate procedures and conditions be established for the purposes of granting rights of use for numbering resources depending on whether it is ECS / ECN or non-ECS / ECN?’

Reply:



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‘a)  Article 93(4) lays an obligation on the Member States, i.e. a numbering range referred thereto has to be made available. Article 93(2) gives Member States a right, i.e. it is Member State’s right to allow that numbers are assigned to undertakings other than providers of electronic communications networks and services (non-ECN/ECS undertakings). Consequently, Member States should also decide which numbers could be assigned to those undertakings. Article  93(4) foresees that numbers for the provision of electronic communications services other than interpersonal communications services throughout the EU referred therein may be granted to non-ECN/ECS undertakings in accordance with para 2 of that Article. b)

Pursuant to Article 93(2) numbering resources for specific services may be granted to undertakings other than providers of electronic communications networks and services (non-ECN/ECS undertakings). This paragraph does not require establishing a separate numbering range for that objective, but rather requires that the right of non-ECN/ECS undertakings should relate to a specific service and consequently numbering range(s) dedicated to specific services. It is for Member States to determine services for which numbers could be granted to non-ECN/ECS undertakings. Article 93(4) requires that a specific numbering range is allocated for the provision of electronic communications services other than interpersonal communications services, with a right of extraterritorial use. It is for Member States to decide if numbers from that numbering range could be granted to non-ECN/ECS undertakings.

c)

The procedure for granting of rights of use for numbering resources is described in Article  94 of the EECC. Paragraph  7 of this article states that the article shall apply where national regulatory or other competent authorities grant rights of use for numbering resources to non-ECN/ECS undertakings in accordance with Article 93(2). At the same time, pursuant to Article  93(2) non-ECN/ECS undertakings shall demonstrate their ability to manage the numbering resources and comply with any relevant requirements set out pursuant to Article 94. This condition does not apply to ECN/ECS providers, which are subject to general authorisation. The paragraph further states that granting of numbering resources to nonECN/ECS undertakings may be suspended in case of risk of exhaustion of numbering resources. Consequently, the procedure for granting rights of use for numbering resources as set in Article 94 should apply to both ECN/ ECS providers and non-ECN/ECS undertakings, but in the case of nonECN/ECS undertakings, also their ability to manage numbering resources and risk of exhaustion of numbering resources should be assessed. In March 2020 BEREC adopted guidelines on common criteria for this assessment.’ Q&A  on Article  93(4): ‘Article  93(4) concerns the provision of numbering resources for the purposes of using throughout the territory of the Union. In the light of this article: a)

Can extraterritorial numbering be used for services provided in both mobile and fixed networks?

[b]) Should extraterritorial numbering based on Article  93(4) be subject to obligations such as subscriber numbering, e.g. to be subject to number portability?’ Reply:

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‘a) Article  93(4) provides that the numbers referred thereto shall be nongeographic. There is no indication as to the type of network over which the services may be provided and consequently no type of network is excluded. b)

Pursuant to Article  93(4) conditions listed in Part E  of Annex I  may be attached to the right of use for numbering resources. At the same time, the conditions attached to the rights of use of numbers used for the provision of service[s] extraterritorially shall be “as stringent as the conditions and enforcement applicable to service[s] provided within the Member State of the country code”. In other words, conditions listed in points 1 to 9, Part E of Annex I related to a numbering range used for the provision of a given service imposed in a given Member State should be the same, regardless of whether the numbers are used within the Member State of the country code or outside of it. In addition, National Regulatory Authorities or other competent authorities shall ensure that when numbers are used extraterritorially, providers using them comply with consumer protection and other national rules related to the use of numbering resources applicable in the Member State where the numbers are used. Pursuant to Article 94(6), specific conditions in order to ensure this compliance should be attached to the rights of use of the numbering ranges with the right of extraterritorial use. Accordingly, National Regulatory Authorities or other competent authorities shall attach the condition provided in point 10, Part E of Annex I to the rights of use of numbers with the right of extraterritorial use.’ Q&A on Article 93(6): ‘Art. 93(6) EECC provides that “Member States shall promote over-the-air provisioning, where technically feasible, to facilitate switching of providers of electronic communications networks or services by end-users, in particular providers and end-users of machine-to-machine services”. What is meant by “promote”? Recital (249) does not really elaborate on the Commission’s expectations for promoting OTA, save that MS “should strive to ensure technology neutrality in promoting over-the-air provisioning”. What is the Commission’s expectations of best practice promotion of OTA? Are there any e.g. consultants’ reports or other material in the public domain that you could point me to.’ Reply: ‘The obligation in Article  93(6) (“promote”) leaves a wide margin of flexibility to Member States when transposing and implementing Art. 93(6). As such, this provision does not require transposition in their national legislation or via secondary technical provisions. However, Member States are required to take measures to promote “over-the-air provisioning”. This may imply the adoption of measures encouraging such use, either through binding measure or through soft law (e.g. publishing best practice, policy orientations) with the stated aim to ‘promote’ OTA. At the same time, maintaining or introducing national legislation that impedes the deployment of OTA would be contrary to Article  93(6) of the Code. We are not aware of any consultants’ reports or other material in the public domain on that issue.’ Further Q&A on Article 93(6): ‘[…] The Commission on an earlier occasion has pronounced regarding the interpretation of Article 93(6) that ‘the obligation in Article  93(6) (“promote”) leaves a wide margin of flexibility to Member States when transposing and implementing Art. 93(6). As such, this provision does not require transposition in their national legislation or via secondary technical provisions. However, Member States are required to take measures to



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promote “over-the-air provisioning”. This may imply the adoption of measures encouraging such use, either through binding measure or through soft law (e.g. publishing best practice, policy orientations) with the stated aim to “promote” OTA. At the same time, maintaining or introducing national legislation that impedes the deployment of OTA would be contrary to Article 93(6) of the Code. To promote over-the-air (OTA) provisioning, we are considering introducing binding measures for providers of machine-to-machine (M2M) services where they will be obliged to inform end-users whether they offer OTA switching of providers of M2M services before formation of contract. The intention is that end-users should be able to make decisions based on an informed choice. Does the intention of EECC Article 101(1) prevent Member States from making national rules imposing binding measures for providers of M2M services to inform end-users whether they offer OTA switching of providers of M2Mservices as a mean to implement EECC Article 93(6)?’ Reply: ‘[…] Article  93(6) mandates Member States to promote over-the-air provisioning to facilitate switching of providers of electronic communications network or services, in particular providers and end-users of M2M services, without prejudice to Article 106. It would therefore be helpful that the end-users and providers of machine-to-machine (M2M) services are informed whether OTA provisioning of numbers is available. The electronic communications services do not include machine-to-machine services (applications) as such, but services consisting wholly or mainly in the conveyance of signals, these include transmission services used for the provision of M2M services. Article  101(1) prevents Member States from maintaining or introducing in their national law end-user protection measures diverging from Articles 102 to 115. If the aim is to introduce binding measures on informing end-users on the transmission services used for the provision of M2M services it should be noted that these are excluded from the scope of Article 102 (Information requirements for contracts) or 103 (Transparency, comparison of offers and publication of information). Therefore, Member States may not introduce in their national law provisions, which would expand the scope of the said Articles to this category of ECS.’ Article 94 Procedure for granting of rights of use for numbering resources 1.

Where it is necessary to grant individual rights of use for numbering resources, national regulatory or other competent authorities shall grant such rights, upon request, to any undertaking for the provision of electronic communications networks or services covered by a general authorisation referred to in Article 12, subject to Article 13 and to point (c) of Article 21(1) and to any other rules ensuring the efficient use of those numbering resources in accordance with this Directive.

2.

The rights of use for numbering resources shall be granted through open, objective, transparent, non-discriminatory and proportionate procedures. When granting rights of use for numbering resources, national regulatory or other competent authorities shall specify whether those rights can be transferred by the holder of the rights, and under which conditions. Where national regulatory or other competent authorities grant rights of use for numbering resources for a limited period, the duration of that period shall be appropriate for the service concerned with a view to the objective pursued,

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taking due account of the need to allow for an appropriate period for investment amortisation. 3.

National regulatory or other competent authorities shall take decisions on the granting of rights of use for numbering resources as soon as possible after receipt of the complete application and within three weeks in the case of numbering resources that have been allocated for specific purposes within the national numbering plan. Such decisions shall be made public.

4.

Where national regulatory or other competent authorities have determined, after consulting interested parties in accordance with Article 23, that rights of use for numbering resources of exceptional economic value are to be granted through competitive or comparative selection procedures, national regulatory or other competent authorities may extend the three-week period referred to in paragraph 3 of this Article by up to a further three weeks.

5.

National regulatory or other competent authorities shall not limit the number of individual rights of use to be granted, except where this is necessary to ensure the efficient use of numbering resources.

6.

Where the rights of use for numbering resources include their extraterritorial use within the Union in accordance with Article 93(4), national regulatory or other competent authorities shall attach to those rights of use specific conditions in order to ensure compliance with all the relevant national consumer protection rules and national law related to the use of numbering resources applicable in the Member States where the numbering resources are used. Upon request from a national regulatory or other competent authority of a Member State where the numbering resources are used, demonstrating a breach of relevant consumer protection rules or national laws related to the use of numbering resources of that Member State, the national regulatory or other competent authorities of the Member State where the rights of use for the numbering resources have been granted shall enforce the conditions attached under the first subparagraph of this paragraph in accordance with Article 30, including, in serious cases, by withdrawing the rights of extraterritorial use for the numbering resources granted to the undertaking concerned. BEREC shall facilitate and coordinate the exchange of information between the competent authorities of the different Member States involved and ensure the appropriate coordination of work among them.

7.

This Article shall also apply where national regulatory or other competent authorities grant rights of use for numbering resources to undertakings other than providers of electronic communications networks or services in accordance with Article 93(2). See: Recitals 100; 246–248; 251.

Article 95 Fees for rights of use for numbering resources Member States may allow national regulatory or other competent authorities to impose fees for the rights of use for numbering resources which reflect the need to ensure the optimal use of those resources. Member States shall ensure that such fees are objectively justified, transparent, non-discriminatory and proportionate in relation to their intended purpose and shall take into account the objectives set out in Article 3.



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See: Recitals 99; 10. Correlation with Authorisation Directive EECC Article 95 correlates with Directive 2002/20/EC, Article 13 (the references in Annex XIII to EECC Article 95(1) to 95(8) and their correlation with provisions in the Framework Directive are incorrect). Charge for the allocation of new telephone numbers ‘Article  11(2) of Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services [correlates with Article 13 of the Authorisation Directive] must be interpreted as precluding national legislation such as that at issue in the main proceedings which provides that a new operator on the telecommunications market is required to pay a charge in respect of the allocation of telephone numbers taking account of their economic value, even though a telecommunications undertaking having a dominant position on the same market took over free of charge the very large stock of numbers which were available to its predecessor, the former monopoly, and national law precludes retrospective payment of such a charge in respect of that stock.’ Joined Cases C-327/03 Bundesrepublik Deutschland v ISIS Multimedia Net und Co. KG, represented by ISIS Multimedia Net Verwaltungs GmbH and C-328/03 Bundesrepublik Deutschland v Firma O2 (Germany) GmbH und Co. OHG, EU:C:2005:622, Court ruling. Article 96 Missing children and child helpline hotlines 1.

Member States shall ensure that end-users have access free of charge to a service operating a hotline to report cases of missing children. The hotline shall be available on the number ‘116000’.

2.

Member States shall ensure that end-users with disabilities are able to access services provided under the number ‘116000’ to the greatest extent possible. Measures taken to facilitate access by end-users with disabilities to such services whilst travelling in other Member States shall be based on compliance with relevant standards or specifications laid down in accordance with Article 39.

3.

Member States shall take appropriate measures to ensure that the authority or undertaking to which the number ‘116000’ has been assigned allocates the necessary resources to operate the hotline.

4.

Member States and the Commission shall ensure that end-users are adequately informed of the existence and use of services provided under the numbers ‘116000’ and, where appropriate, ‘116111’. See: Recitals 252; 253. Correlation with Universal Service Directive EECC Article 96 correlates with Directive 2002/22/EC, Article 27a. Commission Decision 2007/116/EC  Commission Decision of 15  February 2007 on reserving the national numbering range beginning with 116 for harmonised numbers for harmonised services of social value (notified under document number C(2007) 249) (Text with EEA relevance) (OJ L 49, 17.2.2007, p. 30) (see p. 1098).

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Q&A  on Article  96: ‘[…] “Harmonised service of social value” is a service meeting a common description to be accessed by individuals via a freephone number, which is potentially of value to visitors from other countries and which answers a specific social need, in particular which contributes to the well-being or safety of citizens, particular groups of citizens or helps citizens in difficulty. Given the definition of harmonized service stated in Decision 2007/116/EC, should we keep understanding that all 116 numbers are free to the caller or that is now restricted to the number 116000? Note: According to Article  96, the number 116111 is not referred as free to the caller (national level) along with the other numbers included in Decision 2007/116/EC.’ Reply: ‘Decision 2007/116/EC remains in force after the EECC becomes applicable in the Member States, i.e. after 21  December 2020. Therefore, the definition of harmonised service of social value provided therein remains valid, and numbers specified in the annex to the decision shall be provided as freephone numbers. Article 96 EECC refers specifically to two numbers from the “116” range, i.e. missing children hotline (116000) and child helpline hotline (116111) and further details obligations of the Member States in reference to services provided with the use of the said numbers. As regards [the] 116111 number, Article  96 specifies that the Member States and the Commission shall ensure that end-users are adequately informed of the existence and use of services provided under this number, where appropriate.’ Article 97 Access to numbers and services 1.

Member States shall ensure that, where economically feasible, except where a called end-user has chosen for commercial reasons to limit access by calling parties located in specific geographical areas, national regulatory or other competent authorities take all necessary steps to ensure that end-users are able to: (a) access and use services using non-geographic numbers within the Union; and (b) access all numbers provided in the Union, regardless of the technology and devices used by the operator, including those in the national numbering plans of Member States and Universal International Freephone Numbers (UIFN).

2.

Member States shall ensure that national regulatory or other competent authorities are able to require providers of public electronic communications networks or publicly available electronic communications services to block, on a case-by-case basis, access to numbers or services where this is justified by reasons of fraud or misuse and to require that in such cases providers of electronic communications services withhold relevant interconnection or other service revenues. See: Recitals 248; 254. Correlation with Universal Service Directive EECC Article 97 correlates with Directive 2002/22/EC, Article 28. Obligation to implement procedure on draft measures before imposing obligations to ensure access to non-geographic numbers in the resolution of a dispute



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Case C-3/14 Prezes Urzędu Komunikacji Elektronicznej and Telefonia Dialog sp. z o.o. v T-Mobile Polska SA, EU:C:2015:232, para 1 of the Court’s ruling (see annotations to Article 32). Price controls on undertaking providing telephone call transit services without SMP with respect to higher tariffs being charged for calls to non-geographic numbers ‘1. EU law must be interpreted as allowing a relevant national authority to impose a tariff obligation under Article  28 of [the Universal Service Directive], to remove an obstacle to calling non-geographic numbers within the European Union which is not technical in nature, but which results from the tariff’s applied, without a market analysis having been carried out showing that the undertaking concerned has significant market power, if such an obligation constitutes a necessary and proportionate step to ensure that end-users are able to access services using non-geographic numbers within the European Union. It is for the national court to determine whether that condition is satisfied and whether the tariff obligations objective, transparent, proportionate, non-discriminatory, based on the nature of the problem identified and justified in light of the objectives laid down in Article 8 of [the Framework Directive], and whether the procedures laid down in Articles 6, 7 and 7a of [the Framework Directive] have been followed. 2.

EU law must be interpreted as meaning that a Member State may provide that a tariff obligation under Article 28 of [the Universal Service Directive …], be imposed by a national authority other than the national regulatory authority usually responsible for applying the European Union’s new regulatory framework for electronic communications networks and services, provided that that authority satisfies the conditions of competence, independence, impartiality and transparency required by [the Framework Directive], and that the decisions which it takes can form the subject of an effective appeal to a body independent of the interested parties, this being a matter for the referring court to determine.’

Case C-85/14 KPN BV v Autoriteit Consument en Markt (ACM), EU:C:2015:610, paras 1 and 2 of the Court’s ruling. Ensuring all end-users are able to access non-geographic numbers ‘1. Article  28 of [the Universal Service Directive] must be interpreted as meaning that a Member State may provide that an operator of a public electronic communications network must ensure that all end-users are able to access non-geographic numbers on its network in that State and not only those of other Member States. 2.

Articles 5(1) and 8(3) of [the Access Directive], read in conjunction with Article  28 of [the Universal Service Directive], must be interpreted as allowing a national regulatory authority, in resolving a dispute between two operators, to impose on one of them the obligation to ensure that endusers are able to access services using non-geographic numbers provided on the other’s network and to set, on the basis of Article 13 of [the Access Directive], pricing procedures for that access between those operators such as those at issue in the main proceedings, provided that those obligations are objective, transparent, proportionate, non-discriminatory, based on the nature of the problem identified and justified in the light of the objectives

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laid down in Article 8 of [the Framework Directive], and the procedures provided for in Articles 6 and 7 of that directive have, where applicable, been observed, which it is for the national court to verify.’ Case C-397/14 Polkomtel sp. z o.o. v Prezes Urzędu Komunikacji Elektronicznej, EU:C:2016:256, paras 1 and 2 of the Court’s ruling. BEREC Guidance Article  28(2) Universal Service Directive: a harmonised BEREC cooperation process – BEREC Guidance paper, BoR (13) 37, 7 March 2013: ‘3.

This Guidance paper highlights the background to fraud or misuse and its potential impact on end-users through falling foul of instances of fraud or misuse, or for example through a potential lack of confidence in the integrity of numbers. Fraud or misuse could impact on innovation, development and take up of services at a retail level such as the roll out of innovative services such as soft switches for businesses and residential service. It could also result in a lack of confidence in smart phone applications which will therefore have an impact on users take up of innovative smart phone applications.

4.

Section 2 introduces the objective of Article  28(2)  USD, the impacts on end-users and the incentives of stakeholders. As a background to the development of this process this section also outlines previous work undertaken by BEREC with Article 28(2) USD.

5.

Section 3 discusses BEREC’s considerations around key practical issues relating to the implementation of Article 28(2) USD.

6.

Section 4 provides an analysis of the responses to an earlier questionnaire issued to a cross section of operators by a number of operators in Member States and other countries and shows that there are a variety of different views amongst operators as to the scale and scope of fraud or misuse. Examples of different views were found between operators with different business propositions (e.g. fixed versus mobile retail services or retail services versus wholesale transit provision).

7.

This Guidance paper outlines a BEREC process for cross border regulatory cooperation in the intervention by the regulators or other relevant national authorities [67] in cases of fraud or misuse. Explanations as to how the process will work in practice are given in section 5. It should be noted that the BEREC process recognises that the decision as to whether to intervene is a matter for the relevant authority in the country concerned. Nonetheless even if intervention at a national level is not undertaken, there remains an expectation of cooperation in respect of information sharing between NRAs when support is requested.

8.

In section 6 the problems associated with cross border cooperation in this area as well as the challenges for regulators and operators when supporting the relevant national and cross border processes are addressed.

9.

It is likely that one of the most effective long term approaches to resolution of the problem of fraud or misuse will be greater cooperation between

‘This process is intended for use by NRAs, facilitating cross-border cooperation between NRAs and the “relevant authorities” designated for the purposes of Article 28(2) under the relevant national legislation transposing EU law’ – fn 3 in the Guidance paper.

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regulators and operators, to better understand the always changing fraud mechanisms and to develop ex-ante and ex-post measures which can be taken to combat fraud or misuse. These measures should not be considered to be a substitute for the normal measures operators and users have to take in order to offer and use electronic communication services in a safe way. 10. The ability to withhold interconnection and or service fees is a powerful tool which could ideally be implemented in contracts between operators. It is recognised that there may be difficulties associated with putting the necessary contractual terms in place, particularly where the contracts may include operators that operate outside Member States and outside the jurisdiction/scope of application of the relevant EU  Directives. It is envisaged that commercial pressures can however resolve these issues with time and in the intervening period the application of Article 28(2) USD and the associated national legislation can be undertaken. 11. Finally, it is recognised that awareness of the risks associated with the use of telecommunications and the measures that end users can put in place to reduce their exposure to these risks should be improved. This is seen largely as a matter for improved awareness raising by operators and other bodies such as NRAs.’ Executive Summary. TITLE III END-USER RIGHTS Article 98 Exemption of certain microenterprises With the exception of Articles 99 and 100, this Title shall not apply to microenterprises providing number-independent interpersonal communications services unless they also provide other electronic communications services. Member States shall ensure that end-users are informed of an exemption under the first paragraph before concluding a contract with a microenterprise benefitting from such an exemption. See: Recital 255. Definition of ‘microenterprise’ Commission Recommendation 2003/361/EC, Article 2 and Annex; Case T-587/14 Crosfield Italia Srl v European Chemicals Agency (ECHA), EU:T:2016:475, paras 34–36; Case T-620/13  Marchi Industriale SpA  v European Chemicals Agency (ECHA), EU:T:2016:479, paras 30–32 (see annotations to Recital 68). Q&A on Article 98: ‘Should the articles of the Directive which apply to micro and small enterprises apply to micro and small enterprises as defined in the 2003 Recommendation, or are the Member States free to determine the type of undertaking to which these Articles apply?’ Reply: ‘In accordance with the principle of proportionality, a number of provisions on end-users rights (Title III of the European Electronic Communications Code, EECC) should not apply to microenterprises, which provide only numberindependent interpersonal communications services (Article  98). On the other hand, the rationale of the Code is to provide, to a certain extent, micro, small and not-for-profit organisations with the same level of protection ensured to consumers, because they are in the same position of inferiority in the negotiation, due to their limited bargaining power.

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The definition of micro and small enterprises is included in the Commission recommendation 2003/361 and this is also the one referred to in the EECC recital 68. This is the generally applied definition and its application is mandatory in a number of EU schemes or programmes. Directive 2013/34 is applied for accounting and is specific in its scope. The thresholds for the micro or small enterprises category (to benefit from the EECC exemption or additional protection as applicable) are lower in Directive 2013/34 than in the Commission recommendation of 2003. Choosing to apply the Directive 2013/34 definition, instead of the Commission recommendation from 2003, would exempt more micro and small enterprises from the EECC’s planned micro and small enterprises scope. However, the EECC does not harmonise the definition of micro and small enterprises, and Member States can only be invited to apply the SME Definition therein, also in the case of applying the EECC provisions.’ Article 99 Non-discrimination Providers of electronic communications networks or services shall not apply any different requirements or general conditions of access to, or use of, networks or services to end-users, for reasons related to the end-user’s nationality, place of residence or place of establishment, unless such different treatment is objectively justified. See: Recital 256. Q&A  on Article  99: ‘Article  99 is silent on how non-discrimination is to be monitored/enforced. How does the Commission envisage this Article to work in practice, and how should it be enforced?’ Reply: ‘The Article prohibits discrimination based on nationality or the country of residence. In case a particular measure is found to infringe Article 99, the legal consequences are falling under national law. A NRA can take the matter up and enforcement can also be private, e.g. a consumer takes legal action. As with other EU law, there are different ways for redress[68]. The Services Directive 2006/123/ EC has a similar Article on non-discrimination.’ Article 100 Fundamental rights safeguard 1.

National measures regarding end-users’ access to, or use of, services and applications through electronic communications networks shall respect the Charter of Fundamental Rights of the Union (the ‘Charter’) and general principles of Union law.

2.

Any measure regarding end-users’ access to, or use of, services and applications through electronic communications networks liable to limit the exercise of the rights or freedoms recognised by the Charter shall be imposed only if it is provided for by law and respects those rights or freedoms, is proportionate, necessary, and genuinely meets general interest objectives recognised by Union law or the need to protect the rights and freedoms of others in line with Article  52(1) of the Charter and with general principles of Union law, including the right to an effective remedy and to a fair trial. Accordingly, such measures shall be taken only

https://ec.europa.eu/info/about-european-commission/contact/problems-and-complaints/complaintsabout-breaches-eu-law/how-make-complaint-national-level-0_en.

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with due respect for the principle of the presumption of innocence and the right to privacy. A  prior, fair and impartial procedure shall be guaranteed, including the right to be heard of the person or persons concerned, subject to the need for appropriate conditions and procedural arrangements in duly substantiated cases of urgency in accordance with the Charter. See: Recitals 5; 6; 296. Right to respect for communications ‘Everyone has the right to respect for his or her private and family life, home and communications.’ Charter, Article 7. Right to protection of personal data ‘1.

Everyone has the right to the protection of personal data concerning him or her.

2.

Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.

3.

Compliance with these rules shall be subject to control by an independent authority.’ Charter, Article 8. Right to freedom of expression and information ‘1. Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance. 2.

The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right.’ Charter, Article 11. Limitation on the exercise of rights and freedoms recognised by the Charter ‘Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others.’ Charter, Article 52(1). Presumption of innocence ‘Everyone who has been charged shall be presumed innocent until proved guilty according to law.’ Charter, Article 48(1). Right to an effective remedy and to a fair trial (a) ‘Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.’

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Charter, Article 47. (b)  Possibility of annulling a decision of the NRA with retroactive effect: Case C-231/15 Prezes Urzędu Komunikacji Elektronicznej and Petrotel sp. z o.o. w Płocku v Polkomtel sp. z o.o, EU:C:2016:769, Court’s ruling (see annotations to Article 31). Safeguarding national security ‘1.

Article 1(3), Article 3 and Article 15(1) of [the ePrivacy Directive] read in the light of Article 4(2) TEU, must be interpreted as meaning that national legislation enabling a State authority to require providers of electronic communications services to forward traffic data and location data to the security and intelligence agencies for the purpose of safeguarding national security falls within the scope of that directive.

2.

Article 15(1) of [the ePrivacy Directive], read in the light of Article 4(2) TEU and Articles  7, 8 and 11 and Article  52(1) of the [Charter], must be interpreted as precluding national legislation enabling a State authority to require providers of electronic communications services to carry out the general and indiscriminate transmission of traffic data and location data to the security and intelligence agencies for the purpose of safeguarding national security.’ Case C-623/17 Privacy International v Secretary of State for Foreign and Commonwealth Affairs and Others, EU:C:2020:790, paras 1 and 2 of the Court’s ruling. Investigating, detecting and prosecuting criminal offences and data retention (a)

‘1.  Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending [the ePrivacy Directive] is as a whole incompatible with Article  52(1) of the [Charter], since the limitations on the exercise of fundamental rights which that directive contains because of the obligation to retain data which it imposes are not accompanied by the necessary principles for governing the guarantees needed to regulate access to the data and their use.



2. Article 6 of Directive 2006/24 is incompatible with Articles 7 and 52(1) of the [Charter] in that it requires Member States to ensure that the data specified in Article 5 of that directive are retained for a period whose upper limit is set at two years.’

Joined Cases C-293/12 Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources and Others and C-594/12 Kärntner Landesregierung and Others, EU:C:2013:845, para  159 of the Opinion of Advocate General Cruz Villalón delivered on 12 December 2013. (b) ‘[…B]y adopting Directive 2006/24, the EU legislature has exceeded the limits imposed by compliance with the principle of proportionality in the light of Articles 7, 8 and 52(1) of the Charter. […] Consequently, […] Directive 2006/24 is invalid.’ Joined Cases C-293/12 Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources and Others and C-594/12 Kärntner Landesregierung and Others, EU:C:2014:238, paras 69 and 71 of the judgment.



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(c) ‘1. Article 15(1) of [the ePrivacy Directive], read in the light of Articles 7, 8 and 11 and Article 52(1) of the [Charter], must be interpreted as precluding national legislation which, for the purpose of fighting crime, provides for general and indiscriminate retention of all traffic and location data of all subscribers and registered users relating to all means of electronic communication.

2. Article 15(1) of [the ePrivacy Directive], read in the light of Articles 7, 8 and 11 and Article 52(1) of the [Charter], must be interpreted as precluding national legislation governing the protection and security of traffic and location data and, in particular, access of the competent national authorities to the retained data, where the objective pursued by that access, in the context of fighting crime, is not restricted solely to fighting serious crime, where access is not subject to prior review by a court or an independent administrative authority, and where there is no requirement that the data concerned should be retained within the European Union.’

Joined Cases C-203/15 Tele2 Sverige AB v Post- och telestyrelsen and C-698/15 Secretary of State for the Home Department v Tom Watson and Others, EU:C:2016:970, paras 1 and 2 of the Court’s ruling. (d) ‘Article 15(1) of [the ePrivacy Directive], read in the light of Articles 7 and 8 of the [Charter] must be interpreted as meaning that the access of public authorities to data for the purpose of identifying the owners of SIM cards activated with a stolen mobile telephone, such as the surnames, forenames and, if need be, addresses of the owners, entails interference with their fundamental rights, enshrined in those articles of the [Charter], which is not sufficiently serious to entail that access being limited, in the area of prevention, investigation, detection and prosecution of criminal offences, to the objective of fighting serious crime.’ Case C-207/16 Ministerio Fiscal, EU:C:2018:788, Court’s ruling. (e) ‘[…]

1. Article 15(1) of [the ePrivacy Directive], read in the light of Articles 7, 8, 11 and Article 52(1) of the [Charter], must be interpreted as meaning that the categories of data concerned and the duration of the period in respect of which access is sought should be included amongst the criteria for assessing the seriousness of the interference with fundamental rights that is associated with the access by competent national authorities to the personal data that providers of electronic communications services are obliged to retain under national legislation. It is for the referring court to assess, depending on the seriousness of the interference, whether that access was strictly necessary to achieve the objective of preventing, investigating, detecting and prosecuting criminal offences.



2. Article 15(1) of [the ePrivacy Directive], read in the light of Articles 7, 8, 11 and Article 52(1) of the [Charter], must be interpreted as meaning that the requirement that the access of the competent national authorities to retained data be subject to prior review by a court or an independent administrative authority is not met where national legislation provides that such review is to be carried out by the public prosecutor’s office which is responsible for directing the pre-trial procedure, whilst also being likely to represent the public prosecution in judicial proceedings.’

Case C-746/18 HK v Prokuratuur, EU:C:2020:18, para 130 of the Opinion of Advocate General Pitruzzella delivered on 21 January 2020.

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(f) ‘1.  Article 15(1) of [the ePrivacy Directive], read in the light of Articles 7, 8 and 11 and Article 52(1) of the [Charter], must be interpreted as precluding legislative measures which, for the purposes laid down in Article  15(1), provide, as a preventive measure, for the general and indiscriminate retention of traffic and location data. By contrast, Article  15(1) of [the ePrivacy Directive], read in the light of Articles 7, 8 and 11 and Article 52(1) of the [Charter], does not preclude legislative measures that: –

allow, for the purposes of safeguarding national security, recourse to an instruction requiring providers of electronic communications services to retain, generally and indiscriminately, traffic and location data in situations where the Member State concerned is confronted with a serious threat to national security that is shown to be genuine and present or foreseeable, where the decision imposing such an instruction is subject to effective review, either by a court or by an independent administrative body whose decision is binding, the aim of that review being to verify that one of those situations exists and that the conditions and safeguards which must be laid down are observed, and where that instruction may be given only for a period that is limited in time to what is strictly necessary, but which may be extended if that threat persists;

–

provide, for the purposes of safeguarding national security, combating serious crime and preventing serious threats to public security, for the targeted retention of traffic and location data which is limited, on the basis of objective and non-discriminatory factors, according to the categories of persons concerned or using a geographical criterion, for a period that is limited in time to what is strictly necessary, but which may be extended;

–

provide, for the purposes of safeguarding national security, combating serious crime and preventing serious threats to public security, for the general and indiscriminate retention of IP addresses assigned to the source of an Internet connection for a period that is limited in time to what is strictly necessary;

–

provide, for the purposes of safeguarding national security, combating crime and safeguarding public security, for the general and indiscriminate retention of data relating to the civil identity of users of electronic communications systems;

–

allow, for the purposes of combating serious crime and, a fortiori, safeguarding national security, recourse to an instruction requiring providers of electronic communications services, by means of a decision of the competent authority that is subject to effective judicial review, to undertake, for a specified period of time, the expedited retention of traffic and location data in the possession of those service providers,

provided that those measures ensure, by means of clear and precise rules, that the retention of data at issue is subject to compliance with the applicable substantive and procedural conditions and that the persons concerned have effective safeguards against the risks of abuse.



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2.

Article 15(1) of [the ePrivacy Directive], read in the light of Articles 7, 8 and 11 and Article 52(1) of the [Charter], must be interpreted as not precluding national rules which requires providers of electronic communications services to have recourse, first, to the automated analysis and real-time collection, inter alia, of traffic and location data and, second, to the realtime collection of technical data concerning the location of the terminal equipment used, where: –

recourse to automated analysis is limited to situations in which a Member State is facing a serious threat to national security which is shown to be genuine and present or foreseeable, and where recourse to such analysis may be the subject of an effective review, either by a court or by an independent administrative body whose decision is binding, the aim of that review being to verify that a situation justifying that measure exists and that the conditions and safeguards that must be laid down are observed; and where

–

recourse to the real-time collection of traffic and location data is limited to persons in respect of whom there is a valid reason to suspect that they are involved in one way or another in terrorist activities and is subject to a prior review carried out either by a court or by an independent administrative body whose decision is binding in order to ensure that such real-time collection is authorised only within the limits of what is strictly necessary. In cases of duly justified urgency, the review must take place within a short time.

3.

[The Directive on Electronic Commerce], must be interpreted as not being applicable in the field of the protection of the confidentiality of communications and of natural persons as regards the processing of personal data in the context of information society services, such protection being governed by [the ePrivacy Directive], or by [the GDPR], as appropriate. Article 23(1) of [the GDPR], read in the light of Articles 7, 8 and 11 and Article 52(1) of the [Charter], must be interpreted as precluding national legislation which requires that providers of access to online public communication services and hosting service providers retain, generally and indiscriminately, inter alia, personal data relating to those services.

4.

A national court may not apply a provision of national law empowering it to limit the temporal effects of a declaration of illegality, which it is bound to make under that law, in respect of national legislation imposing on providers of electronic communications services – with a view to, inter alia, safeguarding national security and combating crime – an obligation requiring the general and indiscriminate retention of traffic and location data that is incompatible with Article  15(1) of [the ePrivacy Directive], read in the light of Articles 7, 8 and 11 and Article 52(1) of the [Charter]. Article  15(1), interpreted in the light of the principle of effectiveness, requires national criminal courts to disregard information and evidence obtained by means of the general and indiscriminate retention of traffic and location data in breach of EU law, in the context of criminal proceedings against persons suspected of having committed criminal offences, where those persons are not in a position to comment effectively on that information and that evidence and they pertain to a field of which the judges have no knowledge and are likely to have a preponderant influence on the findings of fact.’

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Joined Cases C-5-11/18 and C-512/18 La Quadrature du Net and Others v Premier minister and Others, and C-520/18 Ordre des barreaux francophones et germanophone and Others v Conseil des ministres, EU:C:2020:791, paras 1–4 of the Court’s ruling. Article 101 Level of harmonisation 1.

Member States shall not maintain or introduce in their national law end-user protection provisions diverging from Articles 102 to 115, including more, or less, stringent provisions to ensure a different level of protection, unless otherwise provided for in this Title.

2.

Until 21 December 2021, Member States may continue to apply more stringent national consumer protection provisions diverging from those laid down in Articles 102 to 115, provided that those provisions were in force on 20 December 2018 and any restrictions to the functioning of the internal market resulting therefrom are proportionate to the objective of consumer protection. Member States shall notify the Commission by 21 December 2019 of any national provisions to be applied on the basis of this paragraph. See: Recital 257. Member State notifications Ireland and Spain notified the Commission of national consumer protection provisions diverging from those laid down in Articles 102–115, in accordance with Article 101(2). Q&A on Article 101: ‘Article [101(1)] reads: “Member States shall not maintain or introduce in their national law end-user protection provisions diverging from Articles 102 to 115 […]”. Articles 102 to 115 do not contain rules on premium rate services. In the light of recital 257 which reads: “Member States should be able to maintain or introduce national provisions on issues not specifically addressed in this Directive” could national provisions that regulate this specific issue be kept, such as detailed transparency requirements (i.e. information on price that must be given before charging), provisions on [the] charging mechanism and provisions on ways of [terminating] services, provisions on marketing, provisions on interim measures (blocking access to premium rate service)?’ Reply: ‘It is not possible to give a positive or negative answer without additional details on the specific issues related to premium rate services. In general, detailed pre-contractual information requirements are given in Annex VIII (Article  102) and related to transparency in Annex IX (Article  103) of EECC. Furthermore, Annex VI includes provisions of additional facilities, also related to control of expenditure. Art 115(2) notes that Member States may go beyond the list of Annex VI when applying Article 115(1) to ensure a higher level of consumer protection. As regards fraud or misuse please also see Article 97(2) on access to numbers and services that addresses this. Furthermore, Art. 102(7) extends the possibility for MS to legislate on (novel) issues not covered by Art. 102. Moreover, Rec. 266 foresees that “[…] Member States should be able to maintain or introduce provisions on consumption limits protecting end-users against ‘bill-shocks’, including in relation to premium rate services and other services subject to particular pricing conditions. This allows competent authorities to require information about such prices to be provided prior to providing the service and does not prejudice the possibility of Member



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States to maintain or introduce general obligations for premium rate services to ensure the effective protection of end-users.”’ Further Q&A on Article 101: ‘There have been many proposals for prohibiting pricing of administrative costs for [changing] the package of services [with] the same service provider. […] Directive 2018/1972/EU does not cover this issue. Therefore, we would like to know if member states can prohibit such practices of service providers in national legislation in light of maximum harmonization in [the] chapter [on] End-user rights?’ Reply: ‘The pricing of administrative costs when an end-user requests a change of the package of services with their provider is not covered in the EECC [and] thus is not subject to the full harmonisation principle.’ Further Q&A  on Article  101: ‘May Member States’ legislation prohibit practices of service providers charging administrative costs for change of the package of services at the same service provider?’ Reply: ‘The pricing of administrative costs when an end-user requests a change of the package of services with their provider is not covered in the EECC thus is not subject to the full harmonisation principle.’ Q&A on ‘end-users’: ‘Title III affords protections to end-users. In certain cases, these protections are specifically limited to microenterprises, small enterprises and not-for-profit organisations. Where protections apply generally to “endusers” without this limitation, we do not interpret such provisions as allowing any discretion for a Member State to limit the application of the protections to smaller enterprises and on this basis, we believe the protections will apply to larger enterprises [for example a medium-sized enterprise as referred to in Commission Recommendation 2003/361/EC of 6  May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ L 124, 20.5.2003, p. 36) and enterprises that are larger in size than this]. Examples of protections afforded to end-users that would extend to larger enterprises include Article 103 (comparison tool, public interest information), Article  104 (publication of information on quality of service), Article 105(3), (4) and (6) (regarding contract duration and termination) and Article 106(1) (switching). Is it intended that larger enterprises will benefit from these and other protections afforded to “end-users”?’ Reply: ‘Some provisions in the EECC  Title III apply to all end-users, i.e. consumers and other users. Some are limited to consumers or consumers and endusers that are microenterprises, small enterprises or not-for-profit organisations (unless they have explicitly agreed to waive). […] According to Article  101 on the level of harmonisation Member States shall not maintain or introduce in their national law end-user protection provisions diverging from Article 102 to 115, including more, or less, stringent provisions to ensure a different level of protection, unless otherwise provided for in this Title (Title III). This applies also to the provisions on scoping to end-users or its limitations.’ Article 102 Information requirements for contracts 1.

Before a consumer is bound by a contract or any corresponding offer, providers of publicly available electronic communications services other than transmission services used for the provision of machine-to-machine services shall provide the information referred to in Articles 5 and 6 of Directive 2011/83/EU, and, in

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addition, the information listed in Annex VIII of this Directive to the extent that that information relates to a service they provide. The information shall be provided in a clear and comprehensible manner on a durable medium as defined in point (10) of Article 2 of Directive 2011/83/EU or, where provision on a durable medium is not feasible, in an easily downloadable document made available by the provider. The provider shall expressly draw the consumer’s attention to the availability of that document and the importance of downloading it for the purposes of documentation, future reference and unchanged reproduction. The information shall, upon request, be provided in an accessible format for endusers with disabilities in accordance with Union law harmonising accessibility requirements for products and services. 2.

The information referred to in paragraphs 1, 3 and 5 shall also be provided to endusers that are microenterprises or small enterprises or not-for-profit organisations, unless they have explicitly agreed to waive all or parts of those provisions.

3.

Providers of publicly available electronic communications services other than transmission services used for the provision of machine-to-machine services shall provide consumers with a concise and easily readable contract summary. That summary shall identify the main elements of the information requirements in accordance with paragraph 1. Those main elements shall include at least: (a)

the name, address and contact information of the provider and, if different, the contact information for any complaint;

(b) the main characteristics of each service provided; (c) the respective prices for activating the electronic communications service and for any recurring or consumption-related charges, where the service is provided for direct monetary payment; (d)

the duration of the contract and the conditions for its renewal and termination;

(e) the extent to which the products and services are designed for end-users with disabilities; (f) with respect to internet access services, a summary of the information required pursuant to points (d) and (e) of Article 4(1) of Regulation (EU) 2015/2120. By 21  December 2019, the Commission shall, after consulting BEREC, adopt implementing acts specifying a contract summary template to be used by the providers to fulfil their obligations under this paragraph. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 118(4). Providers subject to the obligations under paragraph  1 shall duly complete that contract summary template with the required information and provide the contract summary free of charge to consumers, prior to the conclusion of the contract, including distance contracts. Where, for objective technical reasons, it is impossible to provide the contract summary at that moment, it shall be provided without undue delay thereafter, and the contract shall become effective when the consumer has confirmed his or her agreement after reception of the contract summary.



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4.

The information referred to in paragraphs 1 and 3 shall become an integral part of the contract and shall not be altered unless the contracting parties expressly agree otherwise.

5.

Where internet access services or publicly available interpersonal communications services are billed on the basis of either time or volume consumption, their providers shall offer consumers the facility to monitor and control the usage of each of those services. This facility shall include access to timely information on the level of consumption of services included in a tariff plan. In particular, providers shall notify consumers before any consumption limit, as established by competent authorities in coordination, where relevant, with national regulatory authorities, included in their tariff plan, is reached and when a service included in their tariff plan is fully consumed.

6.

Member States may maintain or introduce in their national law provisions requiring providers to provide additional information on the consumption level and temporarily prevent further use of the relevant service in excess of a financial or volume limit determined by the competent authority.

7.

Member States shall remain free to maintain or introduce in their national law provisions relating to aspects not regulated by this Article, in particular in order to address newly emerging issues. See: Recitals 258–264; 266. Correlation with Universal Service Directive EECC Article 102 correlates with Directive 2002/22/EC, Article 20(1). Information requirements under the Consumer Rights Directive (a) Information requirements for contracts other than distance or offpremises contracts: ‘1.

Before the consumer is bound by a contract other than a distance or an offpremises contract, or any corresponding offer, the trader shall provide the consumer with the following information in a clear and comprehensible manner, if that information is not already apparent from the context: (a) the main characteristics of the goods or services, to the extent appropriate to the medium and to the goods or services; (b) the identity of the trader, such as his trading name, the geographical address at which he is established and his telephone number; (c) the total price of the goods or services inclusive of taxes, or where the nature of the goods or services is such that the price cannot reasonably be calculated in advance, the manner in which the price is to be calculated, as well as, where applicable, all additional freight, delivery or postal charges or, where those charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable (d) where applicable, the arrangements for payment, delivery, performance, the time by which the trader undertakes to deliver the goods or to perform the service, and the trader’s complaint handling policy; (e) in addition to a reminder of the existence of a legal guarantee of conformity for goods, the existence and the conditions of after-sales services and commercial guarantees, where applicable;

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(f)

the duration of the contract, where applicable, or, if the contract is of indeterminate duration or is to be extended automatically, the conditions for terminating the contract;

(g) where applicable, the functionality, including applicable technical protection measures, of digital content; (h)

where applicable, any relevant interoperability of digital content with hardware and software that the trader is aware of or can reasonably be expected to have been aware of.

2.

Paragraph 1 shall also apply to contracts for the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, of district heating or of digital content which is not supplied on a tangible medium.

3.

Member States shall not be required to apply paragraph 1 to contracts which involve day-to-day transactions and which are performed immediately at the time of their conclusion.

4. Member States may adopt or maintain additional pre-contractual information requirements for contracts to which this Article applies.’ Directive 2011/83/EU, Article 5. (b) Information requirements for distance and off-premises contracts: 1.

Before the consumer is bound by a distance or off-premises contract, or any corresponding offer, the trader shall provide the consumer with the following information in a clear and comprehensible manner: (a) the main characteristics of the goods or services, to the extent appropriate to the medium and to the goods or services; (b) the identity of the trader, such as his trading name; (c) the geographical address at which the trader is established and the trader’s telephone number, fax number and e-mail address, where available, to enable the consumer to contact the trader quickly and communicate with him efficiently and, where applicable, the geographical address and identity of the trader on whose behalf he is acting; (d) if different from the address provided in accordance with point (c), the geographical address of the place of business of the trader, and, where applicable, that of the trader on whose behalf he is acting, where the consumer can address any complaints; (e) the total price of the goods or services inclusive of taxes, or where the nature of the goods or services is such that the price cannot reasonably be calculated in advance, the manner in which the price is to be calculated, as well as, where applicable, all additional freight, delivery or postal charges and any other costs or, where those charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable. In the case of a contract of indeterminate duration or a contract containing a subscription, the total price shall include the total costs per billing period. Where such contracts are charged at a fixed rate, the total price shall also mean the total monthly costs. Where the total costs cannot be reasonably



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calculated in advance, the manner in which the price is to be calculated shall be provided; (f) the cost of using the means of distance communication for the conclusion of the contract where that cost is calculated other than at the basic rate; (g) the arrangements for payment, delivery, performance, the time by which the trader undertakes to deliver the goods or to perform the services and, where applicable, the trader’s complaint handling policy; (h) where a right of withdrawal exists, the conditions, time limit and procedures for exercising that right in accordance with Article 11(1), as well as the model withdrawal form set out in Annex I(B); (i)

where applicable, that the consumer will have to bear the cost of returning the goods in case of withdrawal and, for distance contracts, if the goods, by their nature, cannot normally be returned by post, the cost of returning the goods;

(j)

that, if the consumer exercises the right of withdrawal after having made a request in accordance with Article  7(3) or Article  8(8), the consumer shall be liable to pay the trader reasonable costs in accordance with Article 14(3);

(k) where a right of withdrawal is not provided for in accordance with Article 16, the information that the consumer will not benefit from a right of withdrawal or, where applicable, the circumstances under which the consumer loses his right of withdrawal; (l)

a reminder of the existence of a legal guarantee of conformity for goods;

(m) where applicable, the existence and the conditions of after sale customer assistance, after-sales services and commercial guarantees; (n) the existence of relevant codes of conduct, as defined in point (f) of Article 2 of Directive 2005/29/EC, and how copies of them can be obtained, where applicable; (o) the duration of the contract, where applicable, or, if the contract is of indeterminate duration or is to be extended automatically, the conditions for terminating the contract; (p) where applicable, the minimum duration of the consumer’s obligations under the contract; (q) where applicable, the existence and the conditions of deposits or other financial guarantees to be paid or provided by the consumer at the request of the trader; (r) where applicable, the functionality, including applicable technical protection measures, of digital content; (s)

where applicable, any relevant interoperability of digital content with hardware and software that the trader is aware of or can reasonably be expected to have been aware of;

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(t)

where applicable, the possibility of having recourse to an out-of-court complaint and redress mechanism, to which the trader is subject, and the methods for having access to it.

2.

Paragraph 1 shall also apply to contracts for the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, of district heating or of digital content which is not supplied on a tangible medium.

3.

In the case of a public auction, the information referred to in points (b), (c) and (d) of paragraph 1 may be replaced by the equivalent details for the auctioneer.

4.

The information referred to in points (h), (i) and (j) of paragraph 1 may be provided by means of the model instructions on withdrawal set out in Annex I(A). The trader shall have fulfilled the information requirements laid down in points (h), (i) and (j) of paragraph 1 if he has supplied these instructions to the consumer, correctly filled in.

5.

The information referred to in paragraph 1 shall form an integral part of the distance or off-premises contract and shall not be altered unless the contracting parties expressly agree otherwise.

6.

If the trader has not complied with the information requirements on additional charges or other costs as referred to in point (e) of paragraph 1, or on the costs of returning the goods as referred to in point (i) of paragraph 1, the consumer shall not bear those charges or costs.

7.

Member States may maintain or introduce in their national law language requirements regarding the contractual information, so as to ensure that such information is easily understood by the consumer.

8.

The information requirements laid down in this Directive are in addition to information requirements contained in Directive 2006/123/EC and Directive 2000/31/EC and do not prevent Member States from imposing additional information requirements in accordance with those Directives. Without prejudice to the first subparagraph, if a provision of Directive 2006/123/EC or Directive 2000/31/EC on the content and the manner in which the information is to be provided conflicts with a provision of this Directive, the provision of this Directive shall prevail.

9.

As regards compliance with the information requirements laid down in this Chapter, the burden of proof shall be on the trader.’ Directive 2011/83/EU, Article 6. (c) Q&A on Article 102(1): ‘Q3. Do the consumer’s cooling-off rights under the Consumer Rights Directive run (a) from the time the contractual information required by Article 102(1) is provided or some other time? In the case where provision of the information on a durable medium is not feasible and the consumer’s attention is expressly drawn to the availability of an easily downloadable document, do the consumer’s cooling-off rights run from the time he / she is so made aware or from some other point it time? Q4. In respect of Article 102([1]), what is meant by the term “a contract or any corresponding offer”?’



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Reply: ‘Q3: The start of the right of withdrawal period for distance or off-premises contracts is specified in Article 9 of Directive 2011/83. In the case of service contracts the withdrawal period starts after the day of the conclusion of the contract. Directive 2011/83 and the EECC do not specify the moment of conclusion of the contract, which is for the national law to define, but details the information to be provided to the consumer “before [the latter] is bound by a contract’ and ‘prior to the conclusion of the contract.” Q4: The term “contract or corresponding offer” is used also in the Directive on consumer rights 2011/83/EU (Consumer rights Directive) in Articles 5 and 6 on information requirements. A “corresponding offer” is referred to in order to address situations of binding offers under national contract law.’ Provision of required information Meaning of ‘durable medium’: ‘“durable medium” means any instrument which enables the consumer or the trader to store information addressed personally to him in a way accessible for future reference for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored’. Directive 2011/83/EU, Article 2(10). (a)

(b) Provision of information to consumers via hyperlink on the supplier’s website: ‘Article  5(1) of Directive 97/7/EC of the European Parliament and of the Council of 20  May 1997 on the protection of consumers in respect of distance contracts [repealed by the Consumer Rights Directive and correlates with Article 8(7) of the Consumer Rights Directive] must be interpreted as meaning that a business practice consisting of making the information referred to in that provision accessible to the consumer only via a hyperlink of a website of the undertaking concerned does not meet the requirements of that provision, since that information is neither ‘given’ by that undertaking nor ‘received’ by the consumer, within the meaning of that provision, and a website such as that at issue in the main proceedings cannot be regarded as a ‘durable medium’ within the meaning of Article 5(1).’ Case C-49/11 Content Services Ltd v Bundesarbeitskammer, EU:C:2012:419, Court’s ruling; the same approach was followed by the Court of the European Free Trade Association (EFTA) in Case E-4/09 Inconsult Anstalt v Finanzmarktaufsicht [2010] EFTA Court Report, p 86, to interpret the concept of ‘durable medium’ under Directive 2002/92. The Court of Justice left open the question whether ‘sophisticated website’ (as opposed to ‘ordinary websites’) may constitute a durable medium – a sophisticated website is a website to which the consumer connects, which allows that consumer to store information which is personally addressed to him in such a way that he can access it and reproduce it unchanged during an adequate period without the seller being able to amend the content unilaterally. (c) Q&A on Article 102(1): ‘Q2. If provision of the contractual information on a durable medium is not feasible, and the consumer’s attention is expressly drawn to the availability of an easily downloadable document with the relevant information in accordance with Article 102(1), is the consumer bound from the point in

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time that he / she is made aware of the easily downloadable document? If not, when is the consumer bound?’ Reply: ‘Q2: Pursuant to Art. 102 (Information requirements for contracts) providers of publicly available ECS are obliged to provide information referred to in Articles 5 and 6 of Directive 2011/83 (Consumer rights Directive) and the information listed in Annex VIII before a consumer is bound by a contract. Alternatively, if the provision on a durable medium is not feasible, and a provider has expressly drawn the consumer’s attention to the availability of an easily downloadable document, the aforementioned condition is deemed to be fulfilled. Prior to the conclusion of the contract, the providers shall also provide the contract summary. If all of these conditions are met, the contract may be concluded. When the contract is considered concluded and when the consumer is bound is a matter of civil law.’ Accessibility requirements for products and services Directive (EU) 2019/882 of the European Parliament and of the Council of 17 April 2019 on the accessibility requirements for products and services (Text with EEA relevance) (OJ L 151, 7.6.2019, p. 70) (see p. 1022 et seq). Additional consumer protection provisions with respect to number-independent interpersonal communications services Directive (EU) 2019/770 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the supply of digital content and digital services (Text with EEA relevance) (OJ L 136, 22.5.2019, p. 1) (see p. 989 et seq). End-users (a) Definitions of micro, small and medium-sized enterprises: Commission Recommendation 2003/361/EC, Article 2 and Annex; Case T-587/14 Crosfield Italia Srl v European Chemicals Agency (ECHA), EU:T:2016:475, paras 34–36; Case T-620/13 Marchi Industriale SpA v European Chemicals Agency (ECHA), EU:T:2016:479, paras 30–32 (see annotations to Recital 68). (b) Q&A on Recital 259: ‘What type of organisations does the concept of notfor-profit organisation include?’ Reply: ‘EECC does not define not-for-profit organisations, which are defined in the national law. (Recital 259 EECC refers to ‘not-for-profit organisations as defined in national law’).’ Contract summary template (a) Commission Implementing Regulation (EU) 2019/2243 of 17  December 2019 establishing a template for the contract summary to be used by providers of publicly available electronic communications services pursuant to Directive (EU) 2018/1972 of the European Parliament and of the Council (OJ  L  336, 30.12.2019, p. 274) (see p. 662 et seq). (b) Information requirements under the Open Internet Regulation with respect to internet access services: (i) Regulation (EU) 2015/2120, Article 4(1)(d) and (e), see also Articles 3(1) and (5), 4(1)(a)–(c) and 4(2) (see p. 520, also pp 518 and 520). (ii)  BEREC  Guidance: Article  4(1) Transparency measures for ensuring open internet access: ‘128.  NRAs should ensure that ISPs providing IAS to all end-users (e.g. consumer and business customer end-users) include relevant information referred to in Article  4(1) (a) to (e) in a clear, comprehensible and comprehensive



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manner in contracts that include IAS, and publish that information, for example on an ISP’s website[…]. 129. […] National law may also lay down additional monitoring, information and transparency requirements, including those concerning the content, form and manner of the information to be published. 130. NRAs should look to ensure that ISPs adhere to the following practices in order to ensure that information is clear and comprehensible: •

it should be easily accessible and identifiable for what it is;

•

it should be accurate and up to date;

•

it should be meaningful to end-users, i.e. relevant, unambiguous and presented in a useful manner;

•

it should not create an incorrect perception of the service provided to the end-user;

•

it should be comparable at least between different offers, but preferably also between different ISPs, so that end-users are able to compare the offers (including the contractual terms used by different ISPs) and ISPs in such a way that the comparison can show differences and similarities.

131. NRAs should ensure that ISPs include in the contract and publish the information referred to in Article 4(1) (a) to (e). This could be presented in two parts (levels of detail):[69] •

The first part could provide high-level (general) information. The information about the IAS provided should include, for example, an explanation of speeds, examples of popular applications that can be used with a sufficient quality, and an explanation of how such applications are influenced by the limitations of the provided IAS. This part should include reference to the second part where the information required by Article 4(1) of the Regulation is provided in more detail.

•

The second part could consist of more detailed technical parameters and their values and other relevant information required by Article 4(1) of the Regulation and in these Guidelines.

132. Examples of how information could be disclosed in a transparent way can be found in BEREC’s 2011 Net Neutrality Transparency Guidelines. [… BoR (11) 67] 133. Contract terms that would inappropriately exclude or limit the exercise of the legal rights of the end-user vis-à-vis the ISP in the event of total or partial non-performance or inadequate performance by the ISP of any of the contractual obligations might be deemed unfair under national legislation,

‘NRAs should note that ISPs are also under an obligation to provide information to consumers before being bound by the contract under other EU instruments: the Consumer Rights Directive […Directive 2011/83/EU], the Unfair Commercial Practices Directive [… Directive 2005/29/EC] and the e-Commerce Directive [… Directive 2000/31/EC]’ – fn 41 in the Guidelines.

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including the implementation of Directive 93/13/EEC on unfair terms in consumer contracts. [70] 134. Articles 4(1), 4(2) and 4(3) apply to all contracts regardless of the date the contract is concluded or renewed. Article  4(4) applies only to contracts concluded or renewed from 29 November 2015. Modifications to contracts are subject to national legislation implementing Article  [105(3) of the EECC]. Article 4(1) (a) transparency and traffic management measures […] 135. NRAs should ensure that ISPs include in the contract and publish a clear and comprehensive explanation of traffic management measures applied in accordance with the second and third subparagraphs of Article  3(3), including the following information: •

how the measures might affect the end-user experience in general and with regard to specific applications (e.g. where specific categories of traffic are treated differently in accordance with Article 3). Practical examples should be used for this purpose. In particular the following information should be provided by the ISP: o

the download and upload limits that apply to the IAS selected by the end-user, the traffic management used to manage compliance with download limits, and the circumstances under which these apply.

•

the circumstances and manner under which traffic management measures possibly having an impact as foreseen in Article 4(1) (a) are applied; [71]

•

how the measures might affect QoS of the IAS, particularly in cases of network congestion and also in relation to other internet access services with different QoS parameters where multiple internet access services with different QoS parameters are offered by the ISP;

•

any measures applied when managing traffic which uses personal data, the types of personal data used, and how ISPs ensure the privacy of end-users and protect their personal data when managing traffic.

136. The information should be clear and comprehensive. The information should not simply consist of a general condition stating possible impacts of traffic management measures that could be applied in accordance with the Regulation. Information should also include, at least, a description of the possible impacts of traffic management practices which are in place on the IAS. Article 4(1) (b) transparency and quality of service parameters […] 137. Besides speed, the most important QoS parameters are delay, delay variation (jitter) and packet loss. These other QoS parameters should be described if ‘See Annex, paragraph 1(b) of Council Directive 93/13/EEC on unfair terms in consumer contracts […]. NRAs may or may not be empowered to monitor compliance with said directive’ – fn 43 in the Guidelines. 71 ‘Article  102 [EECC] may also require such information to be specified in contracts’ – fn 45 in the Guidelines. 70



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they might, in practice, have an impact on the IAS and use of applications. NRAs should ensure that ISPs provide end-users with information which is effects-based. End-users should be able to understand the implications of these parameters to the usage of applications and whether certain applications (e.g. interactive speech/video or 4K video streaming) cannot in fact be used due to the long delay or slow speed of the IAS. Categories of applications or popular examples of these affected applications could be provided. 138. Regarding volume limitations, contracts should specify the ‘size’ of the cap (in quantitative terms, e.g. GB), what that means in practice and the consequences of exceeding it (e.g. additional charges, speed restrictions, blocking of all traffic etc.) as well as, in the case of differentiated pricing, a clear explanation on which data is counted under which cap or for which price. For example, if not all content within an application is zero-rated, this should be clearly explained to the end-user, in a prominent place and before the end-user decides to use the application. If the speed will decrease after a data cap has been reached, that should be taken into account when specifying speeds in a contract and publishing the information. Information and examples could also be provided about what kind of data usage would lead to a situation where the data cap is reached (e.g. indicative amount of time using popular applications, such as SD video, HD video and music streaming). Article 4(1) (c) transparency on specialised services […] 139. NRAs should ensure that ISPs include in the contract and publish clear and comprehensible information about how specialised services included in the end-user’s subscription might impact the IAS. This is further discussed in paragraph 122. Article 4(1) (d) transparency on contractual speeds […] 140. In order to empower end-users, speed values required by Article 4(1) (d) should be specified in the contract and published in such a manner that they can be verified and used to determine any discrepancy between the actual performance and what has been agreed in contract. Upload and download speeds should be provided as single numerical values in bits/second (e.g. kbit/s or Mbit/s). Speeds should be specified on the basis of the transport layer protocol payload, and not based on a lower layer protocol. 141. In recent years products have been introduced to the market which involve a combination of different types of technologies, and in some cases a mix of fixed and mobile technologies. BEREC welcomes innovative forms of connectivity as long as the end user remains informed as to what service level they can expect. When introducing a new product to the market, ISPs may implement their offer using their choice of technologies, as long as they are transparent about the actual performance of the IAS. In order for the contractual speed values to be understandable, contracts should specify factors that may have an effect on the speed, both within and outside the ISP’s control. This also applies for FWA (Fixed Wireless Access) and services that use a combination of technologies such as hybrid IAS, where unpredictable influences (for example environmental conditions) can impact on the provision of the service to a certain degree.

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141a. BEREC considers certain types of FWA as fixed network services for the purpose of transparency requirements in the Regulation. This is the case for example where a network using wireless technology (including mobile) is used for IAS provisioning at a fixed location with dedicated equipment and either capacity reservation or usage of a specified frequency spectrum band is applied. In this instance it should be compliant with the transparency requirements for fixed networks. When considering a specific case NRAs may take the specific product implementation and conditions into account. 141b. BEREC considers hybrid access as fixed network access for the purpose of transparency requirements in the Regulation when it consists of a combination of fixed and mobile technologies as a single subscription, it is provided at a fixed location, and it is marketed as a fixed service. Therefore, it should be compliant with the transparency requirements for fixed networks. If this is not the case, the fixed part of the service must meet the fixed network transparency requirements and the mobile part of the service must meet the mobile network transparency requirements. For example, with regards to the mobile component of the hybrid IAS when marketed separately from the fixed component, NRAs may impose requirements concerning minimum quality of service requirements and other appropriate and necessary measures under Article 5(1). 142. BEREC understands that the requirement on ISPs to include in the contract and publish information about advertised speeds does not entail a requirement to advertise speeds; rather, it is limited to including in the contract and publishing information about speeds which are advertised by the ISP. The requirement to specify the advertised speed requires an ISP to explain the advertised speed of the particular IAS offer included in the contract, if its speed has been advertised. An ISP may naturally also advertise other IAS offers of higher or lower speeds that are not included in the contract to which the subscriber is party (whether by choice or due to unavailability of the service at their location), in accordance with laws governing marketing. Specifying speeds for an IAS in case of fixed networks Minimum speed 143. The minimum speed is the lowest speed that the ISP undertakes to deliver to the end-user, according to the contract which includes the IAS. In principle, the actual speed should not be lower than the minimum speed, except in cases of interruption of the IAS. If the actual speed of an IAS is significantly, and continuously or regularly, lower than the minimum speed, it would indicate non-conformity of performance regarding the agreed minimum speed. 144 NRAs[…] could set requirements on defining minimum speed under Article 5(1), for example that the minimum speed could be in reasonable proportion to the maximum speed. Maximum speed 145. The maximum speed is the speed that an end-user could expect to receive at least some of the time (e.g. at least once a day). An ISP is not required to technically limit the speed to the maximum speed defined in the contract.



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146. NRAs could set requirements on defining maximum speeds under Article  5(1), for example that they are achievable a specified number of times during a specified period. Normally available speed 147. The normally available speed is the speed that an end-user could expect to receive most of the time when accessing the service. BEREC considers that the normally available speed has two dimensions: the numerical value of the speed and the availability (as a percentage) of the speed during a specified period, such as peak hours or the whole day. 148. The normally available speed should be available during the specified daily period. NRAs could set requirements on defining normally available speeds under Article 5(1). Examples include: •

specifying that normally available speeds should be available at least during off-peak hours and 90% of time over peak hours, or 95% over the whole day;

•

requiring that the normally available speed should be in reasonable proportion to the maximum speed.

149. In order to be meaningful, it should be possible for the end-user to evaluate the value of the normally available speed vis-à-vis the actual performance of the IAS on the basis of the information provided. Advertised speed 150. Advertised speed is the speed an ISP uses in its commercial communications, including advertising and marketing, in connection with the promotion of IAS offers. In the event that speeds are included in an ISP’s marketing of an offer (see also paragraph 142), the advertised speed should be specified in the published information and in the contract for each IAS offer. 151. NRAs could set requirements in accordance with Article  5(1) on how speeds defined in the contract relate to advertised speeds, for example that the advertised speed should not exceed the maximum speed defined in the contract. Specifying speeds of an IAS in mobile networks 152. Estimated maximum and advertised download and upload speeds should be described in contracts according to paragraphs 153–157. Estimated maximum speed 153. The estimated maximum speed for a mobile IAS should be specified so that the end-user can understand the realistically achievable maximum speed for their subscription in different locations in realistic usage conditions. The estimated maximum speed could be specified separately for different network technologies that affect the maximum speed available for an end-user. Endusers should be able to understand that they may not be able to reach the maximum speed if their mobile terminal does not support the speed. 154. NRAs could set requirements on defining estimated maximum speeds under Article 5(1). 155. Estimated maximum download and upload speeds could be made available in a geographical manner providing mobile IAS coverage maps with estimated/measured speed values of network coverage in all locations.

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Advertised speed 156. The advertised speed for a mobile IAS offer should reflect the speed which the ISP is realistically able to deliver to end-users. Although the transparency requirements regarding IAS speed are less detailed for mobile IAS than for fixed IAS, the advertised speed should enable endusers to make informed choices, for example, so they are able to evaluate the value of the advertised speed vis-à-vis the actual performance of the IAS. Significant factors that limit the speeds achieved by end-users should be specified. 157. NRAs could set requirements in accordance with Article  5(1) on how speeds defined in the contract relate to advertised speeds, for example that the advertised speed for an IAS as specified in a contract should not exceed the estimated maximum speed as defined in the same contract. See also paragraph 142. Article 4(1) (e) transparency on remedies available to consumers […] 158. Remedies available to consumers as described in Article 4(1) (e) are defined in national law. Examples of possible remedies for a discrepancy are price reduction, early termination of the contract, damages, or rectification of the non-conformity of performance, or a combination thereof. NRAs should ensure that ISPs provide consumers with information specifying such remedies. Article 4(2) procedures to address complaints […] 159. NRAs should ensure that ISPs adhere to certain good practices regarding procedures for addressing complaints, such as: •

informing end-users in the contract as well as on their website, in a clear manner, about the procedures put in place, including the usual or maximum time it takes to handle a complaint;

•

providing a description of how the complaint will be handled, including what steps the ISP will take to investigate the complaint and how the end-user will be notified of the progress or resolution of the complaint;

•

enabling end-users to easily file a complaint using different means, at least online (e.g. a web-form or email) and at the point of sale, but possibly also using other means such as post or telephone;

•

providing a single point of contact for all complaints related to the provisions set out in Article 3 and Article 4(1), regardless of the topic of the complaint;

•

enabling an end-user to be able to enquire about the status of their complaint in the same manner in which the complaint was raised;

•

informing end-users of the result of the complaint in a relatively short time, taking into account the complexity of the issue;

•

informing the end-user of the means to settle unresolved disputes according to national law if the end-user believes a complaint has not been successfully handled by the ISP (depending upon the cause of



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the complaint, the competent authority or authorities under national law may be the NRA, a court or an alternative dispute resolution entity etc.).’ BEREC Guidelines on the Implementation of the Open Internet Regulation, BoR (20) 112, 11 June 2020, paragraphs 128–159. See also: BEREC Guidelines on transparency in the scope of net neutrality: best practices and recommended approaches, BoR (11) 67, 14 December 2011. (c) Q&A on Article 102(3): ‘While detailing the information regarding prices that must be provided to consumers before they are bound by a contract, as well as included in the contract summary template, both annex VIII, part A, point (2) and Article 102(3) refer to “prices for activating the electronic communications service”. However, no reference is made to the prices for the installation of the service, which are typically higher than the activation prices. Assuming that the EECC did not mean to exempt service providers from disclosing information on the prices for the installation of the service, and also considering that Article  102(7) only allows Member States to maintain or introduce in their national law provisions relating to aspects not regulated by said article, are the installation prices to be considered as being included in a broader concept of “prices for activating the electronic communications service”, in which case Member-States can clarify, in their national law, that the prices for the installation of the service are also to be disclosed to consumers before the contract and included in the contract summary template?’ Reply: ‘The “respective prices for activating the electronic communications service” is understood to include also the price of the installation, if the installation is necessary for activating the service. The rationale of Art. 102(3) (c) is to clarify that there are one-off prices (such as “activation” charges) and recurring or consumption based prices. It would be artificial to further semantically distinguish between various (sub-)charges for various hypothetical steps of the one-off “activation” process. Moreover, the Regulation 2019/2243 (establishing a template for the contract summary) specifies in its annex that the section “Price” shall indicate “Any additional fixed prices such as for activating the service, – – -” .’ (d)  Q&A  on Article  102(2): ‘Q.1 Is the sequence as follows (i) the contract summary template is provided in accordance with Article  102(3) prior to the conclusion of the contract; (ii) the contract is concluded / becomes effective only when the consumer has confirmed his/her agreement after receipt of the contract summary; (iii) the consumer is not bound by the contract “or any corresponding offer” until contractual information is provided (as applicable) in accordance with Article 102(1)?’ Reply: ‘Q1: Article 102(1) foresees that certain information should be provided to the consumer “before [the latter] is bound by a contract”. The wording in Art. 102(3) is provide the contract summary “prior to the conclusion of the contract”. The EECC does not set a ‘sequence’ for the provision of these items. Art. 102 does not preclude the transfer of the abovementioned information and summary simultaneously.’. (e) Q&A on Article 102(1) and (3): ‘If a consumer cannot conclude a contract until they have received a contract summary template (CST) and a consumer only receives the Article 102(1) information after concluding the contract (but before it becomes binding on the consumer), how can a provider be compliant with his obligations to provide a contract summary template prior to a contract being concluded if both documents are sent simultaneously? How could a consumer be in receipt of a CST and the contractual information simultaneously?’

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Reply: ‘Article 102(4) rules that information referred to in paragraphs 1 and 3 of Article 102 shall become part of the contract. For the contract summary there is an exception: the summary may be provided after the contract is concluded, but before the contract becomes effective. This is only because the summary summarises what is already provided in the contract. The contract may not be concluded without the information in Article  102(1), because that contract, if concluded, becomes binding in most cases on the parties. The contract summary does not determine the actual conclusion of a contract. It can be provided without contract conclusion for information purposes. The aim of the summary is to help end-users to compare between service offers. The wide availability of the summaries, before conclusion of a contract, fulfils this purpose. The EECC Art 102(3) also allows providing the summary “thereafter” (of the conclusion) for objective technical reasons and rules that “the contract shall become effective when the consumer has confirmed his or her agreement after reception of the contract summary”.’ (f) Q&A  on Article  102(3): ‘Does anything speak against an obligation for providers to make their contract summary templates for all of their products available on their websites and in their points of sale as information prior to the conclusion of a contract?’ Reply: ‘Indeed, the aim of the summary is to help end-users to compare between service offers. The wide availability of the summaries, before conclusion of a contract, fulfils this purpose. Please note that Art 102(3) or the implementing regulation 2019/2243 do not require consumer’s details to be filled in.’ (g) Further Q&A on Article 102(3): ‘Should the contract summary be given to the consumer on a durable medium?’ Reply: ‘The contract summary as foreseen in Article 102(3) needs to be provided “in accordance with paragraph  1” of Article  102, which requires the use of a durable medium or an easily downloadable document, where provision on a durable medium is not feasible.’ Q&A on the contract summary template:72 ‘1. What is the contract summary? The contract summary is a standardised one page sheet (for one service) or up to three pages (for a bundle) provided to every consumer and other users, such as microenterprises, of electronic communications services prior to the conclusion of the contract. It includes a concise and easily readable presentation of the main information that service providers are required to provide to consumers, such as provider’s contact details, description of the service, speeds of the internet service, price, duration, renewal and termination of the contract and features for end-users with disabilities. 2. Will the contract summary replace the information that consumers need to receive before concluding the contract? No, but it provides a summary of the important information that providers must give to consumers before concluding the contract. 3. Can a provider of the internet service, mobile telephony or other services give only part of the information required by the implementing regulation? The implementing regulation includes a summary template, which provides a number of items and instructions for service providers on how to complete it.

European Commission, Question and Answers | Contract summary template, available at: https:// ec.europa.eu/digital-single-market/en/faq/question-and-answers-contract-summary-template (accessed as last updated on 13 November 2020).

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However, some of the items are to be given only where applicable. For example, if a service does not include an internet service, details on speeds of the internet services cannot be given and are not required either. 4. Why is there a need for a contract summary? The [EECC] and general consumer protection legislation sets out consumer information requirements that apply to providers of publicly available electronic communications services. The contract summary aims to help providers to better present information about the main elements of the contract, so that consumers can better compare different offers for communications services prior to the conclusion of a contract. Comparison will become easier as all providers will inform consumers about the same main elements of the contract in a uniform manner. 5. Does the contract summary mention all the rights and obligations of the provider and the consumer? The purpose of the contract summary is to enable consumers to make wellinformed choices. It does not include all terms and conditions of a specific contract. It does not mention all rights and obligations of the parties according to Union law and national law. For example, the consumer may have the right to terminate the contract for reasons other than the ones mentioned in the summary, such as in the event that the service provided is not in conformity with the contract. 6. Where can the consumer get the contract summary? The electronic communications service providers must make available the summary to every consumer prior to the conclusion of the contract. The summary may be provided in a similar way as the contract can be concluded: e.g. on paper in a shop or online. 7. Does the consumer need to ‘sign’ the contract summary in the same way as the contract? The contract summary is provided as part of e.g. an online offer or paper contract in a shop in order to facilitate choice and comparability between different offers for consumers. It does not need to be separately signed by the consumer. 8. Is the contract summary a legally binding document? The summary includes main elements of the information that providers must provide the consumer before conclusion of the contract (pre-contractual information). The contract shall become effective when the consumer has confirmed agreement after reception of the summary. Once the contract is concluded, the pre-contractually provided information as well as the contract summary constitute an integral part of the contract. 9. What happens if a consumer signs the contract before seeing the contract summary template? According to the [EECC], the contract will become effective when the consumer has confirmed his or her agreement after reception of the contract summary. 10. Is the summary provided for post-paid only or also for pre-paid services? The contract summary is to be provided for both post-paid and pre-paid offers of the relevant electronic communications services. 11. Is the template to be provided also to businesses or only to consumers? In addition to consumers, the contract summary is to be provided also to microenterprises, small enterprises and not-for-profit organisations, unless they have explicitly agreed not to require the summary, as set in the [EECC]. 12. Will the contract summary be provided only in the local language or should it be provided in all EU languages in all countries, so that consumers can really compare the offers in the EU?

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As the [EECC] does not regulate this matter, Member States may maintain or introduce in their national law language requirements regarding contractual information to be provided by providers of electronic communications services. 13. Why was this implementing regulation adopted? As one of the new improved consumer protection measures, the [EECC] introduced the requirement to provide a contract summary for consumers. The [EECC] empowers the Commission to adopt an implementing act establishing a template for the summary. 14. Does the implementing regulation change existing electronic communications rules in the EU? No. The implementing regulation is part of the updated EU telecommunications rules, the [EECC], and is based on these rules. The implementing regulation does not establish new requirements, but specifies how the summary is to be provided and the main elements to be included in the summary, based on the [EECC]. 15. How should the contract summary be dated? The instructions for completing the contract summary template in Part B of the Annex include that the contract summary shall be dated. The regulation does not give further rules concerning the date. The date can thus reflect the date of the latest version or the date when it was provided to the end-user. The regulation does not specify a particular section where the date should be inserted. However, the requirements on the presentation of content (Article 2 of the regulation) have to be followed, including presenting the content in a way that is easily readable and understandable for consumers. 16. Can tables be used in the contract summary? The regulation does not prohibit the use of tables. However, the use of tables is to comply with the obligations set in the regulation, for example Article 2(2) on the order of headings that is to be maintained. 17. How is a discounted price to be indicated? The regulation requires (Annex Part B) that under the section “Price” any timelimited discounts shall be indicated. Recital 14 indicates that where a promotional price applies, this should be clearly indicated, including the period that the discount is valid and the full price without the promotion. The requirements on the presentation of content (Article 2 of the regulation) have to be followed here like elsewhere in the summary, including presenting the content in a way that is easily readable and understandable for consumers. 18. For the price of bundles, should the full price or the price per service be indicated? The regulation requires including in the contract summary the recurring price per month. Where this concerns a bundle of more than one service the Regulation does not require to indicate the price per item in the contract summary. However, it should be noted that the full pre-contractual information to be given to consumer before a consumer is bound by a contract requires the provision of the prices of the individual elements of a bundle to the extent they are also marketed separately ([EECC], Article 102(1) and Annex VIII B. I. (2) (v)).’ No conflict with Unfair Commercial Practices Directive ‘[… A]lthough Article  20(1) of the Universal Service Directive requires, with regard to electronic communications, the provider of services to include certain information in the contract, neither this provision nor any other provision in that directive contains rules regulating specific aspects of unfair commercial practices, such as inertia selling, within the meaning of Annex I, point 29 of Directive 2005/29.



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In addition, it should be noted that Article 1(4) of the Universal Service Directive provides that the provisions of that directive concerning end-users’ rights are to apply without prejudice to Union rules on consumer protection and national rules in conformity with Union rules. It is clear from the expression ‘without prejudice to Union rules on consumer protection’ that the applicability of Directive 2005/29 is not affected by the provisions of the Universal Service Directive. It follows that there is no conflict between the provisions of Directive 2005/29 and the rules laid down by the Universal Service Directive as regards the rights of end-users.’ Joined Cases C-54/17 Autorità Garante della Concorrenza e del Mercato v Wind Tre SpA and C-55/17, Autorità Garante della Concorrenza e del Mercato v Vodafone Italia SpA, EU:C:2018:710, paras 66–68. Information on tax on the use of equipment Case C-416/14 Fratelli De Pra SpA and SAIV  SpA  v Agenzia Entrate – Direzione Provinciale Ufficio Controlli Belluno and Agenzia Entrate – Direzione Provinciale Ufficio Controlli Vicenza, EU:C:2015:617, para  2 of the Court’s ruling (see annotations to Article 16. Q&A on Articles 102(1) and (7): ‘1.

Article 102(1) is to be applicable ‘Before a consumer is bound by a contract or any corresponding offer’. What should be considered a corresponding offer that could bound a consumer but does not constitute a contract?

2.

Considering the difficulty consumers have proving service providers did not comply with their information obligations and in order to make EECC rules on this matter actually enforceable by consumers, are Member-States at liberty to establish (i) a procedural rule determining that the burden of proof of these obligations lies with the service providers and (ii) a consequence in case they are not able to do so (for example, to not be able to demand compliance with the dispute contract clauses) without violating the maximum harmonization principle?’ Reply: ‘1. The term “contract or corresponding offer” is used also in the Directive on consumer rights 2011/83/EU in Articles  5 and 6 on information requirements. A  “corresponding offer” is referred in order to address situations of binding offers under national contract law. 2.

Procedural rules and consequences are not regulated in Article  102 and do not concern additional information requirements for contracts on which Article 102(7) provision on Member States’ freedom to introduce provisions relating to aspects not regulated by Article  102 could apply. In accordance with the case-law, in the absence of European Union rules governing the matter, it is for the domestic legal system of each Member State, in accordance with the principle of the procedural autonomy of the Member States, to set these rules.’ Q&A on Articles 102(1) and (7): ‘Are EECC Article 102(1) and 102(7) only directed to consumers or would it be possible to interpret these two articles to include end-users such as large companies who use M2M services?’ Reply: ‘Pursuant to Article 102(2), information referred to in paragraphs 1, 3, 5 shall also be provided to end-users that are microenterprises or small enterprises or not-for-profit organisations. Article 102(7) gives Member States freedom to maintain or introduce provisions relating to aspects not regulated by Article 102. As Article 102 regulates the scope of end-users that benefit from the information

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requirements for contracts and it explicitly excludes transmission services used for the provision of machine-to-machine services, it cannot be interpreted in a way that would allow introduction of other categories of end-users or the transmission services used for the provision of machine-to-machine services into the Article. However, as mentioned above, electronic communications services do not include machine-to-machine services (applications) as such, but services consisting wholly or mainly in the conveyance of signals, these include transmission services used for the provision of M2M services.’ Q&A on Article 102(4): ‘[…] Q5. Article 102(4) states that “The information referred to in paragraphs 1 and 3 shall become an integral part of the contract and shall not be altered unless the contracting parties expressly agree otherwise.” How should this be interpreted in light of Article 105(4) which states that “End-users shall have the right to terminate their contract without incurring any further costs upon notice of changes in the contractual conditions proposed by the provider of publicly available electronic communications services other than number-independent interpersonal communications services, unless the proposed changes are exclusively to the benefit of the end-user, are of a purely administrative nature and have no negative effect on the end-user, or are directly imposed by Union or national law”? Q6. If the information contained in Article  102 paragraphs 1–3 is changed for any of the reasons stipulated in Article 105(4) should the end-user be entitled to terminate? What are the implications of information being an “integral part” of the contract in the context of a contract change notification issued to a consumer pursuant to Article 105(4) that results in a change / changes to that information?’ Reply: ‘[…] Q5: The change of the contract and the right to terminate have to be considered separately. Article 102(4) confirms the general principle of agreed contracts, “pacta sunt servanda”. Any change to the terms and conditions agreed may take place if both parties agree. In this respect, Article 105(4) rules specifically on the right to terminate the contract upon notice of changes in the contractual conditions. Providers shall notify end-users at least one month in advance of any change in the contractual conditions. Unless the proposed changes are exclusively to the benefit of the end-user, are of purely administrative nature and have no negative effect on the end-user, or are directly imposed by Union or national law, the end-user has the right to terminate the contract. Q6: Please also see the reply to the question above. Information referred to in paragraphs 1 and 3 of Article 102 become an integral part of the contract. According to Article 105(4), providers shall notify end-users at least one month in advance of any change in the contractual conditions. This applies irrespective of whether the amendment gives rise to a right to terminate the contract. Unless the proposed changes are exclusively to the benefit of the end-user, are of purely administrative nature and have no negative effect on the end-user, or are directly imposed



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by Union or national law, the end-user has the right to terminate the contract. Hence, some of changes to information referred to in Article 102 paragraphs 1 and 3 will not give end-users the right to terminate their contract on basis of the EECC.’ Q&A on Article 102(7): ‘Article 102(7) reads: “Member States shall remain free to maintain or introduce in their national law provisions relating to aspects not regulated by this Article, in particular in order to address newly emerging issues.” As regards distance contracts, paragraph  3 of Article  102 regulates only the moment when the contract shall become effective. Could we provide in national law some additional requirements for distance contracts that emerge in practice?’ Reply: ‘Distance contracts are covered by the consumer rights directive 2011/83 (see Chapter III), which provides that Member States shall not maintain or introduce, provisions diverging from those in that Directive, including more or less stringent provisions to ensure a different level of consumer protection, unless otherwise provided in that Directive.’ Article 103 Transparency, comparison of offers and publication of information 1.

Competent authorities in coordination, where relevant, with national regulatory authorities shall ensure that, where providers of internet access services or publicly available interpersonal communication services make the provision of those services subject to terms and conditions, the information referred to in Annex IX is published in a clear, comprehensive, machine-readable manner and in an accessible format for end-users with disabilities in accordance with Union law harmonising accessibility requirements for products and services, by all such providers, or by the competent authority itself in coordination, where relevant, with the national regulatory authority. Such information shall be updated regularly. Competent authorities in coordination, where relevant, with national regulatory authorities may specify additional requirements regarding the form in which such information is to be published. That information shall, on request, be supplied to the competent authority and, where relevant, to the national regulatory authority before its publication.

2.

Competent authorities shall, in coordination, where relevant, with national regulatory authorities, ensure that end-users have access free of charge to at least one independent comparison tool which enables them to compare and evaluate different internet access services and publicly available number-based interpersonal communications services, and, where applicable, publicly available number-independent interpersonal communications services, with regard to: (a) prices and tariffs of services provided against recurring or consumptionbased direct monetary payments; and (b) the quality of service performance, where minimum quality of service is offered or the undertaking is required to publish such information pursuant to Article 104.

3.

The comparison tool referred to in paragraph 2 shall: (a) be operationally independent from the providers of such services, thereby ensuring that those providers are given equal treatment in search results; (b) clearly disclose the owners and operators of the comparison tool; (c)

set out clear and objective criteria on which the comparison is to be based;

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(d) use plain and unambiguous language; (e) provide accurate and up-to-date information and state the time of the last update; (f)

be open to any provider of internet access services or publicly available interpersonal communications services making available the relevant information, and include a broad range of offers covering a significant part of the market and, where the information presented is not a complete overview of the market, a clear statement to that effect, before displaying results;

(g) provide an effective procedure to report incorrect information; (h) include the possibility to compare prices, tariffs and quality of service performance between offers available to consumers and, if required by Member States, between those offers and the standard offers publicly available to other end-users. Comparison tools fulfilling the requirements in points (a) to (h) shall, upon request by the provider of the tool, be certified by competent authorities in coordination, where relevant, with national regulatory authorities. Third parties shall have a right to use, free of charge and in open data formats, the information published by providers of internet access services or publicly available interpersonal communications services, for the purposes of making available such independent comparison tools. 4.

Member States may require that providers of internet access services or publicly available number-based interpersonal communications services, or both, distribute public interest information free of charge to existing and new end-users, where appropriate, by the means that they ordinarily use in their communications with end-users. In such a case, that public interest information shall be provided by the relevant public authorities in a standardised format and shall, inter alia, cover the following topics: (a) the most common uses of internet access services and publicly available number-based interpersonal communications services to engage in unlawful activities or to disseminate harmful content, in particular where it may prejudice respect for the rights and freedoms of others, including infringements of data protection rights, copyright and related rights, and their legal consequences; and (b) the means of protection against risks to personal security, privacy and personal data when using internet access services and publicly available number-based interpersonal communications services. See: Recitals 263; 265-270. Correlation with Universal Service Directive EECC Article 103 correlates with Directive 2002/22/EC, Article 21. Accessibility requirements for products and services Directive (EU) 2019/882 of the European Parliament and of the Council of 17 April 2019 on the accessibility requirements for products and services (Text with EEA relevance) (OJ L 151, 7.6.2019, p. 70) (see p. 989). Contract requirements and transparency of information



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Joined Cases C-54/17 Autorità Garante della Concorrenza e del Mercato v Wind Tre SpA and C-55/17 Autorità Garante della Concorrenza e del Mercato v Vodafone Italia SpA, EU:C:2018:710, para 1 of the Court’s ruling (see annotations to Article 5). BEREC Guidance See also: BEREC  Guidelines on the Implementation of the Open Internet Regulation, BoR (20) 112, 11  June 2020, paras 128–159 (see annotations to Article  102), and BEREC  Guidelines on transparency in the scope of net neutrality: best practices and recommended approaches, BoR (11) 67, 14 December 2011. With respect to the comparison of retail bundle prices, see also: European Benchmark of the pricing of bundles – methodology guidelines, BoR (18) 171, 4 October 2018. Q&A on ‘end-users’ and 103(2): ‘Title III affords protections to end-users. In certain cases, these protections are specifically limited to microenterprises, small enterprises and not-for-profit organisations. Where protections apply generally to “end-users” without this limitation, we do not interpret such provisions as allowing any discretion for a Member State to limit the application of the protections to smaller enterprises and on this basis, we believe the protections will apply to larger enterprises [for example a medium-sized enterprise as referred to in Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ L 124, 20.5.2003, p. 36) and enterprises that are larger in size than this]. Examples of protections afforded to end-users that would extend to larger enterprises include Article 103 (comparison tool, public interest information), Article  104 (publication of information on quality of service), Article 105(3), (4) and (6) (regarding contract duration and termination) and Article 106(1) (switching). Is it intended that larger enterprises will benefit from these and other protections afforded to “end-users”?’ Reply: ‘Some provisions in the EECC  Title III apply to all end-users, i.e. consumers and other users. Some are limited to consumers or consumers and endusers that are microenterprises, small enterprises or not-for-profit organisations (unless they have explicitly agreed to waive). On the Articles that are referred to: Article  103(2) rules that end-users have access to the comparison tool. While all end-users are to have access to the tool, the comparison of prices possibility in the comparison tool between offers in Article  103(3)h is specified to cover only comparison of offers available to consumers (unless Member States require to cover offers also available to other end-users). Of course, all end-users have access also to this facility. […]’. Q&A on Article 103(3): ‘Do you consider that a comparison tool managed by the NRA with tariff information on-line uploaded by the providers, the comparison tool is considered to be compliant with the obligation, set in Article [103(3)(a)], of being “operationally independent from the providers of such services, thereby ensuring that those providers are given equal treatment in search results”?’ Reply: ‘Article 103(3) provides for the requirements that the comparison tools should meet. Letter (b) requires that the tool clearly discloses the owners and operators of the comparison tool. Recitals 267 and 268 provide for additional clarifications. In light of these criteria, it would appear that a tool is not independent if it is not operationally independent from providers or if contractual relations with providers have an impact on the list of the results delivered to the end-users. In our view, if requiring providers to upload their tariff information in

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a tool managed by the NRA is done in a way that ensures equal treatment, the tool can be considered as being independent.’ Further Q&A on Article 103(3): ‘Is there an obligation under Article 103(3) that at least one market comparison tool be certified by a national regulatory authority?’ Reply: ‘Art. 103(3) foresees that a comparison tool fulfilling the requirements in points (a) to (h) of Art. 103(3) shall, upon request by the provider of the tool, be certified by competent authorities in coordination, where relevant, with national regulatory authorities. Hence, it is an option (i.e. a right to request) but not an obligation that a comparison tool is certified. Absent a request from a provider of the tool, Member States cannot make certification mandatory. On the other hand, under Article 103(2), at least one independent comparison tool has to be made available, which meets the requirements a) to h) in Article 103(3).’ Q&A on Article 103: ‘1.  Article  103(1) establishes that competent authorities in coordination, where relevant, with national regulatory authorities may specify additional requirements regarding the form in which information referred to in Annex IX is to be published. On this matter, recital (265) states as follows: “In order to allow them to make price and service comparisons easily, competent authorities in coordination, where relevant, with national regulatory authorities should be able to require from providers of internet access services or publicly available interpersonal communication services greater transparency as regards information, including tariffs, quality of service, conditions on terminal equipment supplied, and other relevant statistics.” In this context, can competent authorities (in coordination, where relevant, with national regulatory authorities) be allowed to, for example, detail the type of elements to be included by service providers under each category indicated in annex IX (for example, establishing that information regarding customer assistance services must include, along with the contact details, the prices of the calls to the telephone numbers provided)? 2.

Where a comparison tool is made available and managed by an NRA, are Member-States at liberty to obligate service providers to upload the relevant information into that tool free of charge and within a certain time limit without violating the maximum harmonization principle?

3.

Article 103(2) establishes that “Competent authorities shall, in coordination, where relevant, with national regulatory authorities, ensure that end-users have access free of charge to at least one independent comparison tool which enables them to compare and evaluate different internet access services and publicly available number-based interpersonal communications services, and, where applicable, publicly available number-independent interpersonal communications services, with regard to: (a) prices and tariffs of services provided against recurring or consumption-based direct monetary payments; and (b) the quality of service performance, where minimum quality of service is offered or the undertaking is required to publish such information pursuant to Article  104”. On the other hand, article  103(3)(h) establishes that this comparison tool shall “include the possibility to compare prices, tariffs and quality of service performance between offers available to consumers” and, only if required by Member States “between those offers and the standard offers publicly available to



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other end-users”. Should the comparison tool in question apply to all offers available to end-users or only to those available to consumers? 4.

Article  103(2)(b) defines that the tool shall include the quality of service performance, where minimum quality of service is offered or the undertaking is required to publish such information pursuant to Article  104. According to this article  103(2): does “such information pursuant Article 104” refer only to the information on “minimum quality of service” published pursuant that article or does it refer to any information on quality of service which is published pursuant [to] the same article. To note that according to article 104 “Where appropriate, the parameters, definitions and measurement methods set out in Annex X shall be used”. However, pursuant [to] Annex X of the Code, at least for the parameters to be measured according to the ETSI Guide, the providers will not publish information on minimum quality of service. For example, according to the ETSI  Guide mentioned in Annex X  (https://www.etsi.org > etsi_eg > eg_20205701v010301p), the quality of service parameters are never defined as minimum quality of service parameters. They are, instead, mostly average quality of service parameters or percentiles other than 100 (e.g. percentiles 80, 95, etc). For example, the measurements for the parameter “Fault repair time for fixed access lines” are, according to the ETSI Guide, the following: a) the time by which the fastest 80 % and 95 % of valid faults on access lines are repaired (expressed in clock hours); b) the percentage of faults cleared any time stated as an objective by the service provider; c) provision of information on the hours during which faults may be reported. Annex X  of the Code also establishes that for example this parameter (fault repair time) shall allow for performance to be analyzed at a regional level (namely, no less than level 2 in the Nomenclature of Territorial Units for Statistics (NUTS) established by Eurostat).’

Reply: ‘1.  Article  103(1) establishes that additional requirements may be specified regarding the form in which such information is to be published, namely the modalities in which such information is to be made available. In line with Article 101 on the level of harmonisation, additional, more stringent obligations regarding the categories of information in Annex IX cannot be introduced. However, please note that the examples provided on requiring including the contract details and the prices of the calls to the telephone numbers provided seem to be covered under Annex IX points 2.3 and 2.2 respectively. 2.

Directives leave to the Member States the choice of form and methods to achieve the objectives foreseen in that act. From this perspective the aspects on uploading information into a tool and within a certain time limit concern the methods to achieve the obligations in Article 103(2) of ensuring that end-users have access to at least one independent comparison tool.

3.

Article  103(2) rules that end-users have access to the comparison tool. While all end-users are to have access to the tool, the comparison of prices possibility in the comparison tool between offers in Article  103(3)h is specified to cover only comparison of offers available to consumers (unless Member States require to cover offers also available to other end-users). Of course, all end-users have access also to this facility.

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4.

Article103(2)(b) covers both situation in which the minimum QoS is offered and when the undertaking is required to publish information on QoS parameters pursuant to Article  104 (which does not need to be on minimum QoS but depending on the parameter may be measured e.g. by percentage or provided as a mean value). In both those cases relevant information on the quality of service performance should be included in a comparison tool and available for end-users to compare.’

Article 104 Quality of service related to internet access services and publicly available interpersonal communications services 1.

National regulatory authorities in coordination with other competent authorities may require providers of internet access services and of publicly available interpersonal communications services to publish comprehensive, comparable, reliable, user-friendly and up-to-date information for end-users on the quality of their services, to the extent that they control at least some elements of the network either directly or by virtue of a service level agreement to that effect, and on measures taken to ensure equivalence in access for end-users with disabilities. National regulatory authorities in coordination with other competent authorities may also require providers of publicly available interpersonal communication services to inform consumers if the quality of the services they provide depends on any external factors, such as control of signal transmission or network connectivity. That information shall, on request, be supplied to the national regulatory and, where relevant, to other competent authorities before its publication. The measures to ensure quality of service shall comply with Regulation (EU) 2015/2120.

2.

National regulatory authorities in coordination with other competent authorities shall specify, taking utmost account of BEREC guidelines, the quality of service parameters to be measured, the applicable measurement methods, and the content, form and manner of the information to be published, including possible quality certification mechanisms. Where appropriate, the parameters, definitions and measurement methods set out in Annex X shall be used. By 21  June 2020, in order to contribute to a consistent application of this paragraph and of Annex X, BEREC shall, after consulting stakeholders and in close cooperation with the Commission, adopt guidelines detailing the relevant quality of service parameters, including parameters relevant for end-users with disabilities, the applicable measurement methods, the content and format of publication of the information, and quality certification mechanisms. See: Recitals 271; 272. Correlation with Universal Service Directive EECC Article 104 correlates with Directive 2002/22/EC, Article 22. Compliance with the Open Internet Regulation (a) Regulation (EU) 2015/2120, Articles 3–5 (see pp 518–522). (b) BEREC Guidance ‘Article 3(2) agreements […] 32b. When assessing whether restrictions in such end point-based services provided in addition to the IAS by the ISP limit the exercise of the end-



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[…]

users’ rights laid down in Article 3(1) or establish a possible circumvention of Article 3(3), the NRA may, among other factors, take into account […] whether the IAS remains application-agnostic and whether the commercial and technical conditions of the IAS remain constant, independent of any choice of end point-based blocking, for example by reducing the price or affecting the QoS of the IAS.

34. With regard to characteristics of IAS, agreeing on tariffs for specific data volumes and speeds of the IAS would not represent a limitation of the exercise of the end-users’ rights (ref. Recital 7). Moreover, BEREC considers that end-users’ rights are likely to be unaffected, at least in the case that data volume and speed characteristics are applied in an applicationagnostic way (refer to paragraph  34a). The same assumption applies to offering different speeds for different IAS subscriptions, including in the case of mobile IAS subscriptions. 34a. In these Guidelines, ‘application-agnostic’ means that the treatment of traffic is independent of application. Under Article  3(2), where the ISP provides more than one level of QoS, application-agnostic implies that any application may populate any QoS level as selected by the end-user. Under Article  3(3), where the ISP provides more than one ‘category of traffic’, application-agnostic implies that the treatment of traffic within each category is independent of application. 34b. Different levels for QoS parameters other than data volumes and speeds, such as latency, jitter and packet loss, can also be agreed upon under Article  3(2). Such QoS levels must not be confused with ‘categories of traffic’ under the second subparagraph of Article 3(3) (refer to paragraphs 57-75). When assessing cases in which ISPs provide different IAS subscriptions, each with a different level of QoS, NRAs should ensure that the implementation of the different QoS levels is application-agnostic and transparent in order to verify compliance with Article 3(3). Furthermore, the practice must not limit the exercise of the rights of end-users laid down in Article 3(1). 34c. If IAS offers come to the market which facilitate multiple QoS levels at the same time for a single subscription under Article 3(2), NRAs should note that this may be allowed as long as this practice is application-agnostic and is in line with the requirements of Articles 3(1) and 3(3). In such an assessment, the NRA may, among other factors, take into account that end-users must have full control over which applications transmit traffic over which QoS level (e.g. by configuring the client application software) and that the QoS level in which specific applications are transmitted is not preselected by the ISP (e.g. based on commercial agreements with a third party, such as the end-user at the other end). Such assessment procedures could be fine-tuned by the NRAs if and when new use cases are implemented by ISPs. 34d. When assessing the implementation of application-agnostic QoS levels by an ISP, the NRA should note that it is not allowed to provide IAS subscriptions to some end-users to such an extent that it degrades the quality of other IAS subscriptions to a quality below the contract conditions agreed under Article  4(1). BEREC emphasises that full transparency of

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the relevant traffic management measures must be provided according to Article  4(1) of the Regulation (refer to paragraph  135). According to Article  5(1), NRAs may also impose requirements concerning technical characteristics, minimum quality of service requirements and other appropriate and necessary measures to prevent degradation of the general quality of service of internet access services for end-users. 35. Examples of commercial practices which are likely to be acceptable would include: •

application-agnostic offers where an end-user gets uncapped15 access to the internet (and not just for certain applications) during a limited period of time, e.g. during night-time or at weekends (when the network is less busy);

•

the ability for an end-user to access the ISP’s customer services when their data cap is reached in order to purchase access to additional data.

[…] Article 3(3) first subparagraph: equal treatment of traffic […]

53. NRAs should take into account that equal treatment does not necessarily imply that all end-users will experience the same network performance or quality of service (QoS). Thus, even though packets can experience varying transmission performance (e.g. on parameters such as latency or jitter), packets can normally be considered to be treated equally as long as all packets are processed agnostic to sender and receiver, to the content accessed or distributed, and to the application or service used or provided. […] Article 3(3) second subparagraph: reasonable traffic management […] 60. When considering whether a traffic management measure is nondiscriminatory, NRAs should consider the following: […] •

Similar situations in terms of similar technical QoS requirements should receive similar treatment;

•

Different situations in terms of objectively different technical QoS requirements can be treated in different ways if such treatment is objectively justified;

[…] “Objectively different technical QoS requirements of traffic categories”

62. In assessing whether a traffic management measure is reasonable, NRAs should assess the justification put forward by the ISP. In order to be considered to be reasonable, a traffic management measure has to be based on objectively different technical QoS requirements of specific categories of traffic. Examples for technical QoS requirements are latency, jitter, packet loss, and bandwidth. 63. Traffic categories should typically be defined based on QoS requirements, whereby a traffic category will contain a flow of packets from applications with similar requirements. Therefore, if ISPs implement different technical QoS requirements of specific categories of traffic, this should be done



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objectively by basing them on the sensitivity to QoS requirements of the applications (e.g. latency, jitter, packet loss, and bandwidth). For example, such a category may consist of real-time applications requiring a short time delay between sender and receiver.[73] 64. Furthermore, as explained in Recital 9, ISPs’ traffic management measures are ‘responding to’ the QoS requirements of the categories of traffic in order to optimise the overall transmission quality and enhance the userexperience. In order to identify categories of traffic, the ISP relies on the information provided by the application when packets are sent into the network. (See also paragraph  70 regarding which information can legitimately be considered by ISPs). Encrypted traffic should not be treated less favourably by reason of its encryption. 65. When NRAs consider network-internal mechanisms of ISPs which assist end point-based congestion control (see paragraph  54) in the context of Article 3(3) second subparagraph, the queue management of the different traffic categories[74] should be assessed under the same criteria as described in general for Article 3(3) second subparagraph. 66. Based on this, reasonable traffic management may be applied to differentiate between objectively different “categories of traffic”, for example by reference to an application layer protocol or generic application types (such as file sharing, VoIP or instant messaging), only in so far as: •

the application layer protocol or generic application types require objectively different technical QoS;

•

applications with equivalent QoS requirements are handled agnostically in the same traffic category; and

•

justifications are specific to the objectives that are pursued by implementing traffic management measures based on different categories of traffic.

67. ISPs may prioritise network management and control traffic over the rest of their traffic. Such traffic management practices should be considered as reasonable, provided that they are transparent and are aimed at properly configuring and securing the network and its equipment by efficiently balancing load, e.g. by reacting as fast as possible in case of congestion, failures, outages, etc. “Not based on commercial considerations” 68. In the event that traffic management measures are based on commercial grounds, the traffic management measure is not reasonable. An obvious example of this could be where an ISP charges for usage of different traffic categories or where the traffic management measure reflects the commercial interests of an ISP that offers certain applications or partners with a provider of certain applications. However, NRAs do not need to prove that a traffic management measure is based on commercial grounds;

‘IETF, RFC 7657, Differentiated Services and Real-Time Communication’ – fn 23 in the Guidelines. ‘See section 2.1 “AQM and Multiple Queues” in IETF RFC 7567’ – fn 24 in the Guidelines.

73 74

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it is sufficient to establish that the traffic management measure is not based on objectively different technical QoS requirements.

[…] Article 3(5) first subparagraph: necessity requirement of specialised services […] 99. Beyond the delivery of applications through the IAS, there can be demand for services that need to be carried at a specific level of quality that cannot be assured by the standard best effort delivery.

100. Such services can be offered by providers of electronic communications to the public (PECPs), including providers of internet access services (ISPs), and providers of content, applications and services (CAPs). 101. These providers are free to offer services referred to in Article 3(5), which BEREC refers to as specialised services, only when various requirements are met. Article  3(5) provides the safeguards for the provisioning of specialised services which are characterised by the following features in Article 3(5) first subparagraph: •

they are services other than IAS services;

•

they are optimised for specific content, applications or services, or a combination thereof;

•

the optimisation is objectively necessary in order to meet requirements for a specific level of quality.

102. Their provision is subject to a number of conditions in Article 3(5) second subparagraph, namely that: •

the network capacity is sufficient to provide the specialised service in addition to any IAS provided;

•

specialised services are not usable or offered as a replacement for IAS;

•

specialised services are not to the detriment of the availability or general quality of the IAS for end-users.

103. According to Recital 16, the service shall not be used to circumvent the provisions regarding traffic management measures applicable to IAS. 104. All these safeguards aim to ensure the continued availability and general quality of best effort IAS. 105. NRAs should verify whether the application could be provided over IAS at the specific levels of quality which are objectively necessary in relation to the application, or whether they are instead set up in order to circumvent the provisions regarding traffic management measures applicable to IAS, which would not be allowed. Assessment according to Article 3(5) first subparagraph 106. Initially, the requirement of an application can be specified by the provider of the specialised service, although requirements may also be inherent to the application itself. For example, a video application could use standard definition with a low bitrate or ultra-high definition with high bitrate, and these will obviously have different QoS requirements. A typical example of inherent requirements is low latency for real-time applications.



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107. When assessing whether the practices used to provide specialised services comply with Article  3(5) first subparagraph, NRAs should apply the approach set out in paragraphs 108-115). 108. NRAs could request from the provider relevant information about their specialised services, using powers conferred by Article  5(2). In their responses, the provider should give information about their specialised services, including what the relevant levels of quality are, that are not assured by IAS (e.g. latency, jitter and packet loss) but also other requirements for resource management as explained in the paragraph 108a below, and any contractual requirements. Furthermore, the ‘specific level of quality’ should be specified, and it should be demonstrable that this specific level of quality cannot be assured over the IAS and that the quality requirements are objectively necessary to ensure one or more key features of the service. 108a. Requirements for a specific level of quality may not only refer to standard parameters such as speed, latency and jitter, but may, for example, also apply to other quality parameters in novel networking paradigms such as machine-to-machine services (M2M). In such cases the devices may be resource-constrained (e.g. limited processing power, battery lifetime and memory capacity) and the provisioning of services in the network may have to deal with issues such as energy exhaustion, interference and security to maintain a specific level of quality. Addressing these issues is essential in order to assure the specific level of quality of the services, and specialized services could be justified in cases where the requirements cannot be fulfilled by the IAS for resource-constrained devices. 109. Based on this information, the NRA should assess the requirements mentioned in the first subparagraph of Article 3(5). 110. If assurance of a specific level of quality is objectively necessary, this cannot be provided by simply granting general priority over comparable content [see Recital 16 to the Open Internet Regulation]. Specialised services do not provide general connectivity to the internet (see also paragraph  115 regarding VPN services for further clarification) and they can be offered, for example, through a connection that is logically separated from the traffic of the IAS in order to assure these levels of quality. 110a. Regarding connectivity to the internet, dedicated connectivity between servers at the application layer (for example the possibility for VoLTE subscribers to call over the top VoIP users) would not provide general connectivity between end points of the internet, i.e. the service would not be usable or offered as a replacement for IAS. Therefore, a specialised service may rely on such connectivity. 110b. Regarding the example of logical separation of traffic between specialised services and IAS, typically when the two service categories are provided over a common infrastructure, it should be noted that logical separation could be provided with fixed or dynamic or without reservation of capacity for IAS  vs. specialised services. However, the ISP is obliged to provide the IAS quality as specified according to the transparency requirements in Article  4. Furthermore, the Regulation requires that specialised services are not provided to the detriment of the general quality of IAS for endusers.

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111. NRAs should verify whether, and to what extent, optimised delivery is objectively necessary to ensure that the requirements of one or more specific and key features of the content, applications and services are met, and to enable a corresponding quality assurance to be given to end-users. To do this, the NRA should assess whether an electronic communication service, other than IAS, requires a level of quality that cannot be assured over an IAS. If not, these electronic communication services are likely to circumvent the provisions of the Regulation and are therefore not allowed. In the assessment NRAs should take into account that different network technologies might provide different levels of performance. 112. The internet and the nature of IAS will evolve over time. A service that is deemed to be a specialised service today may not necessarily qualify as a specialised service in the future due to the fact that the optimisation of the service may not be objectively necessary, as the general standard of IAS may have improved. On the other hand, additional services might emerge that need to be optimised, even as the standard of IAS improves. NRAs should assess whether a service qualifies as a specialised service on a caseby-case basis. In case of reassessment, this would be expected to take place over a larger timescale. NRAs are not expected to keep specialised services under constant review. When an NRA assesses that a service no longer qualifies as a specialised service due to the improved quality of IAS, the ISP should be allowed a reasonable transitional phase for phasing out of the specialised service. In these circumstances, national administrative and procedural laws apply, including observing the principle of proportionality. 113. Typical examples of specialised services provided to end-users are VoLTE and linear broadcasting IPTV services with specific QoS requirements, subject to them meeting the requirements of the Regulation, in particular Article  3(5) first subparagraph. Under the same preconditions, other examples would include real-time health services (e.g. remote surgery) or ‘some services responding to a public interest or by some new machine-tomachine communications services’ (Recital 16). 114. QoS might be especially important to corporate customers and these customers might be in need of specialised services which – as they are addressing businesses – are often referred to as ‘business services’. Such ‘business services’ cover a wide array of services and have to be assessed on a case-by-case basis. 115. VPNs could qualify as specialised services in accordance with Article 3(5) of the Regulation. However, in accordance with Recital 17, to the extent that corporate services such as VPNs also provide access to the internet, the provision of such access to the internet by a provider of electronic communications to the public should be analysed under Article 3(1) to (4) of the Regulation. For example, such specialised services may not be used to replace an IAS by a service that prioritises specific applications while giving access to the internet.’ BEREC Guidelines on the Implementation of the Open Internet Regulation, BoR (20) 112, 11 June 2020, paras 32b, 34–35, 53, 60, 62-68, 99–115; see also paras 128–159 (see annotations to Article 102). BEREC Guidance BEREC  Guidelines detailing Quality of Service Parameters, BoR (20) 53, 6 March 2020: The Guidelines aim to define:



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‘2. […] a)

the relevant QoS parameters, including the parameters relevant for end-users with disabilities [in section 4];

b)

the applicable measurement methods for these QoS parameters, including, where appropriate, the ETSI[…] and ITU[…] standards set out in Annex X  of the EECC in relation to interpersonal communications services (“ICS”) and Internet access services (“IAS”), respectively [in section 3];

c)

the content and format of publication of the QoS information [in section 5], and

d)

the quality certification mechanisms [in section 6].

3.

Annex 3 to the Guidelines sets out the input received from NRAs in respect to any specified QoS parameters, measurement methods, and the content, form and manner of the information published, under the relevant provisions of Article 22 of the Universal Service Directive[…]. Annex 4 to the Guidelines sets out other benchmarking undertaken in respect to QoS indicators across Member States.

4.

Article 104 of the EECC contains a specific reference to Regulation (EU) 2015/2120[…]: “the measures to ensure quality of service shall comply with Regulation (EU) 2015/2120”, whose provisions in terms of QoS have been analysed in a number of BEREC documents. The Guidelines focus on providing definitions and measurement methods for the IAS QoS parameters related to the network performance listed in Annex X  of the EECC, i.e. latency, jitter and packet loss, taking into account previous BEREC reports, especially BEREC Net Neutrality Regulatory Assessment Methodology BoR (17) 178[…], in order to ensure the consistency of BEREC’s documents.

5.

Additional guidance can be found in the BEREC reports: Monitoring quality of Internet access services in the context of net neutrality BoR (14) 117[…]; Net neutrality measurement tool specification BoR (17) 179[…] and BoR (18) 32 Annex 1[…]. These Guidelines shall be applied to information published on QoS parameters, as specified by NRAs, following transposition of the EECC into national law.’ Introduction, paras 2 to 5. See also: BEREC Net Neutrality Regulatory Assessment Methodology, BoR (17) 178, 5 October 2017 and BEREC Guidelines for quality of service in the scope of net neutrality, BoR (12) 131, 26 November 2012. Q&A on Article 104: ‘1.  Article  104(1) determines that the NRA, in coordination with other competent authorities, may require providers of internet access services and of publicly available interpersonal communications services to publish information for end-users on the quality of their services. Recital 271 clarifies that NRA or other competent authorities should be able to require the publication of such information ‘where it is demonstrated that such information is not effectively available to the public’. Would it be considered to violate the full harmonization obligation a solution where the MS, through its legislative body, directly establishes the obligation to

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publish the information to which article 104(1) refers by service providers, instead of leaving that option to the NRA? 2.

Article 104(1) refers to end-users on the first sentence of §1 [“(…) may require providers of internet access services and of publicly available interpersonal communications services to publish comprehensive, comparable, reliable, user-friendly and up-to-date information for endusers (…)”] but to consumers on the next [“(…) may also require providers of publicly available interpersonal communication services to inform consumers (…)”]. Should this paragraph be applicable to all end-users in what comes to the information to be published, but only to consumers in what regards the potential reliance of QoS on external factors?

3.

Considering that Article 104 is merely a transparency provision, can we assume that the EECC does not extend to the subject matter of minimum material QoS levels, in which case MS are at liberty to establish their own material rules on this matter, where appropriate, or enable the NRA to do so, without violating the full harmonization principle? Are MS at liberty to require providers to compensate end-users in case of non-compliance with contracted QoS levels?

4.

Considering that Article  104 refers only to technical QoS requirements, as previously clarified by the Commission, can we assume from the fact that the EECC does not extend to other types of QoS levels – namely regarding complaints handling procedures, fulfilment of set up or repair appointments, etc. – that MS are at liberty to require service providers to commit to other non-technical QoS requirements?

5.

In Annex X, note 2 mentions two parameters. However, this note seems to only be associated with one specific parameter (“unsuccessful call ration”), as well as with the title of the first column of the second table of the annex (“Parameter”). Would the other parameter to which note 2 refers be “call set up time”, in line with the current USD?’

Reply: ‘1. The addressee of Article 104(1) is a national regulatory authority, which pursuant to the disposition of the said provision may require providers of IAS and publicly available ICS to publish information for end-users on the quality of their services. Therefore, while transposing Article 104(1) to its national laws, Member States should ensure that NRAs are empowered to implement the disposition of the said article. At the same time, recital 271 clarifies that [NRAs] or other competent authorities should be able to require the publication of such information in certain circumstances, i.e. where it is demonstrated that such information is not effectively available to the public. Should a MS, however, through its legislative body, directly establish the obligation to publish the information, instead of leaving that option to the NRA, this would exclude the prior assessment of the factual situation by the NRA (“where it is demonstrated that such information is not effectively available to the public”) and hence a priori exclude the NRA’s prerogative. Such “reduction to zero” of a prerogative is not covered by Art. 104(1) as the legal base. Moreover, in such a case, the legislator would pre-empt the powers of the regulator and would act as one and therefore has to meet the criteria to be considered a national regulatory authority. However, as explained in recital 37 EECC “Such outside influence makes



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a national legislative body unsuited to act as a national regulatory authority under the regulatory framework”. 2.

Yes, Article  104(1) differentiates between end-users and consumers. Pursuant to the Article, information on QoS is to be addressed to end-users, whereas providers may also be required to inform consumers if the quality of their service depends on any external factors.

3.

Article  104 is a transparency provision and the EECC does not indicate minimum QoS levels to be ensured by ECS providers. Providers of publicly available ECS other than transmission services used for the provision of M2M services are required to provide information on the main characteristics of each [of the] services provided, including any minimum QoS levels where offered (pursuant to Article 103(1) and Annex IX(2.1)) as well as on any compensation and refund arrangements, including, where applicable, explicit reference to rights of consumers, which apply if contracted levels of quality of service are not met (Article 102(1) and Annex VIII(a)(4)). Article 101 does not limit the liberty of MS to establish rules under national law on matters not covered by Articles  102–115, where appropriate, or enable the NRA to do so. Therefore, MS are at liberty to require providers to compensate end-users in case of non-compliance with contracted QoS levels, which is further confirmed in Article 105(5) and, on IAS, in Article 4(4) of Regulation 2015/2120.

4.

5.

As previously explained, the addressee of Article  104(1) is a national regulatory authority, which pursuant to the disposition of the said provision may require providers of IAS and publicly available ICS to publish information for end-users on the quality of their services. In accordance with Article 104(2) the QoS parameters to be measured shall be specified by the NRA in coordination with other competent authorities. As Art. 104(2) does not distinguish between technical and non-technical QoS parameters. NRAs are at liberty to specify the type of QoS parameters to be measured themselves, although, where appropriate, they shall follow Annex X and the BEREC guidelines. On the other hand, as explained earlier, MS in turn are not at liberty to require service providers to commit to other non-technical QoS requirements, as otherwise this would exclude the mentioned NRAs’ prerogative. Such “reduction to zero” of a prerogative is not covered by Art. 104(1) as the legal base.

Note 2 states that “Member States may decide not to require up-to-date information concerning the performance for those two parameters to be kept if evidence is available is available to show that performance in those two areas is satisfactory”. Logically, the note should refer to two parameters only, one of which is indicated explicitly (“unsuccessful call ration”), whereas the latter shall be among the parameters indicated in table 2 as note 2 is associated [with] the title of the first column of the second table of the annex. Given the fact that Annex X corresponds with Annex III of the USD which identifies the “call set up time” as the second parameter associated with note 2, it can be assumed that indeed note 2 should refer to this parameter.’ Q&A on ‘end-users’ and 104(1): ‘Title III affords protections to end-users. In certain cases, these protections are specifically limited to microenterprises, small

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enterprises and not-for-profit organisations. Where protections apply generally to “end-users” without this limitation, we do not interpret such provisions as allowing any discretion for a Member State to limit the application of the protections to smaller enterprises and on this basis, we believe the protections will apply to larger enterprises [for example a medium-sized enterprise as referred to in Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ L 124, 20.5.2003, p. 36) and enterprises that are larger in size than this]. Examples of protections afforded to end-users that would extend to larger enterprises include Article 103 (comparison tool, public interest information), Article  104 (publication of information on quality of service), Article 105(3), (4) and (6) (regarding contract duration and termination) and Article 106(1) (switching). Is it intended that larger enterprises will benefit from these and other protections afforded to ‘end-users’?’ Reply: ‘Some provisions in the EECC  Title III apply to all end-users, i.e. consumers and other users. Some are limited to consumers or consumers and endusers that are microenterprises, small enterprises or not-for-profit organisations (unless they have explicitly agreed to waive). On the Articles that are referred to: […] Article 104(1) differentiates between end-users and consumers. Pursuant to the Article, information on QoS is to be addressed to end-users, whereas providers may also be required to inform consumers if the quality of their service depends on any external factors. […]’. Further Q&A  on Article  104(1): ‘Are the quality of service measures that we may require providers to publish under Article  104(1) limited to technical measures that providers are able to collate on their own performance (such as those in Annex X), or could it include broader measures of quality of service such as customer complaints figures or the results of customer surveys, e.g. for overall customer satisfaction, satisfaction with complaint handling, net promoter scores etc.?’ Reply: ‘These measures relate to technical measures, the same as its predecessor, Article  22  USD, which requires undertakings to publish information on the quality of their services and on measures taken to ensure equivalence in access for end-users with disabilities. BEREC adopted guidelines detailing the relevant parameters in March 2020.’ Further Q&A  on Article  104(1): ‘[…] We understand this provision as information requirement as regards the quality of service. Could national law provide requirements for repairs of faults and for possible compensation to endusers?’ Reply: ‘Firstly, it needs to be observed that Article  101 provides for full harmonisation of consumer rights and prevents Member States from maintaining or introducing in their national law end-user protection provisions diverging from Art. 102-115. More stringent national consumer protection provisions may be applied until 21 December 2021 only if they were in force on 20 December 2018 and any restrictions to the functioning of the internal market resulting therefrom are proportionate. Secondly, publication of QoS info is not related to breach of contract, Art. 104 is a transparency provision. To that end and concerning the requirement to provide information on repairs of faults and possible compensation to end-users, the information requirement is set in Article  102. Pursuant to Article  102 (Information requirements for contracts) providers of publicly available ECS are obliged to provide information listed in Annex VIII



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before a consumer (and end-users that are micro and small enterprises and notfor-profit organisations) is bound by a contract. The information shall become [an] integral part of the contract (Art. 102(4)). Annex VIII in part A indicates that information on ‘(4) any compensation and refund arrangements, including, where applicable, explicit reference to rights of consumers, which apply if contracted levels of quality of service are not met or if the provider responds inadequately to a security incident, threat or vulnerability’ shall be provided. In addition, pursuant to Art. 102(7) Member States are free to maintain or introduce in their national law provisions relating to aspects not regulated in the said Article.’ Q&A on Article 104 and Annex X: ‘Provisions relating to fault repair under Art 104(2) and Annex X. We intend to treat all fault reports equally, regardless of whether the fault occurs e.g. in an ongoing contractual relationship or during the switching process. Since the Code does not expressly regulate the fault report/ fault repair procedure, we think that we are free to make specifications. That would for example mean that we introduce a fault repair procedure and sanctions for (any) missed service and installation appointments [for] those covered in Article 106 para 8 EECC with regard to the switching process but also any other missed service appointments that occur outside the switching process. Otherwise, we find it difficult to explain to a customer why he is treated differently depending on the reason why he scheduled the service appointment. Is the procedure we envisage in your view in line with the Code?’ Reply: ‘Article  106(8) rules that Member States shall lay down rules on the compensation of end-users in the case of failure of a provider to comply with the obligations laid down in Article 106, as well as in the case of delays in, or abuses of, porting and switching process, and missed service and installation appointments. Following a further analysis of the discussions which took place during the legislative process, and taking into account the overall scope of Article 106 and the explanations provided in recital (282), it should be read that this provision relates to compensation to missed service and installation appointments in the porting and switching context, and it does not cover missed appointments outside the porting and switching process. Member States would be free but not obliged to legislate on the consequences of other missed appointments, taking into account and as long as this would be in compliance with other Union law, when relevant. Article 104 is a transparency provision enabling NRAs in coordination with other CAs to require providers to publish information for end-users on the quality of their services. When specifying the QoS parameters to be measured, NRAs in coordination with other CAs shall take utmost account of BEREC guidelines. Furthermore, parameters, definitions and measurement methods set out in Annex X  shall be used where appropriate. Annex X  contains a “fault repair time” parameter, together with the definition and measurement method (as defined in ETSI EG 202057). The relevant BEREC guidelines adopted in March 2020 confirm that the ETSI standard should be used. However, the standard does not specify the fault repair procedure. The EECC does not cover fault repair procedures, apart from requiring Member States to lay down rules on the compensation of end-users on missed service and installation appointments in the porting and switching context.’ Further Q&A on Article 104: ‘1) Do the QoS parameters and measurement methods indicated in this Article have to be followed or is it possible to deviate from them[?]

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2) Which providers will be covered by the requirement (i.e. how to interpret “control at least some elements of the network either directly or by virtue of a SLA to that effect” – does Art. 104 apply to OTTs or not?)’ Reply: ‘1) Art. 104 entitles NRAs (“NRAs may…”) to require providers to publish certain pieces of information, which are to be specified by NRAs (“NRAs shall…”) taking utmost account of the BEREC guidelines. Art 104(2) states that Annex X shall be used where appropriate, which – in comparison to the current practice based on the wording of Art. 22(2) last phrase USD (“could be used”) – allows for a limited variability. It does not completely exclude possibility of deviation if the said parameters/definitions/ measurement methods are deemed inappropriate (e.g. if the standard was updated and newer version is available, if a new standard was developed; if no standard for a particular issue is provided in Annex X). Furthermore, paras. 1 and 2 of Art. 104 should be read together, i.e. NRAs have discretion (“may”) to require operators to publish under 104(1), but if they decide to do so then NRAs have to (“shall”) decide the parameters, and use Annex X  and BEREC  Guidelines. The fact that provided information is to be comparable (as stated in para 1) and that the Code aims at reaching full harmonisation of consumer rights support this understanding. 2) Art. 104 refers to “providers of IAS and publicly available ICS (…) to the extent that they control at least some elements of the networks either directly or by virtue of a SLA to that effect”. The question of application of this provision to particular providers is of a practical nature – if a particular ICS provider neither controls any network element nor has a SLA to that effect, it is not required to publish information on QoS parameters. Hence, in case of a dispute on the scope of application to a particular ICS provider, the practical enforcement of that obligation might entail NRAs having to assess service level agreements. At the same time, all ICS providers may be required to inform consumers if the QoS they provide depends on external factors.’ Article 105 Contract duration and termination 1. Member States shall ensure that conditions and procedures for contract termination do not act as a disincentive to changing service provider and that contracts concluded between consumers and providers of publicly available electronic communications services other than number-independent interpersonal communications services and other than transmission services used for the provision of machine-to-machine services, do not mandate a commitment period longer than 24 months. Member States may adopt or maintain provisions which mandate shorter maximum contractual commitment periods. This paragraph shall not apply to the duration of an instalment contract where the consumer has agreed in a separate contract to instalment payments exclusively for deployment of a physical connection, in particular to very high capacity networks. An instalment contract for the deployment of a physical connection shall not include terminal equipment, such as a router or modem, and shall not preclude consumers from exercising their rights under this Article. 2.

Paragraph  1 shall also apply to end-users that are microenterprises, small enterprises or not-for-profit organisations, unless they have explicitly agreed to waive those provisions.



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3.

Where a contract or national law provides for automatic prolongation of a fixed duration contract for electronic communications services other than numberindependent interpersonal communications services and other than transmission services used for the provision of machine-to-machine services, Member States shall ensure that, after such prolongation, end-users are entitled to terminate the contract at any time with a maximum one-month notice period, as determined by Member States, and without incurring any costs except the charges for receiving the service during the notice period. Before the contract is automatically prolonged, providers shall inform end-users, in a prominent and timely manner and on a durable medium, of the end of the contractual commitment and of the means by which to terminate the contract. In addition, and at the same time, providers shall give end-users best tariff advice relating to their services. Providers shall provide end-users with best tariff information at least annually.

4.

End-users shall have the right to terminate their contract without incurring any further costs upon notice of changes in the contractual conditions proposed by the provider of publicly available electronic communications services other than number-independent interpersonal communications services, unless the proposed changes are exclusively to the benefit of the end-user, are of a purely administrative nature and have no negative effect on the end-user, or are directly imposed by Union or national law. Providers shall notify end-users at least one month in advance of any change in the contractual conditions, and shall simultaneously inform them of their right to terminate the contract without incurring any further costs if they do not accept the new conditions. The right to terminate the contract shall be exercisable within one month after notification. Member States may extend that period by up to three months. Member States shall ensure that notification is made in a clear and comprehensible manner on a durable medium.

5.

Any significant continued or frequently recurring discrepancy between the actual performance of an electronic communications service, other than an internet access service or a number-independent interpersonal communications service, and the performance indicated in the contract shall be considered to be a basis for triggering the remedies available to the consumer in accordance with national law, including the right to terminate the contract free of cost.

6.

Where an end-user has the right to terminate a contract for a publicly available electronic communications service, other than a number-independent interpersonal communications service, before the end of the agreed contract period pursuant to this Directive or to other provisions of Union or national law, no compensation shall be due by the end-user other than for retained subsidised terminal equipment. Where the end-user chooses to retain terminal equipment bundled at the moment of the contract conclusion, any compensation due shall not exceed its pro rata temporis value as agreed at the moment of the conclusion of the contract or the remaining part of the service fee until the end of the contract, whichever is the smaller. Member States may determine other methods to calculate the compensation rate, provided that such methods do not result in a level of compensation exceeding that calculated in accordance with the second subparagraph. The provider shall lift any condition on the use of that terminal equipment on other networks free of charge at a time specified by Member States and at the latest upon payment of the compensation.

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As far as transmission services used for machine-to-machine services are concerned, the rights mentioned in paragraphs 4 and 6 shall benefit only endusers that are consumers, microenterprises, small enterprises or not-for-profit organisations. See: Recitals 259; 263; 273–276. Correlation with Universal Service Directive EECC  Article  105(1) correlates with Directive 2002/22/EC, Article  30(5); EECC Article  105(4) correlates with Directive 2002/22/EC, Article  20(2) (the reference in Annex XIII to EECC Article 105(3) is incorrect). End-users (a) Definitions of micro, small and medium-sized enterprises: Commission Recommendation 2003/361/EC, Article 2 and Annex; Case T-587/14 Crosfield Italia Srl v European Chemicals Agency (ECHA), EU:T:2016:475, paras 34–36; Case T-620/13 Marchi Industriale SpA v European Chemicals Agency (ECHA), EU:T:2016:479, paras 30–32 (see annotations to Recital 68). (b) Q&A on Recital 259: ‘What type of organisations does the concept of notfor-profit organisation include?’ Reply: ‘EECC does not define not-for-profit organisations, which are defined in the national law. (Recital 259 EECC refers to ‘not-for-profit organisations as defined in national law’).’ Right of subscribers to terminate their contract without penalty (a) Increase in charges: ‘Article  20(2) of [the Universal Service Directive], must be interpreted as meaning that a change in charges for the provision of electronic communications networks or services, resulting from the operation of a price adjustment clause contained in the standard terms and conditions applied by an undertaking providing such services, the term providing that such a change applies in accordance with changes in an objective consumer price index compiled by a public institution, does not constitute a ‘modification to the contractual conditions’ within the meaning of that provision, which grants the subscriber the right to withdraw from the contract without penalty.’ Case C-326/14 Verein für Konsumenteninformation v A1 Telekom Austria AG, EU:C:2015:782, Court’s ruling. (b) Q&A on Article 105(4): ‘Article 105(4) §2 establishes that “Providers shall notify end-users at least one month in advance of any change in the contractual conditions, and shall simultaneously inform them of their right to terminate the contract without incurring any further costs if they do not accept the new conditions”. Considering that this notification shall be sent before any change in the contractual conditions – including those that do not involve a right to terminate the contract, can Member-States assume that the obligation to simultaneously inform end-users of said right is only to be considered where applicable and not always? In the Commission’s interpretation, are providers obliged to notify end-users of any change in the contractual conditions or should such notification be sent only when there is a right to terminate the contract without incurring in any further costs? Can Member-States assume that changes that are directly imposed by a decision of a competent [authority] or NRA fall under the third exception (Union or National Law)?’ Reply: ‘Article  105(4) rules that providers shall notify end-users at least one month in advance of any change in the contractual conditions. This applies irrespective of whether the amendment gives rise to a right to terminate the contract. Unless the proposed changes are exclusively to the benefit of the end-



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user, are of purely administrative nature and have no negative effect on the enduser, or are directly imposed by Union or national law, the provider has to inform at the same time the end-user about the right to terminate the contract. Recital 276 also notes that the provisions on contract termination are without prejudice to other provisions of Union or national law on which contractual terms and conditions can be changed by the provider or by the end-user.’ (c) Further Q&A on Article 105(4): ‘a)

Is it in line with the EECC if the national legislation grants consumers the right to reject proposed changes of contract terms during the commitment period and demand that the initially agreed upon contract terms be respected until the end of the commitment period? An example of such change: the telecoms provider proposes to raise the monthly subscription price during the commitment period.

b)

Does the answer change if the proposed changes fall under one of the exceptions including Article 105(4) of the EECC?’ Reply: ‘a) Art. 105(4) EECC provides for a termination right for end-users. It does not exclude a provider’s right to propose changes to the contract terms during the commitment period or give end-users the right to the initially agreed contract terms. The end-user, however, has the right to terminate the contract in case the proposed changes do not fulfil the exceptions (for example that the proposed changes are exclusively to the benefit of the end-user) mentioned in Art. 105(4). As to the example, in case the provider proposes to raise the monthly price, the end-user has the right to terminate the contract upon notice of the change, but the end-user does not have a right to demand the original subscription price. Full harmonisation applies as set in Art 101(1), in this case, Member States cannot impose a restriction on the provider and demand that the initially agreed upon contract terms be respected until the end of the commitment period. b)

This applies equally, if the proposed changes fall under one of the exceptions under Article 105(4), except that the end-user does not have the right to terminate the contract in such circumstances.’ (d)  Further Q&A  on Article  105(4): ‘In the event of the disappearance of a SVOD (subscription video on demand) channel or service, or in similar cases, are consumers entitled to terminate their subscription on the basis of Article 105(4)?’ Reply: ‘Electronic communications services do not cover services that provide content transmitted using electronic communications networks. However, according to Article 107 EECC, if a bundle of services (or a bundle of services and terminal equipment) comprises at least an internet access service or a publicly available number-based interpersonal communications service, Article 105 shall apply to all elements of the bundle. Article 105(4) EECC provides for a termination right for end-users. It does not exclude a provider’s right to propose changes to the contract terms during the commitment period or give end-users the right to the initially agreed contract terms. The end-user, however, has the right to terminate the contract in case the proposed changes do not fulfil the exceptions (for example that the proposed changes are exclusively to the benefit of the end-user) mentioned in Article 105(4). As to the example, Article  105 applies in case the SVOD service is part of a bundle of services (Recital 283: provided or sold by the same provider under the same or a closely related or linked contract) that includes an internet access

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service or a publicly available number-based interpersonal communications service. If the provider modifies the selection of the SVODs (by reducing the selection, which can be considered not to be in the benefit of the end-user), the end-user has the right to terminate the contract upon notice of the change’. (e) Further Q&A on Article 105(4): ‘(i) Will the roaming traffic in the UK count for the whole RLAH [Roam Like at Home] tariff/FUP [Fair Use Policy] caps, applicable within the EU (without the operators’ prerogative to have a specific ‘RLAH/FUP’ to UK traffic, similar to the one applied within the EU)? (ii) Will clients have the possibility for an early termination of the contract if, from 1st January 2021, the operators change their tariff plans due to the cease of the EU RLAH tariff application to the UK? If not, will the operators be obliged to previously inform their clients of the said changes, within the applicable deadline?’ Reply: ‘After the end of the transition period (i.e. after 31  December 2020), the United Kingdom becomes a third country for the purposes of EU rules on roaming on public mobile communications networks within the European Union (Regulation (EU) 531/2012). This means that outbound roaming traffic to the UK should be treated like any other roaming traffic to countries outside the EEA. It should not count as retail roaming RLAH traffic nor should it be taken into account for FUP limits. The RLAH rules apply for periodic travelling within the Union. The FUP is applicable on EU roaming traffic. Operators are free to handle third country roaming traffic under RLAH conditions, if they chose. However, it should not count against fair use limits for EU roaming. In addition to the RLAH tariffs, operators are free to offer alternative tariffs. In this case, the operator can offer tariffs that include both EU and third country traffic under the same conditions. The above are relevant for the traffic that operators report in the framework of the international roaming BEREC data benchmark reports. Article 105(4) paragraph 2 of the [EECC] rules that providers shall notify endusers at least one month in advance of any change in the contractual conditions. Hence, there’s an obligation to inform the end-users of the change of tariff plans. Article 105(4) paragraph 1 of the EECC provides that end-users shall have the right to terminate their contract without further costs upon notice of changes in the contractual conditions, unless the proposed changes are exclusively to the benefit of the end-user, are of purely administrative nature and have no negative effect on the end-user, or are directly imposed by Union or national law. After the end of the transition period (i.e. after 31 December 2020), the United Kingdom becomes a third country for the purposes of EU rules on roaming on public mobile communications networks within the European Union (Regulation (EU) 531/2012). This means that after that date roaming providers operating in the European Union will no longer benefit, when requesting wholesale roaming access, from the obligation of mobile network operators operating in the United Kingdom to meet all reasonable requests for providing wholesale roaming access (Article 3 of Regulation (EU) 531/2012). They will neither benefit from the EU rules on maximum wholesale roaming charges that visited network operators operating in the United Kingdom may charge for the provision of wholesale roaming services within the European Union (Articles 7, 9, 12 of Regulation (EU) 531/2012). Consequently, they will not have an obligation on the retail market not to levy any surcharge in addition to the domestic retail price on the roaming customer for the use of roaming services in the United Kingdom (calls made or received, SMS messages sent and data services), subject to fair use (Articles 6a



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and 6b of Regulation (EU) 531/2012, as well as the Commission Implementing Regulation (EU) 2016/2286). However, they will still be obliged to provide information to their roaming customers travelling to the United Kingdom under the transparency obligations (Article  14 of Regulation (EU) 531/2012 (voice and SMS) and Article 15 of Regulation (EU) 531/2012 (data services)). The end of the “Roam Like at Home” (RLAH) for the UK is not directly imposed by Union or national law because although after the end of the transition period the roaming providers will no longer be obliged to apply this rule, they will not be obliged to stop applying it. The change of tariff plans due to the cease of the EU RLAH tariff application to the UK does thus not fall in the exceptions above and would give end-users the right to terminate their contract under Article 105(4). However, it should be noted that operators may still continue to offer RLAH on a voluntary basis and if the change is exclusively to the benefit of the end-user there is no right to terminate the contract on this basis.’ End-user’s right to terminate under the Consumer Rights Directive before the end of the agreed contract period See Directive 2011/83/EU, Articles 9–16. Q&A on Article 105(1): ‘Article 105(1) establishes that “contracts concluded between consumers and providers of publicly available electronic communications services other than number-independent interpersonal communications services and other than transmission services used for the provision of machine-tomachine services, do not mandate a commitment period longer than 24 months”, adding that “Member States may adopt or maintain provisions which mandate shorter maximum contractual commitment periods”. Given that this rule applies only to the maximum duration of the commitment period, are Member States at liberty to obligate service providers to also make available other offers of shorter commitment periods (for example, service providers cannot establish commitment periods longer than 24 months and must also make available alternative offers of 12 months, 6 months and no commitment period for consumers to choose from)?’ Reply: ‘Article  105(1) establishes that Member States may adopt or maintain shorter maximum contractual commitment periods. Recital 273 explains that Member States should have the possibility to maintain or introduce provisions for a shorter maximum duration. Art 105 does not introduce a possibility to mandate an obligation to offer various maximum contractual commitment periods and in line with Article 101, Member States shall not maintain or introduce more, or less, stringent provisions to ensure a different level of protection.’ Q&A on Article 105(3): ‘1.  Article 105(3) refers to automatic prolongation of fixed duration contracts and establishes, among other things, that service providers shall give end-users best tariff advice relating to their services before the contract is automatically prolonged. This provision also establishes that service providers shall provide end-users with best tariff information at least annually. Does this obligation to provide end-users with annual best tariff information apply only to fixed duration contracts that can be automatically prolonged, adding to the obligation to provide this information before the contract is prolonged? 2.

Article 105(6) establishes that where an end-user has the right to terminate a contract before the end of the agreed contract period pursuant to the EECC or to other provisions of Union or national law, no compensation shall be due by the end-user other than for retained subsidised terminal equipment, adding that where the end-user chooses to retain subsidised

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terminal equipment bundled at the moment of the contract conclusion, any compensation due shall not exceed its pro rata temporis value as agreed at the moment of the conclusion of the contract or the remaining part of the service fee until the end of the contract, whichever is the smaller. a.

Does this provision apply to equipment that was already bought by the end-user – either payed in full or in instalments – or to leased equipment property of the service provider? If for leased equipment, is it to be applied only where the provider gives the end-user the option to buy it or should that option always be available?

b.

Assuming ‘the remaining part of the service fee until the end of the contract’ means the monthly price for the provision of the service associated with the equipment multiplied by the number of months until the end of the agreed upon contract duration, does this monthly price encompass every service in a bundle, where the equipment was bought in that context? Please note that currently providers don’t always specify a price for each of the elements in a bundle.’ Reply: ‘Article  105(3) is on automatically prolonged fixed duration contracts and the requirement on giving best tariff information at least annually is also related (only) to these contracts. This adds to the obligation on giving best tariff advice before the contract is automatically prolonged. a.

Article 105(6) refers to terminal equipment that was ‘bundled at the moment of the contract conclusion’, hence equipment bought prior to that moment would normally not be considered to be ‘provided or sold by the same provider under the same or a closely related or linked contract’ (see recital 283). If, however, the ‘equipment that was already bought by the end-user – either payed in full or in instalments’ would fulfil this mentioned criteria of recital 283 (provided or sold by the same provider under the same or a closely related or linked contract), it would fall within the scope of Article 105(6). Article  105(6) does not oblige providers to give an option to end-users to buy the leased equipment. The provision applies only when equipment is bought by the end-user or where a provider gives an option to buy the equipment.

b.

The service fee means the (typically monthly) fee set together with the terminal equipment. Given that Art. 107(1) extends the rights under Art. 105(6) to all elements of the bundle, Article 105(6) does not require the referred service fee to be linked to a specific element in a bundle. It is to be noted, however, that the comparison (“whichever is smaller”) is to be made with the pro rata temporis value of the bundled terminal equipment.’ Further Q&A on Article 105(3): ‘What is the correct interpretation of “auto prolonged” contract for the purpose of Article 105? Is it the case that the final sentence of Article  105(3) “Providers shall provide end-users with best tariff information at least annually” is confined to situations of auto-prolonged contracts (rather than being a general obligation to provide best tariff information at least annually to ALL end-users)?’ Reply: ‘Article  105(3) refers to “automatic prolongation of a fixed duration contract” without specifying the length of the prolongation or the relation to the duration of the initial contract. However, Article 105(3) is clear in providing that “[…] end-users are entitled to terminate the contract at any time […]” after a fixed duration contract was “auto prolonged”. While the EECC acknowledges



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the possibility of automatic prolongation of contracts (recital 274) it excludes the assumption that such contracts upon their expiry would automatically become a subsequent contract of the same duration without the right to terminate. A  prolongation of the contract to 24 months without the right to terminate at any time is an establishment of a new contract that the end-user would have to explicitly agree to. Article  105(3) is on automatically prolonged fixed duration contracts and the requirement on giving best tariff information at least annually is also related (only) to these contracts. This adds to the obligation on giving best tariff advice before the contract is automatically prolonged.’ Further Q&A on Article 105(3): ‘(1) The obligation to inform end-users of the end of the contractual commitment and of the means to terminate the contract applies only where national law or a contract provides for automatic prolongation of a fixed duration contract for the specific electronic communications services (ECS) referred to in Article 105(3)? (2)

The obligation to provide best tariff advice under Article 105(3) applies only where national law or a contract provides for automatic prolongation of a fixed duration contract for the specific ECS referred to in Article 105(3)?

(3) The obligation to provide best tariff information at least annually applies only where national law or a contract provides for automatic prolongation of a fixed duration contract for the specific ECS referred to in Article 105(3)? (4) National law may provide for “automatic prolongation of a fixed duration contract” and may specify when this occurs in a national context? (5)

The concept of “automatic prolongation” in Article 105(3) does not require that the period for which the contract is automatically prolonged is the same duration as the initial fixed duration?

(6) A  fixed duration contract, of 24 months’ duration for example, may be automatically prolonged on a month-to-month basis following the expiry of the initial 24-month period, if this is provided for in either national law or the contract?’ Reply: ‘(1) Article 105(3) is on automatically prolonged fixed duration contracts and its provisions (including the specific rules on the entitlement to terminate, best tariff advice and best tariff information) are related (only) to these contracts. It could be noted that if the contract is not of fixed duration, the provisions in other paragraphs of Art 105 of course still apply. (2) Correct. (3) Correct. During the prolongation period of a fixed duration contract, providers shall provide best tariff information at least annually. (4) Correct. (5)

Correct. Article 105(3) refers to “automatic prolongation of a fixed duration contract” without specifying the length of the prolongation or the relation to the duration of the initial contract.

(6)

Correct. As stated above, Article 105(3) refers to “automatic prolongation of a fixed duration contract” without specifying the length of the prolongation

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or the relation to the duration of the initial contract. Article 105(3) is clear in providing that “[…] end-users are entitled to terminate the contract at any time […]” after a fixed duration contract was “auto prolonged”.’ Further Q&A  on Article  105(3): ‘A  consumer is in a 24-month contract for electronic communications service to which Article 105(3) EECC applies. There is no express provision in national law regarding automatic prolongation of fixed duration contracts. The consumer’s contract does not expressly use the term “automatic prolongation” of the fixed duration upon expiry, but rather provides that on expiry of the 24 months, the contract will continue on the same terms and conditions as before but can be terminated on one month’s notice. If not terminated, the contract will continue indefinitely. Based on this worked example, please confirm whether the following statements are correct: (A) While the consumer’s contract does continue after the initial 24 month period, because there is no provision in national law providing for ‘automatic prolongation’ and no reference to same in the consumer’s contract, this contract should not be considered as ‘autoprolonged’. (B) The consumer is therefore not entitled to the following: (i)

details of the end of the contractual commitment or the means to terminate the contract near the end of the initial 24 month period,

(ii) best tariff advice at the end of the initial 24 month period, (iii) best tariff information at least annually after receiving the best tariff advice referred to in (ii).’ Reply: ‘(A) In our view the contract has a fixed duration (24 months) and it is automatically prolonged (continues on the same terms and conditions), even if the term “automatic prolongation’” is not used. The aim of Art 105(3) is to ensure protection of end-users when contracts of fixed duration are automatically prolonged. The entitlement to terminate the contract at any time with a maximum one-month notice period together with the requirement to provide best tariff information at least annually thus applies after the end of the 24 months. (B) (i)

In our view, as explained above, the contract has a fixed duration, it is automatically prolonged and Art 105(3) applies. The end-user is thus entitled to receive, before the end of the initial 24-month period, information of the means to terminate and best tariff advice.

(ii) As above, the contract has an initial 24-month fixed duration and it is automatically prolonged. Art 105(3) requirement on best tariff advice applies before the end of the initial 24-month period. (iii) As above, the provider shall provide best tariff information at least annually during the duration of the prolongation.’ Further Q&A on Article 105(3): ‘Art 105(3): giving “advice” regarding best tariffs or “information” about the best tariff – how should providers do this?’ Reply: ‘Art. 105(3) stipulates that providers should “in addition, and at the same time” inform end-users on best tariff advice relating to their services. That means



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that such best tariff information should be provided in a prominent manner and on a durable medium.’ Further Q&A  on Article  105(3): ‘Does Article  105(3) on end-of-contract notifications and best-tariff advice, which is subject to full harmonisation, prohibit Member States from setting rules on how bundled mobile services are treated at the end of the initial contract period, i.e. requiring communication providers to move consumers to sim-only deals once handset costs are paid off at the end of the contract period?’ Reply: ‘Art 105 applies also to bundles (Art 107(1)) and applies to contracts that provide automatic prolongation of a fixed duration. Art 105(3) requires that before the contract is automatically prolonged, providers shall inform endusers of the end of the contractual commitment and of the means by which to terminate the contract and give end-users best tariff advice. Full harmonisation applies to matters covered in the EECC. In such a case, Member States shall not introduce more or less stringent rules concerning requirements related to automatic prolongation of a fixed duration contract.’ Further Q&A  on Article  105(3): ‘Article  105(3) establishes that “Before the contract is automatically prolonged, providers shall inform end-users, in a prominent and timely manner and on a durable medium, of the end of the contractual commitment and of the means by which to terminate the contract”. In order to ensure legal certainty, as well as the future enforceability of this rule, are Member-States at liberty to substantiate the vague concepts used in this article, namely what should be considered “timely’ (e.g. two months before the automatic prolongation of the contract)?’ Reply: ‘The question of what is considered timely’ is not a question about the level of end-user protection in relation to the substance of Article  105 and it does not fall into the Article 101 provisions on level of harmonisation. Member States can thus lay down in their national legislation measures to ensure that providers inform consumers in a prominent and timely manner. In practice this would require that the “timely” manner ensures that end-user has sufficient time to change their provider if they so wish.’ Q&A on ‘end-users’ and Article 105(4) and (6): ‘Title III affords protections to end-users. In certain cases, these protections are specifically limited to microenterprises, small enterprises and not-for-profit organisations. Where protections apply generally to “end-users” without this limitation, we do not interpret such provisions as allowing any discretion for a Member State to limit the application of the protections to smaller enterprises and on this basis, we believe the protections will apply to larger enterprises [for example a mediumsized enterprise as referred to in Commission Recommendation 2003/361/EC of 6  May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ L 124, 20.5.2003, p. 36) and enterprises that are larger in size than this]. Examples of protections afforded to end-users that would extend to larger enterprises include Article  103 (comparison tool, public interest information), Article  104 (publication of information on quality of service), Article  105(3), (4) and (6) (regarding contract duration and termination) and Article  106(1) (switching). Is it intended that larger enterprises will benefit from these and other protections afforded to “end-users”?’ Reply: ‘Some provisions in the EECC  Title III apply to all end-users, i.e. consumers and other users. Some are limited to consumers or consumers and endusers that are microenterprises, small enterprises or not-for-profit organisations (unless they have explicitly agreed to waive).

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On the Articles that are referred to: […] Article  105(4) and 105(6) provisions on rights regarding contract termination apply to all end-users, i.e. consumers and other users. However, for transmission services used for M2M, Article  105(7) limits the scope by excluding other end-users than consumers, microenterprises, small enterprises or not-for-profit organisation from benefiting from these rights. […]’’. Q&A on Articles 105(4)-(6): ‘a)

Besides instances contemplated in Articles 105(4), 105(5), and 105(6) does an end-user have a right to terminate a contract at any time within the contract period (when in his best interest to do so), and what, if any, fees/ costs/compensation/charges is a provider allowed to apply?

b)

Could early termination charges currently applied in the national context […], be allowed under the new provisions emanating from the Code?

c)

Taking into consideration Recital 273, can Member States abolish the applicability of any termination charges (with the exception of termination charges related to compensate for any retained subsidised terminal equipment, as per 105(6)), including termination charges intended to recover any discounts benefitted by the end-user when opting for a subscription with a minimum contractual period?’ Reply: ‘Article 105(6) of the EECC provides that “[w]here an end-user has the right to terminate a contract for publicly available electronic communications service, other than a number-independent interpersonal communications service, before the end of the agreed contract period pursuant to this Directive or to other provisions of Union or national law, no compensation shall be due other than the subsidised terminal equipment”. The scope of Article 105(6) of EECC thus covers the cases where a specific right to terminate an electronic communications service contract exists in the EECC or in other Union or national law. In the EECC, the rights to terminate a contract are set out in Article 105(3) (related to automatic prolongation), Article 105(4) (related to change in the contractual conditions), and Article 105(5) (related to significant discrepancies between the actual performance of an electronic communications service other than internet access service or a number-independent interpersonal communications service and the performance indicated in the contract). In addition, specific provisions on the right to terminate in case of bundled offers are addressed in Article 107(2). Where the conditions set in these rules are fulfilled, the legal consequence of the exercise of the right to terminate the contract has to be the one prescribed in the EECC, i.e. no compensation, except for terminal equipment. Furthermore, other cases when an end-user has the right to terminate the contract may be provided (now or in the future) in national legislation or in other Union legislation, for which the consequence is hence fully harmonised. Such rights may be linked to different circumstances, taking into account national particularities, but, as it will be explained below, may not be linked to the sole will of the subscriber. Indeed, in our view, the EECC does not provide full harmonisation for cases where the contract is terminated unilaterally by an end-user without such a right (“ad nutum” or by choice). These cases would need to be assessed not against paragraph 6, but against the other paragraphs of Article 105 and more in general in the light of the general objectives of the EECC (Article 3).



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In particular, in order to address the first and last question, we observe the following: On the one hand, when adopting legislation on termination, a Member State has to ensure that the conditions and procedures for contract termination do not act as a disincentive to changing service provider in line with Article  105(1). On the other hand, the national provisions set in this regard should not undermine the purpose of other provisions of the EECC, which already set rules in order to facilitate consumers’ change of provider and have to be compliant with the general principles of proportionality, transparency and objectivity as enshrined in Article 3 of the EECC. The above would in most of the cases translate in an assessment of the proportionality of the provisions to be carried out with a caseby-case approach (where all the characteristics of the tariffs at stake are duly taken into consideration). Only on the basis of such case-by-case assessment it would be possible to conclude whether a provision establishing early termination fees or abolishing any early termination fees, is compliant with the EECC. In respect to the second question, we understand that in accordance with national Law, end-users have the right to terminate their contract (even if they are within a contractual period, thus before the expiry of the contract) for any reason (i.e. not only if there is a discrepancy between the actual service and the contracted service), subject to certain specific conditions such as the applicability of reasonable termination charges. While the general principle enshrined above should apply, i.e. the necessity of a case-by-case assessment of whether national legislation respects the principle of proportionality, as a general remark it can be noted that a reasonable approach could be that the more the end-user approaches the end of the contract period, the less he/she should be required to pay for loyalty discounts or equipment to be able to switch. This would also be in line with the pro rata temporis principle enshrined in Article 105(6) on compensation for terminal equipment. Conversely, the provider should also have a minimum period of time to amortise its investments. The national legislator, in taking (or maintaining) any measures regarding the termination charges in case of termination of the contract before its term, should therefore make sure that the above guiding principles are respected. Nevertheless, as previously mentioned, a case-by-case assessment of whether national legislation adopted in this area respects the principle of proportionality would be necessary. In such case-by-case assessment, national specificities should also be taken into consideration.’ Q&A  on Article  105(5): ‘Article  105(5) establishes that “Any significant continued or frequently recurring discrepancy between the actual performance of an electronic communications service, other than an internet access service or a number-independent interpersonal communications service, and the performance indicated in the contract shall be considered to be a basis for triggering the remedies available to the consumer in accordance with national law, including the right to terminate the contract free of cost.” Given that the actual remedies are to be established by national law, are we right to assume that those remedies can apply to end-users other than consumers without violating the level of harmonization rule established in article 101, in which case the transposition rule of article 105(5) would apply, at a national level, to those end-users?’ Reply: ‘Article 105(5) refers to remedies available to the consumer in accordance with national law in case of discrepancies. The remedies are to be available to the consumer and the referred discrepancies do not trigger remedies for other end-

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users. Article 105(5) does not provide a basis to extend the remedies available to the consumer to other end-users.’ Q&A  on Articles  105(5) and (6): ‘Can Article  105(5) and Article  105(6) be applied at the same time?’ Reply: ‘Article 105(5) indicates that discrepancy between the actual performance of electronic communications service (ECS) other than internet access service (IAS) or number-independent interpersonal communications service (NI ICS), and the performance indicated in the contract shall be considered as a basis for triggering remedies available to the consumer in accordance with the national law, including right to terminate the contract free of cost. This paragraph describes a consumer right and refers to ECS with the exception of IAS (covered by the net neutrality rules) and NI CIS. This provision is not limited to the termination of the contract, but other remedies (including compensation) may be available under national law. Article  105(6) relates to a situation when an end-user has right to terminate contract for publicly available ECS other than NI ICS, before the agreed contract period pursuant to EECC or other provisions of Union or national law. According to this paragraph, in such a situation no compensation shall be due by end-user other than for retained subsidised terminal equipment. The previously mentioned paragraphs have different subject (consumer vs enduser) and object scope (discrepancy in the provision on ECS, other than IAS and NI ICS vs right to terminate contract for publicly available ECS, other than NI ICS). Having said that, paragraph 6 applies when an end-user has the right to terminate the contract before the end of the agreed contract period. As stated in this paragraph, such right may arise pursuant to the EECC (e.g. in a situation described in Art. 105(5)) or to other provisions of Union or national law. Consequently, in certain situations both Art. 105 (5) and (6) may apply.’ Q&A on Article 105(6): ‘Article 105(6) of the EECC states: “Where an enduser has the right to terminate a contract for a publicly available electronic communications service, other than a number-independent interpersonal communications service, before the end of the agreed contract period pursuant to this Directive or to other provisions of Union or national law, no compensation shall be due by the end-user other than for retained subsidised terminal equipment.” Would the following be in line with the EECC: Consumer has the right to terminate the contract in case of unilaterally proposed changes of contract terms by the provider, unless proposed changes are necessary to comply with changes in national or EU legislation, without paying any costs or penalties. If the contract included subsidized terminal equipment, the consumer can choose to either keep such equipment or return it to the provider. If he opts to keep the terminal equipment, he may continue to pay-off the equipment according to the initially agreed upon contract terms (monthly instalments, subsidized prize). If he opts to return the terminal equipment, the provider must return the purchase price (or parts of the purchase price the consumer already payed) to the consumer and is not allowed to demand any compensation or other costs related to the termination of the contract.’ Reply: ‘The first part on the consumer’s right to terminate a contract would not be fully in line with the EECC as it limits the exceptions to the termination rights contained in Art. 105(4)  EECC, to merely “unless proposed changes are necessary to comply with changes in national or EU legislation”, without



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mentioning the other exceptions contained in Art. 105(4). Having regard to Art. 101(1), this change of scope of Art. 105(4) would not be in line with the EECC. In case of an end-user retaining the terminal equipment Art. 105(6) provides for two options for compensation: the pro-rata temporis value pay back or the payment of the remaining part of the service fee, which both need to be provided, in order to compute the more beneficial option for the end-user. Member States may also determine other methods to calculate the compensation rate, following the limits set in Art 105(6). The proposed national provision in the example, however, would appear to limit the choice and computation to merely “paying-off the equipment according to the initially agreed upon contract terms” and would hence not be in line with the EECC. Art. 105(6) does not provide for a specific compensation by the provider to the end-user in case the end-user opts to return the terminal equipment.’ Q&A on Article 105(7): ‘What is the scope of Art 105(7) EECC (right for M2M contract termination and related compensations due for end users)?’ Reply: ‘Article  105(4) and 105(6) provisions on rights regarding contract termination apply to all end-users, i.e. consumers and other users. However, for transmission services used for M2M, Article 105(7) limits the scope by excluding other end-users than consumers, microenterprises, small enterprises or not-forprofit organisation from benefiting from these rights.’ Article 106 Provider switching and number portability 1.

In the case of switching between providers of internet access services, the providers concerned shall provide the end-user with adequate information before and during the switching process and ensure continuity of the internet access service, unless technically not feasible. The receiving provider shall ensure that the activation of the internet access service occurs within the shortest possible time on the date and within the timeframe expressly agreed with the end-user. The transferring provider shall continue to provide its internet access service on the same terms until the receiving provider activates its internet access service. Loss of service during the switching process shall not exceed one working day. National regulatory authorities shall ensure the efficiency and simplicity of the switching process for the end-user.

2.

Member States shall ensure that all end-users with numbers from the national numbering plan have the right to retain their numbers, upon request, independently of the undertaking providing the service, in accordance with Part C of Annex VI.

3.

Where an end-user terminates a contract, Member States shall ensure that the end-user can retain the right to port a number from the national numbering plan to another provider for a minimum of one month after the date of termination, unless that right is renounced by the end-user.

4.

National regulatory authorities shall ensure that pricing among providers related to the provision of number portability is cost-oriented, and that no direct charges are applied to end-users.

5.

The porting of numbers and their subsequent activation shall be carried out within the shortest possible time on the date explicitly agreed with the end-user. In any case, end-users who have concluded an agreement to port a number to a new provider shall have that number activated within one working day from the date agreed with the end-user. In the case of failure of the porting process,

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the transferring provider shall reactivate the number and related services of the end-user until the porting is successful. The transferring provider shall continue to provide its services on the same terms and conditions until the services of the receiving provider are activated. In any event, the loss of service during the process of provider switching and the porting of numbers shall not exceed one working day. Operators whose access networks or facilities are used by either the transferring or the receiving provider, or both, shall ensure that there is no loss of service that would delay the switching and porting process. 6.

The receiving provider shall lead the switching and porting processes set out in paragraphs 1 and 5 and both the receiving and transferring providers shall cooperate in good faith. They shall not delay or abuse the switching and porting processes, nor shall they port numbers or switch end-users without the end-users’ explicit consent. The end-users’ contracts with the transferring provider shall be terminated automatically upon conclusion of the switching process. National regulatory authorities may establish the details of the switching and porting processes, taking into account national provisions on contracts, technical feasibility and the need to maintain continuity of service to the end-users. This shall include, where technically feasible, a requirement for the porting to be completed through over-the-air provisioning, unless an end-user requests otherwise. National regulatory authorities shall also take appropriate measures ensuring that end-users are adequately informed and protected throughout the switching and porting processes and are not switched to another provider without their consent. Transferring providers shall refund, upon request, any remaining credit to the consumers using pre-paid services. Refund may be subject to a fee only if provided for in the contract. Any such fee shall be proportionate and commensurate with the actual costs incurred by the transferring provider in offering the refund.

7.

Member States shall lay down rules on penalties in the case of the failure of a provider to comply with the obligations laid down in this Article, including delays in, or abuses of, porting by, or on behalf of, a provider.

8.

Member States shall lay down rules on the compensation of end-users by their providers in an easy and timely manner in the case of the failure of a provider to comply with the obligations laid down in this Article, as well as in the case of delays in, or abuses of, porting and switching processes, and missed service and installation appointments.

9.

In addition to the information required under Annex VIII, Member States shall ensure that end-users are adequately informed about the existence of the rights to compensation referred to in paragraphs 7 and 8. See: Recitals 277–282. Correlation with Universal Service Directive EECC  Article  106(2) correlates with Directive 2002/22/EC, Article  30(1); EECC Article 106(4) correlates with Directive 2002/22/EC, Articles 30(2) and (3); EECC Article 106(5) correlates with Directive 2002/22/EC, Article 30(4). Costs in implementing mobile number portability and direct charges to subscribers ‘Article 30(2) of [the Universal Service Directive] is to be interpreted as obliging the national regulatory authority to take account of the costs incurred by mobile telephone network operators in implementing the number portability service when it assesses whether the direct charge to subscribers for the use of that service



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is a disincentive. However, it retains the power to fix the maximum amount of that charge levied by operators at a level below the costs incurred by them, when a charge calculated only on the basis of those costs is liable to dissuade users from making use of the portability facility.’ Case C-99/09 Polska Telefonia Cyfrowa sp. z o.o. v Prezes Urzędu Komunikacji Elektronicznej, EU:C:2010:395, Court’s ruling. Q&A on ‘end-users’ and Article 106(1): ‘Title III affords protections to end-users. In certain cases, these protections are specifically limited to microenterprises, small enterprises and not-forprofit organisations. Where protections apply generally to “end-users” without this limitation, we do not interpret such provisions as allowing any discretion for a Member State to limit the application of the protections to smaller enterprises and on this basis, we believe the protections will apply to larger enterprises [for example a medium-sized enterprise as referred to in Commission Recommendation 2003/361/EC of 6  May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ  L  124, 20.5.2003, p. 36) and enterprises that are larger in size than this]. Examples of protections afforded to end-users that would extend to larger enterprises include Article 103 (comparison tool, public interest information), Article  104 (publication of information on quality of service), Article 105(3), (4) and (6) (regarding contract duration and termination) and Article 106(1) (switching). Is it intended that larger enterprises will benefit from these and other protections afforded to “end-users”?’ Reply: ‘Some provisions in the EECC  Title III apply to all end-users, i.e. consumers and other users. Some are limited to consumers or consumers and endusers that are microenterprises, small enterprises or not-for-profit organisations (unless they have explicitly agreed to waive). On the Articles that are referred to: […] Article 106(1) covers end-users. […]’. Q&A on Article 106(1): ‘The second sentence of Article 106(1) prohibits the receiving and transferring providers from delaying or abusing the switching and porting processes. This recognises both the need for, and intention to have, prompt and efficient processes. However, the second half of the same sentence says “nor shall they port numbers or switch end-users without the end-users’ explicit consent”. We interpret this provision to mean no more than that there is a prohibition on switching or porting without the end-user’s consent. We do not interpret this provision as requiring that two separate consents are obtained, one by the receiving provider and one by the transferring provider, as this would delay the switching and porting processes (i.e. we interpret the provision as allowing one consent, which in practice will be obtained by the receiving provider, to satisfy this requirement). Is the correct interpretation of the requirement of Article  106 with respect to consents for switching or porting?’ Reply: ‘Article  106(6) refers to the receiving provider and has the wording ‘nor shall they port numbers or switch end-users without the end-users’ explicit consent’ and the interpretation on one consent is in line with our view.’ Q&A on Article 106(2): ‘Number portability is a key driver to ensure subscriber choice and competition in the case of number-based interpersonal communications services. However, it could also be relevant, as [a] consumer right, for noninterpersonal communications services, such as M2M/IoT connectivity services.

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Given the consistent application of numbering criteria among MS, what are the EC  views on the interpretation of article  106(2) in the sense that number portability should be attached as a general condition to the rights of use of numbering resources for the provision of transmission services M2M?’ Reply: ‘Pursuant to the general rule set in Article  106(2) all end-users with numbers from the national numbering plan have [the] right to retain their number, upon request, independently of [the] provider of the service. Pursuant to Part C of Annex VI, referred to in Article 106(2), this requirement shall apply at any location in the case of non-geographic numbers. Art. 106 does not provide for any differentiation of the requirements due to the type of electronic communications service provided with the use of the numbers. As explained in recital 278, number portability is a key facilitator of consumer choice and effective competition in competitive electronic communications markets, which applies to any type of electronic communications service that uses numbers. Pursuant to Article  13(1), rights of use for numbering resources shall be in accordance with Art. 94 and may be subject only to the conditions listed in Annex, part E, which in point 3 covers number portability requirements in accordance with the EECC. Consequently, number portability requirements may be attached as a general condition to the rights of use of numbering resources for the provision of transmission services for M2M.’ Q&A  on Article  106(3): ‘Article  106(3) establishes that where an end-user terminates a contract, MS shall ensure that they can retain the right to port a number from the national numbering plan to another provider for a minimum of one month after the date of termination, unless that right is renounced by the end-user. Although this is not expressly mentioned in this provision, does the fact that it refers to a minimum period allow MS to establish a longer one? Or is that to be left to the providers discretion?’ Reply: ‘Article  106(3) requires Member States to ensure a minimum of one month right to port a number. Article 101 on the level of harmonisation provides that Member States shall not maintain or introduce in national law more or less stringent provisions to ensure a different level of protection, unless otherwise provided for in this Title. The minimum period is thus to be ensured by Member States, granting a longer period is left to providers discretion.’ Q&A on Article 106(6): ‘EECC Article 106(6) states that: “[…] They shall not delay or abuse the switching and porting processes, nor shall they port numbers or switch end-users without the end-users’ explicit consent.” [Does the term “abuse” in the above-mentioned Article refer] to the switching and porting process or [does it refer to] the situation where end-users [have their] numbers [ported or switched] without the end-users’ explicit consent[?] In the sentence quoted from the EECC Article 106(6) abuse seems to be connected to the switching and porting process. In our understanding abuse is more or less connected to porting or switching end users numbers without the end-users’ explicit consent. In this context we have the following questions: •

Is abuse connected to the switching and porting process or is abuse connected to porting or switching end-users numbers without the endusers’ explicit consent?

•

If the term abuse is referring to the switching and porting process, does the Commission have any examples of such abuses of the switching and porting process?



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If abuse in the Article is not addressed to the switching and porting process what kind of abuses [is] the Article addressing?’ Reply: ‘“Abuse” as such is not defined in the EECC. In Article 106(6) it is used to refer to the switching and porting processes. “Abuse” can be understood as a wrong use of the said processes, i.e. an action by the receiving or transferring providers that would obstruct or impede the processes. Recital 281 refers to experience in certain Member States that has shown that there is a risk of endusers being switched without having given their consent. The aim is to ensure that end-users are protected throughout the switching process without making the process less attractive for them. The right to port numbers should not be restricted by contractual conditions. Related to switching (though not explicitly on possible abuse) BEREC has published a report in 2019 on the terminating of contracts and switching provider.’ Further Q&A on Article 106(6): ‘[…] What should be understood by “abuse” in the switching and porting processes? Should we understand that the refunding regime stated at paragraph 3 applies to the switching process as well as to number portability? And should the NRA take measures to stablish the quantum of that refund or the way it is calculated?’ Reply: ‘”Abuse’ as such is not defined in the EECC. In Article 106(6) it is used to refer to the switching and porting processes. “Abuse” can be understood as a wrong use of the said processes, i.e. an action by the receiving or transferring providers that would obstruct or impede the processes. Article 106(6) refers to the switching and porting processes set out in paragraphs 1 and 5 of the article. Subparagraph 3 of Article 106(6) refers specifically to the refund to which consumers using pre-paid services are entitled in the case of switching and porting processes. Pursuant to the said provision, any remaining credit should be refunded to the consumer. Refund may be subject to a fee only if provided for in the contract. In such a case, the fee shall be proportionate and commensurate with the actual costs incurred by transferring provider in offering the refund. NRAs’ tasks are described in paragraphs 1, 4 and 6 of Article 106, which provide that NRAs are to ensure the efficiency and simplicity of the switching process for the end-user and to ensure that pricing related to number portability is cost oriented and no direct charges are applied to end-users. NRAs may also establish the details of the switching and porting processes. The Code does not require NRA to take measures to establish the quantum of the fee, which may be deducted from the refund, or the way it is calculated, however such requirements may be prescribed as part of the overall porting process.’ Further Q&A on Article 106(6): ‘Article 106(6), third sub-paragraph, provides that “Transferring providers shall refund, upon request, any remaining credit to the consumers using pre-paid services…”. Are Member States to interpret this provision applying to credit accumulated prior to the transposition of the Code, i.e. if a customer has €20 in credit on their account on 20 December 2020 and seeks to move operator on 1 January 2021, is that customer entitled to receive a refund of the €20 on their account, minus any contractually mandated fee?’ Reply: ‘The national measures transposing the EECC will apply from 21  December 2020[…]. The EECC does not include a provision that would limit the applicability of Article 106 only to contracts concluded after this date. Hence, the new rules on provider switching and number portability (Article 106), including provisions on refund on pre-paid services, will apply immediately to all existing electronic communication services contracts which fall in the scope of the Title III.’

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Q&A  on Article  106(8): ‘May a Member State require that information on compensation arrangements be provided prior to the conclusion of a contract? May a Member State add this information obligation to the “other relevant information” section of the contractual summary provided for in Article 102 (3)? Is it possible to set a formula for calculating the compensation on the basis of the price of the subscription taken out by the consumer? Should compensation be automatic or only at the request of the consumer?’ Reply: ‘The EECC  Art 102 requires that before a consumer is bound by a contract, providers shall provide the information in Annex VIII. Annex VIII A (3) (ii) requires information on refund arrangements for delay or abuse of switching. Furthermore, Annex VIII A (4) includes any compensation and refund arrangements. The items to be included in the contract summary are laid down in Article 102(3) and specified in the Commission Implementing Regulation 2019/2243. Providers can choose to include additional information (required by Union on national law) under the section “Other relevant information”, but Member States cannot set obligations on items to be included in this section. The EECC  Art 106(8) requires Member States to lay down rules on the compensation of end-users by their providers in an easy and timely manner. The EECC does not detail on the method of calculation of the compensation, and does not specify if the compensation is to be automatic or on demand; these aspects are at Member States discretion.’ Further Q&A on Article 106(8): ‘What is meant by a “service” appointment as distinct from an “installation” appointment, in the context of switching and porting (Article 106(8))?’ Reply: ‘Recital 282 explains that Member States should provide for the compensation of end-users where an agreement between a provider and an end-user is not respected. An agreement can also consist of the fixing of an appointment. Hence, where a provider does not show up at an agreed service or installation appointment, which is necessary for or which was agreed to ensure the switching and porting process, he could be liable for compensation.’ Further Q&A on Article 106(8): ‘How should Article 106 and the compensation rules be interpreted in the event of delay or abuse in porting procedures and change of supplier and in the event of no-show for a service and installation appointment? Our understanding is that compensation only occurs in case of change of supplier and is not applicable for any other case of other after sales service. […]’ Reply: ‘This provision relates to compensation to missed service and installation appointments in the porting and switching context, and it does not cover missed appointments outside the porting and switching process. Member States are free but not obliged to legislate on the consequences of other missed appointments, taking into account and as long as this would be in compliance with other Union law, when relevant.’ Article 107 Bundled offers 1.

If a bundle of services or a bundle of services and terminal equipment offered to a consumer comprises at least an internet access service or a publicly available number-based interpersonal communications service, Article 102(3), Article 103(1), Article 105 and Article 106(1) shall apply to all elements of the bundle including, mutatis mutandis, those not otherwise covered by those provisions.



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2.

Where the consumer has, under Union law, or national law in accordance with Union law, a right to terminate any element of the bundle as referred to in paragraph 1 before the end of the agreed contract term because of a lack of conformity with the contract or a failure to supply, Member States shall provide that the consumer has the right to terminate the contract with respect to all elements of the bundle.

3.

Any subscription to additional services or terminal equipment provided or distributed by the same provider of internet access services or of publicly available number-based interpersonal communications services shall not extend the original duration of the contract to which such services or terminal equipment are added, unless the consumer expressly agrees otherwise when subscribing to the additional services or terminal equipment.

4.

Paragraphs 1 and 3 shall also apply to end-users that are microenterprises, small enterprises, or not-for-profit organisations, unless they have explicitly agreed to waive all or parts of those provisions.

5.

Member States may also apply paragraph 1 as regards other provisions laid down in this Title. See: Recitals 259; 283. End-users (a) Definitions of micro, small and medium-sized enterprises: Commission Recommendation 2003/361/EC, Article 2 and Annex; Case T-587/14 Crosfield Italia Srl v European Chemicals Agency (ECHA), EU:T:2016:475, paras 34–36; Case T-620/13 Marchi Industriale SpA v European Chemicals Agency (ECHA), EU:T:2016:479, paras 30–32 (see annotations to Recital 68). (b) Q&A on Recital 259: ‘What type of organisations does the concept of notfor-profit organisation include?’ Reply: ‘EECC does not define not-for-profit organisations, which are defined in the national law. (Recital 259 EECC refers to “not-for-profit organisations as defined in national law”).’ Consumer’s right to terminate before the end of the agreed contract term because of a lack of conformity with the contract or a failure to supply See Directive 2011/83/EU, Article  18(2); Directive (EU) 2019/771 of the European Parliament and of the Council of 20  May 2019 on certain aspects concerning contracts for the sale of goods, amending Regulation (EU) 2017/2394 and Directive 2009/22/EC, and repealing Directive 1999/44/EC (Text with EEA relevance) (OJ L 136, 22.5.2019, p. 28), Article 13(1), (4) and (5); 16. Bundles including digital content or digital services (including numberindependent interpersonal communications services) See Directive (EU) 2019/770, Articles 3(6) and 19 (see pp 1012 and 1019). Q&A on Article 107: ‘Do the provisions of Article 107 on bundles apply where the service bundle includes SVOD (subscription video on demand) content services?’ Reply: ‘According to Article 107 EECC, if a bundle of services (or a bundle of services and terminal equipment) comprises at least an internet access service or a publicly available number-based interpersonal communications service the provisions concerning bundles apply. Article 107 provisions apply if the digital content service is part of a contract provided or sold by the same provider under the same or a closely related or linked contract as an internet access service or a publicly available number-based interpersonal communications service.’ Further Q&A  on Article  107: ‘What types of products and services were intended to be included under Article 107? Was the intention to capture services

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such as energy if sold as part of a bundle with an internet access service or a publicly available number-based interpersonal communication service from the same provider?’ Reply: ‘The wording seems to be clear. If an IAS provider bundles various “services” or bundles of “services and terminal equipment” then the quoted rules apply mutatis mutandis to all such services and terminal equipment (“provided or sold by the same provider” see Rec. 283). Energy (i.e. “electricity”) as provided by EU case-law falls under “goods” and hence was not intended to be captured.’ Q&A  on Article  107(1): ‘Article  107(1) establishes that “If a bundle of services or a bundle of services and terminal equipment offered to a consumer comprises at least an internet access service or a publicly available number-based interpersonal communications service, Article 102(3), Article 103(1), Article 105 and Article 106(1) shall apply to all elements of the bundle including, mutatis mutandis, those not otherwise covered by those provisions”. On this matter, recital (283) states that “Bundles comprising at least either an internet access service or a publicly available number-based interpersonal communications service, as well as other services, such as publicly available number-independent interpersonal communications services, linear broadcasting and machine-tomachine services, or terminal equipment, have become increasingly widespread and are an important element of competition. For the purposes of this Directive, a bundle should be considered to exist in situations where the elements of the bundle are provided or sold by the same provider under the same or a closely related or linked contract”. In this context, should Article 107 apply to bundles comprising an internet access service or a publicly available number-based interpersonal communications service and other electronic communication services or, more comprehensively, to bundles comprising an internet access service or a publicly available number-based interpersonal communications service and any other kind of service sold by the same provider under the same or a closely related or linked contract (e.g. energy services)?’ Reply: ‘Following Recital 283 and Article 107 EECC, when a provider bundles various “services” or “services and terminal equipment”, several essential provisions regarding contract summary information, transparency, contract duration and termination and switching will apply to all the services and terminal equipment included in the bundle (“provided or sold by the same provider”), provided that the bundle includes at least an internet access service or a publicly available number-based interpersonal communication service. This means that applicability is to all services provided or sold by the same provider under the same or a closely related or linked contract. Recital 283 describes current widespread examples and does not create a limitation to the Article’s wording on its scope. As to the example on energy, please note that electricity and gas are classified as goods, therefore for bundles that include such services Article 107(1) does not apply. (Directive 2011/83 on consumer rights classifies electricity and gas, as well as water, as goods).’ Q&A on Article 107(1) and Annex VIII: ‘Are the terms “bundled offers” and “bundled services” to be regarded as referring to identical concepts? If not, what is their respective scope?’ Reply: ‘Article 107 is titled “Bundled offers” and Annex IX 2.4 refers to “bundled offers”. Article 107 refers to a “bundle of services” and a “bundle of services and terminal equipment”; likewise, Annex VIII refers separately to “bundled services” and “bundles including both services and terminal equipment”. All terms refer to the same concept of a bundle, “Bundled offers” can be understood to cover



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both a “bundle of services” and a “bundle of services and terminal equipment” as referred to in paragraph 1 of Article 107.’ Article 108 Availability of services Member States shall take all necessary measures to ensure the fullest possible availability of voice communications services and internet access services provided over public electronic communications networks in the event of catastrophic network breakdown or in cases of force majeure. Member States shall ensure that providers of voice communications services take all necessary measures to ensure uninterrupted access to emergency services and uninterrupted transmission of public warnings. Correlation with Universal Service Directive EECC Article 108 correlates with Directive 2002/22/EC, Article 23. Article 109 Emergency communications and the single European emergency number 1.

Member States shall ensure that all end-users of the services referred to in paragraph  2, including users of public pay telephones, are able to access the emergency services through emergency communications free of charge and without having to use any means of payment, by using the single European emergency number ‘112’ and any national emergency number specified by Member States. Member States shall promote the access to emergency services through the single European emergency number ‘112’ from electronic communications networks which are not publicly available but which enable calls to public networks, in particular when the undertaking responsible for that network does not provide an alternative and easy access to an emergency service.

2. Member States shall, after consulting national regulatory authorities and emergency services and providers of electronic communications services, ensure that providers of publicly available number-based interpersonal communications services, where those services allow end-users to originate calls to a number in a national or international numbering plan, provide access to emergency services through emergency communications to the most appropriate PSAP. 3.

Member States shall ensure that all emergency communications to the single European emergency number ‘112’ are appropriately answered and handled in the manner best suited to the national organisation of emergency systems. Such emergency communications shall be answered and handled at least as expeditiously and effectively as emergency communications to the national emergency number or numbers, where those continue to be in use.

4.

By 21  December 2020 and every two years thereafter, the Commission shall submit a report to the European Parliament and to the Council on the effectiveness of the implementation of the single European emergency number ‘112’.

5.

Member States shall ensure that access for end-users with disabilities to emergency services is available through emergency communications and is equivalent to that enjoyed by other end-users, in accordance with Union law harmonising accessibility requirements for products and services. The Commission and the national regulatory or other competent authorities shall take appropriate measures to ensure that, whilst travelling in another Member State, end-users with disabilities can access emergency services on an equivalent basis with other end-

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users, where feasible without any pre-registration. Those measures shall seek to ensure interoperability across Member States and shall be based, to the greatest extent possible, on European standards or specifications laid down in accordance with Article 39. Such measures shall not prevent Member States from adopting additional requirements in order to pursue the objectives set out in this Article. 6.

Member States shall ensure that caller location information is made available to the most appropriate PSAP without delay after the emergency communication is set up. This shall include network-based location information and, where available, handset-derived caller location information. Member States shall ensure that the establishment and the transmission of the caller location information are free of charge for the end-user and the PSAP with regard to all emergency communications to the single European emergency number ‘112’. Member States may extend that obligation to cover emergency communications to national emergency numbers. Competent regulatory authorities, if necessary after consulting BEREC, shall lay down criteria for the accuracy and reliability of the caller location information provided.

7.

Member States shall ensure that end-users are adequately informed about the existence and the use of the single European emergency number ‘112’, as well as its accessibility features, including through initiatives specifically targeting persons travelling between Member States and end-users with disabilities. That information shall be provided in accessible formats, addressing different types of disabilities. The Commission shall support and complement Member States’ action.

8.

In order to ensure effective access to emergency services through emergency communications to the single European emergency number ‘112’ in the Member States, the Commission shall, after consulting BEREC, adopt delegated acts in accordance with Article 117 supplementing paragraphs 2, 5 and 6 of this Article on the measures necessary to ensure the compatibility, interoperability, quality, reliability and continuity of emergency communications in the Union with regard to caller location information solutions, access for end-users with disabilities and routing to the most appropriate PSAP. The first such delegated act shall be adopted by 21 December 2022. Those delegated acts shall be adopted without prejudice to, and shall have no impact on, the organisation of emergency services, which remains in the exclusive competence of Member States. BEREC shall maintain a database of E.164 numbers of Member State emergency services to ensure that they are able to contact each other from one Member State to another, if such a database is not maintained by another organisation. See: Recitals 284–292; 315; 316; 320. Correlation with Universal Service Directive EECC Article 109 correlates with Directive 2002/22/EC, Article 26. Conclusions from the EU Commission Report ‘A  Europe fit for the digital age should warrant effective access to emergency services fit for every citizen. Since the introduction of the single European emergency call number[75] in 1991, the goal of the EU legislators was to ensure

91/396/EEC: Council Decision of 29 July 1991 on the introduction of a single European emergency call number, OJ L 217, 6.8.1991.

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that every citizen in need has access to emergency services as soon as possible. This report shows that handling of emergency communications, availability of accurate caller location information, availability of equivalent means of access for end-users with disabilities and access for roaming end-users play an important role in the effectiveness and speed of the relief action that is deployed by emergency services. The potential of the digital technologies could be fully realised only if both the emergency communication services and the national PSAP systems are able to leverage the technological developments. This objective requires a deployment of all-IP networks of interconnected PSAPs by all Member States to ensure the redundancy of the systems and, most importantly, that all emergency communications – calls, real time text, total conversation – are effectively handled. Main findings: •

The share of emergency calls to the single European emergency number “112” represented 56% of all emergency calls: out of a total of 267 million calls placed in the EU, 150 million were “112” calls. It is estimated that 2.3 million emergency calls were placed by roaming end-users, out of which 1,5 million were “112” calls.

•

The implementation of handset-derived caller location continued to improve in the EU. In 2020, in addition to the 7 Member States that deployed AML [Advanced Mobile Location] through the Commission financed HELP112  II project, other 4 Member States deployed the localisation solution: Czechia, Greece, Latvia and Romania. As of September 2020, 19 Member States, Iceland and Norway ensure that their PSAP system is AML enabled. However, only 6 Member States confirmed that handset-derived location is available for roaming end-users. Due to limits of jurisdiction and lack of monitoring capacity, the visited Member States cannot ensure that the transmission of caller location is free of charge for the end-user.

•

According to the estimates, in a 10-year perspective AML could potentially save more than 10,000 lives in total in the EU. Meanwhile, AML could positively impact[76] over 100,000 lives in total in the EU.

•

End-users with disabilities do not benefit from fully equivalent means of access to emergency services, especially when roaming. When these endusers are not able to place a call to “112”, they have to rely on nationally fragmented solutions. This state of affairs is in contrast with the availability of the harmonised single European emergency number “112” for other endusers and represents a significant void in the accessibility of emergency services. Roaming end-users do not always have access to emergency services ensured in the visited Member States and they are not informed on the available means of access.

•

The Commission monitors regularly the compliance by Member States with obligations related to the functioning of “112”. As a result of this monitoring, the Commission initiated infringement proceedings in July 2019 against several Member States and continues working towards full compliance, in order to ensure that EU citizens can fully benefit from it.

‘Positive impact represents reduced injuries due to faster intervention of emergency relief that is made possible by the accurate location and finding of the victim’ – fn 36 in the Report.

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Future actions and milestones: •

Member States have to transpose and implement the necessary measures to comply with the requirements of the EECC and in particular Article 109 on emergency communications and the single European emergency number. All end-users, including end-users with disabilities, no matter where in the European Union, should be able to effectively request and receive help from emergency services.

•

To make that possible, Member States will have to deploy accurate caller location for all end-users and equivalent means of access for end-users with disabilities, including those travelling to another EU Member State.

•

Member States should upgrade their PSAP systems to ensure that these are fit for the digital age.

•

The Commission has set up the Expert Group on emergency communications[77] to work together with Member States to support them in this process. In addition, the Commission intends to launch a study to identify technical and regulatory solutions that would improve the access to emergency services. The Commission will leverage on the recent experience, prompted by the COVID crisis, of setting-up a digital infrastructure to facilitate the interoperability of national contact tracing and warning mobile applications. As it is the case with tracing applications, all end-users should be able to use their national emergency applications in another visited EU Member State.

•

The Commission aims to ensure that all citizens, including those travelling within the European Union, benefit from effective access to emergency services including through harmonised technical solutions. For this purpose, the Commission is preparing an initiative through delegated act pursuant to the mandate given in Article 109(8) EECC.’ Report from the Commission to the European Parliament and the Council on the effectiveness of the implementation of the single European emergency number ‘112’, 15 December 2020 (COM/2020/808 final), section 10. Accessibility requirements for products and services Directive (EU) 2019/882 of the European Parliament and of the Council of 17 April 2019 on the accessibility requirements for products and services (Text with EEA relevance) (OJ L 151, 7.6.2019, p. 70) (see p. 593). Making available caller location information (a) Commission Delegated Regulation (EU) 2019/320 of 12  December 2018 supplementing of Directive 2014/53/EU of the European Parliament and of the Council with regard to the application of the essential requirements referred to in Article 3(3)(g) of that Directive in order to ensure caller location in emergency communications from mobile devices (OJ L 55, 25.2.2019, p. 1) (see p. 1022). (b) ‘1.

Article 26(5) of [the Universal Service Directive], must be interpreted as requiring the Member States, subject to technical feasibility, to ensure that the undertakings concerned make caller location information available free

‘Commission Decision C(2020)1133 of 3  March 2020 setting up the group of experts on Emergency Communications, see also in the Register of Commission Expert Groups and Other Similar Entities’ available at: https://ec.europa.eu/transparency/regexpert/index.cfm?do=groupDetail.groupDetail&groupI D=3715&NewSearch=1&NewSearch=1 – fn 37 of the Report.

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of charge to the authority handling emergency calls to the single European emergency call number “112” as soon as the call reaches that authority, including in cases where the call is made from a mobile telephone which is not fitted with a SIM card. 2.

Article  26(5) of [the Universal Service Directive], must be interpreted as conferring on the Member States a measure of discretion when laying down the criteria relating to the accuracy and reliability of the information on the location of the caller to the single European emergency call number “112”; however, the criteria which they lay down must ensure, within the limits of technical feasibility, that the caller’s position is located as reliably and accurately as is necessary to enable the emergency services usefully to come to the caller’s assistance, this being a matter for the national court to assess.’ Case C-417/18  AW and Others v Lietuvos valstybė and Lietuvos valstybė, EU:C:2019:671, paras 1 and 2 of the Court’s ruling. Q&A on Article 109: ‘1. Does EECC article 109(6) prevent Member States from making national rules imposing the costs of running and/or maintaining the AML set-up on the PSAP, so that the MNO’s won’t be forced to endure costs, i.e. interconnect fees, when the end user makes emergency calls? a.

Or could this be considered as an indirect imposition of costs related to the transmission of caller location information making it illegal according to article 109(6)?

2.

What level of freedom do the member states have on easing the costs on the undertakings, e.g. with national rules zero-rating the AML-number in all instances? In this example the we would have to pay more for the service of the company running the AML-platform as the company can no longer gain revenue from the MNO’s.

3.

How did the Commission initially imagine the set-up of AML? Was the intention that the PSAPs should receive the AML-SMS individually and directly from the undertakings or via one or more ‘designated’ undertakings responsible for a coordinated transmission to the PSAPs?

4.

Does “transmission of caller location information free of charge” also entail that the MNO’s must endure interconnect fees from a third party if the PSAP is not able to receive the AML-SMS themselves?

5.

Is it against article  109(6), if regulation is put in place to ensure that the AML-SMS is zero rated from origination to termination with the consequence that the PSAP must be able to receive AML-SMS without charging interconnect fees from the MNO’s?’ Reply: ‘Q1 a: The Code does not provide rules regarding the allotment of costs of running and maintaining of the AML system. The legal text mentions that only “the establishment and transmission” of the caller location should be for free for the end-user and the PSAP. In view of the fact that in emergency communications the end-user is the originator of the call and the PSAP is the recipient of the call, the gratuitous transmission of caller location should be assessed accordingly: it should be for free for the originator enduser and the recipient PSAP. The management of the AML/SMS platform

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at the PSAP side, to the extent that it involves other processes, mechanism or infrastructures than the process of transmission of caller location information to the recipient PSAP, is not in the scope of the right to receive the caller location obligation free of charge. Apart from the transmission of caller location, free of charge for the recipient PSAP, other costs of the AML/SMS platform should be borne by the PSAP/Member State. In case of AML, free transmission of caller location would mean that the receipt of the caller location information through SMS or data connection is free for the PSAP. Q2: As explained above, the Code provides only for the obligation to ensure that the establishment and transmission of the caller location is free of charge for the originator end-user and for the recipient PSAP. As far as the MNO, MVNO, fixed network providers or other entities involved in the transmission of the caller location information do not charge the PSAP for the transmission/receipt of the caller location information, the requirement of the Code is met. Q3: The transmission architecture of the handset derived caller location is not regulated in the Code. It is for the Member State to choose the appropriate transmission architecture that ensures the caller location that is regulated in Article 109 of the Code. Q4: As explained above, Member States have the obligation of result to ensure that the transmission and the establishment of the caller location should be free of charge for the end-user and the PSAP. The level of interconnection fees charged between third parties (third parties in relation to the end-user and the PSAP) is outside the scope of Article 109 of the Code, as long as the transmission of caller location is free of charge for the end-user and the PSAP. Q5: As long as such regulation does not prevent that the transmission and the establishment of the caller location should be free of charge for the enduser and the PSAP, it meets the requirements of article 109(6).’ Further Q&A on Article 109: ‘[1.] Does the transposition deadline of 21 December 2020 also apply for the entire technical setup of the service chosen as emergency communication, e.g. SMS? 2.

If yes, does the setup have to be fully functional by that time, e.g. be able to deliver network- and handset based caller location, and be able to route SMS to the most appropriate PSAP?

3.

If no, would it suffice that the national legal framework has implemented article 109, thus ensuring that the technical solution currently being worked on will comply with the requirements in article 109?’ Reply: ‘[1.] Article 124 of the EECC requires that Member States not only to transpose but also to apply the measures transposing the Directive by 21 December 2020. In case SMS communication is mandated as emergency communication by the Member State the technical implementation should comply with the requirements laid down in Article 109, including routing to the most appropriate PSAP and caller location. Please note the definition



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of “most appropriate PSAP” in Article  2, point 37. The provision of equivalent means of access for end-users with disabilities is an obligation since 25 May 2011. This presupposes that location information is provided to the PSAP. 2.

Under Article 109 (5) Member States are obliged to provide a means of emergency communication for end-users with disabilities that is equivalent to that enjoyed by other end-users. While the means for communications for end-users with disabilities do not have to provide identical functionalities as those of other end-users, the effectiveness of the access to the emergency communications should be equivalent, including with regard to the effectiveness of provision of location information to the most appropriate PSAP. It is for the Member State to ensure such equivalence. The Commission services are not in the position to provide derogations from the provision of Article 109 nor may grant the possibility of staged implementation of the legal requirements. Meanwhile, Member States are best placed to identify the means of access to emergency services that best serve the safety and health of end-users. It is for the Member State to decide when to deploy such emergency communications. When it comes to ensuring equivalent access to emergency services, Member States are under the obligation to deploy a solution that allows 2-way interactive communication and near instant caller location already under the current regulatory framework (Article 26(5) USD).

3.

Member States may adopt the relevant legal framework implementing Article  109 by implementing at least one means of emergency communication to the Single European emergency number 112 which complies with all requirements in this provision. While access to 112 through calls would be still in place SMS to 112 could be mandated at a later stage than 21 December 2020 and be used as a complementary means to access emergency communications.’ Q&A on Article 109(6): ‘Is the integration of AML mandatory according to the Code and if yes, is there [a] deadline?’ Reply: ‘Article  109(6) […] mandates the deployment of handset derived caller location that should be provided without delay after the emergency communication is set up. AML is a cost-effective technology that complies with this requirement. To our knowledge no other technology was yet deployed in the EU that would comply with the requirements of Article 109(6) of the Code. Article  124 of the Code sets the deadline for transposition for 21  December 2020. The transposition measures will have to be applied in Member States from the same date, meaning that handset based caller location will have to be made available to the most appropriate PSAP as of 21 December 2020.’ Article 110 Public warning system 1.

By 21 June 2022, Member States shall ensure that, when public warning systems regarding imminent or developing major emergencies and disasters are in place, public warnings are transmitted by providers of mobile number-based interpersonal communications services to the end-users concerned.

2.

Notwithstanding paragraph 1, Member States may determine that public warnings be transmitted through publicly available electronic communications services

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other than those referred to in paragraph 1, and other than broadcasting services, or through a mobile application relying on an internet access service, provided that the effectiveness of the public warning system is equivalent in terms of coverage and capacity to reach end-users, including those only temporarily present in the area concerned, taking utmost account of BEREC guidelines. Public warnings shall be easy for end-users to receive. By 21 June 2020, and after consulting the authorities in charge of PSAPs, BEREC shall publish guidelines on how to assess whether the effectiveness of public warning systems under this paragraph is equivalent to the effectiveness of those under paragraph 1. See: Recitals 293–295. BEREC Guidance BEREC Guidelines on how to assess the effectiveness of public warning systems transmitted by different means, BoR (20) 115, 12 June 2020: ‘These Guidelines are provided by BEREC […] to assist member states in assessing whether the effectiveness of alternative Public Warning Systems (hereinafter PWS) using means of electronic communications services (hereinafter ECS-PWS) as described in Article 110(2) is equivalent to the effectiveness of ECS-PWS falling under Article 110(1). The methodology set out by BEREC in these Guidelines would only apply to Member States which intend to deploy ECS-PWS according to Article 110(2) EECC (hereinafter 110(2)-PWS). In such case, the methodology set out by BEREC suggests that competent authorities establish a performance benchmark on the basis of a hypothetical ECS-PWS that meets the requirements of Article 110(1) EECC (hereinafter 110(1)-PWS). The envisaged 110(2)-PWS will then have to be assessed against the benchmark so established. BEREC’s methodology is based on a qualitative assessment of factors defining coverage and affecting the ability to reach concerned end-users. BEREC proposes that competent authorities step through the methodology in order to assess the equivalence of effectiveness of the envisaged 110(2)-PWS against the benchmark 110(1)-PWS as follows: •

Preliminary step (identifying suitable hypothetical benchmark systems): The competent authority identifies at least one hypothetical 110(1)-PWS that would comply with the legal requirements of Article 110(1) EECC

•

Step 1 (benchmark creation): The competent authority assesses the performance of the hypothetical 110(1)-PWS’ identified at the preliminary step in terms of coverage and capacity to reach concerned end-users

•

Step 2 (110(2)-PWS assessment): The competent authority assesses the performance of the envisaged 110(2)-PWS in terms of coverage and capacity to reach concerned end-users, and

•

Step 3 (equivalence assessment): The competent authority compares the performance of the envisaged 110(2)-PWS with the benchmark (i.e. the performance of the hypothetical 110(1)-PWS from step 1) BEREC considers that this three step approach can be easily replicated in each Member State allowing competent authorities to objectively assess the equivalence of effectiveness of envisaged 110(2)-PWS and help them in their decision making processes.



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This approach ensures that competent authorities perform the assessment in a similar fashion but it necessarily also enables them to take national circumstances and the envisioned use case into consideration. What is important is that the steps themselves are harmonised, as this may increase certainty about the implementation of Article 110 EECC for competent authorities.’ Executive Summary. Q&A on Article 110: ‘Does Article 110 require the creation of a public warning system? It states that “when public warning systems regarding imminent or developing major emergencies and disasters are in place”, Member States must ensure that those warnings are transmitted by mobile networks. We interpret this to mean that only if you have a public warning system in place it must meet the requirements of the article. If you have no public warning system, then [there are] no obligations.’ Reply: ‘Indeed, Article  110 does not provide for an obligation for Member States to put in place a public warning system. In this regard, the conditional obligation provided in Article 110 first paragraph refers to the transmission by mobile operators of the public warning. The condition is the pre-existence of a national public warning system that transmit public warnings in case of major emergencies and disasters. Such pre-existing public warning systems are for instance sirens warning or broadcasted warnings (e.g. radio and/or TV) that are issued on the basis of a pre-existing protocol. A  public warning system is in place when competent national authorities have a pre-established protocol to address specific messages to the population on their territory with the goal of providing implicit or explicit information that may potentially contribute to the saving the addressees’ health, property or safeguarding public interest. In the latest COCOM 112 implementation report, all Member States reported a public warning system in place, except Malta and Greece. https://ec.europa.eu/digitalsingle-market/en/news/2018-report-implementation-european-emergencynumber-112’. Further Q&A on Article 110: ‘Article 110(1) requires Member States who have public warning systems (PWS) in place to ensure that by 21 June 2022 the public warnings are transmitted by providers of mobile number-based ICS. A Member State has a PWS in place that functions via any ICS, which provides a mechanism to urgently warn the public via a television and radio broadcasts of an immediate public safety risk and/or to provide advice to the public on urgent public safety or health issues. The relevant legislation empowers the authority to require broadcasting contractors and network providers to co-operate with the relevant public bodies in the dissemination of relevant information to the public in the event of a major emergency. Does such a broadcasting public warning system trigger the requirement of Article 110(1), i.e. is the Member State now required to ensure that a PWS transmitted by providers of mobile number-based ICS is in place by 21 June 2022?’ Reply: ‘Article  110 does not provide for an obligation for Member States to put in place a public warning system. In this regard, the conditional obligation provided in Article  110 first paragraph refers to the transmission by mobile operators of the public warning. The condition is the pre-existence of a national public warning system that transmit public warnings in case of major emergencies and disasters. Such pre-existing public warning systems are for instance sirens warning or broadcasted warnings (e.g. radio and/or TV) that are issued on the basis of a pre-existing protocol. A public warning system is in place when competent national authorities have a pre-established protocol to address

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specific messages to the population on their territory with the goal of providing implicit or explicit information that may potentially contribute to the saving the addressees’ health, property or safeguarding public interest. The EECC does not specify the technology on which the PWS in place may be based, but the existence of such system – be it sirens, broadcast based PWS, etc. – triggers the requirement of Article 110.’ Further Q&A on Article 110: ‘1:

To what extent is Article 110 subject to the maximum harmonization rule provided by Article  101, considering that we are dealing with matters under national sovereignty, namely emergency and civil protection, related to public and national safety? In particular: 1.1. May a MS determine that public warnings, when technically feasible, are to be transmitted with priority against other traffic? 1.2. May a MS determine that the gratuity mentioned in the 6th sentence of recital 294 (‘The transmission of public warnings should be free of charge for end-users’) also applies to the competent authorities? 1.3. May a MS determine that the automatic SMS mentioned in the 2nd sentence of recital 294 is also to be sent regarding public warning systems provided by number 1 of Article 110, bearing in mind that some of those systems (in particular, cell-broadcast systems) also justify such informative notices to roamers-in?

2: Should mobile number-based interpersonal communications services mentioned in number 1 of Article  110 be limited to publicly available services, considering that number 2 of the same article mentions “(…) publicly available electronic communications services other than those referred to in paragraph (…)”? If so and bearing in mind the answer to question 1, may a MS impose an obligation to transmit public warnings to mobile number-based interpersonal communications services that are not available to the public?’ Reply: 1.

‘Article  101 provides for a rule of maximum harmonisation of enduser protection. Article  110 is aimed at regulating certain aspects of transmission of public warnings. In particular, the conditional obligation provided in Article 110 first paragraph refers to the transmission by mobile operators of the public warning. The condition is the pre-existence of a national public warning system that transmits public warnings in case of major emergencies and disasters. Such pre-existing public warning systems, governed by national legislation, are for instance sirens warning or broadcasted warnings that are issued on the basis of a pre-existing protocol. A  public warning system is in place when competent national authorities have a pre-established protocol to address specific messages to the population on their territory with the goal of providing implicit or explicit information that may potentially contribute to the saving the addressees’ health, property or safeguarding public interest. Matters of public safety and public security fall outside the maximum harmonisation rule provided under Article 101.



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2.

1.

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1.1. Article 110 specifies that when a public warning system is already in place, end-users should receive the warning through mobile operators (Art 110.1) or through internet access services (Art. 110.2). Art. 110 does not specify the technical parameters of the transmission, such as priority of PWS traffic. However, the obligation to ensure the availability of services under Art.108 might warrant the prioritisation of the public warnings in order to be transmitted by providers of ‘voice communication services’. In addition, in case prioritisation of public warnings traffic is imposed by means of national law, it would be covered by the traffic management exception listed in Regulation 2015/2120 Art. 3(3)(a) as explained in recital 13. 1.2. Recital 294 supports Article  110(2), in particular, the requirement on the ease for the end-users to receive the public warning including roaming end-users. Article  110(2) mentions ‘end-users’ only as recipients of the public warnings. Hence, the explanation provided in Recital 294 would apply to competent authorities only to the extent they are recipients of the public warnings and not originators of public warnings. Please note that the recital has only an explanatory value for the interpretation of the obligations provided in Article  110(2) and the obligation to transmit public warnings free of charge does not correspond to an obligation in the enacting terms of the Code. Member States should however take account of this recital when deciding to lay down measures to implement public warning systems, in compliance with Article 110 of the Code. 1.3. As indicated before, recital 294 supports Article 110(2), in particular the requirement on the ease for the end-users to receive the public warning including roaming end-users. The second sentence of the recital 294 is aimed to establish the role of awareness raising (on the way public warnings implemented under Article  110(2)) in ensuring the ease for the end-users to receive the public warning including endusers entering the Member State. The objective of the SMS mentioned in this sentence is to inform end-users of the existence and use of the public warning system. However, notwithstanding this recital, Member states are free to regulate how to raise awareness of their public warning systems complying with Article 110(1), including trough the provision of free of charge SMS to end-users entering the Member State. Pursuant to Article 110(1), Member States shall ensure that public warnings are transmitted by providers of mobile number-based interpersonal communication services. The reference in Article  110(2) to publicly available services “other than those referred to in paragraph 1” is made to delineate the scope of this provision from Article 110(1).’ Article 111 Equivalent access and choice for end-users with disabilities Member States shall ensure that the competent authorities specify requirements to be met by providers of publicly available electronic communications services to ensure that end-users with disabilities: (a) have access to electronic communications services, including the related contractual information provided pursuant to Article 102, equivalent to that enjoyed by the majority of end-users; and

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(b) 2.

benefit from the choice of undertakings and services available to the majority of end-users.

In taking the measures referred to in paragraph 1 of this Article, Member States shall encourage compliance with the relevant standards or specifications laid down in accordance with Article 39. See: Recitals 9; 296-298. Correlation with Universal Service Directive EECC Article 111 correlates with Directive 2002/22/EC, Article 23a. Q&A  on end-user rights and accessibility provisions: ‘Which accessibility provisions are applicable before transposition of Directive 2019/882/EU (transposition deadline 28 June 2022, and, – respectively before the end of the transposition period in art 32 (28 July 2025)?’ Reply: ‘The general obligation on ensuring equivalent access and choice for end-users with disabilities, as in the current framework (Directive 2002/22), is maintained and strengthened in the EECC. The requirements are to be specified by competent authorities. According to recital 297 such requirements can include that providers ensure that end-users with disabilities take advantage of their services on equivalent terms and conditions. In addition, recital 298 explains the requirements that the EECC imposes in addition to the European Accessibility Act (“Union law harmonizing accessibility requirements for products and services”). The EAA is in force but before its application deadline it is up to the Member States whether they would already use or benefit from the EAA requirements in the context of the EECC end-user rights provisions.’ Q&A  on Article  111: ‘Article  111 refers to end-users with disabilities. However, recital (296) states that “In line with the objectives of the Charter and the obligations enshrined in the United Nations Convention on the Rights of Persons with Disabilities, the regulatory framework should ensure that all endusers, including end-users with disabilities, older people, and users with special social needs, have easy and equivalent access to affordable high quality services regardless of their place of residence within the Union”. Can Member-States assume that article  111 is to be applicable to all end users with special needs (either those related to disabilities, age or social context) or only to end-users with disabilities?’ Reply: ‘Article 111 on equivalent access and choice applies to end-users with disabilities. Consumers with special social needs are addressed in the universal service obligations (see Article 85) of the EECC.’ Article 112 Directory enquiry services

1.

Member States shall ensure that all providers of number-based interpersonal communications services which attribute numbers from a numbering plan meet all reasonable requests to make available, for the purposes of the provision of publicly available directory enquiry services and directories, the relevant information in an agreed format, on terms which are fair, objective, cost oriented and nondiscriminatory.

2.

National regulatory authorities shall be empowered to impose obligations and conditions on undertakings that control access to end-users, for the provision of directory enquiry services, in accordance with Article 61. Such obligations and conditions shall be objective, equitable, non-discriminatory and transparent.



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3.

Member States shall not maintain any regulatory restrictions which prevent endusers in one Member State from accessing directly the directory enquiry service in another Member State by voice call or SMS, and shall take measures to ensure such access in accordance with Article 97.

4.

This Article shall apply subject to the requirements of Union law on the protection of personal data and privacy and, in particular, Article 12 of Directive 2002/58/ EC. See: Recitals 299–302. Correlation with Universal Service Directive EECC Article 112 correlates with Directive 2002/22/EC, Article 25. Directories of subscribers under the ePrivacy Directive Directive 2002/58/EC, Article 12 (see p. 714). Obligation placed on an undertaking assigning telephone numbers to pass to other undertakings data in its possession relating to the subscribers of thirdparty undertakings ‘1.  Article 25(2) of [the Universal Service Directive] must be interpreted as not precluding national legislation under which undertakings assigning telephone numbers to end-users must make available to undertakings whose activity consists in providing publicly available directory enquiry services and directories not only data relating to their own subscribers but also data in their possession relating to subscribers of third-party undertakings. 2. 

Article 12 of [the ePrivacy Directive] must be interpreted as not precluding national legislation under which an undertaking publishing public directories must pass personal data in its possession relating to subscribers of other telephone service providers to a third-party undertaking whose activity consists in publishing a printed or electronic public directory or making such directories obtainable through directory enquiry services, and under which the passing on of those data is not conditional on renewed consent from the subscribers, provided, however, that those subscribers have been informed, before the first inclusion of their data in a public directory, of the purpose of that directory and of the fact that those data could be communicated to another telephone service provider and that it is guaranteed that those data will not, once passed on, be used for purposes other than those for which they were collected with a view to their first publication.’ Case C-543/09 Deutsche Telekom AG  v Bundesrepublik Deutschland, EU:C:2011:279, paras 1 and 2 of the Court’s ruling. Requests to make available relevant information for the purposes of directory services and subscribers’ consent ‘1. Article 25(2) of [the Universal Service Directive] must be interpreted as meaning that the concept of ‘requests’ in that article, covers also requests made by an undertaking, established in a Member State other than that in which the undertakings which assign telephone numbers to subscribers are established, which requests the relevant information possessed by those undertakings in order to provide publicly available telephone directory enquiry services and directories in that Member State and/or in other Member States.

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2.

Article 25(2) of [the Universal Service Directive] must be interpreted as precluding an undertaking which assigns telephone numbers to subscribers, and which is obliged under national legislation to request those subscribers’ consent to the use of data relating to them for the purposes of supplying directory enquiry services and directories, from differentiating in the request for those subscribers’ consent to that use according to the Member State in which the undertakings requesting the information referred to in that provision provide those services.’ Case C-536/15 Tele2 (Netherlands) BV and Others v Autoriteit Consument en Markt (ACM), EU:C:2017:214, paras 1 and 2 of the Court’s ruling; see also paras 37 and 38. Q&A on Article 112(2): ‘The provision seeks to allow MS to impose conditions on undertakings that for some reason wouldn’t make available directory enquiry services, i.e. the undertaking would be obliged to give access to/make available telephone directory services not actually provide them. How [do we] interpret this paragraph? What type of undertakings other than providers could possibly come in question in case it means the formerly mentioned of the options above?’ Reply: ‘The current USD  Art 25(3) on telephone directory enquiry services ensures that all end-users provided with publicly available telephone service can access directory services. Art 5  USD ensures that at least one comprehensive directory is available. NRAs are able to impose obligations and conditions on undertakings that control access [to] end-users for the provision of directory enquiry services. The Code removed the obligation to ensure the availability of at least one directory enquiry service from the scope of universal service. Given the functioning market for such services, it is no longer necessary to put in place obligations to ensure the right of end-users to access directory enquiry services. However, NRAs should still be able to impose obligations and conditions on undertakings that control access to end-users (Article 112(2) in order to maintain access and competition in that market (see recital 302). Article  112(2) is not about an obligation to provide directory service as such. Article 112(2) applies to undertakings that control access to end-users and ensures that such providers ensure access to directory enquiry services, in accordance with Article  61. Undertakings which control access to end-users are currently providers of electronic communications networks and services (ECNS), other than number-independent interpersonal communications services (NIICS). A specific procedure is provided in Article 61 to extend the obligations for access and interconnection to NIICS in specified cases. This means the scope covers any undertaking that controls access to end-users for the provision of directory enquiry services, however, the requirement to be ‘in accordance with Article 61’ limits this for the moment to ECNS other than NIICS.’ Article 113 Interoperability of car radio and consumer radio receivers and consumer digital television equipment 1.

Member States shall ensure the interoperability of car radio receivers and consumer digital television equipment in accordance with Annex XI.

2.

Member States may adopt measures to ensure the interoperability of other consumer radio receivers, while limiting the impact on the market for low-value radio broadcast receivers and ensuring that such measures are not applied to



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products where a radio receiver is purely ancillary, such as smartphones, and to equipment used by radio amateurs. 3.

Member States shall encourage providers of digital television services to ensure, where appropriate, that the digital television equipment that they provide to their end-users is interoperable so that, where technically feasible, the digital television equipment is reusable with other providers of digital television services. Without prejudice to Article  5(2) of Directive 2012/19/EU of the European Parliament and of the Council78, Member States shall ensure that, upon termination of their contract, end-users have the possibility to return the digital television equipment through a free and easy process, unless the provider demonstrates that it is fully interoperable with the digital television services of other providers, including those to which the end-user has switched. Digital television equipment which complies with harmonised standards the references of which have been published in the Official Journal of the European Union, or with parts thereof, shall be considered to comply with the requirement of interoperability set out in the second subparagraph covered by those standards or parts thereof. See: Recitals 303–307. Correlation with Universal Service Directive EECC Article 113 correlates with Directive 2002/22/EC, Article 24. Separate collection of WEEE Directive 2012/19/EU, Article 5(2) (see p. 802). Harmonised standards See annotations to Article 39. Q&A  on Article  113(1) and 113(2): ‘In terms of the new provisions about interoperability for car radio receivers, paragraph  1 refers to Annex XI (no.3) which states that “Any car radio receiver integrated in a new vehicle of category M  which is made available on the market for sale or rent in the Union from 21 December 2020 shall comprise a receiver capable of receiving and reproducing at least radio services provided via digital terrestrial radio broadcasting. Receivers which are in accordance with harmonised standards the references of which have been published in the Official Journal of the European Union or with parts thereof shall be considered to comply with that requirement covered by those standards or parts thereof.” Paragraph 2 leaves it up to Member States to adopt measures that would ensure the interoperability of other consumer radio receivers. Apart from the actual transposition into national law, this Article requires relevant entities to take appropriate action (e.g. informing car importers) well before the coming into force of the new law. Amongst others, informing stakeholders about the standards that they should abide to is very important. We need to explore whether any related harmonised standards have already been published in the Official Journal of the European Union. Would you be able to guide us in relation to this?’ Reply: ‘As this is a new requirement, harmonised standards for such receivers do not yet exist. At the same time, if such standards become available by 21 December 2020 (or after), national law has to ensure that receivers compliant

Directive 2012/19/EU of the European Parliament and of the Council of 4 July 2012 on waste electrical and electronic equipment (WEEE) (OJ L 197, 24.7.2012, p. 38).

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with such standards are also considered compliant with the requirement to receive and reproduce at least radio services provided via digital terrestrial radio broadcasting. Harmonised standards for transmitting equipment for digital terrestrial audio broadcasting are included in the Commission communication in the framework of the implementation of Directive 1999/5/EC of the European Parliament and of the Council on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity and Directive 2014/53/EU of the European Parliament and of the Council on the harmonisation of the laws of the Member States relating to the making available on the market of radio equipment and repealing Directive 1999/5/EC, (2018/C  326/04), OJ  C  326 of 14.9.2018, p. 132 and p. 134. However, these standards relate to the requirement of efficient use and supporting the efficient use of radio spectrum in order to avoid harmful interference established by Article 3(2) of Directive 2014/53/EU, not to the requirement established in Annex XI(3) EECC, namely the capability of receiving and reproducing radio services provided via digital terrestrial radio broadcasting. One example for receiver specifications established at national level is available [at: https://assets.publishing.service.gov.uk/government/uploads/ system/uploads/attachment_data/file/136355/In_Vehicle_Min_Spec.pdf]. In the absence of harmonised standards, compliance of the receivers with a non-harmonised standard/specification for digital terrestrial radio broadcasting, such as DAB+, should be encouraged in order to ensure compliance with the requirement in Annex XI (no.3). The DAB standard is included in the noncompulsory list of standards referred to in Art. 39 of the EECC and Art. 17 of the Framework Directive as the only standard for digital audio broadcasting included in that list. The DAB family of standards includes also DAB+ which is integrated in DAB chipsets. The use of DAB+ is widespread across and by far the dominant technology used in Member States for digital terrestrial radio broadcasting.’ Q&A on Article 113(2): ‘Is it, according to this Article, explicitly forbidden to apply these requirements to mobile phones? Can a member state require that all mobile phones that are put on the market have DAB support? Is this consistent with the Directive?’ Reply: ‘Under this provision, Member States may adopt measures to ensure the interoperability of consumer radio receivers which are not car radio receivers. This “de minimis rule” has been introduced to ensure that Member States are obliged to limit the impact on the market for low-value radio broadcast receivers and to ensure that such measures are not applied to products where a radio receiver is purely ancillary, such as smartphones, and to equipment used by radio amateurs. In accordance with Recital 304 to the EECC, Member States may, in such a case provide that radio broadcast receivers should be capable of receiving and reproducing radio services provided via digital terrestrial radio broadcasting or via IP networks, in order to ensure that interoperability is maintained. Member States are neither imposed an obligation to adopt measures to ensure the interoperability of other consumer radio receivers, as paragraph  2 merely states this possibility (“may”), nor prohibited to do so. However, whenever they decide to adopt such measures, the Directive states clearly that such measures cannot apply to smartphones or any other product where a radio receiver is purely ancillary. Art 124(1) of the EECC provides that Member States shall apply measures transposing the EECC from 21 December 2020. Accordingly, any transposition of this provision into national law would have to ensure that the impact on



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the market for low-value receivers would be limited and that smartphones and equipment used by radio amateurs are excluded.’ Q&A on Article 113(3): ‘Exactly what type of digital [television] equipment is meant in the Article? Annex XI speaks of digital [television] sets, which we then assume is part of what is considered digital TV equipment. But is it the box that should be interoperable or what equipment more specifically?’ Reply: ‘Art 113(3) addresses digital television equipment that providers of digital television services provide to their end-users. In practice, these can be in particular set-top boxes in case the end-user owns a TV set or integrated TV sets with a receiver. In the trilogues there was a clear intention by the EP to include in particular set-top boxes. Annex XI relates to Art 113(1), not to Art 113(3).’ Q&A  on Article  113 (Annex XI): ‘Obligations on the interoperability of car radio receivers. According to the article any car radio receiver in a new vehicle of category M which is made available on the market for sale or rent, shall comprise a receiver capable of receiving and reproducing at least radio services provided via digital terrestrial radio broadcasting. We have planned to implement the Article  113 of the ECC directive by an obligation to receive and reproduce digital radio broadcasts, which would not require the installation of DAB radio in cars sold or rented, but for example unicast radio reception would fulfil the requirement. The advantage would be that it would not limit some of the developments concerning the future radio distribution channels and would not necessarily require the installation of a radio receiver that could not be used by consumers (DAB/DAB+). It is possible that in the future, radio distribution will be switched to IP-based distribution, and LTE/5G broadcasting will not be widely used by consumers, whereby this approach would be more technology neutral and be in consumer’s interest. Possible formatting could be: “If a car radio receiver is integrated in a new vehicle of category M, the receiver shall have the preparedness to receive and reproduce radio services provided via digital radio broadcasting”. We kindly ask for the Commission’s view on our implementation plan and whether this way forward would be possible.’ Reply: ‘Annex XI(3)  EECC requires that receivers are “capable of receiving and reproducing at least radio services provided via digital terrestrial radio broadcasting” […]. Please note that Recital (302) EECC refers to “equipment […] for the reception of radio”. For a future proof implementation of the provision, it has to be taken into account that recital (304) covers the possibility that radio receivers are constructed in a way that they are capable of receiving and reproducing radio services provided via […] IP networks. It would therefore appear that in a situation where a car radio relies on a cellular receiver for mobile data to receive and reproduce radio services provided via IP networks, the requirement for fitting also a digital terrestrial radio receiver as set out in art 113(1) and Annex XI(3) would apply. To this it should be added that the obligation to integrate digital terrestrial radio receivers applies regardless whether or not radio services provided via digital terrestrial radio broadcasting are available in a particular Member State. Furthermore, Annex XI(3)  EECC refers to the capability “of receiving and reproducing […] radio services”. Accordingly, it would seem to be in line with the intentions of the legislator that the reception is available easily and by default rather than upon a potentially burdensome and complicated procedure to enable the reception later.

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As to your suggested formatting/wording we would have concerns that the issues mentioned above would still need to be addressed and would not be covered by your draft. Furthermore, to the extent that your draft legislation regarding radio receivers integrated in a new vehicle of category M extends beyond obligations covered by art  113(1) and Annex XI(3) and covers technologies other than digital terrestrial radio broadcasting this is not covered by the EECC and may constitute a technical regulation. Under Directive (EU) 2015/1535, Member States are obliged to notify to the Commission any draft technical regulations relating to products, prior to their adoption, in order to allow their assessment in the light of Union law and avoid any technical barriers to trade. Technical regulations are technical specifications or other requirements the observance of which is compulsory, de jure or de facto, in the case of marketing of a product (e.g. national provisions laying down the characteristics of a product such as the dimension, labelling, packaging, level of quality, production methods and processes). The Court of Justice of the European Union (CJEU) held that the adoption of technical regulations in breach of the obligation to notify would constitute a substantial procedural defect such as to render the technical regulations in question inapplicable to individuals. Consequently, individuals can resort to national courts which must decline to apply a national technical regulation which has not been notified in accordance with the directive (Case C-194/94 CIA Security International, paragraphs 54-55, Case C-443/98 Unilever Italia SpA v Central Food SpA., paragraphs 40-50).’ Further Q&A  on Article  113(3): ‘Article  113(3) of Directive 2018/1972/EU states that Member States shall encourage providers of digital television services to ensure, where appropriate, interoperability of digital television equipment. However, in Directive 2018/1972/EU there is no definition of providers of digital television services (IPTV providers? Multiplex providers?). Could you please provide us with more information what is meant by “providers of digital television services”?’ Reply: ‘The provision applies to providers of digital television services that provide digital television content transmitted using electronic communication networks and services to their end-users. Accordingly, one practical way for Member States to proceed would be to analyse which entities, in their Member State, provide such equipment to end users, and then to analyse which of these entities can be considered as providing digital television content to end users. One possible category could be pay TV platforms. While there is no definition in the EECC, Article 18 of the Framework Directive 2002/21/EC includes the established notions of “provider of digital interactive television services” and “providers of digital TV services” which could be relied on, taking into account recent technological and market developments as appropriate. Digital television services can be transmitted via a variety of networks and services, including via IPTV or via an internet access service. In addition, article 113(3) requires a contractual relationship with an end user (“their end-users” in the first sentence, “their contract” in the second sentence). At the end user level, the conveyance of the signals has to be combined with ensuring that the digital TV content is made accessible to the end-users. In case the end-user contracts with a content provider, this content provider is responsible for ensuring transmission and accessibility of any third party content. In case the end-user contracts with an electronic network or service provider such as an IPTV provider or a multiplex operator, it is this entity which is responsible for making the content accessible to end-users. In both cases it is the party which concludes the contract with the end-



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user, combining transmission and access to digital TV content which is covered by the provision on interoperability of equipment under article 113(3) EECC’. Article 114 ‘Must carry’ obligations 1. Member States may impose reasonable ‘must carry’ obligations for the transmission of specified radio and television broadcast channels and related complementary services, in particular accessibility services to enable appropriate access for end-users with disabilities and data supporting connected television services and EPGs, on undertakings under their jurisdiction providing electronic communications networks and services used for the distribution of radio or television broadcast channels to the public, where a significant number of endusers of such networks and services use them as their principal means to receive radio and television broadcast channels. Such obligations shall be imposed only where they are necessary to meet general interest objectives as clearly defined by each Member State and shall be proportionate and transparent. 2.

By 21 December 2019 and every five years thereafter, Member States shall review the obligations referred to in the paragraph 1, except where Member States have carried out such a review within the previous four years.

3.

Neither paragraph  1 of this Article nor Article  59(2) shall prejudice the ability of Member States to determine appropriate remuneration, if any, in respect of measures taken in accordance with this Article while ensuring that, in similar circumstances, there is no discrimination in the treatment of providers of electronic communications networks and services. Where remuneration is provided for, Member States shall ensure that the obligation to remunerate is clearly set out in national law, including, where relevant, the criteria for calculating such remuneration. Member States shall also ensure that it is applied in a proportionate and transparent manner. See: Recitals 9; 308–310. Correlation with Universal Service Directive EECC Article 114 correlates with Directive 2002/22/EC, Article 31. National law requiring analogue cable network operators to provide access to their cable networks to all television programmes allowed to be broadcast terrestrially ‘1. Article  31(1) of [the Universal Service Directive] is to be interpreted as meaning that it does not preclude national legislation, such as that at issue in the main proceedings, which requires a cable operator to provide access to its analogue cable network to television channels and services that are already being broadcast terrestrially, thereby resulting in the utilisation of more than half of the channels available on that network, and which provides, in the event of a shortage of available channels, for an order of priority of applicants which results in full utilisation of the channels available on that network, provided that those obligations do not give rise to unreasonable economic consequences, which is a matter for the national court to establish. 2. The concept of “television services” within the meaning of Article 31(1) of [the Universal Service Directive] includes services of broadcasters of television programmes or providers of media services, such as teleshopping, provided that the conditions laid down in that provision are met, which is a matter for the national court to establish.’

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Case C-336/07 Kabel Deutschland Vertrieb und Service GmbH & Co. KG  v Niedersächsische Landesmedienanstalt für privaten Rundfunk, EU:C:2008:765, paras 1 and 2 of the Court’s ruling. Undertaking offering the live streaming of television programmes online ‘1.  Article 31(1) of [the Universal Service Directive], must be interpreted as meaning that an undertaking which offers the live streaming of television programmes online must not, based on that fact alone, be regarded as an undertaking which provides an electronic communications network used for the distribution of radio or television channels to the public. 2.

The provisions of [the Universal Service Directive], must be interpreted as not precluding a Member State from imposing, in a situation such as that at issue in the main proceedings, a “must carry” obligation on undertakings which, without providing electronic communication networks, offer the live streaming of television programmes online.’ Case C-298/17 France Télévisions SA  v Playmédia and Conseil supérieur de l’audiovisuel and Conseil, EU:C:2018:1017, paras 1 and 2 of the Court’s ruling. Operator offering a package of channels via satellite ‘Article  31(1) of [the Universal Service Directive] must be interpreted as not precluding Member States from imposing a ‘must carry’ obligation to broadcast a television programme on undertakings which rebroadcast, by means of satellite networks owned by third parties, television channels protected by a conditional access system and offer their customers television programme packages.’ Case C-87/19  TV  Play Baltic AS  v Lietuvos radijo ir televizijos komisija, EU:C:2019:1063, para 2 of the Court’s ruling. ‘Must carry’ obligations and TFEU, Article 56 ‘Article 56 TFEU must be interpreted as not precluding the Member States from imposing a “must carry” obligation to broadcast a television channel free of charge on undertakings which rebroadcast, by means of satellite networks owned by third parties, television programmes protected by a conditional access system and offer their customers television programme packages, provided, first, that that obligation to broadcast allows a significant number or percentage of end users of all of the means of broadcasting television programmes to access the channel benefiting from that obligation and, secondly, that account is taken of the geographical distribution of the end users of the services supplied by the operator on whom that ‘must carry’ obligation is imposed, of the fact that the latter rebroadcasts that channel unencrypted and of the fact that that channel is freely available online and via the terrestrial broadcasting network, which it is for the referring court to verify.’ Case C-87/19 TV  Play Baltic AS  v Lietuvos radijo ir televizijos komisija, EU:C:2019:1063, para 3 of the Court’s ruling. Q&A  on Article  114: ‘The must carry obligation was extended to ECS too. Could you say, what the purpose of the extension was?’ Reply: ‘In the past such problems could not arise as [network] operators provided the service to the end users themselves. But with cable operators providing access or resale agreements (often imposed by regulation) and IPTV provided over third party telecoms infrastructure this has changed and it was felt a safeguard should be available. This is not a provision where transposition is mandatory, I would recommend to analyse the national situation in this respect carefully as obligations would have to be reasonable, necessary to meet general interest objectives as clearly defined, proportionate and transparent.’



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Article 115 Provision of additional facilities 1.

Without prejudice to Article  88(2), Member States shall ensure that competent authorities in coordination, where relevant, with national regulatory authorities are able to require all providers of internet access services or publicly available number-based interpersonal communications services to make available free of charge all or part of the additional facilities listed in Part B of Annex VI, subject to technical feasibility, as well as all or part of the additional facilities listed in Part A of Annex VI.

2.

When applying paragraph 1, Member States may go beyond the list of additional facilities in Parts A and B of Annex VI in order to ensure a higher level of consumer protection.

3.

A Member State may decide to waive the application of paragraph 1 in all or part of its territory if it considers, after taking into account the views of interested parties, that there is sufficient access to those facilities. See: Recital 311. Correlation with Universal Service Directive EECC Article 115 correlates with Directive 2002/22/EC, Article 29. Q&A on Article 115: ‘Must the mechanism established by the Directive for the deactivation of billing by third parties make it possible to distinguish between billing practices and leave the possibility for the end user to disable billing by use by use, or should it make it possible to deactivate all invoices by third parties at once?’ Reply: ‘Article  115 rules that competent authorities (with national regulatory authorities) are able to require providers to make available all or part of the additional facilities in Part A  of Annex VI. Furthermore, Member States may go beyond the list in Annex VI to ensure a higher level of consumer protection. In line with Annex VI, A (h), the facility is to enable end-users to deactivate the ability for third party service providers to use the bill of a provider of IAS or publicly available ICS to charge for their products or services. The EECC does not specify whether the deactivation should be done per type of service or in one go.’

Article 116 Adaptation of annexes The Commission is empowered to adopt delegated acts in accordance with Article 117 amending Annexes V, VI, IX, X, and XI in order to take account of technological and social developments or changes in market demand. See: Recital 315. Correlation with Universal Service Directive EECC Article 116 correlates with Directive 2002/22/EC, Article 35. PART IV FINAL PROVISIONS Article 117 Exercise of the delegation 1.

The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

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2.

The power to adopt delegated acts referred to in Articles 75, 109 and 116 shall be conferred on the Commission for a period of five years from 20 December 2018. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.

3.

The delegation of power referred to in Articles 75, 109 and 116 may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

4. Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making. 5.

As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

6.

A  delegated act adopted pursuant to Articles  75, 109 and 116 shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of two months of notification of that act to the European Parliament and to the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council. See: Recital 315. Consultations by the Commission ‘28. The three Institutions have agreed on a Common Understanding on Delegated Acts and on the related standard clauses (‘the Common Understanding’) […] In accordance with the Common Understanding and with a view to enhancing transparency and consultation, the Commission commits to gathering, prior to the adoption of delegated acts, all necessary expertise, including through the consultation of Member States’ experts and through public consultations. Moreover, and whenever broader expertise is needed in the early preparation of draft implementing acts, the Commission will make use of expert groups, consult targeted stakeholders and carry out public consultations, as appropriate. To ensure equal access to all information, the European Parliament and Council shall receive all documents at the same time as Member States’ experts. Experts from the European Parliament and from the Council shall systematically have access to the meetings of Commission expert groups to which Member States’ experts are invited and which concern the preparation of delegated acts. The Commission may be invited to meetings in the European Parliament or the Council in order to have a further exchange of views on the preparation of delegated acts.



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The three Institutions will enter into negotiations without undue delay after the entry into force of this Agreement, with a view to supplementing the Common Understanding by providing for non-binding criteria for the application of Articles 290 and 291 of the Treaty on the Functioning of the European Union. 29. The three Institutions commit to set up, at the latest by the end of 2017 and in close cooperation, a joint functional register of delegated acts, providing information in a well-structured and user-friendly way, in order to enhance transparency, facilitate planning and enable traceability of all the different stages in the lifecycle of a delegated act. 30. As regards the Commission’s exercise of implementing powers, the three Institutions agree to refrain from adding, in Union legislation, procedural requirements which would alter the mechanisms for control set out in Regulation (EU) No  182/2011 of the European Parliament and of the Council[79]. Committees carrying out their tasks under the procedure set up under that Regulation should not, in that capacity, be called upon to exercise other functions. 31. On condition that the Commission provides objective justifications based on the substantive link between two or more empowerments contained in a single legislative act, and unless the legislative act provides otherwise, empowerments may be bundled. Consultations in the preparation of delegated acts also serve to indicate which empowerments are considered to be substantively linked. In such cases, any objection by the European Parliament or the Council will indicate clearly to which empowerment it specifically relates.’ Interinstitutional Agreement of 13 April 2016 on Better Law-Making, paras 28– 31. Consultations in the preparation and drawing-up of delegated acts ‘4.  The Commission shall consult experts designated by each Member State in the preparation of draft delegated acts. The Member States’ experts shall be consulted in a timely manner on each draft delegated act prepared by the Commission services[80]. The draft delegated acts shall be shared with the Member States’ experts. Those consultations shall take place via existing expert groups, or via ad hoc meetings with experts from the Member States, for which the Commission shall send invitations via the Permanent ‘Regulation (EU) No  182/2011 of the European Parliament and of the Council of 16  February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).’ – fn 6 in the Interinstitutional Agreement. 80 ‘The specificities of the procedure for preparing regulatory technical standards (RTS) as described in the ESA  Regulations [Regulation (EU) No  1093/2010 of the European Parliament and of the Council of 24  November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No  716/2009/EC and repealing Commission Decision 2009/78/EC (OJ  L  331, 15.12.2010, p. 12), Regulation (EU) No  1094/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Insurance and Occupational Pensions Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/79/ EC (OJ L 331, 15.12.2010, p. 48) and Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No  716/2009/EC and repealing Commission Decision 2009/77/EC (OJ L 331, 15.12.2010, p. 84)] will be taken into account without prejudice to the consultation arrangements laid down in this Agreement’ – fn * in the Annex to the Interinstitutional Agreement. 79

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Representations of all Member States. It is for the Member States to decide which experts are to participate. Member States’ experts shall be provided with the draft delegated acts, the draft agenda and any other relevant documents in sufficient time to prepare. 5.

At the end of any meeting with Member States’ experts or in the followup to such meetings, the Commission services shall state the conclusions they have drawn from the discussions, including how they will take the experts’ views into consideration and how they intend to proceed. Those conclusions will be recorded in the minutes of the meeting.

6.

The preparation and drawing-up of delegated acts may also include consultations with stakeholders.

7.

Where the material content of a draft delegated act is changed in any way, the Commission shall give Member States’ experts the opportunity to react, where appropriate in writing, to the amended version of the draft delegated act.

8.

A summary of the consultation process shall be included in the explanatory memorandum accompanying the delegated act.

9.

The Commission shall make indicative lists of planned delegated acts available at regular intervals.

10. When preparing and drawing up delegated acts, the Commission shall ensure a timely and simultaneous transmission of all documents, including the draft acts, to the European Parliament and the Council at the same time as to Member States’ experts. 11. Where they consider this necessary, the European Parliament and the Council may each send experts to meetings of the Commission expert groups dealing with the preparation of delegated acts to which Member States’ experts are invited. To that end, the European Parliament and the Council shall receive the planning for the following months and invitations for all experts meetings. 12. The three Institutions shall indicate to each other their respective functional mailboxes to be used for the transmission and receipt of all documents relating to delegated acts. Once the register referred to in paragraph 29 of this Agreement has been established, it shall be used for that purpose.’ Interinstitutional Agreement of 13 April 2016 on Better Law-Making, Annex, paras 4–12. Article 118 Committee 1.

The Commission shall be assisted by a committee (‘the Communications Committee’). That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

2.

For the implementing acts referred to in the second subparagraph of Article 28(4), the Commission shall be assisted by the Radio Spectrum Committee established pursuant to Article 3(1) of Decision No 676/2002/EC. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

3.

Where reference is made to this paragraph, Article  4 of Regulation (EU) No 182/2011 shall apply.



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Where the opinion of the committee is to be obtained by written procedure, that procedure shall be terminated without result when, within the time-limit for delivery of the opinion, the chair of the committee so decides or a committee member so requests. In such a case, the chair shall convene a committee meeting within a reasonable time. 4.

Where reference is made to this paragraph, Article  5 of Regulation (EU) No 182/2011 shall apply, having regard to Article 8 thereof. Where the opinion of the committee is to be obtained by written procedure, that procedure shall be terminated without result when, within the time-limit for delivery of the opinion, the chair of the committee so decides or a committee member so requests. In such a case, the chair shall convene a committee meeting within a reasonable time. See: Recitals 72; 316. Correlation with Framework Directive EECC  Article  118(1) correlates with Directive 2002/21/EC, Article  22(1); EECC  Article  118(3) correlates with Directive 2002/21/EC, Article  22(2); EECC Article 118(4) correlates with Directive 2002/21/EC, Article 22(3). On the meaning of ‘committee’ ‘The Commission shall be assisted by a committee composed of representatives of the Member States. The committee shall be chaired by a representative of the Commission. The chair shall not take part in the committee vote.’ Regulation (EU) No 182/2011, Article 3(2), and see also the common provisions in Article 3 generally. Advisory procedure ‘1.  Where the advisory procedure applies, the committee shall deliver its opinion, if necessary by taking a vote. If the committee takes a vote, the opinion shall be delivered by a simple majority of its component members. 2.

The Commission shall decide on the draft implementing act to be adopted, taking the utmost account of the conclusions drawn from the discussions within the committee and of the opinion delivered.’

Regulation (EU) No 182/2011, Article 4. Examination procedure ‘1.  Where the examination procedure applies, the committee shall deliver its opinion by the majority laid down in Article  16(4) and (5) of the Treaty on European Union and, where applicable, Article 238(3) TFEU, for acts to be adopted on a proposal from the Commission. The votes of the representatives of the Member States within the committee shall be weighted in the manner set out in those Articles. 2.

Where the committee delivers a positive opinion, the Commission shall adopt the draft implementing act.

3.

Without prejudice to Article 7, if the committee delivers a negative opinion, the Commission shall not adopt the draft implementing act. Where an implementing act is deemed to be necessary, the chair may either submit an amended version of the draft implementing act to the same committee within 2 months of delivery of the negative opinion, or submit the draft

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implementing act within 1 month of such delivery to the appeal committee for further deliberation. 4.

Where no opinion is delivered, the Commission may adopt the draft implementing act, except in the cases provided for in the second subparagraph. Where the Commission does not adopt the draft implementing act, the chair may submit to the committee an amended version thereof. Without prejudice to Article 7, the Commission shall not adopt the draft implementing act where: (a) that act concerns taxation, financial services, the protection of the health or safety of humans, animals or plants, or definitive multilateral safeguard measures; (b) the basic act provides that the draft implementing act may not be adopted where no opinion is delivered; or (c) a simple majority of the component members of the committee opposes it. In any of the cases referred to in the second subparagraph, where an implementing act is deemed to be necessary, the chair may either submit an amended version of that act to the same committee within 2 months of the vote, or submit the draft implementing act within 1 month of the vote to the appeal committee for further deliberation.

5.

By way of derogation from paragraph  4, the following procedure shall apply for the adoption of draft definitive anti-dumping or countervailing measures, where no opinion is delivered by the committee and a simple majority of its component members opposes the draft implementing act.

The Commission shall conduct consultations with the Member States. 14 days at the earliest and 1 month at the latest after the committee meeting, the Commission shall inform the committee members of the results of those consultations and submit a draft implementing act to the appeal committee. By way of derogation from Article 3(7), the appeal committee shall meet 14 days at the earliest and 1 month at the latest after the submission of the draft implementing act. The appeal committee shall deliver its opinion in accordance with Article 6. The time limits laid down in this paragraph shall be without prejudice to the need to respect the deadlines laid down in the relevant basic acts.’ Regulation (EU) No 182/2011, Article 5. Immediately applicable implementing acts ‘1.  By way of derogation from Articles 4 and 5, a basic act may provide that, on duly justified imperative grounds of urgency, this Article is to apply. 2.

The Commission shall adopt an implementing act which shall apply immediately, without its prior submission to a committee, and shall remain in force for a period not exceeding 6 months unless the basic act provides otherwise.

3.

At the latest 14 days after its adoption, the chair shall submit the act referred to in paragraph 2 to the relevant committee in order to obtain its opinion.



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Where the examination procedure applies, in the event of the committee delivering a negative opinion, the Commission shall immediately repeal the implementing act adopted in accordance with paragraph 2.

5.

Where the Commission adopts provisional anti-dumping or countervailing measures, the procedure provided for in this Article shall apply. The Commission shall adopt such measures after consulting or, in cases of extreme urgency, after informing the Member States. In the latter case, consultations shall take place 10 days at the latest after notification to the Member States of the measures adopted by the Commission.’ Regulation (EU) No 182/2011, Article 8. Article 119 Exchange of information 1.

The Commission shall provide all relevant information to the Communications Committee on the outcome of regular consultations with the representatives of network operators, service providers, users, consumers, manufacturers and trade unions, as well as third countries and international organisations.

2.

The Communications Committee shall, taking account of the Union’s electronic communications policy, foster the exchange of information between the Member States and between the Member States and the Commission on the situation and the development of regulatory activities regarding electronic communications networks and services. See: Recitals 313; 314. Correlation with Framework Directive EECC Article 119 correlates with Directive 2002/21/EC, Article 23. Article 120 Publication of information

1. Member States shall ensure that up-to-date information regarding the implementation of this Directive is made publicly available in a manner that guarantees all interested parties easy access to that information. They shall publish a notice in their national official gazette describing how and where the information is published. The first such notice shall be published before 21 December 2020 and thereafter a notice shall be published where there is any change in the information contained therein. 2.

Member States shall submit to the Commission a copy of all such notices at the time of publication. The Commission shall distribute the information to the Communications Committee as appropriate.

3.

Member States shall ensure that all relevant information on rights, conditions, procedures, charges, fees and decisions concerning general authorisations, rights of use and rights to install facilities is published and kept up to date in an appropriate manner in order to provide easy access to that information for all interested parties.

4.

Where information referred to in paragraph  3 is held at different levels of government, in particular information regarding procedures and conditions on rights to install facilities, the competent authority shall make all reasonable efforts, having regard to the costs involved, to create a user-friendly overview of

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all such information, including information on the relevant levels of government and the responsible authorities, in order to facilitate applications for rights to install facilities. 5.

Member States shall ensure that the specific obligations imposed on undertakings under this Directive are published and that the specific product and service, and geographical markets are identified. Subject to the need to protect commercial confidentiality, they shall ensure that up-to-date information is made publicly available in a manner that guarantees all interested parties easy access to that information.

6.

Member States shall provide the Commission with information that they make publicly available pursuant to paragraph  5. The Commission shall make that information available in a readily accessible form, and shall distribute the information to the Communications Committee as appropriate. See: Recitals 312–314. Correlation with Framework Directive EECC Article 120(1) and (2) correlates with Directive 2002/21/EC, Article 24. Correlation with Authorisation Directive EECC Article 120(3) and (4) correlates with Directive 2002/20/EC, Article 15. Correlation with Access Directive EECC Article 120(5) correlates with Directive 2002/19/EC, Article 15. Article 121 Notification and monitoring

1.

National regulatory authorities shall notify to the Commission by 21 December 2020, and immediately following any change thereafter, the names of undertakings designated as having universal service obligations under Article 85(2), Article 86 or 87.

2.

National regulatory authorities shall notify to the Commission the names of undertakings designated as having significant market power for the purposes of this Directive, and the obligations imposed upon them under this Directive. Any changes affecting the obligations imposed upon undertakings or of the undertakings affected under this Directive shall be notified to the Commission without delay. See: Recital 314; 322. Correlation with Access Directive EECC Article  121(2) correlates with Directive 2002/19/EC, Article  16(2) (the reference in Annex XIII to EECC Article 121(4) is incorrect). Correlation with Universal Service Directive EECC Article 121(1) correlates with Directive 2002/22/EC, Article 36(1). Article 122 Review procedures

1.

By 21  December 2025 and every five years thereafter, the Commission shall review the functioning of this Directive and report to the European Parliament and to the Council. Those reviews shall evaluate in particular the market implications of Article 61(3) and Articles 76, 78 and 79 and whether the ex ante and other intervention powers



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pursuant to this Directive are sufficient to enable national regulatory authorities to address uncompetitive oligopolistic market structures, and to ensure that competition in electronic communications markets continues to thrive to the benefit of end-users. To that end, the Commission may request information from the Member States, which shall be supplied without undue delay. 2.

By 21  December 2025, and every five years thereafter, the Commission shall review the scope of universal service, in particular with a view to proposing to the European Parliament and to the Council that the scope be changed or redefined. That review shall be undertaken in light of social, economic and technological developments, taking into account, inter alia, mobility and data rates in light of the prevailing technologies used by the majority of end-users. The Commission shall submit a report to the European Parliament and to the Council regarding the outcome of the review.

3.

BEREC shall, by 21  December 2021 and every three years thereafter, publish an opinion on the national implementation and functioning of the general authorisation, and on their impact on the functioning of the internal market. The Commission may, taking utmost account of the BEREC opinion, publish a report on the application of Chapter II of Title II of Part I and of Annex I, and may submit a legislative proposal to amend those provisions where it considers this to be necessary for the purpose of addressing obstacles to the proper functioning of the internal market. See: Recitals 294; 318; 319. Correlation with Framework Directive EECC Article 122(1) correlates with Directive 2002/21/EC, Article 25. Correlation with Universal Service Directive EECC Article 122(2) and (3) correlates with Directive 2002/22/EC, Article 15. Article 123 Specific review procedure on end-user rights

1.

BEREC shall monitor the market and technological developments regarding the different types of electronic communications services and shall, by 21 December 2021 and every three years thereafter, or upon a reasoned request from at least two of its Member State members, publish an opinion on such developments and on their impact on the application of Title III of Part III. In that opinion, BEREC shall assess to what extent Title III of Part III meets the objectives set out in Article 3. The opinion shall in particular take into account the scope of Title III of Part III as regards the types of electronic communications services covered. As a basis for the opinion, BEREC shall in particular analyse: (a)

to what extent end-users of all electronic communications services are able to make free and informed choices, including on the basis of complete contractual information, and are able to switch easily their provider of electronic communications services;

(b) to what extent any lack of abilities referred to in point (a) has resulted in market distortions or end-user harm;

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(c) to what extent effective access to emergency services is appreciably threatened, in particular due to an increased use of number-independent interpersonal communications services, by a lack of interoperability or technological developments; (d) the likely cost of any potential readjustments of obligations in Title III of Part III or impact on innovation for providers of electronic communications services. 2.

The Commission, taking utmost account of the BEREC opinion, shall publish a report on the application of Title III of Part III and shall submit a legislative proposal to amend that Title where it considers this to be necessary to ensure that the objectives set out in Article 3 continue to be met. See: Recital 320. Article 124 Transposition

1.

Member States shall adopt and publish, by 21 December 2020, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall immediately communicate the text of those measures to the Commission. Member States shall apply those measures from 21 December 2020. When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. They shall also include a statement that references in existing laws, regulations and administrative provisions to the Directives repealed by this Directive shall be construed as references to this Directive. Member States shall determine how such reference is to be made and how that statement is to be formulated.

2.

By way of derogation from paragraph  1 of this Article, Article  53(2), (3) and (4) of this Directive shall apply from 20  December 2018 where harmonised conditions have been set by technical implementing measures in accordance with Decision No 676/2002/EC in order to enable the radio spectrum use for wireless broadband networks and services. In relation to radio spectrum bands for which harmonised conditions have not been set by 20 December 2018, Article 53(2), (3) and (4) of this Directive shall apply from the date of the adoption of the technical implementing measures in accordance with Article 4 of Decision No 676/2002/ EC. By way of derogation from paragraph 1 of this Article, Member States shall apply the measures necessary to comply with Article 54 from 31 December 2020.

3.

Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive. See: Recitals 135; 322–326. National transposition instruments See Annex I at pp 1345–48. Failure to fulfil transposition obligations ‘[…T]he question whether a Member State has failed to fulfil its obligations must be determined as at the end of the period laid down in the reasoned opinion (see, inter alia, Case C-384/97 Commission v Greece [2000]  ECR  I-3823,



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paragraph 35, and Case C-152/98 Commission v Netherlands [2001] ECR I-3463, paragraph 21). Accordingly, the matters relied on by the Netherlands in its pleadings concerning, on the one hand, repeal of Directive 97/66 by Article 19 of Directive 2002/58/ EC 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 (Directive on privacy and electronic communications) (OJ  2002  L  201, p. 37) with effect from 31  October 2003 and, on the other, the existence of a bill to transpose the latter directive into Netherlands law, cannot affect the assessment to be made of the obligations of the Kingdom of the Netherlands as at expiry of the period of two months laid down in the reasoned opinion.’ Case C-350/02 Commission of the European Communities v Kingdom of the Netherlands, EU:C:2004:389, paras 31–32. Effect of a Directive prior to its transposition Case C-439/16 PPU Milev, EU:C:2016:818, paragraph 31: ‘The fact remains that the Member States must refrain, during the period prescribed for transposition of a directive, from taking any measures liable seriously to compromise the result prescribed by that directive (see judgments of 18 December 1997, InterEnvironnement Wallonie, C‑129/96, EU:C:1997:628, paragraph  45, and of 2 June 2016, Pizzo, C‑27/15, EU:C:2016:404, paragraph 32). In this connection it is immaterial whether or not such provisions of domestic law, adopted after the directive entered into force, are concerned with the transposition of the directive (see judgment of 4 July 2006, Adeneler and Others, C‑212/04 EU:C:2006:443, paragraph 121). Harmonised conditions set by technical implementing measures adopted under the Radio Spectrum Decision with respect to wireless broadband services See Annex III at pp 1365–70. Article 125 Repeal Directives 2002/19/EC, 2002/20/EC, 2002/21/EC, 2002/22/EC, as listed in Annex XII, Part A, are repealed with effect from 21 December 2020, without prejudice to the obligations of the Member States relating to the time-limits for the transposition into national law and the dates of application of the Directives set out in Annex XII, Part B. Article 5 of Decision No 243/2012/EU is deleted with effect from 21 December 2020. References to the repealed Directives shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex XIII. See: Recitals 1; 4; 321; 322; 326. Correlation with Framework Directive EECC Article 125 correlates with Directive 2002/21/EC, Article 26. Transitional regime (a) ‘It should be borne in mind that, under Article 26 and the second subparagraph of Article  28(1) of [the Framework Directive], Directive 98/10 is repealed with effect from 25  July 2003. However, under Article  27 of [the Framework Directive], Member States are required to maintain all obligations under national law referred to in Article  7 of [the Access Directive] and Article  16 of [the Universal Service Directive] until such time as a determination is made in respect of those obligations by a national regulatory authority.

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Article  7(1) of [the Access Directive] provides that the Member States are to maintain in force all obligations that were previously applicable, inter alia, under Article 16 of Directive 98/10 concerning special network access. Article 16(1) of [the Universal Service Directive] provides that Member States are to maintain all obligations relating to, inter alia, retail tariffs for the provision of access to and use of the public telephone network, referred to in Article 17 of Directive 98/10. The latter article concerns the principle of cost orientation for tariffs. It follows that Article 18(1) and (2) of Directive 98/10, relating to the principles of cost accounting, the subject-matter of the second head of claim in the present action, is not explicitly referred to by the aforementioned provisions of the NRF [New Regulatory Framework]. The fact remains, however, that the lack of reference in the present case to Article 18 of Directive 98/10 in Article 16 of [the Universal Service Directive] is not such as to exempt the Member States from their obligations under Article 18. The Court notes that it is not apparent from [the Universal Service Directive] that the Community legislature wished, by way of transitional measures, to maintain in force only those obligations under Article 17 of Directive 98/10 relating to cost orientation for tariffs and not those relating to the cost accounting system. On the contrary, as evidenced by the explicit references to Article 17 of Directive 98/10 contained in Article  18 therof, the obligations under those two articles must be taken into account together, as the principle of cost orientation for tariffs is closely linked to the accounting system for those same costs. It follows that the Member States’ obligations under Article  18(1) and (2) of Directive 98/10 must be regarded as having been maintained in force by the relevant provisions of the NRF. The Grand Duchy of Luxembourg stated in this regard at the hearing that the transitional scheme provided for by the NRF concerns the obligations resulting from national legislation and not the disputed provisions of Directive 98/10. In those circumstances, the Grand Duchy of Luxembourg takes the view that, if there are no national measures transposing the obligations under Article 18(1) and (2) of Directive 98/10 for the year in question, that is, the year 2000, the transitional measures provided for by the NRF are not relevant for assessing the admissibility of the second head of claim in the present action. That argument cannot be accepted. In acknowledging essentially that it has not transposed Article 18(1) and (2) of Directive 98/10 for the year 2000, the Grand Duchy of Luxembourg cannot rely on its own failure to fulfil its obligations under the former regulatory framework governing telecommunications in order to evade those same obligations under the transitional measures provided for by the NRF.’ Case C-33/04 Commission of the European Communities v Grand Duchy of Luxembourg, EU:C:2005:750, paras 51–60. (b) ‘In accordance with the transitional provisions of [the Access Directive] and [the Framework Directive], the Český telekomunikační úřad was entitled to consider the obligation, on the part of a telecommunications company with significant market power within the meaning of Directive 97/33/EC of the European Parliament and of the Council of 30 June 1997 on interconnection in telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP), as amended by Directive 98/61/EC of the European Parliament and of the Council of 24  September 1998, to conclude a contract for the interconnection of its



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networks with that of another operator, subsequent to 1 May 2004, within the context of the provisions of Directive 97/33, as amended.’ Case C-64/06 Telefónica O2 Czech Republic as, formerly Český Telecom as v Czech On Line as, EU:C:2007:348, Court’s ruling. Rights and obligations arising under repealed Directive ‘It is first of all appropriate to examine the argument of the German Government that Article 11 of Directive 97/13 does not apply to the disputes at issue in the main proceedings on the ground Directive 97/13 was repealed by a later directive. It should be noted in that regard that Directive 97/13 was repealed by Article 26 of Directive 2002/21 with effect from 25 July 2003 in accordance with the second subparagraph of Article 28(1) of the latter directive. It follows, however, from reading Article  26 and the second subparagraph of 28(1) of Directive 2002/21 that the legislature did not intend to prejudice the rights and obligations arising under Directive 97/13 and that Directive 2002/21 applies only to legal situations arising from 25 July 2003. Consequently, despite the fact that Directive 97/13 was repealed by Directive 2002/21, the validity of a charge such as that imposed on i-21 and Arcor by the fee assessments of 14 June 2000 and 18 May 2001 respectively, at a time when Directive 2002/21 was not yet applicable, has to be examined in the light of Article 11(1) of Directive 97/13.’ Joined Cases C-392/04 i-21 Germany GmbH and C-422/04 Arcor AG & Co. KG v Bundesrepublik Deutschland, EU:C:2006:586, paras 22–25. Article 126 Entry into force This Directive shall enter into force on the third day following that of its publication in the Official Journal of the European Union. Date of effect: 20 December 2018. Article 127 Addressees This Directive is addressed to the Member States. Done at Strasbourg, 11 December 2018. For the European Parliament The President A. TAJANI

For the Council The President J. BOGNER-STRAUSS

Correlation with Framework Directive EECC  Article  127 correlates with Directive 2002/21/EC, Article  30 (the references to Framework Directive Article 29 and EECC Article 128 in Annex XIII are incorrect). Correlation with Authorisation Directive EECC Article 127 correlates with Directive 2002/20/EC, Article 20. Correlation with Access Directive EECC Article 127 correlates with Directive 2002/19/EC, Article 20. Correlation with Universal Service Directive EECC Article 127 correlates with Directive 2002/22/EC, Article 40.

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ANNEX I LIST OF CONDITIONS WHICH MAY BE ATTACHED TO GENERAL AUTHORISATIONS, RIGHTS OF USE FOR RADIO SPECTRUM AND RIGHTS OF USE FOR NUMBERING RESOURCES This Annex provides for the maximum list of conditions which may be attached to general authorisations for electronic communications networks and services, except number-independent interpersonal communications services (Part A), electronic communications networks (Part B), electronic communications services, except number-independent interpersonal communications services (Part C), rights of use for radio spectrum (Part D), and rights of use for numbering resources (Part E) A. General conditions which may be attached to a general authorisation 1.

Administrative charges in accordance with Article 16.

2.

Personal data and privacy protection specific to the electronic communications sector in accordance with Directive 2002/58/EC

3.

Information to be provided under a notification procedure in accordance with Article 12 and for other purposes as included in Article 21.

4.

Enabling of legal interception by competent national authorities in accordance with Regulation (EU) 2016/679 and Directive 2002/58/EC.

5.

Terms of use for communications from public authorities to the general public for warning the public of imminent threats and for mitigating the consequences of major catastrophes.

6. Terms of use during major disasters or national emergencies to ensure communications between emergency services and authorities. 7.

Access obligations other than those provided for in Article  13 applying to undertakings providing electronic communications networks or services.

8.

Measures designed to ensure compliance with the standards or specifications referred to in Article 39.

9.

Transparency obligations on providers of public electronic communications network providing publicly available electronic communications services to ensure end-to-end connectivity, in accordance with the objectives and principles set out in Article 3 and, where necessary and proportionate, access by competent authorities to such information needed to verify the accuracy of such disclosure.

B. Specific conditions which may be attached to a general authorisation for the provision of electronic communications networks 1.

Interconnection of networks in accordance with this Directive.

2.

‘Must carry’ obligations in accordance with this Directive.

3.

Measures for the protection of public health against electromagnetic fields caused by electronic communications networks in accordance with Union law, taking utmost account of Recommendation 1999/519/EC.

4.

Maintenance of the integrity of public electronic communications networks in accordance with this Directive including by conditions to prevent electromagnetic interference between electronic communications networks or services in accordance with Directive 2014/30/EU.



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5.

Security of public networks against unauthorised access in accordance with Directive 2002/58/EC.

6.

Conditions for the use of radio spectrum, in accordance with Article  7(2) of Directive 2014/53/EU, where such use is not made subject to the granting of individual rights of use in accordance with Article  46(1) and Article  48 of this Directive.

C. Specific conditions which may be attached to a general authorisation for the provision of electronic communications services, except number-independent interpersonal communications services 1.

Interoperability of services in accordance with this Directive.

2.

Accessibility by end-users of numbers from the national numbering plan, numbers from the UIFN and, where technically and economically feasible, from numbering plans of other Member States, and conditions in accordance with this Directive.

3.

Consumer protection rules specific to the electronic communications sector.

4.

Restrictions in relation to the transmission of illegal content in accordance with Directive 2000/31/EC and restrictions in relation to the transmission of harmful content in accordance with Directive 2010/13/EU.

D. Conditions which may be attached to rights of use for radio spectrum 1.

Obligation to provide a service or to use a type of technology within the limits of Article  45 including, where appropriate, coverage and quality of service requirements.

2.

Effective and efficient use of radio spectrum in accordance with this Directive.

3.

Technical and operational conditions necessary for the avoidance of harmful interference and for the protection of public health against electromagnetic fields, taking utmost account of Recommendation 1999/519/EC where such conditions are different from those included in the general authorisation.

4.

Maximum duration in accordance with Article 49, subject to any changes in the National Frequency Allocation Plan.

5.

Transfer or leasing of rights at the initiative of the holder of the rights and conditions for such transfer in accordance with this Directive.

6.

Fees for rights of use in accordance with Article 42.

7.

Any commitments which the undertaking obtaining the rights of use has made in the framework of an authorisation or authorisation renewal process prior to the authorisation being granted or, where applicable, to the invitation for application for rights of use.

8.

Obligations to pool or share radio spectrum or allow access to radio spectrum for other users in specific regions or at national level.

9.

Obligations under relevant international agreements relating to the use of radio spectrum bands.

10. Obligations specific to an experimental use of radio spectrum bands. E. Conditions which may be attached to rights of use for numbering resources 1.

Designation of service for which the number shall be used, including any requirements linked to the provision of that service and, for the avoidance of

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doubt, tariff principles and maximum prices that can apply in the specific number range for the purposes of ensuring consumer protection in accordance with point (d) of Article 3(2). 2.

Effective and efficient use of numbering resources in accordance with this Directive.

3.

Number portability requirements in accordance with this Directive.

4.

Obligation to provide public directory end-user information for the purposes of Article 112.

5.

Maximum duration in accordance with Article 94, subject to any changes in the national numbering plan.

6.

Transfer of rights at the initiative of the holder of the rights and conditions for such transfer in accordance with this Directive, including any condition that the right of use for a number be binding on all the undertakings to which the rights are transferred.

7.

Fees for rights of use in accordance with Article 95.

8.

Any commitments which the undertaking obtaining the rights of use has made in the course of a competitive or comparative selection procedure.

9.

Obligations under relevant international agreements relating to the use of numbers.

10. Obligations concerning the extraterritorial use of numbers within the Union to ensure compliance with consumer protection and other number-related rules in Member States other than that of the country code. See: Recitals 47; 247; 270. Correlation with Authorisation Directive EECC Annex I correlates with Directive 2002/20/EC, Annex. Personal data and privacy protection under the ePrivacy Directive Directive 2002/58/EC, Articles 3-15a; (see pp 724–32). Enabling of legal interception and safeguarding national security (a) Directive 2002/58/EC, Article 15 (see p. 730). (b)  Joined Cases C-293/12 Digital Rights Ireland Ltd v Minister for Communications, Marine and Natural Resources and Others and C-594/12 Kärntner Landesregierung and Others, EU:C:2013:845, para 159 of the Opinion of Advocate General Cruz Villalón delivered on 12  December 2013 and EU:C:2014:238, paras 69 and 71 of the judgment; Joined Cases C-203/15 Tele2 Sverige AB  v Post- och telestyrelsen and C-698/15 Secretary of State for the Home Department v Tom Watson and Others, EU:C:2016:970, paras 1 and 2 of the Court’s ruling; Case C-207/16, Ministerio Fiscal, EU:C:2018:788, Court’s ruling; and Case C-746/18, H.K. v Prokuratuur, EU:C:2020:18, para  130 of the Opinion of Advocate General Pitruzzella delivered on 21  January 2020; Joined Cases C-5-11/18 and C-512/18 La Quadrature du Net and Others v Premier minister and Others, and C-520/18 Ordre des barreaux francophones et germanophone and Others v Conseil des ministers, EU:C:2020:791, paras 1–4 of the Court’s ruling (see annotations to Article 100). Protection of public health against electromagnetic fields Recommendation 1999/519/EC (see p. 1133).



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Prevention of electromagnetic interference between electronic communications networks or services Directive 2014/30/EU (see p. 827). Security of public networks against unauthorised access under the ePrivacy Directive Directive 2002/58/EC, Article 4 (see p. 724). Putting into service or use of radio equipment Directive 2014/53/EU, Article 7 (see p. 893) (note that there is no Article 7(2) in Directive 2014/53/EU as referenced in Annex I(B)(6)). Restrictions in relation to the transmission of illegal content and liability of intermediary service providers under the Directive on Electronic Commerce Directive 2000/31/EC, Articles 12–15 (see pp 708–10).). Restrictions in relation to the transmission of harmful content under the Audiovisual Media Services Directive Directive 2010/13/EU, Articles 6; 6a; 9; 10; 11(4); 22; 28b (see pp 773, 775–76, 777, 781 and 783). ANNEX II CONDITIONS FOR ACCESS TO DIGITAL TELEVISION AND RADIO SERVICES BROADCAST TO VIEWERS AND LISTENERS IN THE UNION Part I Conditions for conditional access systems to be applied in accordance with Article 62(1) In relation to conditional access to digital television and radio services broadcast to viewers and listeners in the Union, irrespective of the means of transmission, Member States shall ensure in accordance with Article 62 that the following conditions apply: (a) all undertakings providing conditional access services, irrespective of the means of transmission, which provide access services to digital television and radio services and the access services of which broadcasters depend on to reach any group of potential viewers or listeners are to: •

offer to all broadcasters, on a fair, reasonable and non-discriminatory basis compatible with Union competition law, technical services enabling the broadcasters’ digitally-transmitted services to be received by viewers or listeners authorised by means of decoders administered by the service operators, and comply with Union competition law,

•

keep separate financial accounts regarding their activity as conditional access providers.

(b) when granting licences to manufacturers of consumer equipment, holders of industrial property rights to conditional access products and systems are to ensure that this is done on fair, reasonable and non-discriminatory terms. Taking into account technical and commercial factors, holders of rights are not to subject the granting of licences to conditions prohibiting, deterring or discouraging the inclusion in the same product of: •

a common interface allowing connection with several other access systems, or

•

means specific to another access system, provided that the licensee complies with the relevant and reasonable conditions ensuring, as far as he is concerned, the security of transactions of conditional access system operators.

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Part II Other facilities to which conditions may be applied under point (D) of Article 61(2) (a)

Access to APIs;

(b) Access to EPGs. See: Recitals 153; 159. Correlation with Access Directive EECC Annex II correlates with Directive 2002/19/EC, Annex I. ANNEX III CRITERIA FOR THE DETERMINATION OF WHOLESALE VOICE TERMINATION RATES Principles, criteria and parameters for the determination of rates for wholesale voice termination on fixed and mobile markets referred to in Article 75(1): (a) rates shall be based on the recovery of costs incurred by an efficient operator; the evaluation of efficient costs shall be based on current cost values; the cost methodology to calculate efficient costs shall be based on a bottom-up modelling approach using long-run incremental traffic-related costs of providing the wholesale voice termination service to third parties; (b) the relevant incremental costs of the wholesale voice termination service shall be determined by the difference between the total long-run costs of an operator providing its full range of services and the total long-run costs of that operator not providing a wholesale voice termination service to third parties; (c) only those traffic-related costs which would be avoided in the absence of a wholesale voice termination service being provided shall be allocated to the relevant termination increment; (d) costs related to additional network capacity shall be included only to the extent that they are driven by the need to increase capacity for the purpose of carrying additional wholesale voice termination traffic; (e) radio spectrum fees shall be excluded from the mobile voice termination increment; (f)

only those wholesale commercial costs shall be included which are directly related to the provision of the wholesale voice termination service to third parties;

(g) all fixed network operators shall be considered to provide voice termination services at the same unit costs as the efficient operator, regardless of their size; (h) for mobile network operators, the minimum efficient scale shall be set at a market share not below 20 %; (i)

the relevant approach for asset depreciation shall be economic depreciation; and

(j)

the technology choice of the modelled networks shall be forward looking, based on an IP core network, taking into account the various technologies likely to be used over the period of validity of the maximum rate; in the case of fixed networks, calls shall be considered to be exclusively packet switched. See: Recitals 196; 197.



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ANNEX IV CRITERIA FOR ASSESSING CO-INVESTMENT OFFERS When assessing a co-investment offer pursuant to Article 76(1), the national regulatory authority shall verify whether the following criteria have at a minimum been met. National regulatory authorities may consider additional criteria to the extent they are necessary to ensure accessibility of potential investors to the co-investment, in light of specific local conditions and market structure: (a) The co-investment offer shall be open to any undertaking over the lifetime of the network built under a co-investment offer on a non-discriminatory basis. The undertaking designated as having significant market power may include in the offer reasonable conditions regarding the financial capacity of any undertaking, so that for instance potential co-investors need to demonstrate their ability to deliver phased payments on the basis of which the deployment is planned, the acceptance of a strategic plan on the basis of which medium-term deployment plans are prepared, and so on. (b) The co-investment offer shall be transparent:

(c)

•

the offer shall be available and easily identified on the website of the undertaking designated as having significant market power;

•

full detailed terms shall be made available without undue delay to any potential bidder that has expressed an interest, including the legal form of the co-investment agreement and, when relevant, the heads of term of the governance rules of the co-investment vehicle; and

•

the process, like the road map for the establishment and development of the co-investment project shall be set in advance, shall be clearly explained in writing to any potential co-investor, and all significant milestones shall be clearly communicated to all undertakings without any discrimination.

The co-investment offer shall include terms to potential co-investors which favour sustainable competition in the long term, in particular: •

All undertakings shall be offered fair, reasonable and non-discriminatory terms and conditions for participation in the co-investment agreement relative to the time they join, including in terms of financial consideration required for the acquisition of specific rights, in terms of the protection awarded to the co-investors by those rights both during the building phase and during the exploitation phase, for example by granting indefeasible rights of use (IRUs) for the expected lifetime of the co-invested network and in terms of the conditions for joining and potentially terminating the co-investment agreement. Non-discriminatory terms in this context do not entail that all potential co-investors shall be offered exactly the same terms, including financial terms, but that all variations of the terms offered shall be justified on the basis of the same objective, transparent, non-discriminatory and predictable criteria such as the number of end-user lines committed for.

•

The offer shall allow flexibility in terms of the value and timing of the commitment provided by each co-investor, for example by means of an agreed and potentially increasing percentage of the total end-user lines in a given area, to which co-investors have the possibility to commit gradually and which is set at a unit level enabling smaller co-investors with limited resources to enter the co-investment at a reasonably minimum scale and to gradually increase their participation while ensuring adequate levels of

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initial commitment. The determination of the financial consideration to be provided by each co-investor needs to reflect the fact that early investors accept greater risks and engage capital sooner.

(d)

•

A  premium increasing over time shall be considered to be justified for commitments made at later stages and for new co-investors entering the co-investment after the commencement of the project, to reflect diminishing risks and to counteract any incentive to withhold capital in the earlier stages.

•

The co-investment agreement shall allow the assignment of acquired rights by co-investors to other co-investors, or to third parties willing to enter into the co-investment agreement subject to the transferee undertaking being obliged to fulfil all original obligations of the transferor under the coinvestment agreement.

•

Co-investors shall grant each other reciprocal rights on fair and reasonable terms and conditions to access the co-invested infrastructure for the purposes of providing services downstream, including to end-users, in accordance with transparent conditions which are to be made transparent in the coinvestment offer and subsequent agreement, in particular where co-investors are individually and separately responsible for the deployment of specific parts of the network. If a co-investment vehicle is created, it shall provide access to the network to all co-investors, whether directly or indirectly, on an equivalence of inputs basis and in accordance with fair and reasonable terms and conditions, including financial conditions that reflect the different levels of risk accepted by the individual co-investors.

The co-investment offer shall ensure a sustainable investment likely to meet future needs, by deploying new network elements that contribute significantly to the deployment of very high capacity networks. See: Recitals 199; 200.

ANNEX V MINIMUM SET OF SERVICES WHICH THE ADEQUATE BROADBAND INTERNET ACCESS SERVICE IN ACCORDANCE WITH ARTICLE 84(3) SHALL BE CAPABLE OF SUPPORTING (1) E-mail (2) search engines enabling search and finding of all type of information (3) basic training and education online tools (4) online newspapers or news (5) buying or ordering goods or services online (6) job searching and job searching tools (7) professional networking (8) internet banking (9) eGovernment service use (10) social media and instant messaging (11) calls and video calls (standard quality)



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See: Recital 215. Correlation with Universal Service Directive EECC Annex V correlates with Directive 2002/22/EC, Annex I. ANNEX VI DESCRIPTION OF FACILITIES AND SERVICES REFERRED TO IN ARTICLE 88 (CONTROL OF EXPENDITURE), ARTICLE 115 (ADDITIONAL FACILITIES) AND ARTICLE 106 (PROVIDER SWITCHING AND NUMBER PORTABILITY) Part A Facilities and services referred to in Articles 88 and 115 When applied on the basis of Article 88, Part A is applicable to consumers and other categories of end-users where Member States have extended the beneficiaries of Article 88(2). When applied on the basis of Article 115, Part A is applicable to the categories of endusers determined by Member States, except for points (c), (d) and (g) of this Part which are applicable only to consumers. (a)

Itemised billing Member States shall ensure that competent authorities in coordination, where relevant, with national regulatory authorities, subject to the requirements of relevant law on the protection of personal data and privacy, may lay down the basic level of itemised bills which are to be offered by providers to end-users free of charge in order that they can: (i)

allow verification and control of the charges incurred in using internet access services or voice communications services, or number-based interpersonal communications services in the case of Article 115; and

(ii) adequately monitor their usage and expenditure and thereby exercise a reasonable degree of control over their bills. Where appropriate, additional levels of detail may be offered to end-users at reasonable tariffs or at no charge. Such itemised bills shall include an explicit mention of the identity of the supplier and of the duration of the services charged by any premium numbers unless the end-user has requested that information not to be mentioned. Calls which are free of charge to the calling end-users, including calls to helplines, shall not be required to be identified in the calling end-user’s itemised bill. National regulatory authorities may require operators to provide calling-line identification free of charge. (b) Selective barring for outgoing calls or premium SMS or MMS, or, where technically feasible, other kinds of similar applications, free of charge namely, the facility whereby the end-users can, on request to the providers of voice communications services, or number-based interpersonal communications services in the case of Article 115, bar outgoing calls or premium SMS or MMS or other kinds of similar applications of defined types or to defined types of numbers free of charge. (c)

Pre-payment systems Member States shall ensure that competent authorities in coordination, where relevant, with national regulatory authorities may require providers to offer means for consumers to pay for access to the public electronic communications network

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and use of voice communications services, or internet access services, or numberbased interpersonal communications services in the case of Article 115, on prepaid terms. (d) Phased payment of connection fees Member States shall ensure that competent authorities in coordination, where relevant, with national regulatory authorities may require providers to allow consumers to pay for connection to the public electronic communications network on the basis of payments phased over time. (e)

Non-payment of bills Member States shall authorise specified measures, which are to be proportionate, non-discriminatory and published, to cover non-payment of bills issued by providers. Those measures are to ensure that due warning of any consequent service interruption or disconnection is given to the end-users beforehand. Except in cases of fraud, persistent late payment or non-payment, those measures shall ensure, as far as is technically feasible, that any service interruption is confined to the service concerned. Disconnection for non-payment of bills shall take place only after due warning is given to the end-users. Member States may allow a period of limited service prior to complete disconnection, during which only calls that do not incur a charge to the end-users (for example, calls to the ‘112’ number) and minimum service level of internet access services, defined by Member States in light of national conditions, are permitted.

(f)

Tariff advice namely, the facility whereby end-users may request the provider to offer information regarding alternative lower-cost tariffs, if available.

(g) Cost control namely, the facility whereby providers offer other means, if determined to be appropriate by competent authorities in coordination, where relevant, with national regulatory authorities, to control the costs of voice communications services or internet access services, or number-based interpersonal communications services in the case of Article 115, including free-of-charge alerts to consumers in the case of abnormal or excessive consumption patterns. (h) facility to deactivate third party billing namely, the facility for end-users to deactivate the ability for third party service providers to use the bill of a provider of an internet access service or a provider of a publicly available interpersonal communications service to charge for their products or services. Part B Facilities referred to in Article 115 (a)

Calling-line identification namely, the calling party’s number is presented to the called party prior to the call being established. This facility shall be provided in accordance with relevant law on protection of personal data and privacy, in particular Directive 2002/58/EC. To the extent technically feasible, operators shall provide data and signals to facilitate the offering of calling-line identity and tone dialling across Member State boundaries.



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(b) E-mail forwarding or access to e-mails after termination of the contract with a provider of an internet access service. This facility shall, on request and free-of-charge, enable end-users who terminate their contract with a provider of an internet access service to either access their e-mails received on the e-mail address(es) based on the commercial name or trade mark of the former provider, during a period that the national regulatory authority considers necessary and proportionate, or to transfer e-mails sent to that (or those) address(es) during that period to a new email address specified by the end-user. Part C Implementation of the number portability provisions referred to in Article 106 The requirement that all end-users with numbers from the national numbering plan, who so request can retain their numbers independently of the undertaking providing the service shall apply: (a)

in the case of geographic numbers, at a specific location; and

(b) in the case of non-geographic numbers, at any location. This Part does not apply to the porting of numbers between networks providing services at a fixed location and mobile networks. See: Recitals 222; 236–278; 311. Correlation with Universal Service Directive EECC Annex VI correlates with Directive 2002/22/EC, Annex IV. Itemised billing under the ePrivacy Directive Directive 2002/58/EC, Article 7 (see p. 726). Presentation and restriction of calling and connected line identification under the ePrivacy Directive Directive 2002/58/EC, Articles 8; 10 (see pp 727, 728). Q&A  on Annex VI: ‘Part A  (a) of annex VI details that ‘National regulatory authorities may require operators to provide calling-line identification free of charge’ in the context of itemised billing. Shouldn’t this reference be associated with part B  (a) of the same annex instead, in the context of the calling-line identification facility?’ Reply: ‘Providers of universal service (ref. Article 88) are to offer the facilities of Part A, as applicable, so that consumers can monitor and control expenditure. These facilities include itemised billing, under which NRAs may require callingline identification free of charge. Article 115 mandates that Member States are able to require providers to make available all or part of the additional facilities in Part A and Part B. Part B specifies calling-line identification in the context of establishing a call.’ ANNEX VII CALCULATING THE NET COST, IF ANY, OF UNIVERSAL SERVICE OBLIGATIONS AND ESTABLISHING ANY COMPENSATION OR SHARING MECHANISM IN ACCORDANCE WITH ARTICLES 89 AND 90 Part A Calculation of net cost Universal service obligations refer to those obligations placed upon an undertaking by a Member State which concern the provision of universal service as set out in Articles 84 to 87. National regulatory authorities are to consider all means to ensure appropriate incentives for undertakings (designated or not) to provide universal service obligations

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cost efficiently. In undertaking a calculation exercise, the net cost of universal service obligations is to be calculated as the difference between the net cost for any undertaking operating with the universal service obligations and operating without the universal service obligations. Due attention is to be given to correctly assessing the costs that any undertaking would have chosen to avoid had there been no universal service obligations. The net cost calculation shall assess the benefits, including intangible benefits, to the universal service provider. The calculation is to be based upon the costs attributable to: (i)

elements of the identified services which can only be provided at a loss or provided under cost conditions falling outside normal commercial standards. This category may include service elements such as access to emergency telephone services, provision of certain public pay telephones, provision of certain services or equipment for end-users with disabilities, and so on;

(ii) specific end-users or groups of end-users who, taking into account the cost of providing the specified network and service, the revenue generated and any geographical averaging of prices imposed by the Member State, can only be served at a loss or under cost conditions falling outside normal commercial standards. This category includes those end-users or groups of end-users which would not be served by a commercial provider which did not have an obligation to provide universal service. The calculation of the net cost of specific aspects of universal service obligations is to be made separately and in order to avoid the double counting of any direct or indirect benefits and costs. The overall net cost of universal service obligations to any undertaking is to be calculated as the sum of the net costs arising from the specific components of universal service obligations, taking account of any intangible benefits. The responsibility for verifying the net cost lies with the national regulatory authority. Part B Compensation of net costs of universal service obligations The recovery or financing of any net costs of universal service obligations may require undertakings with universal service obligations to be compensated for the services they provide under non-commercial conditions. Because such a compensation involves financial transfers, Member States are to ensure that those are undertaken in an objective, transparent, non-discriminatory and proportionate manner. This means that the transfers result in the least distortion to competition and to user demand. In accordance with Article  90(3), a sharing mechanism based on a fund shall use a transparent and neutral means for collecting contributions that avoids the danger of a double imposition of contributions falling on both outputs and inputs of undertakings. The independent body administering the fund is to be responsible for collecting contributions from undertakings which are assessed as liable to contribute to the net cost of universal service obligations in the Member State and is to oversee the transfer of sums due or administrative payments to the undertakings entitled to receive payments from the fund. See: Recitals 238; 240; 241; 243. Correlation with Universal Service Directive EECC Annex VII correlates with Directive 2002/22/EC, Annex II.



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ANNEX VIII INFORMATION REQUIREMENTS TO BE PROVIDED IN ACCORDANCE WITH ARTICLE 102 (INFORMATION REQUIREMENTS FOR CONTRACTS) A. Information requirements for providers of publicly available electronic communications services other than transmission services used for the provision of machine-to-machine services Providers of publicly available electronic communications services other than transmission services used for the provision of machine-to-machine services shall provide the following information: (1) as part of the main characteristics of each service provided, any minimum levels of quality of service to the extent that those are offered and, for services other than internet access services, the specific quality parameters assured. Where no minimum levels of quality of service are offered, a statement to this effect shall be made; (2) as part of the information on price, where and to the extent applicable, the respective prices for activating the electronic communications service and for any recurring or consumption-related charges; (3) as part of the information on the duration of the contract and the conditions for renewal and termination of the contract, including possible termination fees, to the extent that such conditions apply: (i)

any minimum use or duration required to benefit from promotional terms;

(ii) any charges related to switching and compensation and refund arrangements for delay or abuse of switching, as well as information about the respective procedures; (iii) information on the right of consumers using pre-paid services to a refund, upon request, of any remaining credit in the event of switching, as set out in Article 106(6); (iv) any fees due on early termination of the contract, including information on unlocking the terminal equipment and any cost recovery with respect to terminal equipment; (4) any compensation and refund arrangements, including, where applicable, explicit reference to rights of consumers, which apply if contracted levels of quality of service are not met or if the provider responds inadequately to a security incident, threat or vulnerability; (5) the type of action that might be taken by the provider in reaction to security incidents or threats or vulnerabilities. B.

Information requirements for providers of internet access services and publicly available interpersonal communications services

I.

In addition to the requirements set out in Part A, providers of internet access services and publicly available interpersonal communications services shall provide the following information: (1) as part of the main characteristics of each service provided:

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(i)

any minimum levels of quality of service to the extent that these are offered, and taking utmost account of the BEREC guidelines adopted in accordance with Article 104(2) regarding: –

for internet access services: at least latency, jitter, packet loss,

–

for publicly available interpersonal communications services, where they exert control over at least some elements of the network or have a service level agreement to that effect with undertakings providing access to the network: at least the time for the initial connection, failure probability, call signalling delays in accordance with Annex X; and

(ii) without prejudice to the right of end-users to use terminal equipment of their choice in accordance with Article  3(1) of Regulation (EU) 2015/2120, any conditions, including fees, imposed by the provider on the use of terminal equipment supplied; (2) as part of the information on price, where and to the extent applicable, the respective prices for activating the electronic communications service and for any recurring or consumption-related charges: (i) details of specific tariff plan or plans under the contract and, for each such tariff plan the types of services offered, including where applicable, the volumes of communications (such as MB, minutes, messages) included per billing period, and the price for additional communication units; (ii) in the case of tariff plan or plans with a pre-set volume of communications, the possibility for consumers to defer any unused volume from the preceding billing period to the following billing period, where this option is included in the contract; (iii) facilities to safeguard bill transparency and monitor the level of consumption; (iv) tariff information regarding any numbers or services subject to particular pricing conditions; with respect to individual categories of services, competent authorities in coordination, where relevant, with national regulatory authorities may require in addition such information to be provided immediately prior to connecting the call or to connecting to the provider of the service; (v)

for bundled services and bundles including both services and terminal equipment the price of the individual elements of the bundle to the extent they are also marketed separately;

(vi) details and conditions, including fees, of any after-sales service, maintenance, and customer assistance; and (vii) the means by which up-to-date information on all applicable tariffs and maintenance charges may be obtained; (3)

as part of the information on the duration of the contract for bundled services and the conditions for renewal and termination of the contract, where applicable, the conditions of termination of the bundle or of elements thereof;

(4)

without prejudice to Article 13 of the Regulation (EU) 2016/679, information on what personal data shall be provided before the performance of the service or collected in the context of the provision of the service;



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details on products and services designed for end-users with disabilities and how updates on this information can be obtained;

(6) the means of initiating procedures for the resolution of disputes including national and cross-border disputes in accordance with Article 25. II.

In addition to the requirements set out in Part A and under Point I, providers of publicly available number-based interpersonal communications services shall also provide the following information: (1)

any constraints on access to emergency services or caller location information due to a lack of technical feasibility insofar as the service allows end-users to originate calls to a number in a national or international numbering plan;

(2)

the end-user’s right to determine whether to include his or her personal data in a directory, and the types of data concerned, in accordance with Article 12 of Directive 2002/58/EC;

III. In addition to the requirements set out in Part A and under Point I, providers of internet access services shall also provide the information required pursuant to Article 4(1) of Regulation (EU) 2015/2120. See: Recitals 258; 260; 262–264; 284; 286. Zero-rating offers and safeguarding open internet access (a) ‘Article 3 of [the Open Internet Regulation] must be interpreted as meaning that packages made available by a provider of internet access services through agreements concluded with end users, and under which (i) end users may purchase a tariff entitling them to use a specific volume of data without restriction, without any deduction being made from that data volume for using certain specific applications and services covered by ‘a zero tariff’ and (ii) once that data volume has been used up, those end users may continue to use those specific applications and services without restriction, while measures blocking or slowing down traffic are applied to the other applications and services available: •

•

are incompatible with Article 3(2) of [the Open Internet Regulation], read in conjunction with Article 3(1) of that regulation, where those packages, agreements, and measures blocking or slowing down traffic limit the exercise of end users’ rights, and

are incompatible with Article 3(3) of that regulation where those measures blocking or slowing down traffic are based on commercial considerations.’ Joined Cases C-807/18 and C-39/19 Telenor Magyarország Zrt. v Nemzeti Média- és Hírközlési Hatóság Elnöke, EU:C:2020:708, Court’s ruling. (b) BEREC Guidance ‘Assessment methodology of zero-rating and similar offers It is important for NRAs to ensure the goals of the Regulation are being met and to assess whether relevant agreements and/or commercial practices circumvent these general aims. In the following paragraphs, an assessment methodology is provided. This assessment methodology serves as a guideline for the assessment of zero-rating cases and similar offers. Individual cases should always be analysed on a case-by-case basis, addressing the specific circumstances of the case. The annex [to the guidelines] is not meant to supersede or replace the rules in the body of the guidelines. The text of the body of the guidelines takes precedence.

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Initial assessment: •

Who is providing the IAS? The Regulation applies directly to the relationship between the ISP and the end-user concerning the IAS that is offered.

•

Does the offer include a traffic management component? Traffic management issues must be analysed under Article 3(3).

Main assessment of zero-rating and similar offers based on the criteria in the guidelines (for this purpose the guidance set out in paragraphs 40–48 should be considered as well as Recital 7 of the Regulation): •

•

Impact/effects on consumer and business end-users (para  46, 3rd bullet): –

Relation of zero-rated data volume compared to included datacap and data used. Is there a change in included data volume or price compared to the situation prior to the zero-rating offer being introduced? How does this compare to the development of price level over time, since subscribers usually receive larger data quotas over time for the same price due to cost reduction/ technology development. How do prices per GB compare between offers with and without a zero-rating component. (paragraph 48, 3rd / 7th bullet).

–

The incentive to use a specific application and thus the effect on end-users’ rights may also depend on the number of (e.g. music streaming) applications that are zero-rated (paragraph 46, 3rd bullet).

–

Is transparency for consumers and business end-users ensured, e.g. is it clear which content of a service is zero-rated and which is not (paragraph 138)?

Impact / effects on CAP end-users (paragraph 46, 4th bullet): –

Is the offer open to all interested CAPs on equivalent fair and reasonable non-discriminatory terms or is it an exclusive[81] zero-rated scheme or only open to a limited number of CAPs? Are the terms of the offer sufficiently transparent (paragraphs 42 b-e and 138)?

–

How easy is it for CAPs (including smaller CAPs and start-ups) to join? What are the conditions (legal, technical, economic, procedural)? Is this information publicly available? Are there any entry barriers (administrative, commercial, technical, uncertainty, etc.) involved and how high are they? Does the definition of the application category constitute a barrier for providers of similar applications? Does the ISP report back to the CAP on the processing of their request to join the programme within a reasonable time period (paragraphs 42b-42e, 46 4th bullet, 2nd and 3rd sub-bullet)?

‘Exclusivity, i.e. exclusive agreements between ISP and CAP: If the offer is exclusive, the effect on competition could be stronger’ – footnote 56 in the Guidelines.

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–

•

•

•

3.

Is the offer provided by a vertically integrated ISP/CAP, i.e. an ISP which zero-rates its own content? The stronger the market position of a vertically integrated ISP/CAP and the more attractive the product, the bigger the potential limitation of the end-users’ rights as laid out in Article 3(1) of the Regulation (paragraphs 42 and 46 bullet).

Scale of the practice and presence of alternatives (paragraph 46, 5th bullet): –

This includes, e.g. the number of end-users who subscribe to the zero-rated service compared to the total number of subscribers of the ISP; and/or the number of end-users that subscribe to zero-rated offers in the national market (paragraph  46, 5th bullet).

–

Are different tariff-plans eligible for the offer, noting any price difference between offers with and without zero-rating (paragraph 46, 5th bullet)?

Additional assessment criteria, NRAs may also need to assess: –

the market position of the ISP[82] (paragraph 46, 2nd bullet);

–

the market position of CAPs[83] whose content is zero-rated compared to CAPs that are not covered by the zero-rating scheme (paragraph 46, 2nd bullet);

–

any potential circumvention of the aim of the Regulation that is not covered by the points above (paragraph 46, 1st bullet).

Following consideration of the factors referred to above, NRAs may decide to seek further information from the ISP(s) and/or CAP(s) concerned, investigate whether any complaints have been made about the zero-rating offer under consideration and, in appropriate cases, involve national data protection authorities or other national competent authorities, if relevant (Article 5(2)).

Conclusion of the assessment: Finally, the NRA has to conclude whether the effect of the zero-rating practice leads to a limitation as referred to in Article  3(2), which is a limitation of the exercise of the rights of end-users as laid down in Article 3(1). If the NRA decides not to take action it could plan follow-up activities, for example regular monitoring either in addition to, or along with, the annual open internet monitoring report (Article 5(1), and Article 5(2)). If the conclusion of the assessment is that end-users’ rights are limited (Article 3(1)), the offer would be deemed to be in violation of the regulation. However, in the event that the ISP changes its zero-rating practice based on the NRA’s assessment, the NRA may re-assess the zero-rating offer in its new form (Article 5(1)).’

‘See recital (7) of the Regulation’ – fn 57 in the Guidelines. ‘See recital (7) of the Regulation’ – fn 58 in the Guidelines.

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BEREC Guidelines on the Implementation of the Open Internet Regulation, BoR (20) 112, 11 June 2020, Annex, and see also paras 36–48. Quality of Service – BEREC Guidance BEREC  Guidelines detailing Quality of Service Parameters, BoR (20) 53, 6 March 2020 (see annotations to Article 104). Right of end-users to use terminal equipment of their choice under the Open Internet Regulation Regulation (EU) 2015/2120, Article 3(1) (see p. 518); BEREC Guidelines on the Implementation of the Open Internet Regulation, BoR (20) 112, 11 June 2020, paras 22–29 (see annotations to Article 56). Information to be provided where personal data are collected from the data subject under the GDPR ‘1.  Where personal data relating to a data subject are collected from the data subject, the controller shall, at the time when personal data are obtained, provide the data subject with all of the following information: (a) the identity and the contact details of the controller and, where applicable, of the controller’s representative; (b) the contact details of the data protection officer, where applicable; (c) the purposes of the processing for which the personal data are intended as well as the legal basis for the processing; (d) where the processing is based on point (f) of Article  6(1), the legitimate interests pursued by the controller or by a third party; (e)

the recipients or categories of recipients of the personal data, if any;

(f) where applicable, the fact that the controller intends to transfer personal data to a third country or international organisation and the existence or absence of an adequacy decision by the Commission, or in the case of transfers referred to in Article  46 or 47, or the second subparagraph of Article 49(1), reference to the appropriate or suitable safeguards and the means by which to obtain a copy of them or where they have been made available. 2.

In addition to the information referred to in paragraph 1, the controller shall, at the time when personal data are obtained, provide the data subject with the following further information necessary to ensure fair and transparent processing: (a)

the period for which the personal data will be stored, or if that is not possible, the criteria used to determine that period;

(b) the existence of the right to request from the controller access to and rectification or erasure of personal data or restriction of processing concerning the data subject or to object to processing as well as the right to data portability; (c) where the processing is based on point (a) of Article 6(1) or point (a) of Article 9(2), the existence of the right to withdraw consent at any time, without affecting the lawfulness of processing based on consent before its withdrawal; (d) the right to lodge a complaint with a supervisory authority;



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(e) whether the provision of personal data is a statutory or contractual requirement, or a requirement necessary to enter into a contract, as well as whether the data subject is obliged to provide the personal data and of the possible consequences of failure to provide such data; (f) the existence of automated decision-making, including profiling, referred to in Article  22(1) and (4) and, at least in those cases, meaningful information about the logic involved, as well as the significance and the envisaged consequences of such processing for the data subject. 3.

Where the controller intends to further process the personal data for a purpose other than that for which the personal data were collected, the controller shall provide the data subject prior to that further processing with information on that other purpose and with any relevant further information as referred to in paragraph 2.

4.

Paragraphs 1, 2 and 3 shall not apply where and insofar as the data subject already has the information.’ Regulation (EU) 2016/679, Article 13. Directories of subscribers under the ePrivacy Directive Directive 2002/58/EC, Article 12 (see p. 728). Information requirements under the Open Internet Regulation with respect to internet access services Regulation (EU) 2015/2120, Article  4(1), see also Articles  3(1) and (5); 4(2) (see pp 518–21). BEREC Guidelines on the Implementation of the Open Internet Regulation, BoR (20) 112, 11  June 2020, paras 128–159 (see annotations to Article  102). See also: BEREC  Guidelines on transparency in the scope of net neutrality: best practices and recommended approaches, BoR (11) 67, 14 December 2011. Q&A  on Annex VIII(B)(2)(v): ‘Does the EECC allow a level of detail to be imposed for information on the terminal equipment price in the case of the application of [Annex VIII  B(2)(v)]? Does the EECC allow (or allow the imposition of) such information at the advertising stage?’ Reply: ‘The EECC Annex VIII requires that before a consumer is bound by a contract the information listed in Annex VIII is given. Annex VIII  B(2)(v) requires (for any recurring charges) that for bundles the price of the individual elements of the bundle is given to the extent they are also marketed separately. Furthermore, Article 105(6) refers to the pro rata temporis value of the terminal equipment as agreed at the moment of the conclusion of the contract. The EECC rules on information to be given before a consumer is bound by a contract (Art 102 and Annex VIII) and on transparency of terms and conditions of services (Art 103 and Annex IX). The EECC does not rule on information that is given in marketing.’ ANNEX IX INFORMATION TO BE PUBLISHED IN ACCORDANCE WITH ARTICLE 103 (TRANSPARENCY AND PUBLICATION OF INFORMATION) The competent authority in coordination, where relevant, with the national regulatory authority is responsible for ensuring that the information in this Annex is published, in accordance with Article 103. The competent authority in coordination, where relevant, with the national regulatory authority shall decide which information is relevant to be

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published by the providers of internet access services or publicly available interpersonal communications services, and which information is to be published by the competent authority itself in coordination, where relevant, with the national regulatory authority, in order to ensure that all end-users are able to make informed choices. If considered to be appropriate, competent authorities in coordination, where relevant, with national regulatory authorities may promote self- or co-regulatory measures prior to imposing any obligation. 1.

Contact details of the undertaking

2.

Description of the services offered 2.1. Scope of the services offered and the main characteristics of each service provided, including any minimum levels of quality of service where offered and any restrictions imposed by the provider on the use of terminal equipment supplied. 2.2. Tariffs of the services offered, including information on communications volumes (such as restrictions of data usage, numbers of voice minutes, numbers of messages) of specific tariff plans and the applicable tariffs for additional communication units, numbers or services subject to particular pricing conditions, charges for access and maintenance, all types of usage charges, special and targeted tariff schemes and any additional charges, as well as costs with respect to terminal equipment. 2.3. After-sales, maintenance and customer assistance services offered and their contact details. 2.4. Standard contract conditions, including contract duration, charges due on early termination of the contract, rights related to the termination of bundled offers or of elements thereof, and procedures and direct charges related to the portability of numbers and other identifiers, if relevant. 2.5. If the undertaking is a provider of number-based interpersonal communications services, information on access to emergency services and caller location, or any limitation on the latter. If the undertaking is a provider of number-independent interpersonal communications services, information on the degree to which access to emergency services may be supported or not. 2.6. Details of products and services, including any functions, practices, policies and procedures and alterations in the operation of the service, specifically designed for end-users with disabilities, in accordance with Union law harmonising accessibility requirements for products and services.

3.

Dispute resolution mechanisms, including those developed by the undertaking. See: Recitals 263; 265; 266; 284; 286. Correlation with Universal Service Directive EECC Annex IX correlates with Directive 2002/22/EC, Annex III. BEREC Guidance BEREC Guidelines on the Implementation of the Open Internet Regulation, BoR (20) 112, 11 June 2020, paras 128–159 (see annotations to Article 102). See also: BEREC Guidelines on transparency in the scope of net neutrality: best practices and recommended approaches, BoR (11) 67, 14 December 2011.



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ANNEX X QUALITY OF SERVICE PARAMETERS Quality-of-Service Parameters, Definitions and Measurement Methods referred to in Article 104 For providers of access to a public electronic communications network PARAMETER (Note 1)

DEFINITION

MEASUREMENT METHOD

Supply time for initial connection

ETSI EG 202 057

ETSI EG 202 057

Fault rate per access line

ETSI EG 202 057

ETSI EG 202 057

Fault repair time

ETSI EG 202 057

ETSI EG 202 057

For providers of interpersonal communications services who exert control over at least some elements of the network or have a service level agreement to that effect with undertakings providing access to the network PARAMETER (Note 2)

DEFINITION

MEASUREMENT METHOD

Call set up time

ETSI EG 202 057

ETSI EG 202 057

Bill correctness complaints

ETSI EG 202 057

ETSI EG 202 057

Voice connection quality

ETSI EG 202 057

ETSI EG 202 057

Dropped call ratio

ETSI EG 202 057

ETSI EG 202 057

Unsuccessful call ratio (Note 2)

ETSI EG 202 057

ETSI EG 202 057

Failure probability Call signalling delays

Version number of ETSI EG 202 057-1 is 1.3.1 (July 2008) For providers of internet access services PARAMETER

DEFINITION

MEASUREMENT METHOD

Latency (delay)

ITU-T Y.2617

ITU-T Y.2617

Jitter

ITU-T Y.2617

ITU-T Y.2617

Packet loss

ITU-T Y.2617

ITU-T Y.2617

Note 1 Parameters shall allow for performance to be analysed at a regional level (namely, no less than level 2 in the Nomenclature of Territorial Units for Statistics (NUTS) established by Eurostat). Note 2 Member States may decide not to require up-to-date information concerning the performance for those two parameters to be kept if evidence is available to show that performance in those two areas is satisfactory. See: Recitals 272; 284. Correlation with Universal Service Directive EECC Annex X correlates with Directive 2002/22/EC, Annex VI. BEREC Guidance BEREC Guidelines detailing Quality of Service Parameters, BoR (20) 53, 6 March 2020 (see annotations to Article 104). The Guidelines note that they

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reflect the most up-to-date ETSI standards and in some instances replace those referred to in Annex X. Additional/alternative definitions/measurement methods (3GPP/ITU) are also set out in Table 1 of the Guidelines to assist users (fn 22 of the Guidelines). ANNEX XI INTEROPERABILITY OF CAR RADIO RECEIVERS AND CONSUMER DIGITAL TELEVISION EQUIPMENT REFERRED TO IN ARTICLE 113 1.

Common scrambling algorithm and free-to-air reception All consumer equipment intended for the reception of digital television signals (namely, broadcasting via terrestrial, cable or satellite transmission), for sale or rent or otherwise made available in the Union, capable of descrambling digital television signals, is to possess the capability to: (a) allow the descrambling of such signals in accordance with a common European scrambling algorithm as administered by a recognised European standardisation organisation (currently ETSI); (b) display signals that have been transmitted in the clear, provided that, in the event that such equipment is rented, the renter complies with the relevant rental agreement.

2.

Interoperability for digital television sets Any digital television set with an integral screen of visible diagonal larger than 30 cm which is put on the market for sale or rent in the Union is to be fitted with at least one open interface socket (either standardised by, or conforming to a standard adopted by, a recognised European standardisation organisation, or conforming to an industry-wide specification) permitting simple connection of peripherals, and able to pass all relevant elements of a digital television signal, including information relating to interactive and conditionally accessed services.

3.

Interoperability for car radio receivers Any car radio receiver integrated in a new vehicle of category M which is [placed] on the market for sale or rent in the Union from 21 December 2020 shall comprise a receiver capable of receiving and reproducing at least radio services provided via digital terrestrial radio broadcasting. Receivers which are in accordance with harmonised standards the references of which have been published in the Official Journal of the European Union or with parts thereof shall be considered to comply with that requirement covered by those standards or parts thereof. See: Recital 303. Corrigendum The first sentence of point 3 amended (as shown) by the Corrigendum to Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (Official Journal of the European Union L 321 of 17 December 2018) (OJ L 419, 11.12.2020, p. 36). Harmonised standards See annotations to Article 39. Q&A  on Annex XI: ‘Annex XI requires Member States to ensure that cars “made available on the market for sale or rent in the Union from 21 December



Annotated Directive (EU) 2018/1972

2020 shall comprise a receiver capable of receiving and reproducing at least radio services provided via digital terrestrial radio broadcasting”. The Code does not provide a definition of “made available on the market”. The “Blue Guide”, a publication by the European Commission that offers CE  Marking information and advice on the implementation of EU product Directives (2016/C 272/01) provides a definition of “placed on the market”. In the Blue Guide, a vehicle is “placed on the market” when it is made available for the first time on the Union market. The operation is reserved either for a manufacturer or an importer, i.e. the manufacturer and the importer are the only economic operators who place products on the market. A product is placed on the market when a manufacturer or an importer supplies a product to a distributor or an end-user for the first time. Placing a product on the market requires an offer or an agreement (written or verbal) between two or more legal or natural persons for the transfer of ownership, possession or any other property right concerning the product in question after the stage of manufacture has taken place. Any subsequent operation, for instance, from a distributor to distributor or from a distributor to an end-user is defined as “making available”. Those are the moments that products are first made available for sale to the next owner in the vehicle supply chain (distributor, dealership, customer or rental company). Would it be correct to define a vehicle as having been “made available on the market” for the purpose of Article 113 and Annex XI as when the vehicle is been “placed on the market” in accordance with the “Blue Book”, i.e. having been passed from a manufacturer / importer to a distributor for the first time’? Reply: ‘The EECC provides that radios in new cars must have a digital radio receiver. Commission services discovered a potential legal-linguistic error in the car radio provisions in the Code described hereafter. The wording as adjusted by the lawyer-linguists relates to cars “made available on the market”. This wording differs from what the co-legislators agreed in the political agreement, which read “put on the market”. The term “made available on the market” (employed by the legal revisers in point 3 of Annex XI) has a specific meaning in the type-approval Union legislation. In our view, an interpretation of the wording “made available” would entail that noncompliant vehicles which have been placed on the market before the application date of the Code could not be sold, leased or rented or registered as “new vehicles” (i.e. they could be sold as used vehicles) or would have to be retrofitted with a digital radio. It does not appear that this was the intention of the co-legislators. The Commission contacted the General Secretariat of the Council (Legal Service, Directorate for Quality of Legislation) to consider whether to initiate the procedure for a corrigendum of a legal-linguistic error.’ Q&A  on Annex XI(3): ‘Does car radio receiver include a vehicle without a typical car radio, i.e. without any FM or AM receiver, but with a cellular receiver for mobile data[?] Mobile data can be used to receive web radio. Would IP streaming receivers fall under the new obligation? Is it sufficient to equip the vehicle only with the hardware (DAB+ compatible receiver) whereby the reception can be enabled later on by the customer via software features (‘function on demand’)? Can Member States apply the obligation for terrestrial digital broadcasting sooner than 21 Dec 2020?’ Reply: ‘–

Recital (302) EECC refers to “equipment […] for the reception of radio”. For a future proof implementation of the provision, it has to be taken into

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account that recital (304) covers the possibility that radio receivers are constructed in a way that they are capable of receiving and reproducing radio services provided via […] IP networks. It would therefore appear that in a situation where a car radio relies on a cellular receiver for mobile data to receive and reproduce radio services provided via IP networks, the requirement for a digital terrestrial radio receiver as set out in art 113(1) and Annex XI(3) would apply. •

Annex XI(3) EECC refers to the capability “of receiving and reproducing […] radio services”. Accordingly, it would seem to be in line with the intentions of the legislator that the reception is available easily and by default rather than upon a potentially burdensome and complicated procedure to enable the reception later.

•

Furthermore, Annex XI(3) specifies that “Any car radio receiver […] shall comprise a receiver capable of receiving and reproducing at least radio services provided via digital terrestrial radio broadcasting.” This does not seem to cover configurations with a separate receiver for DAB+ next to the conventional AM/FM car radio. National legislation transposing Article  113  EECC should apply from 21 December 2020. For the time up to 21 December 2020 Member States may apply national legislation in compliance with Union law which does not transpose Article 113 EECC, as the latter becomes applicable only at that date. The obligation to integrate digital terrestrial radio receivers applies regardless whether or not radio services provided via digital terrestrial radio broadcasting are available in a particular Member State. EU law provides that this obligation shall apply already from 21 December 2020.’ ANNEX XII Part A Repealed Directives with list of the successive amendments thereto (referred to in Article 125) Directive 2002/21/EC of the European Parliament and of the Council (OJ L 108, 24.4.2002, p. 33) Directive 2009/140/EC of the European Parliament and of the Council (OJ L 337, 18.12.2009, p. 37)

Article 1

Regulation (EC) No 544/2009 of the European Parliament and of the Council (OJ L 167, 29.6.2009, p. 12)

Article 2

Regulation (EC) No 717/2007 of the European Parliament and of the Council (OJ L 171, 29.6.2007, p. 32)

Article 10

Directive 2002/20/EC of the European Parliament and of the Council (OJ L 108, 24.4.2002, p. 21 Directive 2009/140/EC of the European Parliament and of the Council (OJ L 337, 18.12.2009, p. 37) Directive 2002/19/EC of the European Parliament and of the Council (OJ L 108, 24.4.2002, p. 7)

Article 3 and Annex



Annotated Directive (EU) 2018/1972 Directive 2009/140/EC of the European Parliament and of the Council (OJ L 337, 18.12.2009, p. 37)

437 Article 2

Directive 2002/22/EC of the European Parliament and of the Council (OJ L 108, 24.4.2002, p. 51) Directive 2009/136/EC of the European Parliament and of the Council (OJ L 337, 18.12.2009, p. 11)

Article 1 and Annex 1

Regulation (EU) 2015/2120 of the European Parliament and of the Council (OJ L 310, 26.11.2015, p. 1)

Article 8

Part B Time-limits for transposition into national law and dates of application (referred to in Article 125) Directive

Time-limit for transposition

Date of application

2002/19/EC

24 July 2003

25 July 2003

2002/20/EC

24 July 2003

25 July 2003

2002/21/EC

24 July 2003

25 July 2003

2002/22/EC

24 July 2003

25 July 2003

ANNEX XIII CORRELATION TABLE Directive 2002/21/EC

Directive 2002/20/EC

Directive 2002/19/EC

Directive 2002/22/EC

This Directive

Article 1(1), (2) and (3)

Article 1(1), (2) and (3)

Article 1(3a)

Article 1(4)

Article 1(4) and (5)

Article 1(5) and (6)

Point (a) of Article 2

Point (1) of Article 2

—

—

—

—

Point (2) of Article 2

Point (b) of Article 2

Point (3) of Article 2

Point (c) of Article 2

Point (4) of Article 2

—

—

—

—

Point (5) of Article 2

—

—

—

—

Point (6) of Article 2

—

—

—

—

Point (7) of Article 2

Point (d) of Article 2

Point (8) of Article 2

Point (da) of Article 2

Point (9) of Article 2

Point (e) of Article 2

Point (10) of Article 2

Point (ea) of Article 2

Point (11) of Article 2

Point (f) of Article 2

Point (12) of Article 2

Point (g) of Article 2

—

438 Directive 2002/21/EC

EECC Handbook Directive 2002/20/EC

Directive 2002/19/EC

Directive 2002/22/EC

This Directive

Point (h) of Article 2

Point (13) of Article 2

Point (i) of Article 2

Point (14) of Article 2

Point (j) of Article 2

—

Point (k) of Article 2

—

Point (l) of Article 2

—

Point (m) of Article 2

Point (15) of Article 2

Point (n) of Article 2

Point (16) of Article 2

Point (o) of Article 2

Point (17) of Article 2

Point (p) of Article 2

Point (18) of Article 2

Point (q) Article 2

Point (19) of Article 2

Point (r) Article 2

Point (20) of Article 2

Point (s) Article 2

Point (31) of Article 2

—

—

—

—

Article 3(1) —

Point (22) of Article 2 Article 5(1)

—

—

—

Article 3(2)

Article 6(1)

Article 3(3)

Article 6(2)

Article 3(3a) first subparagraph

Article 8(1)

—

—

—

—

Article 8(2)

—

—

—

—

Article 7(1)

Article 3(3a) second sub-paragraph

Article 7(2) and (3)

Article 3(3a) third sub-paragraph

Article 9(1) and (3)

—

—

—

—

Article 9(2)

Article 3(3b)

Article 10(1)

Article 3(3c)

Article 10(2)

Article 3(4)

Article 5(3)

Article 3(5)

Article 11

Article 3(6)

Article 5(4)

Article 4

Article 31

Article 5

Article 20

—

—

—

—

Article 22

Article 6

Article 23

Article 7

Article 32



Annotated Directive (EU) 2018/1972 Directive 2002/21/EC

Directive 2002/20/EC

Directive 2002/19/EC

Directive 2002/22/EC

Article 7a —

439 This Directive Article 33

—

—

—

Point (c) of Article 33(5)

Article 8(1) and (2)

Article 3(1) and (2)

Article 8(5)

Article 3(3)

Article 8a(1) and (2)

Article 4(1) and (2)

—

—

—

—

Article 8a(3) —

Article 4(4) —

—

—

Article 9(1) and (2) —

Article 4(3) Article 29 Article 45(1) and (2)

—

—

—

Article 45(3)

Article 9(3)

Article 45(4)

Article 9(4) and (5)

Article 45(5) and (6)

Article 9(6) and (7)

—

Article 9a

—

Article 9b(1) and (2)

Article 51(1) and (2)

Article 9b(3)

Article 51(4)

—

—

—

—

Article 51(3)

Article 10(1)

Article 95(1)

Article 10(2)

Article 95(3)

—

—

—

—

Article 95(2)

—

—

—

—

Article 95(4)

—

—

—

—

Article 95(5)

—

—

—

—

Article 95(6)

Article 10(3)

Article 95(7)

Article 10(4)

Article 95(8)

Article 10(5)

—

Article 11

Article 43

Article 12(1)

Article 44(1)

Article 12(2)

—

Article 12(3)

Article 61(2)

Article 12(4)

—

Article 12(5)

Article 44(2)

440 Directive 2002/21/EC

EECC Handbook Directive 2002/20/EC

Directive 2002/19/EC

Directive 2002/22/EC

This Directive

Article 13

Article 17

Article 13a(1), (2) and (3)

Article 40(1), (2) and (3)

Article 13a(4)

—

—

Article 40(5)

—

—

—

—

Article 13b(1), (2) and (3) —

Article 40(4) Article 41(1), (2) and (3)

—

—

—

Article 13b(4)

Article 41(4) Article 41(7)

—

—

—

—

Article 41(5)

—

—

—

—

Article 41(6)

Article 14

Article 63

Article 15(1),(2),(3)

Article 64(1), (2), (3)

Article 15 (4)

—

—

—

—

Article 16

Article 67

Article 17

Article 39

Article 18

—

Article 19

Article 38

Article 20

Article 26

Article 21(1)

Article 27(1)

Article 21(2) first and second subparagraphs

Article 27(2)

Article 21(2) third sub-paragraph

Article 27(3)

Article 21(2) fourth and fifth subparagraphs

Article 27(4)

—

Article 27(5)

Article 21(3)

—

Article 21(4)

Article 27(6)

Article 21a

Article 29

Article 22(1)

Article 118(1)

Article 22(2)

Article 118(3)

Article 22(3)

Article 118(4)

—

—

—

—

Article 11(2)



Annotated Directive (EU) 2018/1972 Directive 2002/21/EC

Directive 2002/20/EC

Directive 2002/19/EC

Directive 2002/22/EC

441 This Directive

—

—

—

—

Article 118(5)

—

—

—

—

Article 117

Article 23

Article 119

Article 24

Article 120(1) and (2)

Article 25

Article 122(1)

Article 26

Article 125

Article 28

Article 124

Article 29

Article 127

Article 30

Article 128

Annex II

— Article 1

Article 1(1)

Article 2(1)

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Article 2(2)

Point (22) of Article 2

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—

Point (23) of Article 2

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—

Point (24) of Article 2

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Point (25) of Article 2

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—

—

—

Point (26) of Article 2

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—

Article 3(1)

Article 12(1)

Article 3(2) first sentence

Article 12(2)

Article 3(2) 2nd, 3rd and 4th sentences

Article 12(3)

Article 3(3)

Article 12(4)

—

—

—

Article 4

Article 15

Article 5(1)

Article 46(1)

—

—

—

Article 46(2) and (3)

Article 5(2) first subparagraph

Article 48(1)

Article 5(2) second subparagraph first sentence

Article 48(2)

Article 5(2) third subparagraph

Article 48(5)

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Directive 2002/19/EC

Directive 2002/22/EC

Article 5(2) second subparagraph second sentence —

—

—

Article 48(3)

—

—

—

—

Article 48(4)

Article 5(3)

Article 48(6)

Article 5(4) and (5)

Article 93(4) and (5)

Article 5(6)

Article 52

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—

Article 6(1), (2), (3) and (4) —

This Directive

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Article 93 Article 13

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Article 47

Article 7

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—

Article 55

Article 8

Article 36

Article 9

Article 14

Article 10

Article 30

—

—

—

Article 11

Article 21

Article 12

Article 16

Article 13

Article 42

—

—

—

Article 94

Article 14(1)

Article 18

Article 14(2)

Article 19

Article 15

Article 120(3) and (4)

Article 16

—

Article 17

—

Article 18

—

Article 19

—

Article 20

—

Annex

Annex I

Article 1 (1 and 2)

Article 1(2) and (3)

Point (a) of Article 2

Point (27) of Article 2



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Directive 2002/20/EC

Directive 2002/19/EC

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Point (b) of Article 2

Point (28) of Article 2

Point (c) of Article 2

Point (29) of Article 2

Point (d) of Article 2

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Point (e) of Article 2

Point (30) of Article 2

Article 3

Article 59

Article 4

Article 60

Article 5

Article 61

Article 6

Article 62 —

—

Article 8

Article 68

Article 9

Article 69

Article 10

Article 70

Article 11

Article 71

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—

—

Article 72

Article 12

Article 73

Article 13

Article 74

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Article 75

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Article 76

Article 13a

Article 77

Article 13b

Article 78

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Article 80

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Article 81

Article 14

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Article 15

Article 120(5)

Article 16(1)

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Article 16(2)

Article 121(4)

Article 17

—

Article 18

—

Article 19

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Article 20

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Annex I

Annex II

Annex II

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444 Directive 2002/21/EC —

EECC Handbook Directive 2002/20/EC —

Directive 2002/19/EC

Directive 2002/22/EC

This Directive

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Annex III

Article 1

Article 1(4) and (5)

Point (a) of Article 2

Point (32) of Article 2

Point (c) of Article 2

Point (33) of Article 2

Point (d) of Article 2

Point (34) of Article 2

Point (f) of Article 2

Point (35) of Article 2

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Point (37) of Article 2

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Point (38) of Article 2

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Point (39) of Article 2

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Article 84

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Article 85

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Article 86(1) and (2)

Article 3

—

Article 4

—

Article 5

—

Article 6

—

Article 7

Article 86(3)

Article 8(1)

Article 86(4)

Article 8(2)

Article 86(5)

Article 8(3)

—

Article 9

Article 87

—

Article 88

Article 10

—

Article 11

Article 89

Article 12

Article 90

Article 13

Article 91

Article 14

Article 122(2) and (3)

Article 15

—

Article 17

Article 99

—

Article 101

—

Article 102

Article 20(2) Article 105(3)



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This Directive

Article 21

Article 103

Article 22

Article 104

Article 23

Article 108

Article 23a

Article 111

Article 24

Article 113

Article 25

Article 112

Article 26

Article 109

Article 27

—

Article 27a

Article 96

Article 28

Article 97

Article 29

Article 115

Article 30(1) Article 106(2) Article 30(2) Article 106(4) Article 30(3) Article 106(4) Article 30(4) Article 106(5) Article 30(5) Article 105(1) Article 31

Article 114

Article 32

Article 92

Article 33

Article 24

Article 34

Article 25

Article 35

Article 116

Article 36

Article 121

Article 37

—

Article 38

—

Article 39

—

Article 40

—

Annex I

Annex V

Annex II

Annex VII

Annex III

Annex IX

Annex IV

Annex VI

Annex V

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Annex VI

Annex X Annex IV

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See: Recitals 1, 4, 321 and 326, and Article 125. Clarifications See annotations to Articles 85, 93, 95, 105, 121 and 127 for clarifications to the correlating provisions shown in this Annex XIII. Q&A  on Annex XIII: ‘According to Annex XIII to Directive 2018/1972/ EU  Article  11 of Directive 2002/22/[EC] (quality of service of designated undertakings) has no corresponding Article in Directive 2018/1972/EU. Could you please provide us with information if this prevents member states from maintaining provision in national legislation regarding determining quality of universal service?’ Reply: ‘Article  84(1) of the EECC provides that Member States shall ensure access at an affordable price, in light of specific national conditions, to an available adequate broadband internet access service and to voice communication services at the quality specified in their territories. Member States are thus required to specify the quality and can maintain rules on the quality of universal service regarding these two services. Article 104 refers to technical QoS requirements and entitles NRAs, to require providers to publish comprehensive, comparable, reliable, user-friendly and up-to-date information on QoS, which is to be specified by NRAs. Pursuant to Article 104(1) providers may be required to publish information on the quality of their services, to the extent that they control at least some elements of the network either directly or by virtue of a service level agreement to that effect. Crucially, Article 104 is a transparency provision and the EECC does not indicate minimum QoS levels to be ensured by ECS providers.’

Chapter 2

Related Regulations

Contents Regulation (EU) No 531/2012 (Roaming Regulation)

447

Commission Delegated Regulation (EU) No 305/2013 (eCall)

488

Regulation (EU) 2015/758 (eCall in-vehicle system – type – approval)

494

Regulation (EU) 2015/2120 (Open Internet Regulation)

509

Commission Implementing Regulation (EU) 2016/2286 (Roaming fair use policy and sustainability)

534

Regulation (EU) 2018/1971 (BEREC Regulation)

554

Commission Delegated Regulation (EU) 2019/320 (Radio equipment support access to E112 emergency services)

593

Regulation (EU) 2019/881 (Cybersecurity Act)

596

Commission Implementing Regulation (EU) 2019/2243 (Contract summary template) 662 Commission Implementing Regulation (EU) 2020/1070 (Light deployment regime for small-area wireless access points)

669

Commission Delegated Regulation (EU) 2021/654 (Explanatory Memorandum)

674

Commission Delegated Regulation (EU) 2021/654 (Voice call termination rates in the EU (Eurorates))

681

REGULATION (EU) NO 531/2012 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 13 June 2012 on roaming on public mobile communications networks within the Union[1] (recast) (Text with EEA relevance) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, OJ L 172, 30.6.2012, p. 10. Incorporating amendments as per the consolidated version of 15 June 2017 (amended by Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 and Regulation (EU) 2017/920 of the European Parliament and of the Council of 17 May 2017).

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Having regard to the opinion of the European Economic and Social Committee (2), After consulting the Committee of the Regions, Acting in accordance with the ordinary legislative procedure (3), Whereas: (1) Regulation (EC) No 717/2007 of the European Parliament and of the Council of 27 June 2007 on roaming on public mobile communications networks within the Community (4) has been substantially amended (5). Since further amendments are to be made, it should be recast in the interests of clarity. (2) The objective of reducing the difference between national and roaming tariffs, which was included in the Commission’s Benchmarking Framework 2011-2015, endorsed by the i2010 High Level Group in November 2009, and included in the Commission Communication entitled ‘A Digital Agenda for Europe’, should also remain the goal of this Regulation. The envisaged separate sale of roaming services and domestic services should increase competition and therefore lower the prices for customers and create an internal market for roaming services in the Union with no significant differentiation between national and roaming tariffs. Union-wide roaming services can stimulate the development of an internal telecommunications market in the Union. (3) An internal telecommunications market cannot be said to exist while there are significant differences between domestic and roaming prices. Therefore the ultimate aim should be to eliminate the difference between domestic charges and roaming charges, thus establishing an internal market for mobile communication services. (4) The high level of voice, SMS and data roaming prices payable by users of public mobile communication networks, such as students, business travellers and tourists, acts as an obstacle to using their mobile devices when travelling abroad within the Union and is a matter of concern for consumers, national regulatory authorities, and the Union institutions, constituting a significant barrier to the internal market. The excessive retail charges are resulting from high wholesale charges levied by the foreign host network operator and also, in many cases, from high retail mark-ups charged by the customer’s own network operator. Due to a lack of competition, reductions in wholesale charges are often not passed on to the retail customer. Although some operators have recently introduced tariff schemes that offer customers more favourable conditions and somewhat lower prices, there is still evidence that the relationship between costs and prices is far from what would prevail in competitive markets. (5) High roaming charges constitute an impediment to the Union’s efforts to develop into a knowledge-based economy and to the realisation of an internal market of 500 million consumers. Mobile data traffic is facilitated by allocating sufficient radio spectrum in order for consumers and businesses to use voice, SMS and data services anywhere in the Union. By providing for the allocation of sufficient and appropriate spectrum in a timely manner to support Union policy objectives and to best meet the increasing demands for wireless data traffic, the multiannual radio spectrum policy programme established by Decision No 243/2012/EU of the OJ C 24, 28.1.2012, p. 131. Position of the European Parliament of 10  May 2012 (not yet published in the Official Journal) and decision of the Council of 30 May 2012. 4 OJ L 171, 29.6.2007, p. 32. 5 See Annex I. 2 3



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European Parliament and of the Council (6) will pave the way for a development that will allow the Union to take the global lead on broadband speeds, mobility, coverage and capacity, facilitating the emergence of new business models and technologies, thereby contributing to reducing the structural problems at roaming wholesale level. (6) The widespread use of internet-enabled mobile devices means that data roaming is of great economic significance. This is a decisive criterion for both users and providers of applications and content. In order to stimulate the development of this market, charges for data transport should not impede growth. (7) The Commission noted in its Communication entitled ‘On the interim report on the state of development of roaming services within the European Union’ that technological developments and/or the alternatives to roaming services, such as availability of Voice over Internet Protocol (VoIP) or Wi-Fi, may render the internal market for roaming services in the Union more competitive. While these alternatives, in particular VoIP services, are increasingly being used at the domestic level, there have been no significant developments in their use when roaming. (8) Given the rapid development of mobile data traffic and the increasing amount of customers using voice, SMS and data roaming services abroad, there is a need to increase the competitive pressure, to develop new business models and technologies. The regulation of roaming charges should be designed in a way that does not discourage competition towards lower price levels. (9) The creation of a European social, educational, cultural and entrepreneurial area based on the mobility of individuals and digital data should facilitate communication between people in order to build a real ‘Europe for Citizens’. (10) Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) (7), Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (8), 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) (9), Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (10) and Directive 2002/58/EC 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 (Directive on privacy and electronic communications) (11) (hereinafter together referred to as ‘the 2002 regulatory framework for electronic communications’) aim to create an internal market for electronic communications within the Union while ensuring a high level of consumer protection through enhanced competition.

Decision No 243/2012/EU of the European Parliament and of the Council of 14 March 2012 establishing a multiannual radio spectrum policy programme (OJ L 81, 21.3.2012, p. 7). 7 OJ L 108, 24.4.2002, p. 7. 8 OJ L 108, 24.4.2002, p. 21. 9 OJ L 108, 24.4.2002, p. 33. 10 OJ L 108, 24.4.2002, p. 51. 11 OJ L 201, 31.7.2002, p. 37. 6

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(11) Regulation (EC) No 717/2007 is not an isolated measure, but complements and supports, insofar as Union-wide roaming is concerned, the rules provided for by the 2002 regulatory framework for electronic communications. That framework has not provided national regulatory authorities with sufficient tools to take effective and decisive action with regard to the pricing of roaming services within the Union and thus fails to ensure the smooth functioning of the internal market for roaming services. Regulation (EC) No 717/2007 was an appropriate means of correcting this situation. (12) The 2002 regulatory framework for electronic communications draws on the principle that ex-ante regulatory obligations should only be imposed where there is not effective competition, providing for a process of periodic market analysis and review of obligations by national regulatory authorities, leading to the imposition of ex-ante obligations on operators designated as having significant market power. The elements constituting this process include the definition of relevant markets in accordance with the Commission’s Recommendation on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive 2002/21/EC (12) (hereinafter referred to as ‘the Recommendation’), the analysis of the defined markets in accordance with the Commission’s guidelines on market analysis and the assessment of significant market power under the Union regulatory framework for electronic communications networks and services (13), the designation of operators with significant market power and the imposition of ex-ante obligations on operators so designated. (13) The Recommendation identified as a relevant market susceptible to ex-ante regulation the wholesale national market for international roaming on public mobile networks. However, the work undertaken by the national regulatory authorities, both individually and within the European Regulators Group (ERG) and its successor the Body of European Regulators for Electronic Communications (BEREC) established by Regulation (EC) No 1211/2009 of the European Parliament and of the Council (14), in analysing the wholesale national markets for international roaming has demonstrated that it has not yet been possible for a national regulatory authority to address effectively the high level of wholesale Union-wide roaming charges because of the difficulty in identifying undertakings with significant market power in view of the specific circumstances of international roaming, including its cross-border nature. Following the entry into force of Regulation (EC) No 717/2007, the roaming market was withdrawn from the revised Recommendation (15). (14) In addition, the national regulatory authorities responsible for safeguarding and promoting the interests of mobile customers normally resident within their territory are not able to control the behaviour of the visited network operators, situated in other Member States, on whom those customers depend when using

OJ L 114, 8.5.2003, p. 45. OJ C 165, 11.7.2002, p. 6. 14 Regulation (EC) No  1211/2009 of the European Parliament and of the Council of 25  November 2009 establishing the Body of European Regulators for Electronic Communications (BEREC) and the Office (OJ L 337, 18.12.2009, p. 1). 15 Commission Recommendation of 17 December 2007 on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive 2002/21/ EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services (OJ L 344, 28.12.2007, p. 65). 12 13



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international roaming services. This obstacle could also diminish the effectiveness of measures taken by Member States based on their residual competence to adopt consumer protection rules. (15) Accordingly, there is pressure for Member States to take measures to address the level of international roaming charges, but the mechanism for ex-ante regulatory intervention by national regulatory authorities provided by the 2002 regulatory framework for electronic communications has not proved sufficient to enable those authorities to act decisively in the consumers’ interest in this specific area. (16) Furthermore, the European Parliament resolution on European electronic communications regulation and markets (16) called on the Commission to develop new initiatives to reduce the high costs of cross-border mobile telephone traffic, while the European Council of 23 and 24 March 2006 concluded that focused, effective and integrated information and communication technology (ICT) policies both at Union and national level are essential to achieving the goals of economic growth and productivity and noted in this context the importance for competitiveness of reducing roaming charges. (17) The 2002 regulatory framework for electronic communications, on the basis of considerations apparent at that time, was aimed at removing all barriers to trade between Member States in the area that it harmonised, inter alia, measures which affect roaming charges. However, this should not prevent the adaptation of harmonised rules in step with other considerations in order to find the most effective means of enhancing competition in the internal market for roaming services and achieving a high level of consumer protection. (18) This Regulation should therefore allow for a departure from the rules otherwise applicable under the 2002 regulatory framework for electronic communications, in particular the Framework Directive, namely that prices for service offerings should be determined by commercial agreement in the absence of significant market power, and to thereby accommodate the introduction of complementary regulatory obligations which reflect the specific characteristics of Union-wide roaming services. (19) The retail and wholesale roaming markets exhibit unique characteristics which justify exceptional measures which go beyond the mechanisms otherwise available under the 2002 regulatory framework for electronic communications. (20) A  common, harmonised approach should be employed for ensuring that users of terrestrial public mobile communication networks when travelling within the Union do not pay excessive prices for Union-wide roaming services, thereby enhancing competition concerning roaming services between roaming providers, achieving a high level of consumer protection and preserving both incentives for innovation and consumer choice. In view of the cross-border nature of the services concerned, this common approach is needed so that roaming providers can operate within a single coherent regulatory framework based on objectively established criteria. (21) Regulation (EC) No 717/2007 is to expire on 30 June 2012. Prior to its expiry, the Commission has carried out a review in accordance with Article 11 thereof, where it was required to evaluate whether the objectives of that Regulation had been achieved and to review developments in wholesale and retail charges for OJ C 285 E, 22.11.2006, p. 143.

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the provision to roaming customers of voice, SMS and data communications services. In its report to the European Parliament and the Council of 6 July 2011 on the outcome of the review of the functioning of Regulation (EC) No 717/2007, the Commission concluded that it was appropriate to extend the applicability of Regulation (EC) No 717/2007 beyond 30 June 2012. (22) Data on the development of prices for Union-wide voice, SMS and data roaming services since the entry into force of Regulation (EC) No 717/2007, including in particular those collected on a quarterly basis by national regulatory authorities and reported through the medium of the BEREC, do not provide evidence to suggest that competition at the retail or wholesale levels has reasonably developed and is likely to be sustainable from June 2012 onwards in the absence of regulatory measures. Such data indicates that retail and wholesale roaming prices are still much higher than domestic prices and continue to cluster at or close to the limits set by Regulation (EC) No 717/2007, with only limited competition below those limits. (23) The expiry on 30 June 2012 of the regulatory safeguards which apply to Unionwide roaming services at wholesale and retail levels by virtue of Regulation (EC) No  717/2007 would therefore give rise to a significant risk that the underlying lack of competitive pressures in the internal market for roaming services and the incentive for roaming providers to maximise their roaming revenues would result in retail and wholesale prices for Union-wide roaming that do not constitute a reasonable reflection of the underlying costs involved in the provision of the service, thereby jeopardising the objectives of that Regulation. Regulatory intervention in the market for mobile roaming services should therefore be extended beyond 30  June 2012 in order to ensure the smooth functioning of the internal market by allowing competition to develop, while at the same time guaranteeing that consumers continue to benefit from the assurance that they will not be charged an excessive price, in comparison with competitive national prices. (24) The policy objective laid down in Article 8 of the Framework Directive concerning end users’ ability to access and distribute information or run applications and services of their choice should be promoted by national regulatory authorities. (25) In order to allow for the development of a more efficient, integrated and competitive market for roaming services, there should be no restrictions that prevent undertakings from effectively negotiating wholesale access for the purpose of providing roaming services. Obstacles to access to such wholesale roaming services, due to differences in negotiating power and in the degree of infrastructure ownership of undertakings should be removed. Mobile virtual network operators (MVNOs) and resellers of mobile communication services without their own network infrastructure typically provide roaming services based on commercial wholesale roaming agreements with their host mobile network operators in the same Member State. Commercial negotiations, however, may not leave enough margin to MVNOs and resellers for stimulating competition through lower prices. The removal of those obstacles and balancing the negotiation power between MVNOs/resellers and mobile network operators by an access obligation and wholesale caps should facilitate the development of alternative, innovative and Union-wide roaming services and offers for customers. The rules of the 2002 regulatory framework for electronic communications, in particular of the Framework Directive and Access Directive, do not allow this problem to be addressed via the imposition of obligations on operators with significant market powers.



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(26) Therefore rules should be introduced to lay down the obligation to meet reasonable requests for wholesale access to public mobile communications networks for the purpose of providing roaming services. Such access should be in line with the needs of those seeking access. Access should be refused only on the basis of objective criteria, such as technical feasibility and the need to maintain network integrity. Where access is refused, the aggrieved party should be able to submit the case for dispute resolution in accordance with the procedure set out in this Regulation. In order to ensure a level playing field, wholesale access for the purpose of providing roaming services should be granted in accordance with the regulatory obligations laid down in this Regulation applicable at the wholesale level and should take into account the different cost elements necessary for the provision of such access. A consistent regulatory approach to the wholesale access for the provision of roaming services should contribute to avoiding distortions between Member States. BEREC should, in coordination with the Commission and in collaboration with the relevant stakeholders, issue guidelines for wholesale access for the purpose of providing roaming services. (27) A  wholesale roaming access obligation should include the provision of direct wholesale roaming services as well as the provision of roaming services on a wholesale basis for resale by third parties. The wholesale roaming access obligation should also cover mobile network operator’s obligation to enable MVNOs and resellers to purchase regulated wholesale roaming services from wholesale aggregators which provide a single point of access and a standardised platform to roaming agreements all over the Union. In order to ensure that operators provide access to all facilities necessary for direct wholesale roaming access and wholesale roaming resale access to roaming providers within a reasonable period of time, a reference offer should be published containing the standard conditions for direct wholesale roaming access and wholesale roaming resale access. The publication of the reference offer should not prevent commercial negotiations between access seeker and access provider on the price level of the final wholesale agreement or on additional wholesale access services that go beyond those necessary for direct wholesale roaming access and wholesale roaming resale access. (28) A wholesale roaming access obligation should cover access to all the components necessary to enable the provision of roaming services, such as: network elements and associated facilities; relevant software systems including operational support systems; information systems or databases for pre-ordering, provisioning, ordering, maintaining and repair requests, and billing; number translation or systems offering equivalent functionality; mobile networks and virtual network services. (29) If access seekers for wholesale roaming resale request access to facilities or services in addition to what is necessary for the provision of retail roaming services, mobile network operators may recover fair and reasonable charges for those facilities or services. Those additional facilities or services could, inter alia, be value-added services, additional software and information systems or billing arrangements. (30) Mobile communications services are sold in bundles including both domestic and roaming services, which limits customer choice for roaming services. Such bundles reduce transparency concerning roaming services, since it is difficult to compare individual items within the bundles. Consequently, competition among operators on the basis of the roaming element in the mobile bundle is not yet apparent. Facilitating the availability of roaming as a stand-alone service would address structural problems by raising consumer awareness of roaming

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prices, allowing distinct consumer choice concerning roaming services and thus increasing competitive pressure on the demand side. This will therefore contribute to the smooth functioning of the internal market for roaming services. (31) Consumer and business demand for mobile data services has increased significantly in recent years. However, due to high data roaming charges, the use of those services is severely constrained for consumers and businesses operating across borders in the Union. Given the infancy of the market and the rapidly increasing consumer demand for data roaming, regulated retail charges might only keep prices around the proposed maximum charges themselves, as experienced in relation to Regulation (EC) No 717/2007, instead of pushing them down further, which therefore confirms the need for further structural measures. (32) Customers should be able to switch easily, within the shortest possible time depending on the technical solution, without penalty and free of charge to an alternative roaming provider or between alternative roaming providers. Customers should be informed in a clear, understandable and easily accessible form about this possibility. (33) Consumers should have the right to opt, in a consumer-friendly way, for the separate sale of roaming services from their domestic mobile package. There are currently several ways in which the separate sale of regulated retail roaming services could be technically implemented, including dual International Mobile Subscriber Identity (IMSI) (two separate IMSI on the same SIM card), single IMSI (the sharing of one IMSI between the domestic and roaming providers) and combinations of dual or single IMSI together with the technical modality that does not prevent the customer from accessing regulated data roaming services provided directly on a visited network, by means of arrangements between the home network operator and the visited network operator. (34) High data roaming prices are deterring customers from using mobile data services when travelling in the Union. Given the increasing demand and importance of data roaming services, there should be no obstacles to using alternative data roaming services, provided directly on a visited network, temporarily or permanently, regardless of existing roaming contracts or arrangements with domestic providers and without any additional charge levied by them. When it is required, in order to offer data roaming services, provided directly on a visited network, domestic providers and providers of data roaming services should collaborate in order not to prevent customers from accessing and using those services and to ensure service continuity of other roaming services. (35) While this Regulation should not lay down any particular technical modalities for the separate sale of roaming services, but instead pave the way for the most effective and efficient solution, including a combined solution, to be developed by the Commission based on input from BEREC, criteria should be laid down with regard to the technical characteristics which should be met by the technical solution for the separate sale of roaming services. Those criteria should include, inter alia, the introduction of the solution in a coordinated and harmonised manner across the Union and should ensure that consumers are able to quickly and easily choose a different provider for roaming services without changing their number. Furthermore, roaming outside the Union or by third-country customers inside the Union should not be impeded. (36) Increased cooperation and coordination among mobile network operators should be established to technically enable a coordinated and sound technical evolution



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of the provision of separate roaming services, and not preventing access to data roaming services provided directly on a visited network. Therefore, the relevant basic principles and methodologies should be elaborated, in order to allow a rapid adaptation to changed circumstances and technological advancement. BEREC should, in collaboration with the relevant stakeholders, assist the Commission to develop technical elements in order to enable the separate sale of roaming services and in order not to prevent access to data roaming services provided directly on a visited network. If necessary, the Commission should give a mandate to a European standardisation body for the amendment of the relevant standards that are necessary for the harmonised implementation of the separate sale of regulated retail roaming services. (37) In order to ensure uniform conditions for the implementation of the provisions of this Regulation, implementing powers should be conferred on the Commission in respect of detailed rules on information obligations of domestic providers and on a technical solution for the separate sale of roaming services. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16  February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (17). (38) BEREC should be allowed, taking into account this Regulation and the implementing acts adopted pursuant hereto, to provide on its own initiative specific technical guidance on the separate sale of regulated retail roaming services or on other matters covered by this Regulation. (39) It is considered that, for the separate sale of regulated retail roaming services to be fully effective, such sale needs to be combined with the wholesale access obligation for the provision of roaming services to facilitate market entry by new or existing players including cross-border roaming services providers. That solution would avoid distortions between Member States by ensuring a consistent regulatory approach thereby contributing to the development of the internal market. However, the implementation of the separate sale of regulated retail roaming services will require a reasonable period for operators to adapt at the technical level, and therefore the structural measures will only result in a genuine internal market with sufficient competition after a certain period of time. For this reason, maximum wholesale charges for voice, SMS and data roaming services as well as safeguard caps for those services at the retail level should be maintained on a temporary basis at an appropriate level to ensure that the existing consumer benefits are preserved during a transitional period of implementation of such structural measures. (40) With regard to the continuation of temporary price regulation, regulatory obligations should be imposed at both retail and wholesale levels to protect the interests of roaming customers, since experience has shown that reductions in wholesale prices for Union-wide roaming services may not be reflected in lower retail prices for roaming owing to the absence of incentives for this to happen. On the other hand, action to reduce the level of retail prices without addressing the level of the wholesale costs associated with the provision of these services could risk disrupting the orderly functioning of the internal market for roaming services and would not allow a higher degree of competition.

OJ L 55, 28.2.2011, p. 13.

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(41) Until the structural measures have brought sufficient competition in the internal market for roaming services which would lead to reductions in wholesale costs which in turn would be passed on to consumers, the most effective and proportionate approach to regulating the level of prices for making and receiving intra-Union roaming calls is the setting at Union level of a maximum average per-minute charge at wholesale level and the limiting of charges at retail level through the Eurotariff introduced by Regulation (EC) No 717/2007, which was extended by the euro-SMS tariff provided for in Regulation (EC) No 544/2009 of the European Parliament and of the Council (18) and should be extended by the euro-data tariff provided for in this Regulation. The average wholesale charge should apply between any pair of operators within the Union over a specified period. (42) The transitory euro-voice, euro-SMS and euro-data tariffs should be set at a safeguard level which, whilst ensuring that consumer benefits are not only preserved but even increased during a transitional period of implementing the structural measures, guarantees a sufficient margin to roaming providers and encourages competitive roaming offerings at lower rates. During the period concerned, roaming providers should actively bring to the attention of the customers information about the Eurotariffs and offer them to all their roaming customers, free of charge, and in a clear and transparent manner. (43) The transitory euro-voice, euro-SMS and euro-data tariffs to be offered to roaming customers should reflect a reasonable margin over the wholesale cost of providing a roaming service, whilst allowing roaming providers the freedom to compete by differentiating their offerings and adapting their pricing structures to market conditions and consumer preferences. Such safeguard caps should be set at levels which do not distort the competitive benefits of structural measures and could be removed once the structural measures have had an opportunity to deliver concrete gains for customers. This regulatory approach should not apply to the part of the tariff that is charged for the provision of value-added services but only to the tariffs for the connection to such services. (44) This regulatory approach should be simple to implement and monitor in order to minimise the administrative burden both for the operators and roaming providers which are affected by its requirements and for the national regulatory authorities charged with its supervision and enforcement. It should also be transparent and immediately understandable to all mobile customers within the Union. Furthermore it should provide certainty and predictability to operators providing wholesale and retail roaming services. The level in monetary terms of the maximum perminute charges at wholesale and retail level should therefore be specified in this Regulation. (45) The maximum average per-minute charge at wholesale level so specified should take account of the different elements involved in the making of a Union-wide roaming call, in particular the cost of originating and terminating calls over mobile networks and including overheads, signalling and transit. The most appropriate benchmark for call origination and for call termination is the average mobile termination rate for mobile network operators in the Union, based on information provided by the national regulatory authorities and published by the Commission. Regulation (EC) No 544/2009 of the European Parliament and of the Council of 18 June 2009 amending Regulation (EC) No 717/2007 on roaming on public mobile telephone networks within the Community and Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services (OJ L 167, 29.6.2009, p. 12).

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The maximum average per-minute charge established by this Regulation should therefore be determined taking into account the average mobile termination rate, which offers a benchmark for the costs involved. The maximum average perminute charge at wholesale level should decrease annually to take account of reductions in mobile termination rates imposed by national regulatory authorities from time to time. (46) The transitory euro-voice tariff applicable at retail level should provide roaming customers with the assurance that they will not be charged an excessive price when making or receiving a regulated roaming call, whilst leaving the roaming provider sufficient margin to differentiate the products they offer to customers. (47) During the transitional period of safeguard caps, all consumers should be informed about, and have the option of choosing without additional charges or preconditions, a simple roaming tariff which will not exceed maximum charges. A reasonable margin between wholesale costs and retail prices should ensure that roaming providers cover all their specific roaming costs at retail level including appropriate shares of marketing costs and handset subsidies and are left with an adequate residual to yield a reasonable return. Transitory euro-voice, euro-SMS and euro-data tariffs are an appropriate means to provide both the consumer with protection and the roaming provider with flexibility. In line with the wholesale level, the maximum levels of the euro-voice, euro-SMS and euro-data tariffs should decrease annually. (48) During the transitional period of safeguard caps, new roaming customers should be fully informed in a clear and understandable manner of the range of tariffs that exist for roaming within the Union, including the tariffs which are compliant with the transitory euro-voice, euro-SMS and euro-data tariffs. Existing roaming customers should be given the opportunity to choose a new tariff compliant with the transitory euro-voice, euro-SMS and euro-data tariffs or any other roaming tariffs within a certain time frame. For existing roaming customers who have not made their choice within this time frame, it is appropriate to distinguish between those who had already opted for a specific roaming tariff or package before the entry into force of this Regulation and those who had not. The latter should be automatically accorded a tariff that complies with this Regulation. Roaming customers who already benefit from specific roaming tariffs or packages which suit their individual requirements and which they have chosen on that basis should remain on their previously selected tariff or package if, after having been reminded of their current tariff conditions and of the applicable Eurotariffs, they express the choice to their roaming provider to remain on that tariff. Such specific roaming tariffs or packages could include, for example, roaming flat-rates, nonpublic tariffs, tariffs with additional fixed roaming charges, tariffs with per-minute charges lower than the maximum euro-voice, euro-SMS and euro-data tariffs or tariffs with set-up charges. (49) Since this Regulation should constitute a specific measure within the meaning of Article 1(5) of the Framework Directive, and since providers of Union-wide roaming services may be required by this Regulation to make changes to their retail roaming tariffs in order to comply with the requirements of this Regulation, such changes should not trigger for mobile customers any right under national laws transposing the 2002 regulatory framework for electronic communications to withdraw from their contracts. (50) This Regulation should not prejudice innovative offers to consumers which are more advantageous than the transitory euro-voice, euro-SMS and euro-data

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tariffs as defined in this Regulation, but rather should encourage innovative offers to roaming customers at lower rates in particular in response to the additional competitive pressure created by the structural provisions of this Regulation. This Regulation does not require roaming charges to be reintroduced in cases where they have been abolished altogether, nor does it require existing roaming charges to be increased to the level of the transitory safeguard limits set out in this Regulation. (51) Where maximum charges are not denominated in euro, the applicable initial limits and the revised values of those limits should be determined in the relevant currency by applying the reference exchange rates published in the Official Journal of the European Union on the date specified in this Regulation. Where there is no publication on the date specified, the applicable reference exchange rates should be those published in the first Official Journal of the European Union following that date and containing such reference exchange rates. To protect consumers against increasing retail prices for regulated roaming services (regulated voice, SMS or data roaming services) due to fluctuations in the reference exchange rate of currencies other than the euro, a Member State whose currency is not the euro should use an average of several reference exchange rates over time for determining the maximum retail charges in its currency. (52) The practice by some mobile network operators of billing for the provision of wholesale roaming calls on the basis of minimum charging periods of up to 60 seconds, as opposed to the per-second basis normally applied for other wholesale interconnection charges, creates a distortion of competition between those operators and those applying different billing methods, and undermines the consistent application of the maximum wholesale charges introduced by this Regulation. Moreover it represents an additional charge which, by increasing wholesale costs, has negative consequences for the pricing of voice roaming services at retail level. Mobile network operators should therefore be required to bill for the wholesale provision of regulated roaming calls on a per-second basis. (53) The ERG, the predecessor of the BEREC, estimated that the practice of mobile operators of using charging intervals of more than one second when billing for roaming services at retail level has added 24 % to a typical euro-voice tariff bill for calls made and 19 % for calls received. They also stated that these increases represent a form of hidden charge since they are not transparent to most consumers. For this reason, the ERG recommended urgent action to address the different billing practices at retail level applied to the euro-voice tariff. (54) While Regulation (EC) No 717/2007, by introducing a Eurotariff in the Union, established a common approach to ensuring that roaming customers are not charged excessive prices for regulated roaming calls, the different billing unitisation practices employed by mobile operators seriously undermines its consistent application. This also means that, despite the cross-border nature of Union-wide roaming services, there are divergent approaches in relation to the billing of regulated roaming calls which distort competitive conditions in the internal market. (55) A common set of rules regarding unitisation of euro-voice tariff bills at retail level should therefore be introduced in order to further strengthen the internal market and provide throughout the Union the same high level of protection to consumers of Union-wide roaming services. (56) Providers of regulated roaming calls at the retail level should therefore be required to bill their customers on a per-second basis for all calls subject to a euro-voice



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tariff subject only to the possibility to apply a minimum initial charging period of no more than 30 seconds for calls made. This will enable roaming providers to cover any reasonable set-up costs and to provide flexibility to compete by offering shorter minimum charging periods. No minimum initial charging period is justified in the case of euro-voice tariff calls received, as the underlying wholesale cost is charged on a per-second basis and any specific set-up costs are already covered by mobile termination rates. (57) Customers should not have to pay for receiving voice mail messages in a visited network, as they cannot control the duration of such messages. This should be without prejudice to other applicable voice mail charges, for example charges for listening to such messages. (58) Customers living in border regions should not receive unnecessarily high bills due to inadvertent roaming. Roaming providers should therefore take reasonable steps to protect customers against incurring roaming charges while they are located in their Member State. This should include adequate information measures in order to empower customers to actively prevent such instances of inadvertent roaming. National regulatory authorities should be alert to situations in which customers face problems with paying roaming charges while they are still located in their Member State and should take appropriate steps to mitigate the problem. (59) With regard to SMS roaming services, as is the case for voice roaming calls, there is a significant risk that imposing wholesale pricing obligations alone would not result automatically in lower rates for retail customers. On the other hand, action to reduce the level of retail prices without addressing the level of the wholesale costs associated with the provision of these services could prejudice the position of some roaming providers, in particular smaller roaming providers, by increasing the risk of price squeeze. (60) Furthermore, because of the particular structure of the market for roaming services and its cross-border nature, the 2002 regulatory framework for electronic communications has not provided national regulatory authorities with suitable tools to address effectively the competitive problems underlying the high level of wholesale and retail prices for regulated roaming SMS services. This fails to ensure the smooth functioning of the internal market and should be corrected. (61) Regulatory obligations should therefore be imposed with regard to regulated roaming SMS services at wholesale level, in order to establish a more reasonable relationship between wholesale charges and the underlying costs of provision, and at retail level for a transitional period to protect the interests of roaming customers until the structural measures become effective. (62) Until the structural measures have brought sufficient competition in the market for roaming services, the most effective and proportionate approach to regulating the level of prices for regulated roaming SMS messages at wholesale level is the setting at Union level of a maximum average charge per SMS sent from a visited network. The average wholesale charge should apply between any pair of operators within the Union over a specified period. (63) The maximum wholesale charge for regulated roaming SMS services should include all costs incurred by the provider of the wholesale service, including, inter alia, origination, transit and the unrecovered cost of termination of roaming SMS messages on the visited network. Wholesale providers of regulated roaming SMS services should therefore be prohibited from introducing a separate charge for the

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termination of roaming SMS messages on their network, in order to ensure the consistent application of the rules established by this Regulation. (64) In order to ensure that the maximum charges for wholesale roaming SMS services are closer to levels reflecting underlying costs of provision and that competition can develop at the retail level, the maximum wholesale charges for regulated SMS should follow subsequent reductions. (65) Regulation (EC) No 544/2009 considered that, in the absence of structural elements introducing competition in the market for roaming services, the most effective and proportionate approach to regulating the level of prices for Union-wide roaming SMS messages at the retail level was the introduction of a requirement for mobile operators to offer their roaming customers a euro-SMS tariff which does not exceed a specified maximum charge. (66) Until the structural measures become effective, the transitory euro-SMS tariff should be retained at a safeguard level which, whilst ensuring that the existing consumer benefits are preserved, guarantees a sufficient margin to roaming providers while also more reasonably reflecting the underlying costs of provision. (67) The transitory euro-SMS tariff that may be offered to roaming customers should therefore reflect a reasonable margin over the costs of providing a regulated roaming SMS service, whilst allowing roaming providers the freedom to compete by differentiating their offerings and adapting their pricing structures to market conditions and consumer preferences. Such a safeguard cap should be set at a level which does not distort the competitive benefits of structural measures and could be removed once the structural measures become effective. This regulatory approach should not apply to value-added SMS services. (68) Roaming customers should not be required to pay any additional charge for receiving a regulated roaming SMS or voicemail message while roaming on a visited network, since such termination costs are already compensated by the retail charge levied for the sending of a roaming SMS or voicemail message. (69) A  euro-SMS tariff should automatically apply to any new or existing roaming customer who has not deliberately chosen or does not deliberately choose a special SMS roaming tariff or a package for roaming services including regulated roaming SMS services. (70) An SMS message is a Short Message Service text message and is clearly distinct from other messages such as MMS messages or e-mails. In order to ensure that this Regulation is not deprived of its effectiveness and that its objectives are fully met, any changes to the technical parameters of a roaming SMS message which would differentiate it from a domestic SMS message should be prohibited. (71) Data collected by national regulatory authorities indicate that high prices for average wholesale charges for data roaming services levied by visited network operators on roaming customers’ roaming providers persist. Even if these wholesale charges appear to be on a downward trend, they are still very high in relation to underlying cost. (72) The persistence of high wholesale charges for data roaming services is primarily attributable to high wholesale prices charged by operators of non-preferred networks. Such charges are caused by traffic-steering limitations which leave operators with no incentive to reduce their standard wholesale prices unilaterally since the traffic will be received irrespective of the price charged. This results in an extreme variation in wholesale costs. In some cases the wholesale data



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roaming charges applicable to non-preferred networks are six times higher than those applied to the preferred network. These excessively high wholesale charges for data roaming services lead to appreciable distortions of competitive conditions between mobile operators within the Union which undermine the smooth functioning of the internal market. They also constrain the ability of roaming providers to predict their wholesale costs and therefore to provide their customers with transparent and competitive retail pricing packages. In view of the limitations on the ability of national regulatory authorities to deal with these problems effectively at national level, a maximum wholesale charge on data roaming services should apply. Regulatory obligations should therefore be imposed with regard to regulated data roaming services at wholesale level, in order to establish a more reasonable relationship between wholesale charges and the underlying costs of provision, and at retail level to protect the interests of roaming customers. (73) Roaming providers should not charge the roaming customer for any regulated data roaming service, unless and until the roaming customer accepts the provision of the service. (74) The scope of this Regulation should cover the provision of Union-wide retail data roaming services. The special characteristics exhibited by the markets for roaming services, which justified the adoption of Regulation (EC) No 717/2007 and the imposition of obligations on mobile operators with regard to the provision of Union-wide voice roaming calls and SMS messages, apply equally to the provision of Union-wide retail data roaming services. Like voice and SMS roaming services, data roaming services are not purchased independently at national level but constitute only part of a broader retail package purchased by customers from their roaming provider, thereby limiting the competitive forces at play. Likewise, because of the cross-border nature of the services concerned, national regulatory authorities which are responsible for safeguarding and promoting the interests of mobile customers resident within their territory are not able to control the behaviour of the operators of the visited network, situated in other Member States. (75) As with the regulatory measures already in place for voice and SMS services, until the structural measures bring sufficient competition, the most effective and proportionate approach to regulating the level of prices for Union-wide retail data roaming services for a transitional period is the introduction of a requirement for roaming providers to offer their roaming customers a transitory euro-data tariff which does not exceed a specified maximum charge. The euro-data tariff should be set at a safeguard level which, whilst ensuring consumer protection until the structural measures become effective, guarantees a sufficient margin to roaming providers while also more reasonably reflecting the underlying costs of provision. (76) The transitory euro-data tariff that may be offered to roaming customers should therefore reflect a reasonable margin over the costs of providing a regulated data roaming service, whilst allowing roaming providers the freedom to compete by differentiating their offerings and adapting their pricing structures to market conditions and consumer preferences. Such a safeguard cap should be set at a level which does not distort the competitive benefits of structural measures and could be removed once the structural measures have had an opportunity to deliver concrete and lasting gains for customers. Similar to the approach followed for voice and SMS roaming services, given the reductions foreseen in the underlying costs for the provision of retail data roaming services, the maximum regulated charges for the transitory euro-data tariff should follow a declining glide path.

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(77) A  transitory euro-data tariff should automatically apply to any new or existing roaming customer who has not deliberately chosen or does not deliberately choose a special data roaming tariff or a package for roaming services including regulated data roaming services. (78) In order to ensure that consumers pay for the data services they actually consume and to avoid the problems observed with voice services after the introduction of Regulation (EC) No 717/2007 of the hidden charges for the consumer due to the charging mechanisms applied by operators, the transitory euro-data tariff should be billed on a per-kilobyte basis. Such charging is consistent with the charging mechanism already applicable at the wholesale level. (79) Roaming providers may offer a fair-use, all-inclusive, monthly flat-rate to which no maximum charges apply and which could cover all Union-wide roaming services. (80) To ensure that all users of mobile voice telephony may benefit from the provisions of this Regulation, the transitory retail pricing requirements should apply regardless of whether roaming customers have a pre-paid or a post-paid contract with their roaming provider, and regardless of whether the roaming provider has its own network, is a mobile virtual network operator or is a reseller of mobile voice telephony services. (81) Where Union providers of mobile telephony services find the benefits of interoperability and end-to-end connectivity for their customers jeopardised by the termination, or threat of termination, of their roaming arrangements with mobile network operators in other Member States, or are unable to provide their customers with service in another Member State as a result of a lack of agreement with at least one wholesale network provider, national regulatory authorities should make use, where necessary, of the powers under Article 5 of the Access Directive to ensure adequate access and interconnection in order to guarantee such end-to-end connectivity and the interoperability of services, taking into account the objectives of Article 8 of the Framework Directive, in particular the creation of a fully functioning internal market for electronic communications services. (82) In order to improve the transparency of retail prices for roaming services and to help roaming customers make decisions on the use of their mobile devices while abroad, providers of mobile communication services should supply their roaming customers with information free of charge on the roaming charges applicable to them when using roaming services in a visited Member State. Since certain customer groups might be well informed about roaming charges, roaming providers should provide a possibility to easily opt-out from this automatic message service. Moreover, providers should actively give their customers, provided that the latter are located in the Union, on request and free of charge, additional information on the per-minute, per-SMS or per-megabyte data charges (including VAT) for the making or receiving of voice calls and also for the sending and receiving of SMS, MMS and other data communication services in the visited Member State. (83) Transparency also requires that providers furnish information on roaming charges, in particular on the euro-voice, euro-SMS and euro-data tariffs and the all-inclusive flat-rate should they offer one, when subscriptions are taken out and each time there is a change in roaming charges. Roaming providers should provide information on roaming charges by appropriate means such as invoices, the internet, TV advertisements or direct mail. All information and offers should be clear, understandable, permit comparison and be transparent with regard to



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prices and service characteristics. Advertising of roaming offers and marketing to consumers should fully comply with consumer protection legislation, in particular with Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market (Unfair Commercial Practices Directive) (19). Roaming providers should ensure that all their roaming customers are aware of the availability of regulated tariffs for the period concerned and should send a clear and unbiased communication to these customers in writing describing the conditions of the eurovoice, euro-SMS and euro-data tariffs and the right to switch to and from them. (84) Moreover, measures should be introduced to improve the transparency of retail charges for all data roaming services, in particular to eliminate the problem of ‘bill shock’ which constitutes a barrier to the smooth functioning of the internal market, and to provide roaming customers with the tools they need to monitor and control their expenditure on data roaming services. Equally, there should be no obstacles to the emergence of applications or technologies which can be a substitute for, or alternative to, roaming services, such as Wi-Fi. (85) In particular, roaming providers should provide their roaming customers, free of charge, with personalised tariff information on the charges applicable to those customers for data roaming services every time they initiate a data roaming service on entering another country. This information should be delivered to their mobile device in the manner best suited to its easy receipt and comprehension, and in such a manner as to enable easy access to it at a later date. (86) In order to facilitate customers’ understanding of the financial consequences of the use of data roaming services and to permit them to monitor and control their expenditure, roaming providers should, both before and after the conclusion of a contract, keep their customers adequately informed of charges for regulated data roaming services. Such information could include examples of the approximate amount of data used by, for example, sending an e-mail, sending a picture, webbrowsing and using mobile applications. (87) In addition, in order to avoid bill shocks, roaming providers should define one or more maximum financial and/or volume limits for their outstanding charges for data roaming services, expressed in the currency in which the roaming customer is billed, and which they should offer to all their roaming customers, free of charge, with an appropriate notification, in a media format that can be consulted again subsequently, when this limit is being approached. Upon reaching this maximum limit, customers should no longer receive or be charged for those services unless they specifically request continued provision of those services in accordance with the terms and conditions set out in the notification. In such a case, they should receive free confirmation, in a media format that can be consulted again subsequently. Roaming customers should be given the opportunity to opt for any of these maximum financial or volume limits within a reasonable period or to choose not to have such a limit. Unless customers state otherwise, they should be put on a default limit system. (88) These transparency measures should be seen as minimum safeguards for roaming customers, and should not preclude roaming providers from offering their customers a range of other facilities which help them to predict and control their expenditure on data roaming services. For example, many roaming providers are developing OJ L 149, 11.6.2005, p. 22.

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new retail flat-rate roaming offers which permit data roaming for a specified price over a specified period up to a ‘fair use’ volume limit. Likewise roaming providers are developing systems to enable their roaming customers to be updated on a realtime basis on their accumulated outstanding data roaming charges. To ensure the smooth functioning of the internal market, these developments on the domestic markets should be reflected in the harmonised rules. (89) Customers under pre-paid tariffs may also suffer from bill shocks for the use of data roaming services. For this reason the provisions on the cut-off limit should also apply to those customers. (90) There are considerable disparities between regulated roaming tariffs within the Union and roaming tariffs incurred by customers when they are travelling outside the Union, which are significantly higher than prices within the Union. Due to the absence of a consistent approach to transparency and safeguard measures concerning roaming outside the Union, consumers are not confident about their rights and are therefore often deterred from using mobile services while abroad. Transparent information provided to consumers could not only assist them in the decision as to how to use their mobile devices while travelling abroad (both within and outside the Union), but could also assist them in the choice between roaming providers. It is therefore necessary to address the problem of the lack of transparency and consumer protection by applying certain transparency and safeguard measures also to roaming services provided outside the Union. Those measures would facilitate competition and improve the functioning of the internal market. (91) If the visited network operator in the visited country outside the Union does not allow the roaming provider to monitor its customers’ usage on a real-time basis, the roaming provider should not be obliged to provide the maximum financial or volume limits for safeguarding customers. (92) The national regulatory authorities which are responsible for carrying out tasks under the 2002 regulatory framework for electronic communications should have the powers needed to supervise and enforce the obligations under this Regulation within their territory. They should also monitor developments in the pricing of voice and data services for roaming customers within the Union including, where appropriate, the specific costs related to roaming calls made and received in the outermost regions of the Union and the need to ensure that these costs can be adequately recovered on the wholesale market, and that traffic-steering techniques are not used to limit choice to the detriment of customers. They should ensure that up-to-date information on the application of this Regulation is made available to interested parties and publish the results of such monitoring every six months. Information should be provided on corporate, post-paid and pre-paid customers separately. (93) In-country roaming in the outermost regions of the Union where mobile telephony licences are distinct from those issued in respect of the rest of the national territory could benefit from rate reductions equivalent to those practised on the internal market for roaming services. The implementation of this Regulation should not give rise to less favourable pricing treatment for customers using in-country roaming services as opposed to customers using Union-wide roaming services. To this end, the national authorities may take additional measures consistent with Union law. (94) When laying down the rules on penalties applicable to infringements of this Regulation, Member States should, inter alia, take into account the possibility



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for roaming providers to compensate customers for any delay or hindrance to the switch to an alternative roaming provider, in accordance with their national law. (95) Since the objectives of this Regulation, namely to establish a common approach to ensure that users of public mobile communication networks when travelling within the Union do not pay excessive prices for Union-wide roaming services, thereby achieving a high level of consumer protection by enhancing competition between roaming providers, cannot be sufficiently achieved by the Member States in a secure, harmonised and timely manner and can therefore be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives. (96) Regulatory obligations on wholesale charges for voice, SMS and data roaming services should be maintained until the structural measures have become effective and competition in the wholesale markets has developed sufficiently. In addition, market trends currently show that data services will progressively become the most relevant segment of mobile services, and wholesale data roaming services currently exhibit the highest level of dynamism, with prices reasonably below the current regulated rates. (97) Retail safeguard caps should be set at sufficiently high levels which do not distort the potential competitive benefits of structural measures and could be removed completely once those measures become effective and have enabled the development of a genuine internal market. Therefore, retail safeguard caps should follow a downward trend and subsequently expire. (98) The Commission should review the effectiveness of this Regulation in light of its objectives and the contribution to the implementation of the 2002 regulatory framework for electronic communications and the smooth functioning of the internal market. In this context, the Commission should consider the impact on the competitive position of mobile communications providers of different sizes and from different parts of the Union, the developments, trends and transparency in retail and wholesale charges, their relation to actual costs, the extent to which the assumptions made in the impact assessment that accompanied this Regulation have been confirmed, the costs of compliance and the impact on the investments. The Commission should also, in the light of technological developments, consider the availability and quality of services which are an alternative to roaming (such as access through Wi-Fi). (99) Regulatory obligations on wholesale and retail charges for voice, SMS and data roaming services should be maintained to safeguard consumers as long as competition at the retail or wholesale level is not fully developed. To this end, the Commission should, by 30 June 2016, assess whether the objectives of this Regulation have been achieved, including whether the structural measures have been fully implemented and competition is sufficiently developed in the internal market for roaming services. If the Commission concludes that competition has not developed sufficiently, the Commission should make appropriate proposals to the European Parliament and the Council to ensure that consumers are adequately safeguarded as from 2017. (100) After the abovementioned review, and in order to ensure the continuous monitoring of roaming services in the Union, the Commission should prepare a report to the European Parliament and the Council every two years which includes a general

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summary of the latest trends in roaming services and an intermediary assessment of the progress towards achieving the objectives of this Regulation and of the possible alternative options for achieving these objectives, HAVE ADOPTED THIS REGULATION: Article 1 Subject matter and scope 1.

This Regulation introduces a common approach to ensuring that users of public mobile communications networks, when travelling within the Union, do not pay excessive prices for Union-wide roaming services in comparison with competitive national prices, when making calls and receiving calls, when sending and receiving SMS messages and when using packet switched data communication services, thereby contributing to the smooth functioning of the internal market while achieving a high level of consumer protection, fostering competition and transparency in the market and offering both incentives for innovation and consumer choice. It lays down rules to enable the separate sale of regulated roaming services from domestic mobile communications services and sets out the conditions for wholesale access to public mobile communications networks for the purpose of providing regulated roaming services. It also lays down transitory rules on the charges that may be levied by roaming providers for the provision of regulated roaming services for voice calls and SMS messages originating and terminating within the Union and for packet switched data communication services used by roaming customers while roaming on a mobile communications network within the Union. It applies both to charges levied by network operators at wholesale level and to charges levied by roaming providers at retail level.

2. The separate sale of regulated roaming services from domestic mobile communications services is a necessary intermediate step to increase competition so as to lower roaming tariffs for customers in order to achieve an internal market for mobile communication services and ultimately for there to be no differentiation between national and roaming tariffs. 3.

This Regulation also lays down rules aimed at increasing price transparency and improving the provision of information on charges to users of roaming services.

4.

This Regulation constitutes a specific measure within the meaning of Article 1(5) of the Framework Directive.

5.

The maximum charges set out in this Regulation are expressed in euro.

6.

Where maximum charges under Articles  7, 9 and 12 are denominated in currencies other than the euro, the initial limits pursuant to those Articles shall be determined in those currencies by applying the reference exchange rates published on 1 May 2012 by the European Central Bank in the Official Journal of the European Union. For the purposes of the subsequent limits provided for in Article 7(2), Article 9(1), and Article 12(1), the revised values shall be determined by applying the reference exchange rates so published on 1  May of the relevant calendar year. For the maximum charges under Article  7(2), Article  9(1) and Article  12(1), the limits in currencies other than the euro shall be revised annually as from 2015. The annually revised limits in those currencies shall apply from 1  July using the reference exchange rates published on 1 May of the same year.



7.

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Where maximum charges under Articles  8, 10 and 13 are denominated in currencies other than the euro, the initial limits pursuant to those Articles shall be determined in those currencies by applying the average of the reference exchange rates published on 1  March, 1 April and 1  May 2012 by the European Central Bank in the Official Journal of the European Union. For the purposes of the subsequent limits provided for in Article 8(2), Article 10(2) and Article 13(2), the revised values shall be determined by applying the average of the reference exchange rates so published on 1 March, 1 April and 1 May of the relevant calendar year. For the maximum charges under Article 8(2), Article 10(2) and Article 13(2), the limits in currencies other than euro shall be revised annually as from 2015. The annually revised limits in those currencies shall apply from 1 July using the average of the reference exchange rates published on 1 March, 1 April and 1 May of the same year. Article 2 Definitions

1.

For the purposes of this Regulation, the definitions set out in Article  2 of the Access Directive, Article  2 of the Framework Directive, and Article  2 of the Universal Service Directive shall apply.

2.

In addition to the definitions referred to in paragraph 1, the following definitions shall apply: (a) ‘roaming provider’ means an undertaking that provides a roaming customer with regulated retail roaming services; (b) ‘domestic provider’ means an undertaking that provides a roaming customer with domestic mobile communications services; (c) ‘alternative roaming provider’ means a roaming provider different from the domestic provider; (d) ‘home network’ means a public communications network located within a Member State and used by the roaming provider for the provision of regulated retail roaming services to a roaming customer; (e) ‘visited network’ means a terrestrial public mobile communications network situated in a Member State other than that of the roaming customer’s domestic provider that permits a roaming customer to make or receive calls, to send or receive SMS messages or to use packet switched data communications, by means of arrangements with the home network operator; (f) ‘Union-wide roaming’ means the use of a mobile device by a roaming customer to make or receive intra-Union calls, to send or receive intra-Union SMS messages, or to use packet switched data communications, while in a Member State other than that in which the network of the domestic provider is located, by means of arrangements between the home network operator and the visited network operator; (g) ‘roaming customer’ means a customer of a roaming provider of regulated roaming services, by means of a terrestrial public mobile communications network situated in the Union, whose contract or arrangement with that roaming provider permits Union-wide roaming; (h) ‘regulated roaming call’ means a mobile voice telephony call made by a roaming customer, originating on a visited network and terminating on a public communications network within the Union or received by a roaming

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customer, originating on a public communications network within the Union and terminating on a visited network; (i) ————— (j)

‘SMS message’ means a Short Message Service text message, composed principally of alphabetical and/or numerical characters, capable of being sent between mobile and/or fixed numbers assigned in accordance with national numbering plans;

(k) ‘regulated roaming SMS message’ means an SMS message sent by a roaming customer, originating on a visited network and terminating on a public communications network within the Union or received by a roaming customer, originating on a public communications network within the Union and terminating on a visited network; (l) ————— (m) ‘regulated data roaming service’ means a roaming service enabling the use of packet switched data communications by a roaming customer by means of his mobile device while it is connected to a visited network. A regulated data roaming service does not include the transmission or receipt of regulated roaming calls or SMS messages, but does include the transmission and receipt of MMS messages; (n) ————— (o) ‘wholesale roaming access’ means direct wholesale roaming access or wholesale roaming resale access; (p) ‘direct wholesale roaming access’ means the making available of facilities and/or services by a mobile network operator to another undertaking, under defined conditions, for the purpose of that other undertaking providing regulated roaming services to roaming customers; (q) ‘wholesale roaming resale access’ means the provision of roaming services on a wholesale basis by a mobile network operator different from the visited network operator to another undertaking for the purpose of that other undertaking providing regulated roaming services to roaming customers; (r)

‘domestic retail price’ means a roaming provider’s domestic retail per-unit charge applicable to calls made and SMS messages sent (both originating and terminating on different public communications networks within the same Member State), and to data consumed by a customer; in the event that there is no specific domestic retail per-unit charge, the domestic retail price shall be deemed to be the same charging mechanism as that applied to the customer for calls made and SMS messages sent (both originating and terminating on different public communications networks within the same Member State), and data consumed in that customer’s Member State;

(s)

‘separate sale of regulated retail data roaming services’ means the provision of regulated data roaming services provided to roaming customers directly on a visited network by an alternative roaming provider. Article 3 Wholesale roaming access

1.

Mobile network operators shall meet all reasonable requests for wholesale roaming access.



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2.

Mobile network operators may refuse requests for wholesale roaming access only on the basis of objective criteria.

3.

Wholesale roaming access shall cover access to all network elements and associated facilities, relevant services, software and information systems, necessary for the provision of regulated roaming services to customers.

4.

Rules on regulated wholesale roaming charges laid down in Articles 7, 9 and 12 shall apply to the provision of access to all components of wholesale roaming access referred to in paragraph 3, unless both parties to the wholesale roaming agreement explicitly agree that any average wholesale roaming charge resulting from the application of the agreement is not subject to the maximum regulated wholesale roaming charge for the period of validity of the agreement. Without prejudice to the first subparagraph, in the case of wholesale roaming resale access, mobile network operators may charge fair and reasonable prices for components not covered by paragraph 3.

5.

Mobile network operators shall publish a reference offer, taking into account the BEREC guidelines referred to in paragraph 8, and make it available to an undertaking requesting wholesale roaming access. Mobile network operators shall provide the undertaking requesting access with a draft contract, complying with this Article, for such access at the latest one month after the initial receipt of the request by the mobile network operator. The wholesale roaming access shall be granted within a reasonable period of time not exceeding three months from the conclusion of the contract. Mobile network operators receiving a wholesale roaming access request and undertakings requesting access shall negotiate in good faith.

6.

The reference offer referred to in paragraph 5 shall be sufficiently detailed and shall include all components necessary for wholesale roaming access as referred to in paragraph 3, providing a description of the offerings relevant for direct wholesale roaming access and wholesale roaming resale access, and the associated terms and conditions. That reference offer may include conditions to prevent permanent roaming or anomalous or abusive use of wholesale roaming access for purposes other than the provision of regulated roaming services to roaming providers’ customers while the latter are periodically travelling within the Union. Where specified in a reference offer, such conditions shall include the specific measures that the visited network operator may take to prevent permanent roaming or anomalous or abusive use of wholesale roaming access as well as the objective criteria on the basis of which such measures may be taken. Such criteria may refer to aggregate roaming traffic information. They shall not refer to specific information relating to individual traffic of the roaming provider’s customers. The reference offer may, inter alia, provide that where the visited network operator has reasonable grounds for considering that permanent roaming by a significant share of the roaming provider’s customers or anomalous or abusive use of wholesale roaming access is taking place, the visited network operator may require the roaming provider to provide, without prejudice to Union and national data protection requirements, information allowing the determination of whether a significant share of the roaming provider’s customers is in a situation of permanent roaming or whether there is anomalous or abusive use of wholesale roaming access on the network of the visited operator, such as information on the share of customers for which a risk of anomalous or abusive use of regulated retail roaming services provided at the applicable domestic retail price has been

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established on the basis of objective indicators in accordance with the detailed rules on the application of the fair use policy adopted pursuant to Article 6d. The reference offer may, as a last resort, where less stringent measures have failed to address the situation, provide for the possibility to terminate a wholesale roaming agreement where the visited network operator has established that, based on objective criteria, permanent roaming by a significant share of the roaming provider’s customers or anomalous or abusive use of wholesale roaming access is taking place, and has informed the home network operator accordingly. The visited network operator may terminate the wholesale roaming agreement unilaterally on grounds of permanent roaming or anomalous or abusive use of wholesale roaming access only upon prior authorisation of the visited network operator’s national regulatory authority. Within three months of receipt of a request by the visited network operator for authorisation to terminate a wholesale roaming agreement, the national regulatory authority of the visited network operator shall, after consulting the national regulatory authority of the home network operator, decide whether to grant or refuse such authorisation and shall inform the Commission accordingly. The national regulatory authorities of the visited network operator and of the home network operator may each request BEREC to adopt an opinion with regard to the action to be taken in accordance with this Regulation. BEREC shall adopt its opinion within one month of receipt of such a request. Where BEREC has been consulted, the national regulatory authority of the visited network operator shall await and take the utmost account of BEREC’s opinion before deciding, subject to the three-month deadline referred to in the sixth subparagraph, whether to grant or refuse authorisation for the termination of the wholesale roaming agreement. The national regulatory authority of the visited network operator shall make information concerning authorisations to terminate wholesale roaming agreements available to the public, subject to business confidentiality. The fifth to ninth subparagraphs of this paragraph shall be without prejudice to the power of a national regulatory authority to require the immediate cessation of a breach of the obligations set out in this Regulation, pursuant to Article 16(6) and to the right of the visited network operator to apply adequate measures in order to combat fraud. If necessary, national regulatory authorities shall impose changes to reference offers, including as regards the specific measures that the visited network operator may take to prevent permanent roaming or anomalous or abusive use of wholesale roaming access, and the objective criteria on the basis of which the visited network operator may take such measures, to give effect to obligations laid down in this Article. Where the undertaking requesting the access desires to enter into commercial negotiations to also include components not covered by the reference offer, the mobile network operators shall respond to such a request within a reasonable period of time not exceeding two months from its initial receipt. For the purposes of this paragraph, paragraphs 2 and 5 shall not apply. By 30 September 2012, and in order to contribute to the consistent application of this Article, BEREC shall, after consulting stakeholders and in close cooperation with the Commission, lay down guidelines for wholesale roaming access. Paragraphs 5 to 7 shall apply from 1 January 2013.



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Article 4 Separate sale of regulated retail data roaming services 1. ————— Neither domestic nor roaming providers shall prevent customers from accessing regulated data roaming services provided directly on a visited network by an alternative roaming provider. 2.

Roaming customers shall have the right to switch roaming provider at any time. Where a roaming customer chooses to switch roaming provider, the switch shall be carried out without undue delay, and in any case within the shortest possible period of time depending on the technical solution chosen for the implementation of the separate sale of regulated retail roaming services, but under no circumstances exceeding three working days from the conclusion of the agreement with the new roaming provider.

3.

The switch to an alternative roaming provider or between roaming providers shall be free of charge for customers and shall be possible under any tariff plan. It shall not entail any associated subscription or additional fixed or recurring charges, pertaining to elements of the subscription other than roaming, as compared to the conditions prevailing before the switch.

4. ————— 5. ————— 6.

This Article shall apply from 1 July 2014. Article 5 Implementation of separate sale of regulated retail data roaming services

1.

Domestic providers shall implement the obligation related to the separate sale of regulated retail data roaming services provided for in Article 4 so that roaming customers can use separate regulated data roaming services. Domestic providers shall meet all reasonable requests for access to facilities and related support services relevant for the separate sale of regulated retail data roaming services. Access to those facilities and support services that are necessary for the separate sale of regulated retail data roaming services, including user authentication services, shall be free of charge and shall not entail any direct charges to roaming customers.

2.

In order to ensure consistent and simultaneous implementation across the Union of the separate sale of regulated retail data roaming services, the Commission shall, by means of implementing acts and after having consulted BEREC, adopt detailed rules on a technical solution for the implementation of the separate sale of regulated retail data roaming services. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 6(2).

3.

The technical solution to implement the separate sale of regulated retail data roaming services shall meet the following criteria: (a) consumer friendliness, in particular allowing consumers to easily and quickly switch to an alternative roaming provider while keeping their existing mobile phone number and while using the same mobile device; (b) ability to serve all categories of consumer demand on competitive terms, including intensive usage of data services;

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(c)

ability to effectively foster competition, taking also into account the scope for operators to exploit their infrastructure assets or commercial arrangements;

(d) cost-effectiveness, taking into account the division of costs between domestic providers and alternative roaming providers; (e) ability to give effect to the obligations referred to in Article  4(1) in an efficient manner; (f)

allowing a maximum degree of interoperability;

(g)

user friendliness, in particular in respect of the customers’ technical handling of the mobile device when changing networks;

(h) ensuring that roaming by Union customers in third countries or by third country customers in the Union is not impeded; (i)

ensuring that the rules on protection of privacy, personal data, security and integrity of networks and transparency required by the Framework Directive and the Specific Directives are respected;

(j)

taking into account the promotion by national regulatory authorities of the ability of end users to access and distribute information or run applications and services of their choice, in accordance with point (g) of Article 8(4) of the Framework Directive;

(k) ensuring that providers apply equivalent conditions in equivalent circumstances. 4.

The technical solution may combine one or several technical modalities for the purposes of meeting the criteria set out in paragraph 3.

5.

If necessary, the Commission shall give a mandate to a European standardisation body for the adaptation of the relevant standards that are necessary for the harmonised implementation of the separate sale of regulated retail roaming services.

6.

Paragraphs 1, 3, 4 and 5 of this Article shall apply from 1 July 2014. Article 6 Committee procedure

1.

The Commission shall be assisted by the Communications Committee established by Article 22 of the Framework Directive. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

2.

Where reference is made to this paragraph, Article  5 of Regulation (EU) No 182/2011 shall apply.

Article 6a Abolition of retail roaming surcharges With effect from 15 June 2017, provided that the legislative act to be adopted following the proposal referred to in Article 19(2) is applicable on that date, roaming providers shall not levy any surcharge in addition to the domestic retail price on roaming customers in any Member State for any regulated roaming calls made or received, for any regulated roaming SMS messages sent and for any regulated data roaming services used, including MMS messages, nor any general charge to enable the terminal equipment or service to be used abroad, subject to Articles 6b and 6c.



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Article 6b Fair use 1.

Roaming providers may apply in accordance with this Article and the implementing acts referred to in Article 6d a ‘fair use policy’ to the consumption of regulated retail roaming services provided at the applicable domestic retail price level, in order to prevent abusive or anomalous usage of regulated retail roaming services by roaming customers, such as the use of such services by roaming customers in a Member State other than that of their domestic provider for purposes other than periodic travel. Any fair use policy shall enable the roaming provider’s customers to consume volumes of regulated retail roaming services at the applicable domestic retail price that are consistent with their respective tariff plans.

2.

Article 6e shall apply to regulated retail roaming services exceeding any limits under any fair use policy. Article 6c Sustainability of the abolition of retail roaming surcharges

1.

In specific and exceptional circumstances, with a view to ensuring the sustainability of its domestic charging model, where a roaming provider is not able to recover its overall actual and projected costs of providing regulated roaming services in accordance with Articles  6a and 6b, from its overall actual and projected revenues from the provision of such services, that roaming provider may apply for authorisation to apply a surcharge. That surcharge shall be applied only to the extent necessary to recover the costs of providing regulated retail roaming services having regard to the applicable maximum wholesale charges.

2.

Where a roaming provider decides to avail itself of paragraph 1 of this Article, it shall without delay submit an application to the national regulatory authority and provide it with all necessary information in accordance with the implementing acts referred to in Article 6d. Every 12 months thereafter, the roaming provider shall update that information and submit it to the national regulatory authority.

3.

Upon receipt of an application pursuant to paragraph 2, the national regulatory authority shall assess whether the roaming provider has established that it is unable to recover its costs in accordance with paragraph  1, with the effect that the sustainability of its domestic charging model would be undermined. The assessment of the sustainability of the domestic charging model shall be based on relevant objective factors specific to the roaming provider, including objective variations between roaming providers in the Member State concerned and the level of domestic prices and revenues. The national regulatory authority shall authorise the surcharge where the conditions laid down in paragraph 1 and this paragraph are met.

4.

Within one month of receipt of an application pursuant to paragraph  2, the national regulatory authority shall authorise the surcharge unless the application is manifestly unfounded or provides insufficient information. Where the national regulatory authority considers that the application is manifestly unfounded, or considers that insufficient information has been provided, it shall take a final decision within a further period of two months, after having given the roaming provider the opportunity to be heard, authorising, amending or refusing the surcharge.

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Article 6d Implementation of fair use policy and of sustainability of the abolition of retail roaming surcharges 1.

By 15 December 2016, in order to ensure consistent application of Articles 6b and 6c, the Commission shall, after having consulted BEREC, adopt implementing acts laying down detailed rules on the application of fair use policy and on the methodology for assessing the sustainability of the abolition of retail roaming surcharges and on the application to be submitted by a roaming provider for the purposes of that assessment. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 6(2).

2.

As regards Article  6b, when adopting implementing acts laying down detailed rules on the application of fair use policy, the Commission shall take into account the following: (a)

the evolution of pricing and consumption patterns in the Member States;

(b) the degree of convergence of domestic price levels across the Union; (c)

the travelling patterns in the Union;

(d) any observable risks of distortion of competition and investment incentives in domestic and visited markets. 3.

As regards Article  6c, when adopting implementing acts laying down detailed rules on the methodology for assessing the sustainability of the abolition of retail roaming surcharges for a roaming provider, the Commission shall base them on the following: (a) the determination of the overall actual and projected costs of providing regulated retail roaming services by reference to the effective wholesale roaming charges for unbalanced traffic and a reasonable share of the joint and common costs necessary to provide regulated retail roaming services; (b)

the determination of overall actual and projected revenues from the provision of regulated retail roaming services;

(c) the consumption of regulated retail roaming services and the domestic consumption by the roaming provider’s customers; (d) the level of competition, prices and revenues in the domestic market, and any observable risk that roaming at domestic retail prices would appreciably affect the evolution of such prices. 4.

The Commission shall periodically review the implementing acts adopted pursuant to paragraph 1 in the light of market developments.

5.

The national regulatory authority shall strictly monitor and supervise the application of the fair use policy and the measures on the sustainability of the abolition of retail roaming surcharges, taking utmost account of relevant objective factors specific to the Member State concerned and of relevant objective variations between roaming providers. Without prejudice to the procedure set out in Article 6c(3), the national regulatory authority shall in a timely manner enforce the requirements of Articles 6b and 6c and the implementing acts adopted pursuant to paragraph 1 of this Article. The national regulatory authority may at any time require the roaming provider to amend or discontinue the surcharge if it does not comply with Article 6b or 6c. The national regulatory authority shall inform the



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Commission annually concerning the application of Articles 6b and 6c, and of this Article. Article 6e Provision of regulated retail roaming services 1.

Without prejudice to the second subparagraph, where a roaming provider applies a surcharge for the consumption of regulated retail roaming services in excess of any limits under any fair use policy, it shall meet the following requirements (excluding VAT): (a)

any surcharge applied for regulated roaming calls made, regulated roaming SMS messages sent and regulated data roaming services shall not exceed the maximum wholesale charges provided for in Articles  7(2), 9(1) and 12(1), respectively;

(b) the sum of the domestic retail price and any surcharge applied for regulated roaming calls made, regulated roaming SMS messages sent or regulated data roaming services shall not exceed EUR 0,19 per minute, EUR 0,06 per SMS message and EUR 0,20 per megabyte used, respectively; (c)

any surcharge applied for regulated roaming calls received shall not exceed the weighted average of maximum mobile termination rates across the Union set out in accordance with paragraph 2.

Roaming providers shall not apply any surcharge to a regulated roaming SMS message received or to a roaming voicemail message received. This shall be without prejudice to other applicable charges such as those for listening to such messages. Roaming providers shall charge roaming calls made and received on a per second basis. Roaming providers may apply an initial minimum charging period not exceeding 30 seconds to calls made. Roaming providers shall charge their customers for the provision of regulated data roaming services on a per-kilobyte basis, except for MMS messages, which may be charged on a per-unit basis. In such a case, the retail charge which a roaming provider may levy on its roaming customer for the transmission or receipt of a roaming MMS message shall not exceed the maximum retail charge for regulated data roaming services set out in the first subparagraph. During the period referred to in Article 6f(1), this paragraph shall not preclude offers which provide roaming customers, for a per diem or any other fixed periodic charge, with a certain volume of regulated roaming services consumption on condition that the consumption of the full amount of that volume leads to a unit price for regulated roaming calls made, calls received, SMS messages sent and data roaming services which does not exceed the respective domestic retail price and the maximum surcharge as set out in the first subparagraph of this paragraph. 2.

By 31  December 2015, the Commission shall, after consulting BEREC and subject to the second subparagraph of this paragraph, adopt implementing acts setting out the weighted average of maximum mobile termination rates referred to in point (c) of the first subparagraph of paragraph 1. The Commission shall review those implementing acts annually. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 6(2). The weighted average of maximum mobile termination rates shall be based on the following criteria:

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(a) the maximum level of mobile termination rates imposed in the market for wholesale voice call termination on individual mobile networks by the national regulatory authorities in accordance with Articles 7 and 16 of the Framework Directive and Article 13 of the Access Directive, and (b) the total number of subscribers in Member States. 3.

Roaming providers may offer, and roaming customers may deliberately choose, a roaming tariff other than one set in accordance with Articles  6a, 6b, 6c and paragraph 1 of this Article, by virtue of which roaming customers benefit from a different tariff for regulated roaming services than they would have been accorded in the absence of such a choice. The roaming provider shall remind those roaming customers of the nature of the roaming advantages which would thereby be lost. Without prejudice to the first subparagraph, roaming providers shall apply a tariff set in accordance with Articles 6a and 6b, and paragraph 1 of this Article to all existing and new roaming customers automatically. Any roaming customer may, at any time, request to switch to or from a tariff set in accordance with Articles 6a, 6b, 6c and paragraph 1 of this Article. When roaming customers deliberately choose to switch from or back to a tariff set in accordance with Articles 6a, 6b, 6c and paragraph 1 of this Article, any switch shall be made within one working day of receipt of the request, shall be free of charge and shall not entail conditions or restrictions pertaining to elements of the subscriptions other than roaming. Roaming providers may delay a switch until the previous roaming tariff has been effective for a minimum specified period not exceeding two months.

4.

Roaming providers shall ensure that a contract which includes any type of regulated retail roaming service specifies the main characteristics of that regulated retail roaming service provided, including in particular: (a) the specific tariff plan or tariff plans and, for each tariff plan, the types of services offered, including the volumes of communications; (b) any restrictions imposed on the consumption of regulated retail roaming services provided at the applicable domestic retail price level, in particular quantified information on how any fair use policy is applied by reference to the main pricing, volume or other parameters of the provided regulated retail roaming service concerned.



Roaming providers shall publish the information referred to in the first subparagraph. Article 6f Transitional retail roaming surcharges

1.

From 30 April 2016 until 14 June 2017, roaming providers may apply a surcharge in addition to the domestic retail price for the provision of regulated retail roaming services.

2.

During the period referred to in paragraph 1 of this Article, Article 6e shall apply mutatis mutandis. Article 7 Wholesale charges for the making of regulated roaming calls

1.

With effect from 15  June 2017, the average wholesale charge that the visited network operator may levy on the roaming provider for the provision of a regulated



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roaming call originating on that visited network, inclusive, among others, of origination, transit and termination costs, shall not exceed a safeguard limit of EUR 0,032 per minute. That maximum wholesale charge shall, without prejudice to Article 19, remain at EUR 0,032 until 30 June 2022. 2.

The average wholesale charge referred to in paragraph  1 shall apply between any pair of operators and shall be calculated over a 12-month period or any such shorter period as may remain before the end of the period of application of a maximum average wholesale charge, as provided for in paragraph  1 or before 30 June 2022.

3.

The average wholesale charge referred to in paragraph 1 shall be calculated by dividing the total wholesale roaming revenue received by the total number of wholesale roaming minutes actually used for the provision of wholesale roaming calls within the Union by the relevant operator over the relevant period, aggregated on a per-second basis adjusted to take account of the possibility for the operator of the visited network to apply an initial minimum charging period not exceeding 30 seconds.

4. ————— Article 9 Wholesale charges for regulated roaming SMS messages 1.

With effect from 15  June 2017, the average wholesale charge that the visited network operator may levy on the roaming provider for the provision of a regulated roaming SMS message originating on that visited network shall not exceed a safeguard limit of EUR  0,01 per SMS message and shall, without prejudice to Article 19, remain at EUR 0,01 until 30 June 2022.

2.

The average wholesale charge referred to in paragraph  1 shall apply between any pair of operators and shall be calculated over a 12-month period or any such shorter period as may remain before 30 June 2022.

3.

The average wholesale charge referred to in paragraph 1 shall be calculated by dividing the total wholesale revenue received by the visited network operator or home network operator for the origination and transmission of regulated roaming SMS messages within the Union in the relevant period by the total number of such SMS messages originated and transmitted on behalf of the relevant roaming provider or home network operator within that period.

4.

The visited network operator shall not levy any charge on a roaming customer’s roaming provider or home network operator, separate from the charge referred to in paragraph 1, for the termination of a regulated roaming SMS message sent to a roaming customer while roaming on its visited network.

5. ————— Article 11 Technical characteristics of regulated roaming SMS messages No roaming provider, domestic provider, home network operator or visited network operator shall alter the technical characteristics of regulated roaming SMS messages in such a way as to make them differ from the technical characteristics of SMS messages provided within its domestic market.

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Article 12 Wholesale charges for regulated data roaming services 1.

With effect from 15  June 2017, the average wholesale charge that the visited network operator may levy on the roaming provider for the provision of regulated data roaming services by means of that visited network shall not exceed a safeguard limit of EUR  7,70 per gigabyte of data transmitted. That maximum wholesale charge shall decrease to EUR 6,00 per gigabyte on 1 January 2018, to EUR 4,50 per gigabyte on 1 January 2019, to EUR 3,50 per gigabyte on 1 January 2020, to EUR 3,00 per gigabyte on 1 January 2021 and to EUR 2,50 per gigabyte on 1 January 2022. It shall, without prejudice to Article 19, remain at EUR 2,50 per gigabyte of data transmitted until 30 June 2022.

2.

The average wholesale charge referred to in paragraph  1 shall apply between any pair of operators and shall be calculated over a 12-month period or any such shorter period as may remain before 30 June 2022.

3.

The average wholesale charge referred to in paragraph 1 shall be calculated by dividing the total wholesale revenue received by the visited network or home network operator for the provision of regulated data roaming services in the relevant period by the total number of megabytes of data actually consumed by the provision of those services within that period, aggregated on a per-kilobyte basis on behalf of the relevant roaming provider or home network operator within that period.

4 ————— Article 14 Transparency of retail charges for roaming calls and SMS messages 1.

To alert roaming customers to the fact that they will be subject to roaming charges when making or receiving a call or when sending an SMS message, each roaming provider shall, except when the customer has notified the roaming provider that he does not require this service, provide the customer, automatically by means of a Message Service, without undue delay and free of charge, when he enters a Member State other than that of his domestic provider, with basic personalised pricing information on the roaming charges (including VAT) that apply to the making and receiving of calls and to the sending of SMS messages by that customer in the visited Member State. That basic personalised pricing information shall be expressed in the currency of the home bill provided by the customer’s domestic provider and shall include information on: (a)

any fair use policy that the roaming customer is subject to within the Union and the surcharges which apply in excess of any limits under that fair use policy; and

(b) any surcharge applied in accordance with Article 6c. It shall also include the free-of-charge number referred to in paragraph  2 for obtaining more detailed information and information on the possibility of accessing emergency services by dialling the European emergency number 112 free of charge. On the occasion of each message, a customer shall have the opportunity to give notice to the roaming provider, free of charge and in an easy manner, that he does



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not require the automatic Message Service. A customer who has given notice that he does not require the automatic Message Service shall have the right at any time and free of charge to require the roaming provider to provide the service again. Roaming providers shall provide blind or partially-sighted customers with the basic personalised pricing information referred to in the first subparagraph automatically, by voice call, free of charge, if they so request. The first, second, fourth and fifth subparagraphs, with the exception of the reference to the fair use policy and the surcharge applied in accordance with Article 6c, shall also apply to voice and SMS roaming services used by roaming customers travelling outside the Union and provided by a roaming provider. 2.

In addition to paragraph 1, customers shall have the right to request and receive, free of charge, and irrespective of their location within the Union, more detailed personalised pricing information on the roaming charges that apply in the visited network to voice calls and SMS, and information on the transparency measures applicable by virtue of this Regulation, by means of a mobile voice call or by SMS. Such a request shall be to a free-of-charge number designated for this purpose by the roaming provider. Obligations provided for in paragraph 1 shall not apply to devices which do not support SMS functionality.

2a. The roaming provider shall send a notification to the roaming customer when the applicable fair use volume of regulated voice, or SMS, roaming services is fully consumed or any usage threshold applied in accordance with Article 6c is reached. That notification shall indicate the surcharge that will be applied to any additional consumption of regulated voice, or SMS, roaming services by the roaming customer. Each customer shall have the right to require the roaming provider to stop sending such notifications and shall have the right, at any time and free of charge, to require the roaming provider to provide the service again. 3.

Roaming providers shall provide all customers with full information on applicable roaming charges, when subscriptions are taken out. They shall also provide their roaming customers with updates on applicable roaming charges without undue delay each time there is a change in these charges. Roaming providers shall send a reminder at reasonable intervals thereafter to all customers who have opted for another tariff.

4.

Roaming providers shall make available information to their customers on how to avoid inadvertent roaming in border regions. Roaming providers shall take reasonable steps to protect their customers from paying roaming charges for inadvertently accessed roaming services while situated in their home Member State. Article 15 Transparency and safeguard mechanisms for retail data roaming services

1.

Roaming providers shall ensure that their roaming customers, both before and after the conclusion of a contract, are kept adequately informed of the charges which apply to their use of regulated data roaming services, in ways which facilitate customers’ understanding of the financial consequences of such use and permit them to monitor and control their expenditure on regulated data roaming services in accordance with paragraphs 2 and 3. Where appropriate, roaming providers shall inform their customers, before the conclusion of a contract and on a regular basis thereafter, of the risk of automatic

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and uncontrolled data roaming connection and download. Furthermore, roaming providers shall notify to their customers, free of charge and in a clear and easily understandable manner, how to switch off these automatic data roaming connections in order to avoid uncontrolled consumption of data roaming services. 2.

An automatic message from the roaming provider shall inform the roaming customer that the latter is using regulated data roaming services, and provide basic personalised tariff information on the charges (in the currency of the home bill provided by the customer’s domestic provider) applicable to the provision of regulated data roaming services to that roaming customer in the Member State concerned, except where the customer has notified the roaming provider that he does not require that information. That basic personalised tariff information shall include information on: (a)

any fair use policy that the roaming customer is subject to within the Union and the surcharges which apply in excess of any limits under that fair use policy; and

(b) any surcharge applied in accordance with Article 6c. The information shall be delivered to the roaming customer’s mobile device, for example by an SMS message, an e-mail or a pop-up window on the mobile device, every time the roaming customer enters a Member State other than that of his domestic provider and initiates for the first time a data roaming service in that particular Member State. It shall be provided free of charge at the moment the roaming customer initiates a regulated data roaming service, by an appropriate means adapted to facilitate its receipt and easy comprehension. A customer who has notified his roaming provider that he does not require the automatic tariff information shall have the right at any time and free of charge to require the roaming provider to provide this service again. 2a.

The roaming provider shall send a notification when the applicable fair use volume of regulated data roaming service is fully consumed or any usage threshold applied in accordance with Article 6c is reached. That notification shall indicate the surcharge that will be applied to any additional consumption of regulated data roaming services by the roaming customer. Each customer shall have the right to require the roaming provider to stop sending such notifications and shall have the right, at any time and free of charge, to require the roaming provider to provide the service again.

3.

Each roaming provider shall grant to all their roaming customers the opportunity to opt deliberately and free of charge for a facility which provides in a timely manner information on the accumulated consumption expressed in volume or in the currency in which the roaming customer is billed for regulated data roaming services and which guarantees that, without the customer’s explicit consent, the accumulated expenditure for regulated data roaming services over a specified period of use, excluding MMS billed on a per-unit basis, does not exceed a specified financial limit. To this end, the roaming provider shall make available one or more maximum financial limits for specified periods of use, provided that the customer is informed in advance of the corresponding volume amounts. One of those limits (the default financial limit) shall be close to, but not exceed, EUR 50 of outstanding charges per monthly billing period (excluding VAT).



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Alternatively, the roaming provider may establish limits expressed in volume, provided that the customer is informed in advance of the corresponding financial amounts. One of those limits (the default volume limit) shall have a corresponding financial amount not exceeding EUR  50 of outstanding charges per monthly billing period (excluding VAT). In addition, the roaming provider may offer to its roaming customers other limits with different, that is, higher or lower, maximum monthly financial limits. The default limits referred to in the second and third subparagraphs shall be applicable to all customers who have not opted for another limit. Each roaming provider shall also ensure that an appropriate notification is sent to the roaming customer’s mobile device, for example by an SMS message, an e-mail or a pop-up window on the computer, when the data roaming services have reached 80 % of the agreed financial or volume limit. Each customer shall have the right to require the roaming provider to stop sending such notifications and shall have the right, at any time and free of charge, to require the provider to provide the service again. When the financial or volume limit would otherwise be exceeded, a notification shall be sent to the roaming customer’s mobile device. That notification shall indicate the procedure to be followed if the customer wishes to continue provision of those services and the cost associated with each additional unit to be consumed. If the roaming customer does not respond as prompted in the notification received, the roaming provider shall immediately cease to provide and to charge the roaming customer for regulated data roaming services, unless and until the roaming customer requests the continued or renewed provision of those services. Whenever a roaming customer requests to opt for or to remove a financial or volume limit facility, the change shall be made within one working day of receipt of the request, shall be free of charge, and shall not entail conditions or restrictions pertaining to other elements of the subscription. 4.

Paragraphs 2 and 3 shall not apply to machine-to-machine devices that use mobile data communication.

5.

Roaming providers shall take reasonable steps to protect their customers from paying roaming charges for inadvertently accessed roaming services while situated in their home Member State. This shall include informing customers on how to avoid inadvertent roaming in border regions.

6.

This Article, with the exception of paragraph  5, of the second subparagraph of paragraph 2 and of paragraph 2a, and subject to the second and third subparagraph of this paragraph, shall also apply to data roaming services used by roaming customers travelling outside the Union and provided by a roaming provider. Where the customer opts for the facility referred to in the first subparagraph of paragraph 3, the requirements provided in paragraph 3 shall not apply if the visited network operator in the visited country outside the Union does not allow the roaming provider to monitor its customers’ usage on a real-time basis. In such a case the customer shall be notified by an SMS message when entering such a country, without undue delay and free of charge, that information on accumulated consumption and the guarantee not to exceed a specified financial limit are not available.

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Article 16 Supervision and enforcement 1.

National regulatory authorities shall monitor and supervise compliance with this Regulation within their territory. National regulatory authorities shall strictly monitor and supervise roaming providers availing themselves of Article 6b, 6c and 6e(3).

2.

National regulatory authorities and, where relevant, BEREC shall make up-todate information on the application of this Regulation, in particular Articles 6a, 6b, 6c, 6e, 7, 9, and 12, publicly available in a manner that enables interested parties to have easy access to it.

3.

National regulatory authorities shall, in preparation for the review provided for in Article 19, monitor developments in wholesale and retail charges for the provision to roaming customers of voice and data communications services, including SMS and MMS, including in the outermost regions referred to in Article  349 of the Treaty on the Functioning of the European Union. National regulatory authorities shall also be alert to the particular case of inadvertent roaming in the border regions of neighbouring Member States and monitor whether traffic-steering techniques are used to the disadvantage of customers. National regulatory authorities shall monitor and collect information on inadvertent roaming and take appropriate measures.

4.

National regulatory authorities shall have the power to require undertakings subject to obligations under this Regulation to supply all information relevant to the implementation and enforcement of this Regulation. Those undertakings shall provide such information promptly on request and in accordance with time limits and level of detail required by the national regulatory authority.

4a. Where a national regulatory authority considers information to be confidential in accordance with Union and national rules on business confidentiality, the Commission, BEREC and any other national regulatory authorities concerned shall ensure such confidentiality. Business confidentiality shall not prevent the timely sharing of information between the national regulatory authority, the Commission, BEREC and any other national regulatory authorities concerned for the purposes of reviewing, monitoring and supervising the application of this Regulation. 5.

National regulatory authorities may intervene on their own initiative in order to ensure compliance with this Regulation. In particular, they shall, where necessary, make use of the powers under Article  5 of the Access Directive to ensure adequate access and interconnection in order to guarantee the end-toend connectivity and interoperability of roaming services, for example where customers are unable to exchange regulated roaming SMS messages with customers of a terrestrial public mobile communications network in another Member State as a result of the absence of an agreement enabling the delivery of those messages.

6.

Where a national regulatory authority finds that a breach of the obligations set out in this Regulation has occurred, it shall have the power to require the immediate cessation of such a breach.



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Article 17 Dispute resolution 1.

In the event of a dispute in connection with the obligations laid down in this Regulation between undertakings providing electronic communications networks or services in a Member State, the dispute resolution procedures laid down in Articles 20 and 21 of the Framework Directive shall apply. Disputes between visited network operators and other operators on rates applied to inputs necessary for the provision of regulated wholesale roaming services may be referred to the competent national regulatory authority or authorities pursuant to Article  20 or 21 of the Framework Directive. In such a case, the competent national regulatory authority or authorities may consult BEREC about the action to be taken in accordance with the Framework Directive, the Specific Directives or this Regulation to resolve the dispute. Where BEREC has been consulted, the competent national regulatory authority or authorities shall await BEREC’s opinion before taking action to resolve the dispute.

2.

In the event of an unresolved dispute involving a consumer or end-user and concerning an issue falling within the scope of this Regulation, the Member States shall ensure that the out-of-court dispute resolution procedures laid down in Article 34 of the Universal Service Directive are available.

Article 18 Penalties Member States shall lay down the rules on penalties applicable to infringements of this Regulation, and shall take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive. Member States shall notify those provisions to the Commission by 30 June 2013 and shall notify it without delay of any subsequent amendment affecting them. Article 19 Review 1.

By 29 November 2015, the Commission shall initiate a review of the wholesale roaming market with a view to assessing measures necessary to enable abolition of retail roaming surcharges by 15 June 2017. The Commission shall review, inter alia, the degree of competition in national wholesale markets, and in particular shall assess the level of wholesale costs incurred and wholesale charges applied, and the competitive situation of operators with limited geographic scope, including the effects of commercial agreements on competition as well as the ability of operators to take advantage of economies of scale. The Commission shall also assess the developments in competition in the retail roaming markets and any observable risks of distortion of competition and investment incentives in domestic and visited markets. In assessing measures necessary to enable the abolition of retail roaming surcharges, the Commission shall take into account the need to ensure that the visited network operators are able to recover all costs of providing regulated wholesale roaming services, including joint and common costs. The Commission shall also take into account the need to prevent permanent roaming or anomalous or abusive use of wholesale roaming access for purposes other than the provision of regulated roaming services to roaming providers’ customers while the latter are periodically travelling within the Union.

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By 15 June 2016, the Commission shall submit a report to the European Parliament and to the Council on the findings of the review referred to in paragraph 1. That report shall be accompanied by an appropriate legislative proposal preceded by a public consultation, to amend the wholesale charges for regulated roaming services set out in this Regulation or to provide for another solution to address the issues identified at wholesale level with a view to abolishing retail roaming surcharges by 15 June 2017.

3.

In addition, the Commission shall, by 15 December 2018, submit to the European Parliament and to the Council an interim report summarising the effects of the abolition of retail roaming surcharges, taking into account any relevant BEREC report. The Commission shall subsequently, after consulting BEREC, submit biennial reports to the European Parliament and to the Council, accompanied, if appropriate, by a legislative proposal to amend the maximum wholesale charges for regulated roaming services laid down in this Regulation. The first such report shall be submitted by 15 December 2019. Those biennial reports shall include, inter alia, an assessment of: (a) the availability and quality of services, including those which are an alternative to regulated retail voice, SMS and data roaming services, in particular in the light of technological developments; (b)

the degree of competition in both the retail and wholesale roaming markets, in particular the competitive situation of small, independent or newly started operators, and MVNOs, including the competition effects of commercial agreements and the degree of interconnection between operators;

(c)

the extent to which the implementation of the structural measures provided for in Articles 3 and 4, and, in particular, on the basis of the information provided by the national regulatory authorities, of the procedure for prior authorisation laid down in Article  3(6), has produced results in the development of competition in the internal market for regulated roaming services;

(d) the evolution of the retail tariff plans available; (e) changes in data consumption patterns for both domestic and roaming services; (f)

the ability of home network operators to sustain their domestic charging model and the extent to which exceptional retail roaming surcharges have been authorised pursuant to Article 6c;

(g) the ability of visited network operators to recover the efficiently incurred costs of providing regulated wholesale roaming services; (h) the impact of the application of fair use policies by operators in accordance with Article  6d, including the identification of any inconsistencies in the application and implementation of such fair use policies. 4.

In order to assess competitive developments in the Union-wide roaming markets, BEREC shall collect data regularly from national regulatory authorities on developments in retail and wholesale charges for regulated voice, SMS and data roaming services, including wholesale charges applied for balanced and unbalanced roaming traffic respectively. It shall also collect data on the wholesale roaming agreements not subject to the maximum wholesale roaming charges



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provided for in Articles  7, 9 or 12 and on the implementation of contractual measures at wholesale level aiming to prevent permanent roaming or anomalous or abusive use of wholesale roaming access for purposes other than the provision of regulated roaming services to roaming providers’ customers while the latter are periodically travelling within the Union. Those data shall be notified to the Commission at least twice a year. The Commission shall make them public. On the basis of data collected, BEREC shall report regularly on the evolution of pricing and consumption patterns in the Member States both for domestic and roaming services, the evolution of actual wholesale roaming rates for unbalanced traffic between providers of roaming services, and on the relationship between retail prices, wholesale charges and wholesale costs for roaming services. BEREC shall assess how closely those elements relate to each other. BEREC shall also collect information annually from national regulatory authorities on transparency and comparability of different tariffs offered by operators to their customers. The Commission shall make those data and findings public. Article 20 Notification requirements Member States shall notify to the Commission the identity of the national regulatory authorities responsible for carrying out tasks under this Regulation. Article 21 Repeal Regulation (EC) No 717/2007 is repealed in accordance with Annex I with effect from 1 July 2012. References to the repealed Regulation shall be construed as references to this Regulation and shall be read in accordance with the correlation table in Annex II. Article 22 Entry into force and expiry This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union and its provisions shall apply from that day save as otherwise provided for in specific Articles. It shall expire on 30 June 2022. This Regulation shall be binding in its entirety and directly applicable in all Member States. ————— ANNEX I Repealed Regulation with its amendment (referred to in Article 21) Regulation (EC) No 717/2007 of the European Parliament and of the Council (OJ L 171, 29.6.2007, p. 32). Regulation (EC) No 544/2009 of the European Parliament and of only Article 1 the Council (OJ L 167, 29.6.2009, p. 12). —————

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ANNEX II Correlation Table Regulation (EC) No 717/2007 Article 1 — Article 1(2) Article 1(3) Article 1(4) first subparagraph, first sentence Article 1(4) first subparagraph, second sentence Article 1(4) second subparagraph, first sentence

This Regulation Article 1 Article 1(2) Article 1(3) Article 1(4) Article 1(5)

Article 1(6) first subparagraph Article 1(7) first subparagraph Article 1(6) second subparagraph, first sentence Article 1(7) second subparagraph, first sentence Article 1(4) second subparagraph, second Article 1(6) second subparagraph, second sentence and third sentences Article 1(7) second subparagraph, second and third sentences Article 2(1) Article 2(1) Article 2(2), introductory words Article 2(2), introductory words Article 2(2), point (a) Article 2(2), point (i) Article 2(2), point (b) Article 2(2), point (a) — Article 2(2), point (b) — Article 2(2), point (c) Article 2(2), point (c) Article 2(2), point (d) Article 2(2), point (g) Article 2(2), point (e) Article 2(2), point (d) Article 2(2), point (f) Article 2(2), point (f) Article 2(2), point (g) Article 2(2), point (e) Article 2(2), point (h) Article 2(2), point (i) Article 2(2), point (j) Article 2(2), point (j) Article 2(2), point (k) Article 2(2), point (h) Article 2(2), point (l) Article 2(2), point (k) Article 2(2), point (m) — Article 2(2), point (n) — Article 2(2), point (o) — Article 2(2), point (p) — Article 2(2), point (q) — Articles 3, 4, 5 and 6 Article 3(1) Article 7(1) Article 3(2) Article 7(2) Article 3(3), first subparagraph — Article 3(3), second subparagraph Article 7(3) Article 4(1) Article 8(1)



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Article 4(2) Article 4(3), first subparagraph Article 4(3), second subparagraph Article 4(3), third subparagraph Article 4(4) Article 4a Article 4b Article 4b(7) Article 4c — — Article 6(1) first to fifth subparagraphs Article 6(2) Article 6(3) first and second subparagraphs — — Article 6a — — — Article 6a(4) Article 7 — Article 8 Article 9 Article 10 Article 11(1) introductory words — Article 11(1) first subparagraph, first to fourth indent — Article 11(1) second subparagraph — Article 11(2) — Article 12 — Article 13

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Article 8(2) — Article 8(3) Article 8(4) Article 8(5) Article 9 Article 10 — Article 11 Article 12 Article 13 Article 14(1) first to fifth subparagraphs Article 14(1) sixth subparagraph Article 14(2) Article 14(3) first and second subparagraphs Article 14(3) third subparagraph Article 14(4) Article 15 Article 15(4) Article 15(5) Article 15(6) Article 16 Article 16(3) second subparagraph Article 17 Article 18 Article 19(1) introductory words Article 19(1), points (a) and (b) Article 19(1), points (c) to (f) Article 19(1), points (g) and (h) — Article 19(2) Article 19(3) Article 19(4) Article 20 Article 21 Article 22

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COMMISSION DELEGATED REGULATION (EU) NO 305/2013 of 26 November 2012 supplementing Directive 2010/40/EU of the European Parliament and of the Council with regard to the harmonised provision for an interoperable EU-wide eCall[20] (Text with EEA relevance) THE EUROPEAN COMMISSION, Having regard to the Treaty on the Functioning of the European Union, Having regard to Directive 2010/40/EU of the European Parliament and of the Council of 7 July 2010 on the framework for the deployment of Intelligent Transport Systems in the field of road transport and for interfaces with other modes of transport21, and in particular Article 7 thereof, After consulting the European Data Protection Supervisor, Whereas: (1)

Directive 2010/40/EU requires the Commission to adopt delegated acts as regards specifications necessary to ensure the compatibility, interoperability and continuity for the deployment and operational use of intelligent transport systems (ITS).

(2) According to Article  3(d) of Directive 2010/40/EU, the harmonised provision for an interoperable EU-wide eCall service shall constitute a priority action. The Commission should, therefore, adopt the necessary specifications in this field. (3) Article  26 of Directive 2002/22/EC of the European Parliament and of the Council of 7  March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive)22 requires that calls to the single European emergency call number 112 are answered appropriately and handled in a manner that is best suited to the national organisation of emergency systems, including the emergency call response centres (public safety answering points). (4) The Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions ‘eCall: Time for deployment’23, envisages new regulatory measures to speed up the deployment of an in-vehicle emergency call service in the Union. One of the proposed measures is to make the necessary upgrading of the public safety answering point (PSAP) infrastructure required for proper receipt and handling of eCalls mandatory. (5) Commission Recommendation 2011/750/EU24 on support for an EU-wide eCall service in electronic communication networks for the transmission of in-vehicle emergency calls based on 112 (‘eCalls’) advises Member States to indicate the eCall PSAP to route eCalls and to ensure that mobile network operators handle eCalls properly. (6) It is expected that, by reducing the response time of the emergency services, the interoperable EU-wide eCall will reduce the number of fatalities in the Union as well as the severity of injuries caused by road accidents.

22 23 24 20 21

OJ L 91, 3.4.2013, p. 1. OJ L 207, 6.8.2010, p. 1. OJ L 108, 24.4.2002, p. 51 COM(2009) 434 final. OJ L 303, 22.11.2011, p. 46.



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(7) The interoperable EU-wide eCall is also expected to bring savings to society by improving incident management and by reducing road congestion and secondary accidents. (8) The processing of personal data in the context of the handling of eCalls by the PSAPs, the emergency services and service partners is performed in accordance with Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data25 and Directive 2002/58/ EC 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 (Directive on privacy and electronic communications)26. Member States shall ensure that this compliance is demonstrated, with national data protection authorities, either during a priori control procedures, such as prior notifications or a posteriori checks, such as in the course of complaints and investigations. (9) The interoperable EU-wide eCall service follows the recommendations made by the Article 29 Data Protection Working Party and contained in the ‘Working document on data protection and privacy implications in eCall initiative’, adopted on 26 September 2006 (1609/06/EN — WP 125). Vehicles equipped with eCall in-vehicle equipment shall not be traceable in their normal operational status. The minimum set of data sent by the eCall in-vehicle equipment (i.e. when triggered) shall include the minimum information required for the appropriate handling of emergency calls. (10) Without prejudice to Directive 95/46/EC, Member States shall take into account, when deploying the eCall PSAPs infrastructure, the ‘Working document on data protection and privacy implications in eCall initiative’ adopted by the Article 29 Working Party on 26 September 2006 (1609/06/EN — WP 125). (11) It is important that all Member States should develop common technical solutions and practices for the provision of emergency call services. The development of common technical solutions should be pursued in particular through the European standardisation organisations, in order to facilitate the introduction of the eCall service, ensure the interoperability and continuity of the service throughout the Union, and reduce the costs of implementation for the Union as a whole. (12) The European Standardisation Organisations, ETSI and CEN, have developed common standards for the deployment of a pan-European eCall service, which the present Regulation makes the reference to. (13) Infrastructures already deployed should be granted sufficient time to upgrade, therefore the Regulation should apply to them 12 months after entry into force, HAS ADOPTED THIS REGULATION: Article 1 Subject matter and scope This Regulation establishes the specifications for the upgrading of the Public Safety Answering Point (PSAP) infrastructure required for the proper receipt and handling of eCalls, in order to ensure the compatibility, interoperability and continuity of the harmonised EU-wide eCall service. OJ L 281, 23.11.1995, p. 31. OJ L 201, 31.7.2002, p. 37.

25 26

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Article 2 Definitions The following definitions shall apply for the purposes of this Regulation: (a)

‘emergency service’ means a service, recognised as such by the Member State, that provides immediate and rapid assistance in situations where there is, in particular, a direct risk to life or limb, to individual or public health or safety, to private or public property, or to the environment, in accordance with national legislation;

(b) ‘public safety answering point’ (PSAP) means a physical location where emergency calls are first received under the responsibility of a public authority or a private organisation recognised by the Member State; (c) ‘most appropriate PSAP’ means a PSAP defined beforehand by responsible authorities to cover emergency calls from a certain area or for emergency calls of a certain type; (d) ‘eCall PSAP’ means a most appropriate PSAP defined beforehand by the authorities to first receive and handle the eCalls; (e)

‘eCall PSAP operator’ means a person in the eCall PSAP receiving and/or handling the emergency calls;

(f)

‘service partner’ means a public or private organisation recognised by national authorities, that has a role in the handling of incidents related to an eCall (e.g. road operator, assistance service);

(g) ‘in-vehicle equipment’ means equipment within the vehicle that provides or has access to the in-vehicle data required to perform the eCall transaction via a public mobile wireless communications network; (h) ‘eCall’ (referred to in Directive 2010/40/EU as ‘interoperable EU-wide eCall’) means an in-vehicle emergency call to 112, made either automatically by means of the activation of in-vehicle sensors or manually, which carries a standardised minimum set of data and establishes an audio channel between the vehicle and the eCall PSAP via public mobile wireless communications networks; (i)

‘eCall transaction’ means the establishment of a mobile wireless communications session across a public wireless communications network and the transmission of a minimum set of data from a vehicle to an eCall PSAP and the establishment of an audio channel between the vehicle and the same eCall PSAP;

(j)

‘minimum set of data’ (MSD) means the information defined by the standard ‘Road transport and traffic telematics — eSafety — eCall minimum set of data (MSD)’ (EN 15722) which is sent to the eCall PSAP;

(k) ‘Vehicle Identification Number (VIN)’ means the alphanumeric code assigned to a vehicle by the manufacturer in order to ensure proper identification of every vehicle, as described in ISO standard 3779; (l) ‘mobile wireless communications network’ means wireless communications network with homogeneous handover between network access points; (m) ‘public mobile wireless communications network’ means mobile wireless communications network available to the public in accordance with Directive 2002/22/EC and with Directive 2002/21/EC of the European Parliament and of the Council27; OJ L 108, 24.4.2002, p. 33.

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(n) ‘emergency control centre’ means a facility used by one or more emergency services to handle emergency calls; (o) ‘raw MSD’ means a representation of the transmitted minimum set of data before being presented in an intelligible way to the eCall PSAP operator. Article 3 eCall PSAP requirements 1.

Member States shall ensure that any eCall PSAP is equipped to handle eCalls and receive the MSD originating from the in-vehicle equipment according to the standards ‘Intelligent transport system — eSafety — PanEuropean eCallOperating requirements’ (EN 16072) and ‘Intelligent transport systems — eSafety — eCall High Level Application Requirements (HLAP)’ (EN 16062).

2.

The eCall PSAP shall handle eCalls as expeditiously and effectively as any other call made to the single European emergency number 112. The eCall PSAP shall process eCalls in line with the requirements of national regulations for emergency call processing.

3.

The eCall PSAP shall be able to receive the data contents of the MSD and present them to the eCall PSAP operator clearly and understandably.

4.

The eCall PSAP shall have access to an appropriate Geographical Information System (GIS) or an equivalent system allowing the eCall PSAP operator to identify the position and heading of the vehicle to a minimum degree of accuracy as defined in EN 15722 for the MSD coordinates.

5.

The abovementioned requirements shall enable the eCall PSAP to provide location, type of eCall activation (manual or automatic) and other relevant data to the appropriate emergency service(s) or service partner(s).

6.

The eCall PSAP (initially receiving the eCall) shall establish audio communication with the vehicle and handle the eCall data; if necessary, the eCall PSAP may reroute the call and MSD data to another PSAP, emergency control centre or service partner according to national procedures determined by the national authority. Rerouting may be done via data or audio connection, or, preferably, both.

7.

When appropriate, and depending on national procedures and legislation, the eCall PSAP and appropriate emergency service(s) or service partner(s) may be granted access to the characteristics of the vehicle contained in national databases and/or other relevant resources, in order to obtain information that is necessary for dealing with an eCall, notably to allow the interpretation of the Vehicle Identification Number (VIN) and the presentation of additional relevant information, particularly vehicle type and model.

Article 4 Conformity assessment Member States shall designate the authorities that are competent for assessing the conformity of the operations of the eCall PSAPs with the requirements listed in Article 3 and shall notify them to the Commission. Conformity assessment shall be based on the part of the standard ‘Intelligent transport systems — eSafety — eCall end to end conformance testing’ (EN 16454) that relates to PSAPs conformance to pan-European eCall.

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Article 5 Obligations linked to the deployment of the eCall PSAPs infrastructure Member States shall ensure that this Regulation is applied when the eCall PSAPs infrastructure for the handling of the interoperable EU-wide eCall is deployed, in accordance with the principles for specifications and deployment laid down in Annex II to Directive 2010/40/EU. This is without prejudice to the right of each Member State to decide on the deployment of the eCall PSAPs infrastructure for the handling of the interoperable EU-wide eCall on its territory. This right is without prejudice to any legislative act adopted under the second subparagraph of Article 6(2) of Directive 2010/40/EU. Article 6 Rules on privacy and data protection 1.

The PSAPs, including eCall PSAPs, shall be regarded as data controllers within the meaning of Article 2(d) of Directive 95/46/EC. Where the eCall data is to be sent to other emergency control centres or service partners pursuant to Article 3(5), the latter shall also be considered as data controllers. Member States shall ensure that the processing of personal data in the context of the handling of the eCalls by the PSAPs, the emergency services and service partners is carried out in accordance with Directives 95/46/EC and 2002/58/EC, and that this compliance is demonstrated to the national data protection authorities.

2.

In particular, Member States shall ensure that personal data are protected against misuse, including unlawful access, alteration or loss, and that protocols concerning personal data storage, retention duration, processing and protection are established at the appropriate level and properly observed. Article 7 Rules on liability

1.

The eCall PSAPs must be able to demonstrate to the competent authorities that they meet all specified conformance requirements of the eCall standards listed in Article  3(1) in respect of the part(s) of the system under their design and/or control. They shall be liable only for that part of the eCalls for which they are responsible, which starts at the time the eCalls reach the eCall PSAP, in accordance with national procedures.

2.

To that end, and in addition to other existing measures related to the handling of 112 calls in particular, both the raw MSD received with the eCall and the MSD contents presented to the eCall operator shall be retained for a determined period of time, in accordance with national regulations. Such data shall be stored in accordance with Articles 6, 13 and 17 of Directive 95/46/EC.

Article 8 Reporting Member States shall report to the Commission by 23  October 2013 on the state of implementation of this Regulation. This report shall include at least the list of competent authorities for assessing the conformity of the operations of the eCall PSAPs, the list and geographical coverage of the eCall PSAPs, a schedule of deployment during the ensuing two years, the description of the conformance tests and the description of the privacy and data protection protocols.



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Article 9 Entry into force and application This Regulation shall enter into force on the 20th day following that of its publication in the Official Journal of the European Union. It shall apply to infrastructures deployed from the date of entry into force of this Regulation. It shall apply from 23 April 2014 to infrastructures already deployed at the date of entry into force of this Regulation. This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 26 November 2012. For the Commission The President José Manuel BARROSO

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REGULATION (EU) 2015/758 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 29 April 2015 concerning type-approval requirements for the deployment of the eCall in-vehicle system based on the 112 service and amending Directive 2007/46/EC[28] THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, Having regard to the opinion of the European Economic and Social Committee (29), Acting in accordance with the ordinary legislative procedure (30), Whereas: (1) A  comprehensive Union type-approval system for motor vehicles has been established by Directive 2007/46/EC of the European Parliament and of the Council (31). (2) The technical requirements for the type-approval of motor vehicles with regard to numerous safety and environmental elements have been harmonised at Union level in order to ensure a high level of road safety throughout the Union. (3) The deployment of an eCall service available in all vehicles and in all Member States has been one of the principal Union objectives in the area of road safety since 2003. In order to achieve that objective, a series of initiatives have been launched, as part of a voluntary deployment approach, but have not achieved sufficient progress to date. (4) In order to further improve road safety, the Commission Communication of 21 August 2009 entitled ‘eCall: Time for Deployment’ proposed new measures to deploy an in-vehicle emergency call service in the Union. One of the suggested measures was to make mandatory the fitting of 112-based eCall in-vehicle systems in all new types of vehicles starting with vehicles of categories M1 and N1 as defined in Annex II to Directive 2007/46/EC. (5)

On 3 July 2012, the European Parliament adopted a resolution on eCall: a new 112 service for citizens, which urged the Commission to submit a proposal within the framework of Directive 2007/46/EC in order to ensure the mandatory deployment of a public, 112-based eCall system by 2015.

(6) It is still necessary to improve the operation of the 112 service throughout the Union, so that it provides assistance swiftly and effectively in emergencies. (7)

The Union eCall system is expected to reduce the number of fatalities in the Union as well as the severity of injuries caused by road accidents, thanks to the early

OJ L 123, 19.5.2015, p. 77. Incorporating amendments as per the consolidated version of 31 March 2018 (amended by Commission Delegated Regulation (EU) 2017/29 of 12 September 2016). 29 OJ C 341, 21.11.2013, p. 47. 30 Position of the European Parliament of 26 February 2014 (not yet published in the Official Journal) and position of the Council at first reading of 2 March 2015 (not yet published in the Official Journal). Position of the European Parliament of 28 April 2015 (not yet published in the Official Journal). 31 Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (Framework Directive) (OJ L 263, 9.10.2007, p. 1). 28



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alerting of the emergency services. The mandatory introduction of the 112-based eCall in-vehicle system, together with the necessary and coordinated infrastructure upgrade in public mobile wireless communications networks for conveying eCalls and Public Safety Answering Points (PSAPs) for receiving and handling eCalls, would make the service available to all citizens and thus contribute to the reduction of fatalities and severe injuries, of costs relating to healthcare, of congestion caused by accidents and of other costs. (8) In accordance with Article  1(1) of Decision No  585/2014/EU of the European Parliament and of the Council (32), Member States are to deploy on their territory, at least six months before the date of application of this Regulation and in any event no later than 1  October 2017, the eCall PSAP infrastructure required for the proper receipt and handling of all eCalls. In accordance with Article  3 of Decision No 585/2014/EU, Member States are to report by 24 December 2015 to the Commission on the state of implementation of that Decision. If the report concludes that the eCall PSAP infrastructure will not be operational by 1 October 2017, the Commission should take appropriate action to ensure that the eCall PSAP infrastructure is deployed. (9) In accordance with paragraph 4 of Commission Recommendation 2011/750/EU (33), Member States should ensure that mobile network operators implemented the mechanism to handle the ‘eCall discriminator’ in their networks by 31 December 2014. If the review referred to in paragraph 6 of that Recommendation concludes that the ‘eCall discriminator’ will not be implemented by 31  March 2016, the Commission should take appropriate action to ensure that mobile network operators implement the mechanism to handle the ‘eCall discriminator’. (10) The provision of accurate and reliable positioning information is an essential element of the effective operation of the 112-based eCall in-vehicle system. Therefore, it is appropriate to require its compatibility with the services provided by the Galileo and European Geostationary Navigation Overlay Service (EGNOS) programmes as set out in Regulation (EU) No  1285/2013 of the European Parliament and of the Council (34). The system established under the Galileo programme is an independent global satellite navigation system and the one established under the EGNOS programme is a regional satellite navigation system improving the quality of the Global Positioning System signal. (11) The mandatory equipping of vehicles with the 112-based eCall in-vehicle system should initially apply only to new types of passenger cars and light commercial vehicles (categories M1 and N1) for which an appropriate triggering mechanism already exists. The possibility of extending the application of the 112-based eCall in-vehicle system requirement in the near future to include other vehicle categories, such as heavy goods vehicles, buses and coaches, powered twowheelers and agricultural tractors, should be further assessed by the Commission with a view to presenting, if appropriate, a legislative proposal to that effect. Decision No  585/2014/EU of the European Parliament and of the Council of 15  May 2014 on the deployment of the interoperable EU-wide eCall service (OJ L 164, 3.6.2014, p. 6). 33 Commission Recommendation 2011/750/EU of 8  September 2011 on support for an EU-wide eCall service in electronic communication networks for the transmission of in-vehicle emergency calls based on 112 (‘eCalls’) (OJ L 303, 22.11.2011, p. 46). 34 Regulation (EU) No  1285/2013 of the European Parliament and of the Council of 11  December 2013 on the implementation and exploitation of European satellite navigation systems and repealing Council Regulation (EC) No 876/2002 and Regulation (EC) No 683/2008 of the European Parliament and of the Council (OJ L 347, 20.12.2013, p. 1). 32

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(12) The equipping of vehicles of existing types to be manufactured after 31 March 2018 with the 112-based eCall in-vehicle system should be promoted in order to increase penetration. In respect of types of vehicles type-approved before 31 March 2018, an eCall system may be retrofitted on a voluntary basis. (13) The public interoperable Union-wide eCall service based on the single European emergency call number 112 and third party service supported eCall systems (TPS eCall services) can coexist provided that the measures necessary to ensure continuity in the provision of the service to the consumer are adopted. In order to ensure continuity of the public 112-based eCall service in all Member States throughout the lifetime of the vehicle and to guarantee that the public 112-based eCall service is always automatically available, all vehicles should be equipped with the public 112-based eCall service, regardless of whether or not a vehicle owner opts for a TPS eCall service. (14) Consumers should be provided with a realistic overview of the 112-based eCall in-vehicle system and of the TPS eCall system, if the vehicle is equipped with one, as well as comprehensive and reliable information regarding any additional functionalities or services linked to the private emergency service, in-vehicle emergency or assistance-call applications on offer, and regarding the level of service to be expected with the purchase of third party services and the associated cost. The 112-based eCall service is a public service of general interest and should therefore be accessible free of charge to all consumers. (15) The mandatory equipping of vehicles with the 112-based eCall in-vehicle system should be without prejudice to the right of all stakeholders such as car manufacturers and independent operators to offer additional emergency and/or added value services, in parallel with or building on the 112-based eCall in-vehicle system. However, any additional services should be designed in such a way that they do not increase driver distraction or affect the functioning of the 112-based eCall in-vehicle system and the efficient work of emergency call centres. The 112-based eCall in-vehicle system and the system providing private or addedvalue services should be designed in such a way that no exchange of personal data between them is possible. Where provided, those services should comply with the applicable safety, security and data protection legislation and should always remain optional for consumers. (16) In order to ensure open choice for customers and fair competition, as well as encourage innovation and boost the competitiveness of the Union’s information technology industry on the global market, the eCall in-vehicle systems should be based on an interoperable, standardised, secure and open-access platform for possible future in-vehicle applications or services. As this requires technical and legal back-up, the Commission should assess without delay, on the basis of consultations with all stakeholders involved, including vehicle manufacturers and independent operators, all options for promoting and ensuring such an openaccess platform and, if appropriate, put forward a legislative initiative to that effect. Furthermore, the 112-based eCall in-vehicle system should be accessible for a reasonable fee not exceeding a nominal amount and without discrimination to all independent operators for repair and maintenance purposes in accordance with Regulation (EC) No 715/2007 of the European Parliament and of the Council (35). Regulation (EC) No 715/2007 of the European Parliament and of the Council of 20 June 2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information (OJ L 171, 29.6.2007, p. 1).

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(17) In order to maintain the integrity of the type-approval system, only those 112-based eCall in-vehicle systems which can be fully tested should be accepted for the purposes of this Regulation. (18) The 112-based eCall in-vehicle system, as an emergency system, requires the highest possible level of reliability. The accuracy of the minimum set of data and of the voice transmission, and quality, should be ensured, and a uniform testing regime should be developed to ensure the longevity and durability of the 112-based eCall in-vehicle system. Periodic roadworthiness tests should therefore be carried out regularly in accordance with Directive 2014/45/EU of the European Parliament and of the Council (36). (19) Small series vehicles and vehicles approved pursuant to Article 24 of Directive 2007/46/EC are excluded, under that Directive, from the requirements on the protection of occupants in the event of frontal impact and side impact. Therefore, those vehicles should be excluded from the obligation to comply with the eCall requirements set out in this Regulation. Moreover, some vehicles of categories M1 and N1 cannot for technical reasons be equipped with an appropriate eCall triggering mechanism. (20) Special purpose vehicles should be subject to compliance with the eCall requirements set out in this Regulation, where the base/incomplete vehicle is equipped with the necessary triggering mechanism. (21) Any processing of personal data through the 112-based eCall in-vehicle system should comply with the personal data protection rules provided for in Directive 95/46/EC of the European Parliament and of the Council (37) and in Directive 2002/58/EC of the European Parliament and of the Council (38), in particular to guarantee that vehicles equipped with 112-based eCall in-vehicle systems, in their normal operational status related to 112 eCall, are not traceable and are not subject to any constant tracking and that the minimum set of data sent by the 112-based eCall in-vehicle system includes the minimum information required for the appropriate handling of emergency calls. This should take into account the recommendations made by the Working Party on the Protection of Individuals with regard to the Processing of Personal Data set up under Article 29 of Directive 95/46/EC (‘Article 29 Data Protection Working Party’) and contained in its ‘Working document on data protection and privacy implications in eCall initiative’, adopted on 26 September 2006. (22) Manufacturers should implement all the necessary measures in order to comply with the rules on privacy and data protection set out in this Regulation in accordance with Articles  7 and 8 of the Charter of Fundamental Rights of the European Union (39).

Directive 2014/45/EU of the European Parliament and of the Council of 3  April 2014 on periodic roadworthiness tests for motor vehicles and their trailers and repealing Directive 2009/40/EC (OJ L 127, 29.4.2014, p. 51). 37 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31). 38 Directive 2002/58/EC 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 (Directive on privacy and electronic communications) (OJ L 201, 31.7.2002, p. 37). 39 OJ C 326, 26.10.2012, p. 391. 36

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(23) When complying with technical requirements, vehicle manufacturers should integrate technical forms of data protection into in-vehicle systems and should comply with the principle of ‘privacy by design’. (24) Manufacturers should provide the information about the existence of a free public eCall system, based on the single European emergency number 112, the right of the vehicle owner to choose to use that system rather than a TPS eCall system and the processing of data carried out through the 112-based eCall in-vehicle system as part of the technical documentation handed over together with the vehicle. That information should also be available for downloading online. (25) Data transmitted via the 112-based eCall in-vehicle system and processed by the PSAPs can be transferred to the emergency service and service partners referred to in Decision No 585/2014/EU only in the event of incidents related to eCalls and under the conditions set out in that Decision and are used exclusively for the attainment of the objectives of that Decision. Data processed by the PSAPs through the 112-based eCall in-vehicle system are not transferred to any other third parties without the explicit prior consent of the data subject. (26) The European standardisation organisations, the European Telecommunications Standards Institute (ETSI) and the European Committee for Standardisation (CEN), have developed common standards for the deployment of a pan-European eCall service, which should apply for the purposes of this Regulation, as this will facilitate the technological evolution of the eCall in-vehicle service, ensure the interoperability and continuity of the service throughout the Union, and reduce the costs of implementation for the Union as a whole. (27) In order to ensure the application of common technical requirements regarding the 112-based eCall in-vehicle system, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission in respect of the exemption of certain classes of vehicles of categories M1 and N1 from the obligation to install eCall in-vehicle systems, of the establishment of detailed technical requirements and tests for the EC type-approval of vehicles with regard to their eCall in-vehicle systems and the EC type-approval of systems, components and separate technical units designed and constructed for such vehicles, and of the establishment of detailed technical rules and test procedures for the application of certain rules on personal data processing and for ensuring that there is no exchange of personal data between the 112-based eCall in-vehicle system and third party systems. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level and with relevant stakeholders, consulting in particular consumer protection organisations, as well as the European Data Protection Supervisor and the Article 29 Data Protection Working Party in accordance with the applicable legislation. The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council. (28) In order to ensure uniform conditions for the implementation of this Regulation, implementing powers relating to the practical arrangements for assessing the absence of traceability and tracking, the template for the user information and the administrative provisions for the EC type-approval regarding the template for the information documents to be provided by manufacturers for the purposes of the type-approval, the template of the EC type-approval certificates and the model for the EC type-approval mark, should be conferred on the Commission. Those



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powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (40). (29) Vehicle manufacturers should be allowed sufficient time to adapt to the technical requirements of this Regulation. (30) This Regulation is a new separate Regulation in the context of the EC typeapproval procedure provided for in Directive 2007/46/EC and, therefore, Annexes I, III, IV and XI to that Directive should be amended accordingly. (31) Since the objective of this Regulation, namely the achievement of the internal market through the introduction of common technical requirements for new typeapproved vehicles equipped with the 112-based eCall in-vehicle system, cannot be sufficiently achieved by the Member States but can rather, by reason of its scale, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective. (32) The European Data Protection Supervisor was consulted in accordance with Article 28(2) of Regulation (EC) No 45/2001 of the European Parliament and of the Council (41) and delivered an opinion on 29 October 2013 (42), HAVE ADOPTED THIS REGULATION: Article 1 Subject matter This Regulation establishes the general requirements for the EC type-approval of vehicles in respect of the 112-based eCall in-vehicle systems, and of 112-based eCall in-vehicle systems, components and separate technical units. Article 2 Scope 1.

This Regulation shall apply to vehicles of categories M1 and N1 as defined in points 1.1.1 and 1.2.1 of Part A of Annex II to Directive 2007/46/EC and to 112-based eCall in-vehicle systems, components and separate technical units designed and constructed for such vehicles. It shall not apply to the following vehicles: (a)

vehicles produced in small series approved pursuant to Articles 22 and 23 of Directive 2007/46/EC;

(b) vehicles approved pursuant to Article 24 of Directive 2007/46/EC; (c)

vehicles which cannot for technical reasons be equipped with an appropriate eCall triggering mechanism, as determined in accordance with paragraph 2.

Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13). 41 Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and the free movement of such data (OJ L 8, 12.1.2001, p. 1). 42 OJ C 38, 8.2.2014, p. 8. 40

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The Commission shall be empowered to adopt delegated acts in accordance with Article 8 to identify classes of vehicles of categories M1 and N1 which cannot be equipped with an appropriate eCall triggering mechanism for technical reasons, on the basis of a study assessing the costs and benefits which is carried out or mandated by the Commission and taking into account all relevant safety and technical aspects. The first such delegated acts shall be adopted by 9 June 2016.

Article 3 Definitions For the purposes of this Regulation and in addition to the definitions laid down in Article 3 of Directive 2007/46/EC, the following definitions apply: (1) 112-based eCall in-vehicle system’ means an emergency system, comprising in-vehicle equipment and the means to trigger, manage and enact the eCall transmission, that is activated either automatically via in-vehicle sensors or manually, which carries, by means of public mobile wireless communications networks, a minimum set of data and establishes a 112-based audio channel between the occupants of the vehicle and an eCall PSAP; (2) ‘eCall’ means an in-vehicle emergency call to 112, made either automatically by means of the activation of in-vehicle sensors or manually, which carries a minimum set of data and establishes an audio channel between the vehicle and the eCall PSAP via public mobile wireless communications networks; (3) ‘public safety answering point’ or ‘PSAP’ means a physical location where emergency calls are first received under the responsibility of a public authority or a private organisation recognised by the Member State; (4) ‘most appropriate PSAP’ means a PSAP determined beforehand by the responsible authorities to cover emergency calls from a certain area or for emergency calls of a certain type; (5) ‘eCall PSAP’ means the most appropriate PSAP determined beforehand by the authorities to first receive and handle eCalls; (6) ‘minimum set of data’ or ‘MSD’ means the information defined by the standard ‘Intelligent transport systems — eSafety — eCall minimum set of data (MSD)’ (EN 15722:2011) which is sent to the eCall PSAP; (7) ‘in-vehicle equipment’ means equipment permanently installed within the vehicle that provides or has access to the in-vehicle data required to perform the eCall transaction via a public mobile wireless communications network; (8) ‘eCall transaction’ means the establishment of a mobile wireless communications session across a public wireless communications network and the transmission of the MSD from a vehicle to an eCall PSAP and the establishment of an audio channel between the vehicle and the same eCall PSAP; (9) ‘public mobile wireless communications network’ means a mobile wireless communications network available to the public in accordance with Directives 2002/21/EC[43] and 2002/22/EC[44] of the European Parliament and of the Council;

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) (OJ L 108, 24.4.2002, p. 33). 44 Directive 2002/22/EC of the European Parliament and of the Council of 7  March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ L 108, 24.4.2002, p. 51). 43



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(10) ‘third party services supported eCall’ or ‘TPS eCall’ means an in-vehicle emergency call to a third party service provider, made either automatically by means of the activation of in-vehicle sensors or manually, which carries, by means of public mobile wireless communications networks, the MSD and establishes an audio channel between the vehicle and the third party service provider; (11) ‘third party service provider’ means an organisation recognised by national authorities as being allowed to receive a TPS eCall and to forward the MSD to the eCall PSAP; (12) ‘third party services eCall in-vehicle system’ or ‘TPS eCall in-vehicle system’ means a system activated either automatically via in-vehicle sensors or manually, which carries, by means of public mobile wireless communications networks, the MSD and establishes an audio channel between the vehicle and the third party service provider. Article 4 General obligations of the manufacturers Manufacturers shall demonstrate that all new types of vehicles referred to in Article 2 are equipped with a permanently installed 112-based eCall in-vehicle system, in accordance with this Regulation and the delegated and implementing acts adopted pursuant to this Regulation. Article 5 Specific obligations of manufacturers 1.

Manufacturers shall ensure that all of their new types of vehicle and 112-based eCall in-vehicle systems, components and separate technical units designed and constructed for such vehicles are manufactured and approved in accordance with this Regulation and the delegated and implementing acts adopted pursuant to this Regulation.

2.

Manufacturers shall demonstrate that all new types of vehicles are constructed in such a way as to ensure that, in the event of a severe accident, detected by activation of one or more sensors or processors within the vehicle, which occurs in the territory of the Union, an eCall to the single European emergency number 112 is triggered automatically. Manufacturers shall demonstrate that new types of vehicles are constructed in such a way as to ensure that an eCall to the single European emergency number 112 can also be triggered manually. Manufacturers shall ensure that the manual trigger control of the 112-based eCall in-vehicle system is designed in such a way as to avoid mishandling.

3.

Paragraph 2 is without prejudice to the right of the vehicle owner to use a TPS eCall in-vehicle system providing a similar service, in addition to the 112-based eCall in-vehicle system, provided that all the following conditions are met: (a) the TPS eCall in-vehicle system shall comply with the standard EN  16102:2011 ‘Intelligent transport systems — eCall — Operating requirements for third party support’; (b)

manufacturers shall ensure that there is only one system active at a time and that the 112-based eCall in-vehicle system is triggered automatically in the event that the TPS eCall in-vehicle system does not function;

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(c)

the vehicle owner shall have the right to choose to use the 112-based eCall in-vehicle system rather than a TPS eCall in-vehicle system at all times;

(d) manufacturers shall include information on the right referred to in point (c) in the owner’s manual. 4.

Manufacturers shall ensure that the receivers in the 112-based eCall in-vehicle systems are compatible with the positioning services provided by the Galileo and the EGNOS systems. Manufacturers may also choose, in addition, compatibility with other satellite navigation systems.

5.

Only those 112-based eCall in-vehicle systems, either permanently installed within the vehicle or type-approved separately, which can be tested shall be accepted for the purposes of EC type-approval.

6.

Manufacturers shall demonstrate that, in the event of a critical system failure which would result in an inability to execute a 112-based eCall, a warning will be given to the occupants of the vehicle.

7.

The 112-based eCall in-vehicle system shall be accessible to all independent operators for a reasonable fee not exceeding a nominal amount and without discrimination for repair and maintenance purposes in accordance with Regulation (EC) No 715/2007.

8.

The Commission shall be empowered to adopt delegated acts in accordance with Article  8 establishing the detailed technical requirements and tests for the EC type-approval of vehicles in respect of their 112-based eCall in-vehicle systems and the EC type-approval of 112-based eCall in-vehicle systems, components and separate technical units. The technical requirements and tests referred to in the first subparagraph shall be based on the requirements set out in paragraphs 2 to 7 and on the available standards relating to eCall, where applicable, including: (a)

EN 16072:2015 ‘Intelligent transport systems — eSafety — Pan-European eCall operating requirements’;

(b)

EN 16062:2015 ‘Intelligent transport systems — eSafety — eCall high level application requirements (HLAR)’;

(c) EN 16454:2015 ‘Intelligent transport systems — ESafety — Ecall end to end conformance testing’; (d)

EN 15722:2015 ‘Intelligent transport systems — eSafety — eCall minimum set of data (MSD)’;

(e) EN  16102:2011 ‘Intelligent transport systems — eCall — Operating requirements for third party support’; (f)

any additional European standards relating to the eCall system adopted in conformity with the procedures laid down in Regulation (EU) No 1025/2012 of the European Parliament and of the Council[45], or Regulations of the

Regulation (EU) No 1025/2012 of the European Parliament and of the Council of 25 October 2012 on European standardisation, amending Council Directives 89/686/EEC and 93/15/EEC and Directives 94/9/ EC, 94/25/EC, 95/16/EC, 97/23/EC, 98/34/EC, 2004/22/EC, 2007/23/EC, 2009/23/EC and 2009/105/EC of the European Parliament and of the Council and repealing Council Decision 87/95/EEC and Decision No 1673/2006/EC of the European Parliament and of the Council (OJ L 316, 14.11.2012, p. 12).

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United Nations Economic Commission for Europe (UNECE Regulations) relating to eCall systems to which the Union has acceded. The first such delegated acts shall be adopted by 9 June 2016. 9.

The Commission shall be empowered to adopt delegated acts in accordance with Article 8 to update the versions of the standards referred to in paragraph 8 of this Article when a new version is adopted. Article 6 Rules on privacy and data protection

1.

This Regulation is without prejudice to Directives 95/46/EC and 2002/58/EC. Any processing of personal data through the 112-based eCall in-vehicle system shall comply with the personal data protection rules provided for in those Directives.

2.

The personal data processed pursuant to this Regulation shall only be used for the purpose of handling the emergency situations referred to in the first subparagraph of Article 5(2).

3.

The personal data processed pursuant to this Regulation shall not be retained longer than necessary for the purpose of handling the emergency situations referred to in the first subparagraph of Article 5(2). Those data shall be fully deleted as soon as they are no longer necessary for that purpose.

4.

Manufacturers shall ensure that the 112-based eCall in-vehicle system is not traceable and is not subject to any constant tracking.

5.

Manufacturers shall ensure that, in the internal memory of the 112-based eCall in-vehicle system, data are automatically and continuously removed. Only the retention of the last three locations of the vehicle shall be permitted in so far as it is strictly necessary to specify the current location and the direction of travel at the time of the event.

6.

Those data shall not be available outside the 112-based eCall in-vehicle system to any entities before the eCall is triggered.

7.

  Privacy enhancing technologies shall be embedded in the 112-based eCall invehicle system in order to provide eCall users with the appropriate level of privacy protection, as well as the necessary safeguards to prevent surveillance and misuse.

8.

The MSD sent by the 112-based eCall in-vehicle system shall include only the minimum information as referred to in the standard EN 15722:2011 ‘Intelligent transport systems — eSafety — eCall minimum set of data (MSD)’. No additional data shall be transmitted by the 112-based eCall in-vehicle system. That MSD shall be stored in such a way as to make its full and permanent deletion possible.

9.

Manufacturers shall provide clear and comprehensive information in the owner’s manual about the processing of data carried out through the 112-based eCall invehicle system. That information shall consist of: (a)

the reference to the legal basis for the processing;

(b) the fact that the 112-based eCall in-vehicle system is activated by default; (c) the arrangements for data processing that the 112-based eCall in-vehicle system performs; (d) the specific purpose of the eCall processing, which shall be limited to the emergency situations referred to in the first subparagraph of Article 5(2);

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(e)

the types of data collected and processed and the recipients of that data;

(f)

the time limit for the retention of data in the 112-based eCall in-vehicle system;

(g) the fact that there is no constant tracking of the vehicle; (h) the arrangements for exercising data subjects’ rights as well as the contact service responsible for handling access requests; (i)

any necessary additional information regarding traceability, tracking and processing of personal data in relation to the provision of a TPS eCall and/or other added value services, which shall be subject to explicit consent by the owner and in compliance with Directive 95/46/EC. Particular account shall be taken of the fact that differences may exist between the data processing carried out through the 112-based eCall in-vehicle system and the TPS eCall in-vehicle systems or other added value services.

10. In order to avoid confusion as to the purposes pursued and the added value of the processing, the information referred to in paragraph  9 shall be provided in the owner’s manual separately for the 112-based eCall in-vehicle system and the TPS eCall systems prior to the use of the system. 11. Manufacturers shall ensure that the 112-based eCall in-vehicle system and any additional system providing TPS eCall or an added-value service are designed in such a way that no exchange of personal data between them is possible. The nonuse of a system providing TPS eCall or an added-value service or the refusal of the data subject to give consent to the processing of his or her personal data for a TPS eCall service or an added value service shall not create any adverse effects on the use of the 112-based eCall in-vehicle system. 12. The Commission shall be empowered to adopt delegated acts in accordance with Article 8 in order to establish: (a) the detailed technical requirements and test procedures for the application of the rules on personal data processing referred to in paragraphs 2 and 3; (b) the detailed technical requirements and test procedures for ensuring that there is no exchange of personal data between the 112-based eCall invehicle system and third party systems as referred to in paragraph 11. The first such delegated acts shall be adopted by 9 June 2016. 13. The Commission shall, by means of implementing acts, lay down: (a) the practical arrangements for assessing the absence of traceability and tracking referred to in paragraphs 4, 5 and 6; (b) the template for the user information referred to in paragraph 9. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 10(2). The first such implementing acts shall be adopted by 9 June 2016. Article 7 Obligations of the Member States With effect from 31 March 2018, national authorities shall only grant EC type-approval in respect of the 112-based eCall in-vehicle system to new types of vehicles and to new types of 112-based eCall in-vehicle systems, components and separate technical units designed and constructed for such vehicles which comply with this Regulation and the delegated and implementing acts adopted pursuant to this Regulation.



1. 2.

3.

4. 5.

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Article 8 Exercise of the delegation The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article. The power to adopt delegated acts referred to in Article  2(2), Article  5(8) and (9) and Article 6(12) shall be conferred on the Commission for a period of five years from 8  June 2015. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the fiveyear period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period. The delegation of power referred to in Article  2(2), Article  5(8) and (9) and Article  6(12) may be revoked at any time by the European Parliament or by the Council. A  decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council. A  delegated act adopted pursuant to Article  2(2), Article  5(8) and (9) and Article 6(12) shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.

Article 9 Implementing acts The Commission shall adopt implementing acts laying down the administrative provisions for the EC type-approval of vehicles with regard to the 112-based eCall in-vehicle system and of 112-based eCall in-vehicle systems, components and separate technical units designed and constructed for such vehicles as required by Article 5(1) regarding: (a) the templates for the information documents to be provided by manufacturers for the purposes of the type-approval; (b) the templates for the EC type-approval certificates; (c) the model(s) for the EC type-approval mark. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 10(2). The first such implementing acts shall be adopted by 9 June 2016. Article 10 Committee procedure 1.

The Commission shall be assisted by the ‘Technical Committee — Motor Vehicles’ (TCMV) established by Article 40(1) of Directive 2007/46/EC. That committee is a committee within the meaning of Regulation (EU) No 182/2011.

2.

Where reference is made to this paragraph, Article  5 of Regulation (EU) No 182/2011 shall apply.

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Where the committee delivers no opinion, the Commission shall not adopt the draft implementing act and the third  subparagraph of Article  5(4) of Regulation (EU) No 182/2011 shall apply. Article 11 Penalties 1.

Member States shall lay down the rules on penalties applicable to non-compliance by manufacturers with the provisions of this Regulation and the delegated and implementing acts adopted pursuant to this Regulation. They shall take all measures necessary to ensure that the penalties are implemented. The penalties provided for shall be effective, proportionate and dissuasive. Member States shall notify those provisions to the Commission, and shall notify it without delay of any subsequent amendment affecting them.

2.

The type of non-compliance which is to be subject to a penalty shall include at least the following: (a) making a false declaration during an approval procedure or a procedure leading to a recall; (b) falsifying test results for type-approval; (c) withholding data or technical specifications which could lead to recall, refusal or withdrawal of type-approval; (d) breaching provisions laid down in Article 6; (e)

acting in breach of the provisions of Article 5(7). Article 12 Reporting and review

1.

By 31  March 2021, the Commission shall prepare an evaluation report to be presented to the European Parliament and to the Council on the achievements of the 112-based eCall in-vehicle system, including its penetration rate. The Commission shall investigate whether the scope of this Regulation should be extended to other categories of vehicles, such as heavy goods vehicles, buses and coaches, powered two-wheelers, and agricultural tractors. If appropriate, the Commission shall present a legislative proposal to that effect.

2.

Following a broad consultation with all relevant stakeholders and a study assessing the costs and benefits, the Commission shall assess the need of requirements for an interoperable, standardised, secure and open-access platform. If appropriate, and no later than 9 June 2017, the Commission shall adopt a legislative initiative based on those requirements.

Article 13 Amendments to Directive 2007/46/EC Annexes I, III, IV and XI to Directive 2007/46/EC are hereby amended in accordance with the Annex to this Regulation. Article 14 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.



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Article 2(2), Article 5(8) and (9), Article 6(12) and (13) and Articles 8, 9, 10 and 12 shall apply from 8 June 2015. Articles other than those referred to in the second paragraph of this Article shall apply from 31 March 2018. This Regulation shall be binding in its entirety and directly applicable in all Member States. ______________ ANNEX Amendments to Directive 2007/46/EC Directive 2007/46/EC is amended as follows: (1) in Annex I, the following points are added: ‘12.8. eCall system 12.8.1. Presence: yes/no (1) 12.8.2. technical description or drawings of the device: …’; (2) in Annex III, Part I, section A, the following points are added: ‘12.8. eCall system 12.8.1. Presence: yes/no(1)’; (3) in Annex IV, Part I is amended as follows: (a)

the following item is added to the table:

Item Subject ‘72

eCall system

Regulatory act Regulation (EU) 2015/758

Applicability M1 M2 M3 N1 N2 X X’;

N3

O1

O2

O3

O4

(b) Appendix 1 is amended as follows: (i)

the following item is added to Table 1:

Item

Subject

Regulatory act

‘72

eCall system

Regulation (EU) 2015/758

Specific issues

Applicability and specific requirements N/A’;

(ii) the following item is added to Table 2: Item

Subject

Regulatory act

‘72

eCall system

Regulation (EU) 2015/758

(c)

Specific issues

Applicability and specific requirements N/A’;

in Appendix 2, Section ‘4. Technical Requirements’ is amended as follows: (i)

the following item is added to Part I: Vehicles belonging to category M1:

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Regulatory act reference Regulation (EU) 2015/758 (eCall systems)

Alternative requirements The requirements of that Regulation shall not apply.’;

(ii) the following item is added to Part II: Vehicles belonging to category N1: Item ‘72

Regulatory act reference Regulation (EU) 2015/758 (eCall systems)

Alternative requirements The requirements of that Regulation shall not apply.’;

(4) Annex XI is amended as follows: (a)

in Appendix 1, the following item is added to the table:

Item

Subject

‘72

eCall system

Regulatory act M1 ≤ 2 500 reference (*) kg Regulation G (EU) 2015/758

M1 > 2 500 (*) kg G

M2

M3

N/A

N/A’;

(b) in Appendix 2, the following item is added to the table: Item Subject Regulatory act M1 M2 M3 N1 N2 N3 O1 O2 O3 O4 reference ‘72 eCall Regulation G N/A N/A G N/A N/A N/A N/A N/A N/A’; system (EU) 2015/758 (c) Item ‘72

in Appendix 3, the following item is added to the table:

Subject eCall system

Regulatory act reference Regulation (EU) 2015/758

M1 G’;

(d) in Appendix 4, the following item is added to the table: Item Subject ‘72

eCall system

Regulatory act M2 M3 N1 N2 N3 O1 O2 O3 O4 reference Regulation N/A N/A G N/A N/A N/A N/A N/A N/A’. (EU) 2015/758



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REGULATION (EU) 2015/2120 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 25 November 2015 laying down measures concerning open internet access and retail charges for regulated intra-EU communications and amending Directive 2002/22/EC and Regulation (EU) No 531/2012[46] (Text with EEA relevance) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, Having regard to the opinion of the European Economic and Social Committee (47), Having regard to the opinion of the Committee of the Regions (48), Acting in accordance with the ordinary legislative procedure (49), Whereas: (1) This Regulation aims to establish common rules to safeguard equal and nondiscriminatory treatment of traffic in the provision of internet access services and related end-users’ rights. It aims to protect end-users and simultaneously to guarantee the continued functioning of the internet ecosystem as an engine of innovation. Reforms in the field of roaming should give end-users the confidence to stay connected when they travel within the Union, and should, over time, become a driver of convergent pricing and other conditions in the Union. (2)

The measures provided for in this Regulation respect the principle of technological neutrality, that is to say they neither impose nor discriminate in favour of the use of a particular type of technology.

(3) The internet has developed over the past decades as an open platform for innovation with low access barriers for end-users, providers of content, applications and services and providers of internet access services. The existing regulatory framework aims to promote the ability of end-users to access and distribute information or run applications and services of their choice. However, a significant number of end-users are affected by traffic management practices which block or slow down specific applications or services. Those tendencies require common rules at the Union level to ensure the openness of the internet and to avoid fragmentation of the internal market resulting from measures adopted by individual Member States. (4) An internet access service provides access to the internet, and in principle to all the end-points thereof, irrespective of the network technology and terminal equipment used by end-users. However, for reasons outside the control of providers of internet access services, certain end points of the internet may not always be OJ L 310, 26.11.2015, p. 1. Incorporating amendments as per the consolidated version of 21 December 2020 (amended by Regulation (EU) 2018/1971 of the European Parliament and of the Council of 11  December 2018 and Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018). 47 OJ C 177, 11.6.2014, p. 64. 48 OJ C 126, 26.4.2014, p. 53. 49 Position of the European Parliament of 3 April 2014 (not yet published in the Official Journal) and position of the Council at first reading of 1 October 2015 (OJ C 365, 4.11.2015, p. 1.). Position of the European Parliament of 27 October 2015 (not yet published in the Official Journal). 46

510

(5)

(6)

(7)

(8)

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accessible. Therefore, such providers should be deemed to have complied with their obligations related to the provision of an internet access service within the meaning of this Regulation when that service provides connectivity to virtually all end points of the internet. Providers of internet access services should therefore not restrict connectivity to any accessible end-points of the internet. When accessing the internet, end-users should be free to choose between various types of terminal equipment as defined in Commission Directive 2008/63/EC (50). Providers of internet access services should not impose restrictions on the use of terminal equipment connecting to the network in addition to those imposed by manufacturers or distributors of terminal equipment in accordance with Union law. End-users should have the right to access and distribute information and content, and to use and provide applications and services without discrimination, via their internet access service. The exercise of this right should be without prejudice to Union law, or national law that complies with Union law, regarding the lawfulness of content, applications or services. This Regulation does not seek to regulate the lawfulness of the content, applications or services, nor does it seek to regulate the procedures, requirements and safeguards related thereto. Those matters therefore remain subject to Union law, or national law that complies with Union law. In order to exercise their rights to access and distribute information and content and to use and provide applications and services of their choice, end-users should be free to agree with providers of internet access services on tariffs for specific data volumes and speeds of the internet access service. Such agreements, as well as any commercial practices of providers of internet access services, should not limit the exercise of those rights and thus circumvent provisions of this Regulation safeguarding open internet access. National regulatory and other competent authorities should be empowered to intervene against agreements or commercial practices which, by reason of their scale, lead to situations where end-users’ choice is materially reduced in practice. To this end, the assessment of agreements and commercial practices should, inter alia, take into account the respective market positions of those providers of internet access services, and of the providers of content, applications and services, that are involved. National regulatory and other competent authorities should be required, as part of their monitoring and enforcement function, to intervene when agreements or commercial practices would result in the undermining of the essence of the end-users’ rights. When providing internet access services, providers of those services should treat all traffic equally, without discrimination, restriction or interference, independently of its sender or receiver, content, application or service, or terminal equipment. According to general principles of Union law and settled case-law, comparable situations should not be treated differently and different situations should not be treated in the same way unless such treatment is objectively justified. The objective of reasonable traffic management is to contribute to an efficient use of network resources and to an optimisation of overall transmission quality responding to the objectively different technical quality of service requirements of specific categories of traffic, and thus of the content, applications and services transmitted. Reasonable traffic management measures applied by providers of internet access services should be transparent, non-discriminatory and proportionate, and should not be based on commercial considerations. The requirement for traffic

Commission Directive 2008/63/EC of 20 June 2008 on competition in the markets in telecommunications terminal equipment (OJ L 162, 21.6.2008, p. 20).

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management measures to be non-discriminatory does not preclude providers of internet access services from implementing, in order to optimise the overall transmission quality, traffic management measures which differentiate between objectively different categories of traffic. Any such differentiation should, in order to optimise overall quality and user experience, be permitted only on the basis of objectively different technical quality of service requirements (for example, in terms of latency, jitter, packet loss, and bandwidth) of the specific categories of traffic, and not on the basis of commercial considerations. Such differentiating measures should be proportionate in relation to the purpose of overall quality optimisation and should treat equivalent traffic equally. Such measures should not be maintained for longer than necessary. (10) Reasonable traffic management does not require techniques which monitor the specific content of data traffic transmitted via the internet access service. (11) Any traffic management practices which go beyond such reasonable traffic management measures, by blocking, slowing down, altering, restricting, interfering with, degrading or discriminating between specific content, applications or services, or specific categories of content, applications or services, should be prohibited, subject to the justified and defined exceptions laid down in this Regulation. Those exceptions should be subject to strict interpretation and to proportionality requirements. Specific content, applications and services, as well as specific categories thereof, should be protected because of the negative impact on end-user choice and innovation of blocking, or of other restrictive measures not falling within the justified exceptions. Rules against altering content, applications or services refer to a modification of the content of the communication, but do not ban non-discriminatory data compression techniques which reduce the size of a data file without any modification of the content. Such compression enables a more efficient use of scarce resources and serves the end-users’ interests by reducing data volumes, increasing speed and enhancing the experience of using the content, applications or services concerned. (12) Traffic management measures that go beyond such reasonable traffic management measures may only be applied as necessary and for as long as necessary to comply with the three justified exceptions laid down in this Regulation. (13) First, situations may arise in which providers of internet access services are subject to Union legislative acts, or national legislation that complies with Union law (for example, related to the lawfulness of content, applications or services, or to public safety), including criminal law, requiring, for example, blocking of specific content, applications or services. In addition, situations may arise in which those providers are subject to measures that comply with Union law, implementing or applying Union legislative acts or national legislation, such as measures of general application, court orders, decisions of public authorities vested with relevant powers, or other measures ensuring compliance with such Union legislative acts or national legislation (for example, obligations to comply with court orders or orders by public authorities requiring to block unlawful content). The requirement to comply with Union law relates, inter alia, to the compliance with the requirements of the Charter of Fundamental Rights of the European Union (‘the Charter’) in relation to limitations on the exercise of fundamental rights and freedoms. As provided in Directive 2002/21/EC of the European Parliament and of the Council (51), any 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) (OJ L 108, 24.4.2002, p. 33).

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measures liable to restrict those fundamental rights or freedoms are only to be imposed if they are appropriate, proportionate and necessary within a democratic society, and if their implementation is subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms, including its provisions on effective judicial protection and due process. (14) Second, traffic management measures going beyond such reasonable traffic management measures might be necessary to protect the integrity and security of the network, for example by preventing cyber-attacks that occur through the spread of malicious software or identity theft of end-users that occurs as a result of spyware. (15) Third, measures going beyond such reasonable traffic management measures might also be necessary to prevent impending network congestion, that is, situations where congestion is about to materialise, and to mitigate the effects of network congestion, where such congestion occurs only temporarily or in exceptional circumstances. The principle of proportionality requires that traffic management measures based on that exception treat equivalent categories of traffic equally. Temporary congestion should be understood as referring to specific situations of short duration, where a sudden increase in the number of users in addition to the regular users, or a sudden increase in demand for specific content, applications or services, may overflow the transmission capacity of some elements of the network and make the rest of the network less reactive. Temporary congestion might occur especially in mobile networks, which are subject to more variable conditions, such as physical obstructions, lower indoor coverage, or a variable number of active users with changing location. While it may be predictable that such temporary congestion might occur from time to time at certain points in the network – such that it cannot be regarded as exceptional – it might not recur so often or for such extensive periods that a capacity expansion would be economically justified. Exceptional congestion should be understood as referring to unpredictable and unavoidable situations of congestion, both in mobile and fixed networks. Possible causes of those situations include a technical failure such as a service outage due to broken cables or other infrastructure elements, unexpected changes in routing of traffic or large increases in network traffic due to emergency or other situations beyond the control of providers of internet access services. Such congestion problems are likely to be infrequent but may be severe, and are not necessarily of short duration. The need to apply traffic management measures going beyond the reasonable traffic management measures in order to prevent or mitigate the effects of temporary or exceptional network congestion should not give providers of internet access services the possibility to circumvent the general prohibition on blocking, slowing down, altering, restricting, interfering with, degrading or discriminating between specific content, applications or services, or specific categories thereof. Recurrent and more long-lasting network congestion which is neither exceptional nor temporary should not benefit from that exception but should rather be tackled through expansion of network capacity. (16) There is demand on the part of providers of content, applications and services to be able to provide electronic communication services other than internet access services, for which specific levels of quality, that are not assured by internet access services, are necessary. Such specific levels of quality are, for instance, required by some services responding to a public interest or by some new machine-tomachine communications services. Providers of electronic communications to the public, including providers of internet access services, and providers of content,



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applications and services should therefore be free to offer services which are not internet access services and which are optimised for specific content, applications or services, or a combination thereof, where the optimisation is necessary in order to meet the requirements of the content, applications or services for a specific level of quality. National regulatory authorities should verify whether and to what extent such optimisation is objectively necessary to ensure one or more specific and key features of the content, applications or services and to enable a corresponding quality assurance to be given to end-users, rather than simply granting general priority over comparable content, applications or services available via the internet access service and thereby circumventing the provisions regarding traffic management measures applicable to the internet access services. (17) In order to avoid the provision of such other services having a negative impact on the availability or general quality of internet access services for end-users, sufficient capacity needs to be ensured. Providers of electronic communications to the public, including providers of internet access services, should, therefore, offer such other services, or conclude corresponding agreements with providers of content, applications or services facilitating such other services, only if the network capacity is sufficient for their provision in addition to any internet access services provided. The provisions of this Regulation on the safeguarding of open internet access should not be circumvented by means of other services usable or offered as a replacement for internet access services. However, the mere fact that corporate services such as virtual private networks might also give access to the internet should not result in them being considered to be a replacement of the internet access services, provided that the provision of such access to the internet by a provider of electronic communications to the public complies with Article 3(1) to (4) of this Regulation, and therefore cannot be considered to be a circumvention of those provisions. The provision of such services other than internet access services should not be to the detriment of the availability and general quality of internet access services for end-users. In mobile networks, traffic volumes in a given radio cell are more difficult to anticipate due to the varying number of active end-users, and for this reason an impact on the quality of internet access services for endusers might occur in unforeseeable circumstances. In mobile networks, the general quality of internet access services for end-users should not be deemed to incur a detriment where the aggregate negative impact of services other than internet access services is unavoidable, minimal and limited to a short duration. National regulatory authorities should ensure that providers of electronic communications to the public comply with that requirement. In this respect, national regulatory authorities should assess the impact on the availability and general quality of internet access services by analysing, inter alia, quality of service parameters (such as latency, jitter, packet loss), the levels and effects of congestion in the network, actual versus advertised speeds, the performance of internet access services as compared with services other than internet access services, and quality as perceived by end-users. (18) The provisions on safeguarding of open internet access should be complemented by effective end-user provisions which address issues particularly linked to internet access services and enable end-users to make informed choices. Those provisions should apply in addition to the applicable provisions of Directive 2002/22/EC of the European Parliament and of the Council (52) and Member States should have the Directive 2002/22/EC of the European Parliament and of the Council of 7  March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ L 108, 24.4.2002, p. 51).

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possibility to maintain or adopt more far-reaching measures. Providers of internet access services should inform end-users in a clear manner how traffic management practices deployed might have an impact on the quality of internet access services, end-users’ privacy and the protection of personal data as well as about the possible impact of services other than internet access services to which they subscribe, on the quality and availability of their respective internet access services. In order to empower end-users in such situations, providers of internet access services should therefore inform end-users in the contract of the speed which they are able realistically to deliver. The normally available speed is understood to be the speed that an enduser could expect to receive most of the time when accessing the service. Providers of internet access services should also inform consumers of available remedies in accordance with national law in the event of non-compliance of performance. Any significant and continuous or regularly recurring difference, where established by a monitoring mechanism certified by the national regulatory authority, between the actual performance of the service and the performance indicated in the contract should be deemed to constitute non-conformity of performance for the purposes of determining the remedies available to the consumer in accordance with national law. The methodology should be established in the guidelines of the Body of European Regulators for Electronic Communications (BEREC) and reviewed and updated as necessary to reflect technology and infrastructure evolution. National regulatory authorities should enforce compliance with the rules in this Regulation on transparency measures for ensuring open internet access. (19) National regulatory authorities play an essential role in ensuring that end-users are able to exercise effectively their rights under this Regulation and that the rules on the safeguarding of open internet access are complied with. To that end, national regulatory authorities should have monitoring and reporting obligations, and should ensure that providers of electronic communications to the public, including providers of internet access services, comply with their obligations concerning the safeguarding of open internet access. Those include the obligation to ensure sufficient network capacity for the provision of high quality non-discriminatory internet access services, the general quality of which should not incur a detriment by reason of the provision of services other than internet access services, with a specific level of quality. National regulatory authorities should also have powers to impose requirements concerning technical characteristics, minimum quality of service requirements and other appropriate measures on all or individual providers of electronic communications to the public if this is necessary to ensure compliance with the provisions of this Regulation on the safeguarding of open internet access or to prevent degradation of the general quality of service of internet access services for end-users. In doing so, national regulatory authorities should take utmost account of relevant guidelines from BEREC. (20) The mobile communications market remains fragmented in the Union, with no mobile network covering all Member States. As a consequence, in order to provide mobile communications services to their domestic customers travelling within the Union, roaming providers have to purchase wholesale roaming services from, or exchange wholesale roaming services with, operators in a visited Member State. (21) Regulation (EU) No  531/2012 of the European Parliament and of the Council (53) establishes the policy objective that the difference between roaming and Regulation (EU) No 531/2012 of the European Parliament and of the Council of 13 June 2012 on roaming on public mobile communications networks within the Union (OJ L 172, 30.6.2012, p. 10).

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domestic tariffs should approach zero. However, the ultimate aim of eliminating the difference between domestic charges and roaming charges cannot be attained in a sustainable manner with the observed level of wholesale charges. Therefore this Regulation sets out that retail roaming surcharges should be abolished from 15 June 2017, provided that the issues currently observed in the wholesale roaming markets have been addressed. In this respect, the Commission should conduct a review of the wholesale roaming market, and should submit a legislative proposal based on the outcome of that review. (22) At the same time, roaming providers should be able to apply a ‘fair use policy’ to the consumption of regulated retail roaming services provided at the applicable domestic retail price. The ‘fair use policy’ is intended to prevent abusive or anomalous usage of regulated retail roaming services by roaming customers, such as the use of such services by roaming customers in a Member State other than that of their domestic provider for purposes other than periodic travel. Any fair use policy should enable the roaming provider’s customers to consume volumes of regulated retail roaming services at the applicable domestic retail price that are consistent with their respective tariff plans. (23) In specific and exceptional circumstances where a roaming provider is not able to recover its overall actual and projected costs of providing regulated retail roaming services from its overall actual and projected revenues from the provision of such services, that roaming provider should be able to apply for authorisation to apply a surcharge with a view to ensuring the sustainability of its domestic charging model. The assessment of the sustainability of the domestic charging model should be based on relevant objective factors specific to the roaming provider, including objective variations between roaming providers in the Member State concerned and the level of domestic prices and revenues. That may, for example, be the case for flat-rate domestic retail models of operators with significant negative traffic imbalances, where the implicit domestic unit price is low and the operator’s overall revenues are also low relative to the roaming cost burden, or where the implicit unit price is low and actual or projected roaming services consumption is high. Once both wholesale and retail roaming markets have fully adjusted to the generalisation of roaming at domestic price levels and its incorporation as a normal feature of retail tariff plans, such exceptional circumstances are no longer expected to arise. In order to avoid the domestic charging model of roaming providers being rendered unsustainable by such cost recovery problems, generating a risk of an appreciable effect on the evolution of domestic prices or so-called ‘waterbed effect’, roaming providers, upon authorisation by the national regulatory authority, should, in such circumstances, be able to apply a surcharge to regulated retail roaming services only to the extent necessary to recover all relevant costs of providing such services. (24) To that end, the costs incurred in order to provide regulated retail roaming services should be determined by reference to the effective wholesale roaming charges applied to the outbound roaming traffic of the roaming provider concerned in excess of its inbound roaming traffic, as well as by reference to reasonable provision for joint and common costs. Revenues from regulated retail roaming services should be determined by reference to revenues at domestic price levels attributable to the consumption of regulated retail roaming services, whether on a unit-price basis or as a proportion of a flat fee, reflecting the respective actual and projected proportions of regulated retail roaming services consumption by customers within the Union and domestic consumption. Account should also be taken of the consumption of regulated retail roaming services and domestic

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consumption by the roaming provider’s customers, and of the level of competition, prices and revenues in the domestic market, and any observable risk that roaming at domestic retail prices would appreciably affect the evolution of such prices. (25) In order to ensure a smooth transition from Regulation (EU) No  531/2012 to the abolition of retail roaming surcharges, this Regulation should introduce a transitional period, in which the roaming providers should be able to add a surcharge to domestic prices for regulated retail roaming services provided. That transitional regime should already prepare the fundamental change in approach by incorporating Union-wide roaming as an integral part of domestic tariff plans offered in the various domestic markets. Thus, the starting point of the transitional regime should be the respective domestic retail prices, which may be subject to a surcharge no greater than the maximum wholesale roaming charge applicable in the period immediately preceding the transitional period. Such a transitional regime should also ensure substantial price cuts for customers from the date of application of this Regulation and should not, when the surcharge is added to the domestic retail price, lead under any circumstances to a higher retail roaming price than the maximum regulated retail roaming charge applicable in the period immediately preceding the transitional period. (26) The relevant domestic retail price should be equal to the domestic retail per-unit charge. However, in situations where there are no specific domestic retail prices that could be used as a basis for a regulated retail roaming service (for example, in case of domestic unlimited tariff plans, bundles or domestic tariffs which do not include data), the domestic retail price should be deemed to be the same charging mechanism as if the customer were consuming the domestic tariff plan in that customer’s Member State. (27) With a view to improving competition in the retail roaming market, Regulation (EU) No 531/2012 requires domestic providers to enable their customers to access regulated voice, SMS and data roaming services, provided as a bundle by any alternative roaming provider. Given that the retail roaming regime set out in this Regulation is to abolish in the near future retail roaming charges set out in Articles 8, 10 and 13 of Regulation (EU) No 531/2012, it would no longer be proportionate to oblige domestic providers to implement this type of separate sale of regulated retail roaming services. Providers which have already enabled their customers to access regulated voice, SMS and data roaming services, provided as a bundle by any alternative roaming provider, may continue to do so. On the other hand, it cannot be excluded that roaming customers could benefit from more competitive retail pricing, in particular for data roaming services, in visited markets. Given the increasing demand for and importance of data roaming services, roaming customers should be provided with alternative ways of accessing data roaming services when travelling within the Union. Therefore, the obligation on domestic and roaming providers not to prevent customers from accessing regulated data roaming services provided directly on a visited network by an alternative roaming provider as provided for in Regulation (EU) No 531/2012 should be maintained. (28) In accordance with the principle that the calling party pays, mobile customers do not pay for receiving domestic mobile calls and the cost of terminating a call in the network of the called party is covered in the retail charge of the calling party. The convergence of mobile termination rates across the Member States should allow the same principle to be applied to regulated retail roaming calls. However, since this is not yet the case, in situations set out in this Regulation where roaming providers are allowed to apply a surcharge for regulated retail roaming services,



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the surcharge applied for regulated roaming calls received should not exceed the weighted average of the maximum wholesale mobile termination rates set across the Union. This is considered to be a transitional regime until the Commission addresses this outstanding issue. (29) Regulation (EU) No 531/2012 should therefore be amended accordingly. (30) This Regulation should constitute a specific measure within the meaning of Article 1(5) of Directive 2002/21/EC. Therefore, where providers of Union-wide regulated roaming services make changes to their retail roaming tariffs and to accompanying roaming usage policies in order to comply with the requirements of this Regulation, such changes should not trigger for mobile customers any right under national laws transposing the current regulatory framework for electronic communications networks and services to withdraw from their contracts. (31) In order to strengthen the rights of roaming customers laid down in Regulation (EU) No 531/2012, this Regulation should in relation to regulated retail roaming services lay down specific transparency requirements aligned with the specific tariff and volume conditions to be applied once retail roaming surcharges are abolished. In particular, provision should be made for roaming customers to be notified, in a timely manner and free of charge, of the applicable fair use policy, when the applicable fair use volume of regulated voice, SMS or data roaming services is fully consumed, of any surcharge, and of accumulated consumption of regulated data roaming services. (32) In order to ensure uniform conditions for the implementation of the provisions of this Regulation, implementing powers should be conferred on the Commission in respect of setting out the weighted average of maximum mobile termination rates, and detailed rules on the application of the fair use policy and on the methodology for assessing the sustainability of the abolition of retail roaming surcharges, as well as on the application to be submitted by a roaming provider for the purposes of that assessment. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (54). (33) This Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter, notably the protection of personal data, the freedom of expression and information, the freedom to conduct a business, non-discrimination and consumer protection. (34) Since the objective of this Regulation, namely to establish common rules necessary for safeguarding open internet access and abolishing retail roaming surcharges, cannot be sufficiently achieved by the Member States but can rather, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.

Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).

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(35) The European Data Protection Supervisor was consulted in accordance with Article 28(2) of Regulation (EC) No 45/2001 of the European Parliament and of the Council (55) and delivered an opinion on 24 November 2013, HAVE ADOPTED THIS REGULATION: Article 1 Subject matter and scope 1. This Regulation establishes common rules to safeguard equal and nondiscriminatory treatment of traffic in the provision of internet access services and related end-users’ rights. 2. This Regulation sets up a new retail pricing mechanism for Union-wide regulated roaming services in order to abolish retail roaming surcharges without distorting domestic and visited markets. 3. This Regulation also lays down common rules to ensure that consumers are not charged excessive prices for making number-based interpersonal communications originating in the Member State of the consumer’s domestic provider and terminating at any fixed or mobile number in another Member State. Article 2 Definitions For the purposes of this Regulation, the definitions set out in Article  2 of Directive 2002/21/EC apply. The following definitions also apply: (1) ‘provider of electronic communications to the public’ means an undertaking providing public communications networks or publicly available electronic communications services; (2) ‘internet access service’ means a publicly available electronic communications service that provides access to the internet, and thereby connectivity to virtually all end points of the internet, irrespective of the network technology and terminal equipment used; (3) ‘regulated intra-EU communications’ means any number-based interpersonal communications service originating in the Member State of the consumer’s domestic provider and terminating at any fixed or mobile number of the national numbering plan of another Member State, and which is charged wholly or partly based on actual consumption; (4) ‘number-based interpersonal communications service’ means number-based interpersonal communications service as defined in point (6) of Article  2 of Directive (EU) 2018/1972 of the European Parliament and of the Council56.

1.

Article 3 Safeguarding of open internet access End-users shall have the right to access and distribute information and content, use and provide applications and services, and use terminal equipment of their choice, irrespective of the end-user’s or provider’s location or the location, origin

Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p. 1). 56 Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (OJ L 321, 17.12.2018, p. 36). 55



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or destination of the information, content, application or service, via their internet access service. This paragraph is without prejudice to Union law, or national law that complies with Union law, related to the lawfulness of the content, applications or services. 2.

Agreements between providers of internet access services and end-users on commercial and technical conditions and the characteristics of internet access services such as price, data volumes or speed, and any commercial practices conducted by providers of internet access services, shall not limit the exercise of the rights of end-users laid down in paragraph 1.

3.

Providers of internet access services shall treat all traffic equally, when providing internet access services, without discrimination, restriction or interference, and irrespective of the sender and receiver, the content accessed or distributed, the applications or services used or provided, or the terminal equipment used. The first subparagraph shall not prevent providers of internet access services from implementing reasonable traffic management measures. In order to be deemed to be reasonable, such measures shall be transparent, non-discriminatory and proportionate, and shall not be based on commercial considerations but on objectively different technical quality of service requirements of specific categories of traffic. Such measures shall not monitor the specific content and shall not be maintained for longer than necessary. Providers of internet access services shall not engage in traffic management measures going beyond those set out in the second subparagraph, and in particular shall not block, slow down, alter, restrict, interfere with, degrade or discriminate between specific content, applications or services, or specific categories thereof, except as necessary, and only for as long as necessary, in order to: (a) comply with Union legislative acts, or national legislation that complies with Union law, to which the provider of internet access services is subject, or with measures that comply with Union law giving effect to such Union legislative acts or national legislation, including with orders by courts or public authorities vested with relevant powers; (b) preserve the integrity and security of the network, of services provided via that network, and of the terminal equipment of end-users; (c) prevent impending network congestion and mitigate the effects of exceptional or temporary network congestion, provided that equivalent categories of traffic are treated equally.

4.

Any traffic management measure may entail processing of personal data only if such processing is necessary and proportionate to achieve the objectives set out in paragraph 3. Such processing shall be carried out in accordance with Directive 95/46/EC of the European Parliament and of the Council57. Traffic management measures shall also comply with Directive 2002/58/EC of the European Parliament and of the Council58.

Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31). 58 Directive 2002/58/EC 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 (Directive on privacy and electronic communications) (OJ L 201, 31.7.2002, p. 37). 57

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Providers of electronic communications to the public, including providers of internet access services, and providers of content, applications and services shall be free to offer services other than internet access services which are optimised for specific content, applications or services, or a combination thereof, where the optimisation is necessary in order to meet requirements of the content, applications or services for a specific level of quality. Providers of electronic communications to the public, including providers of internet access services, may offer or facilitate such services only if the network capacity is sufficient to provide them in addition to any internet access services provided. Such services shall not be usable or offered as a replacement for internet access services, and shall not be to the detriment of the availability or general quality of internet access services for end-users. Article 4 Transparency measures for ensuring open internet access

1.

Providers of internet access services shall ensure that any contract which includes internet access services specifies at least the following: (a) information on how traffic management measures applied by that provider could impact on the quality of the internet access services, on the privacy of end-users and on the protection of their personal data; (b) a clear and comprehensible explanation as to how any volume limitation, speed and other quality of service parameters may in practice have an impact on internet access services, and in particular on the use of content, applications and services; (c) a clear and comprehensible explanation of how any services referred to in Article 3(5) to which the end-user subscribes might in practice have an impact on the internet access services provided to that end-user; (d)

a clear and comprehensible explanation of the minimum, normally available, maximum and advertised download and upload speed of the internet access services in the case of fixed networks, or of the estimated maximum and advertised download and upload speed of the internet access services in the case of mobile networks, and how significant deviations from the respective advertised download and upload speeds could impact the exercise of the end-users’ rights laid down in Article 3(1);

(e) a clear and comprehensible explanation of the remedies available to the consumer in accordance with national law in the event of any continuous or regularly recurring discrepancy between the actual performance of the internet access service regarding speed or other quality of service parameters and the performance indicated in accordance with points (a) to (d). Providers of internet access services shall publish the information referred to in the first subparagraph. 2.

Providers of internet access services shall put in place transparent, simple and efficient procedures to address complaints of end-users relating to the rights and obligations laid down in Article 3 and paragraph 1 of this Article.

3.

The requirements laid down in paragraphs 1 and 2 are in addition to those provided for in Directive 2002/22/EC and shall not prevent Member States from maintaining or introducing additional monitoring, information and transparency requirements,



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including those concerning the content, form and manner of the information to be published. Those requirements shall comply with this Regulation and the relevant provisions of Directives 2002/21/EC and 2002/22/EC. 4.

Any significant discrepancy, continuous or regularly recurring, between the actual performance of the internet access service regarding speed or other quality of service parameters and the performance indicated by the provider of internet access services in accordance with points (a) to (d) of paragraph 1 shall, where the relevant facts are established by a monitoring mechanism certified by the national regulatory authority, be deemed to constitute non-conformity of performance for the purposes of triggering the remedies available to the consumer in accordance with national law. This paragraph shall apply only to contracts concluded or renewed from 29 November 2015. Article 5 Supervision and enforcement

1.

National regulatory authorities shall closely monitor and ensure compliance with Articles  3 and 4, and shall promote the continued availability of nondiscriminatory internet access services at levels of quality that reflect advances in technology. For those purposes, national regulatory authorities may impose requirements concerning technical characteristics, minimum quality of service requirements and other appropriate and necessary measures on one or more providers of electronic communications to the public, including providers of internet access services. National regulatory authorities shall publish reports on an annual basis regarding their monitoring and findings, and provide those reports to the Commission and to BEREC.

2.

At the request of the national regulatory authority, providers of electronic communications to the public, including providers of internet access services, shall make available to that national regulatory authority information relevant to the obligations set out in Articles 3 and 4, in particular information concerning the management of their network capacity and traffic, as well as justifications for any traffic management measures applied. Those providers shall provide the requested information in accordance with the time-limits and the level of detail required by the national regulatory authority.

3.

By 30 August 2016, in order to contribute to the consistent application of this Regulation, BEREC shall, after consulting stakeholders and in close cooperation with the Commission, issue guidelines for the implementation of the obligations of national regulatory authorities under this Article.

4.

This Article is without prejudice to the tasks assigned by Member States to the national regulatory authorities or to other competent authorities in compliance with Union law. Article 5a Retail charges for regulated intra-EU communications

1.

From 15 May 2019, any retail price (excluding VAT) charged to consumers for regulated intra-EU communications shall not exceed EUR  0,19 per minute for calls and EUR 0,06 per SMS message.

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2.

Notwithstanding the obligations laid down in paragraph 1, providers of regulated intra-EU communications may additionally offer, and consumers may expressly choose, a tariff for international communications including regulated intraEU communications different from that set in accordance with paragraph 1, by virtue of which consumers benefit from a different tariff for regulated intra-EU communications than they would have been accorded in the absence of such a choice. Before consumers choose such a different tariff, the provider of regulated intra-EU communications shall inform them of the nature of the advantages which would thereby be lost.

3.

Where a tariff for regulated intra-EU communications as referred to in paragraph 2 exceeds the caps laid down in paragraph 1, consumers who have not confirmed or expressed, within a period of two months from 15 May 2019, a choice for any tariff as referred to in paragraph 2, shall automatically be provided with the tariffs laid down in paragraph 1.

4.

Consumers may switch from or back to the tariffs laid down in paragraph 1 within one working day of receipt of the request by the provider, free of charge and providers shall ensure that such a switch does not entail conditions or restrictions with regard to elements of the subscriptions other than regulated intra-EU communications.

5.

Where the maximum prices referred to in paragraph  1 are denominated in a currency other than the euro, the initial limits shall be determined in those currencies by applying the average of the reference exchange rates published on 15 January, 15 February and 15 March 2019 by the European Central Bank in the Official Journal of the European Union. The limits in currencies other than the euro shall be revised annually from 2020. The annually revised limits in those currencies shall apply from 15 May using the average of the reference exchange rates published on 15 January, 15 February and 15 March of the same year.

6.

National regulatory authorities shall monitor the market and price developments for regulated intra-EU communications and shall report to the Commission. Where a provider of regulated intra-EU communications establishes that, due to specific and exceptional circumstances distinguishing it from most other Union providers, the application of the cap referred to in paragraph 1 would have significant impact on that provider’s capacity to sustain its existing prices for domestic communications, a national regulatory authority may, upon that provider’s request, grant a derogation from paragraph 1 only to the extent necessary and for a renewable period of one year. The assessment of the sustainability of the domestic charging model shall be based on relevant objective factors specific to the provider of regulated intra-EU communications, as well as the level of domestic prices and revenues. Where the applicant provider has discharged the applicable evidentiary burden, the national regulatory authority shall determine the maximum price level in excess of one or both of the caps set out in paragraph 1 which would be indispensable in order to ensure the sustainability of the provider’s domestic charging model. BEREC shall publish guidelines on the parameters to be taken into account by national regulatory authorities in their assessments.

Article 6 Penalties Member States shall lay down the rules on penalties applicable to infringements of Articles  3, 4 and 5 and shall take all measures necessary to ensure that they are



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implemented. The penalties provided for must be effective, proportionate and dissuasive. Member States shall notify the Commission of those rules and measures by 30 April 2016 and shall notify the Commission without delay of any subsequent amendment affecting them. Member States shall lay down the rules on penalties applicable to infringements of Article 5a and shall take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive. Member States shall notify the Commission of the rules and measures laid down to ensure the implementation of Article 5a by 15 May 2019 and shall notify the Commission without delay of any subsequent amendment affecting them. Article 7 Amendments to Regulation (EU) No 531/2012 Regulation (EU) No 531/2012 is amended as follows: (1) In Article 2, paragraph 2 is amended as follows: (a)

points (i), (l) and (n) are deleted;

(b) the following points are added: ‘(r) ‘domestic retail price’ means a roaming provider’s domestic retail per-unit charge applicable to calls made and SMS messages sent (both originating and terminating on different public communications networks within the same Member State), and to data consumed by a customer; in the event that there is no specific domestic retail per-unit charge, the domestic retail price shall be deemed to be the same charging mechanism as that applied to the customer for calls made and SMS messages sent (both originating and terminating on different public communications networks within the same Member State), and data consumed in that customer’s Member State; (s) ‘separate sale of regulated retail data roaming services’ means the provision of regulated data roaming services provided to roaming customers directly on a visited network by an alternative roaming provider.’. (2) In Article 3, paragraph 6 is replaced by the following: ‘6. The reference offer referred to in paragraph  5 shall be sufficiently detailed and shall include all components necessary for wholesale roaming access as referred to in paragraph  3, providing a description of the offerings relevant for direct wholesale roaming access and wholesale roaming resale access, and the associated terms and conditions. That reference offer may include conditions to prevent permanent roaming or anomalous or abusive use of wholesale roaming access for purposes other than the provision of regulated roaming services to roaming providers’ customers while the latter are periodically travelling within the Union. If necessary, national regulatory authorities shall impose changes to reference offers to give effect to obligations laid down in this Article.’. (3) Article 4 is amended as follows: (a)

the title is replaced by the following: ‘Separate sale of regulated retail data roaming services’;

(b) in paragraph 1, the first subparagraph is deleted; (c)

paragraphs 4 and 5 are deleted.

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(4) Article 5 is amended as follows: (a)

the title is replaced by the following: ‘Implementation of separate sale of regulated retail data roaming services’;

(b) paragraph 1 is replaced by the following: ‘1. Domestic providers shall implement the obligation related to the separate sale of regulated retail data roaming services provided for in Article  4 so that roaming customers can use separate regulated data roaming services. Domestic providers shall meet all reasonable requests for access to facilities and related support services relevant for the separate sale of regulated retail data roaming services. Access to those facilities and support services that are necessary for the separate sale of regulated retail data roaming services, including user authentication services, shall be free of charge and shall not entail any direct charges to roaming customers.’; (c)

paragraph 2 is replaced by the following: ‘2. In order to ensure consistent and simultaneous implementation across the Union of the separate sale of regulated retail data roaming services, the Commission shall, by means of implementing acts and after having consulted BEREC, adopt detailed rules on a technical solution for the implementation of the separate sale of regulated retail data roaming services. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 6(2).’;

(d) in paragraph 3, the introductory words are replaced by the following: ‘3. The technical solution to implement the separate sale of regulated retail data roaming services shall meet the following criteria:’. (5) The following Articles are inserted: ‘Article 6a Abolition of retail roaming surcharges With effect from 15  June 2017, provided that the legislative act to be adopted following the proposal referred to in Article  19(2) is applicable on that date, roaming providers shall not levy any surcharge in addition to the domestic retail price on roaming customers in any Member State for any regulated roaming calls made or received, for any regulated roaming SMS messages sent and for any regulated data roaming services used, including MMS messages, nor any general charge to enable the terminal equipment or service to be used abroad, subject to Articles 6b and 6c. Article 6b Fair use 1. Roaming providers may apply in accordance with this Article and the implementing acts referred to in Article  6d a ‘fair use policy’ to the consumption of regulated retail roaming services provided at the applicable domestic retail price level, in order to prevent abusive or anomalous usage of regulated retail roaming services by roaming customers, such as the use of such services by roaming customers in a Member State other than that of their domestic provider for purposes other than periodic travel.



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Any fair use policy shall enable the roaming provider’s customers to consume volumes of regulated retail roaming services at the applicable domestic retail price that are consistent with their respective tariff plans. 2.

Article  6e shall apply to regulated retail roaming services exceeding any limits under any fair use policy. Article 6c Sustainability of the abolition of retail roaming surcharges

1.

In specific and exceptional circumstances, with a view to ensuring the sustainability of its domestic charging model, where a roaming provider is not able to recover its overall actual and projected costs of providing regulated roaming services in accordance with Articles 6a and 6b, from its overall actual and projected revenues from the provision of such services, that roaming provider may apply for authorisation to apply a surcharge. That surcharge shall be applied only to the extent necessary to recover the costs of providing regulated retail roaming services having regard to the applicable maximum wholesale charges.

2.

Where a roaming provider decides to avail itself of paragraph  1 of this Article, it shall without delay submit an application to the national regulatory authority and provide it with all necessary information in accordance with the implementing acts referred to in Article 6d. Every 12 months thereafter, the roaming provider shall update that information and submit it to the national regulatory authority.

3.

Upon receipt of an application pursuant to paragraph 2, the national regulatory authority shall assess whether the roaming provider has established that it is unable to recover its costs in accordance with paragraph 1, with the effect that the sustainability of its domestic charging model would be undermined. The assessment of the sustainability of the domestic charging model shall be based on relevant objective factors specific to the roaming provider, including objective variations between roaming providers in the Member State concerned and the level of domestic prices and revenues. The national regulatory authority shall authorise the surcharge where the conditions laid down in paragraph 1 and this paragraph are met.

4.

Within one month of receipt of an application pursuant to paragraph  2, the national regulatory authority shall authorise the surcharge unless the application is manifestly unfounded or provides insufficient information. Where the national regulatory authority considers that the application is manifestly unfounded, or considers that insufficient information has been provided, it shall take a final decision within a further period of two months, after having given the roaming provider the opportunity to be heard, authorising, amending or refusing the surcharge. Article 6d

Implementation of fair use policy and of sustainability of the abolition of retail roaming surcharges 1.

By 15  December 2016, in order to ensure consistent application of Articles 6b and 6c, the Commission shall, after having consulted BEREC, adopt implementing acts laying down detailed rules on the application of

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fair use policy and on the methodology for assessing the sustainability of the abolition of retail roaming surcharges and on the application to be submitted by a roaming provider for the purposes of that assessment. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 6(2). 2.

As regards Article  6b, when adopting implementing acts laying down detailed rules on the application of fair use policy, the Commission shall take into account the following: (a) the evolution of pricing and consumption patterns in the Member States; (b) the degree of convergence of domestic price levels across the Union; (c)

the travelling patterns in the Union;

(d) any observable risks of distortion of competition and investment incentives in domestic and visited markets. 3.

As regards Article 6c, when adopting implementing acts laying down detailed rules on the methodology for assessing the sustainability of the abolition of retail roaming surcharges for a roaming provider, the Commission shall base them on the following: (a) the determination of the overall actual and projected costs of providing regulated retail roaming services by reference to the effective wholesale roaming charges for unbalanced traffic and a reasonable share of the joint and common costs necessary to provide regulated retail roaming services; (b)

the determination of overall actual and projected revenues from the provision of regulated retail roaming services;

(c) the consumption of regulated retail roaming services and the domestic consumption by the roaming provider’s customers; (d) the level of competition, prices and revenues in the domestic market, and any observable risk that roaming at domestic retail prices would appreciably affect the evolution of such prices. 4.

The Commission shall periodically review the implementing acts adopted pursuant to paragraph 1 in the light of market developments.

5.

The national regulatory authority shall strictly monitor and supervise the application of the fair use policy and the measures on the sustainability of the abolition of retail roaming surcharges, taking utmost account of relevant objective factors specific to the Member State concerned and of relevant objective variations between roaming providers. Without prejudice to the procedure set out in Article 6c(3), the national regulatory authority shall in a timely manner enforce the requirements of Articles 6b and 6c and the implementing acts adopted pursuant to paragraph  1 of this Article. The national regulatory authority may at any time require the roaming provider to amend or discontinue the surcharge if it does not comply with Article 6b or 6c. The national regulatory authority shall inform the Commission annually concerning the application of Articles 6b and 6c, and of this Article.



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Article 6e Provision of regulated retail roaming services 1.

Without prejudice to the second subparagraph, where a roaming provider applies a surcharge for the consumption of regulated retail roaming services in excess of any limits under any fair use policy, it shall meet the following requirements (excluding VAT): (a)

any surcharge applied for regulated roaming calls made, regulated roaming SMS messages sent and regulated data roaming services shall not exceed the maximum wholesale charges provided for in Articles 7(2), 9(1) and 12(1), respectively;

(b) the sum of the domestic retail price and any surcharge applied for regulated roaming calls made, regulated roaming SMS messages sent or regulated data roaming services shall not exceed EUR 0,19 per minute, EUR  0,06 per SMS message and EUR  0,20 per megabyte used, respectively; (c) any surcharge applied for regulated roaming calls received shall not exceed the weighted average of maximum mobile termination rates across the Union set out in accordance with paragraph 2. Roaming providers shall not apply any surcharge to a regulated roaming SMS message received or to a roaming voicemail message received. This shall be without prejudice to other applicable charges such as those for listening to such messages. Roaming providers shall charge roaming calls made and received on a per second basis. Roaming providers may apply an initial minimum charging period not exceeding 30 seconds to calls made. Roaming providers shall charge their customers for the provision of regulated data roaming services on a per-kilobyte basis, except for MMS messages, which may be charged on a per-unit basis. In such a case, the retail charge which a roaming provider may levy on its roaming customer for the transmission or receipt of a roaming MMS message shall not exceed the maximum retail charge for regulated data roaming services set out in the first subparagraph. During the period referred to in Article  6f(1), this paragraph shall not preclude offers which provide roaming customers, for a per diem or any other fixed periodic charge, with a certain volume of regulated roaming services consumption on condition that the consumption of the full amount of that volume leads to a unit price for regulated roaming calls made, calls received, SMS messages sent and data roaming services which does not exceed the respective domestic retail price and the maximum surcharge as set out in the first subparagraph of this paragraph. 2.

By 31 December 2015, the Commission shall, after consulting BEREC and subject to the second subparagraph of this paragraph, adopt implementing acts setting out the weighted average of maximum mobile termination rates referred to in point (c) of the first subparagraph of paragraph  1. The Commission shall review those implementing acts annually. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 6(2).

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The weighted average of maximum mobile termination rates shall be based on the following criteria: (a) the maximum level of mobile termination rates imposed in the market for wholesale voice call termination on individual mobile networks by the national regulatory authorities in accordance with Articles 7 and 16 of the Framework Directive and Article 13 of the Access Directive, and (b) the total number of subscribers in Member States. 3.

Roaming providers may offer, and roaming customers may deliberately choose, a roaming tariff other than one set in accordance with Articles 6a, 6b, 6c and paragraph 1 of this Article, by virtue of which roaming customers benefit from a different tariff for regulated roaming services than they would have been accorded in the absence of such a choice. The roaming provider shall remind those roaming customers of the nature of the roaming advantages which would thereby be lost. Without prejudice to the first subparagraph, roaming providers shall apply a tariff set in accordance with Articles 6a and 6b, and paragraph 1 of this Article to all existing and new roaming customers automatically. Any roaming customer may, at any time, request to switch to or from a tariff set in accordance with Articles 6a, 6b, 6c and paragraph 1 of this Article. When roaming customers deliberately choose to switch from or back to a tariff set in accordance with Articles 6a, 6b, 6c and paragraph 1 of this Article, any switch shall be made within one working day of receipt of the request, shall be free of charge and shall not entail conditions or restrictions pertaining to elements of the subscriptions other than roaming. Roaming providers may delay a switch until the previous roaming tariff has been effective for a minimum specified period not exceeding two months.

4.

Roaming providers shall ensure that a contract which includes any type of regulated retail roaming service specifies the main characteristics of that regulated retail roaming service provided, including in particular: (a) the specific tariff plan or tariff plans and, for each tariff plan, the types of services offered, including the volumes of communications; (b) any restrictions imposed on the consumption of regulated retail roaming services provided at the applicable domestic retail price level, in particular quantified information on how any fair use policy is applied by reference to the main pricing, volume or other parameters of the provided regulated retail roaming service concerned. Roaming providers shall publish the information referred to in the first subparagraph. Article 6f Transitional retail roaming surcharges

1.

From 30 April 2016 until 14  June 2017, roaming providers may apply a surcharge in addition to the domestic retail price for the provision of regulated retail roaming services.



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During the period referred to in paragraph 1 of this Article, Article 6e shall apply mutatis mutandis.’.

(6) Articles 8, 10 and 13 are deleted. (7) Article 14 is amended as follows: (a)

in paragraph 1, the second subparagraph is replaced by the following: ‘That basic personalised pricing information shall be expressed in the currency of the home bill provided by the customer’s domestic provider and shall include information on: (a) any fair use policy that the roaming customer is subject to within the Union and the surcharges which apply in excess of any limits under that fair use policy; and (b) any surcharge applied in accordance with Article 6c.’;

(b) in paragraph 1, the sixth subparagraph is replaced by the following: ‘The first, second, fourth and fifth subparagraphs, with the exception of the reference to the fair use policy and the surcharge applied in accordance with Article 6c, shall also apply to voice and SMS roaming services used by roaming customers travelling outside the Union and provided by a roaming provider.’; (c)

the following paragraph is inserted: ‘2a. The roaming provider shall send a notification to the roaming customer when the applicable fair use volume of regulated voice, or SMS, roaming services is fully consumed or any usage threshold applied in accordance with Article 6c is reached. That notification shall indicate the surcharge that will be applied to any additional consumption of regulated voice, or SMS, roaming services by the roaming customer. Each customer shall have the right to require the roaming provider to stop sending such notifications and shall have the right, at any time and free of charge, to require the roaming provider to provide the service again.’;

(d) paragraph 3 is replaced by the following: ‘3. Roaming providers shall provide all customers with full information on applicable roaming charges, when subscriptions are taken out. They shall also provide their roaming customers with updates on applicable roaming charges without undue delay each time there is a change in these charges. Roaming providers shall send a reminder at reasonable intervals thereafter to all customers who have opted for another tariff.’. (8) Article 15 is amended as follows: (a)

paragraph 2 is replaced by the following: ‘2. An automatic message from the roaming provider shall inform the roaming customer that the latter is using regulated data roaming services, and provide basic personalised tariff information on the charges (in the currency of the home bill provided by the customer’s domestic provider) applicable to the provision of regulated data roaming services to that roaming customer in the Member State concerned, except where the

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customer has notified the roaming provider that he does not require that information. That basic personalised tariff information shall include information on: (a) any fair use policy that the roaming customer is subject to within the Union and the surcharges which apply in excess of any limits under that fair use policy; and (b) any surcharge applied in accordance with Article 6c. The information shall be delivered to the roaming customer’s mobile device, for example by an SMS message, an e-mail or a pop-up window on the mobile device, every time the roaming customer enters a Member State other than that of his domestic provider and initiates for the first time a data roaming service in that particular Member State. It shall be provided free of charge at the moment the roaming customer initiates a regulated data roaming service, by an appropriate means adapted to facilitate its receipt and easy comprehension. A customer who has notified his roaming provider that he does not require the automatic tariff information shall have the right at any time and free of charge to require the roaming provider to provide this service again.’; (b) the following paragraph is inserted: ‘2a. The roaming provider shall send a notification when the applicable fair use volume of regulated data roaming service is fully consumed or any usage threshold applied in accordance with Article  6c is reached. That notification shall indicate the surcharge that will be applied to any additional consumption of regulated data roaming services by the roaming customer. Each customer shall have the right to require the roaming provider to stop sending such notifications and shall have the right, at any time and free of charge, to require the roaming provider to provide the service again.’; (c)

in paragraph 3, the first subparagraph is replaced by the following: ‘3. Each roaming provider shall grant to all their roaming customers the opportunity to opt deliberately and free of charge for a facility which provides in a timely manner information on the accumulated consumption expressed in volume or in the currency in which the roaming customer is billed for regulated data roaming services and which guarantees that, without the customer’s explicit consent, the accumulated expenditure for regulated data roaming services over a specified period of use, excluding MMS billed on a per-unit basis, does not exceed a specified financial limit.’;

(d) in paragraph 6, the first subparagraph is replaced by the following: ‘6. This Article, with the exception of paragraph  5, of the second subparagraph of paragraph  2 and of paragraph  2a, and subject to the second and third subparagraph of this paragraph, shall also apply to data roaming services used by roaming customers travelling outside the Union and provided by a roaming provider.’. (9) Article 16 is amended as follows: (a)

in paragraph 1, the following subparagraph is added:



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‘National regulatory authorities shall strictly monitor and supervise roaming providers availing themselves of Article 6b, 6c and 6e(3).’; (b) paragraph 2 is replaced by the following: ‘2. National regulatory authorities shall make up-to-date information on the application of this Regulation, in particular Articles 6a, 6b, 6c, 6e, 7, 9, and 12, publicly available in a manner that enables interested parties to have easy access to it.’. (10) Article 19 is replaced by the following: ‘Article 19 Review 1.

By 29  November 2015, the Commission shall initiate a review of the wholesale roaming market with a view to assessing measures necessary to enable abolition of retail roaming surcharges by 15  June 2017. The Commission shall review, inter alia, the degree of competition in national wholesale markets, and in particular shall assess the level of wholesale costs incurred and wholesale charges applied, and the competitive situation of operators with limited geographic scope, including the effects of commercial agreements on competition as well as the ability of operators to take advantage of economies of scale. The Commission shall also assess the developments in competition in the retail roaming markets and any observable risks of distortion of competition and investment incentives in domestic and visited markets. In assessing measures necessary to enable the abolition of retail roaming surcharges, the Commission shall take into account the need to ensure that the visited network operators are able to recover all costs of providing regulated wholesale roaming services, including joint and common costs. The Commission shall also take into account the need to prevent permanent roaming or anomalous or abusive use of wholesale roaming access for purposes other than the provision of regulated roaming services to roaming providers’ customers while the latter are periodically travelling within the Union.

2.

By 15  June 2016, the Commission shall submit a report to the European Parliament and to the Council on the findings of the review referred to in paragraph 1. That report shall be accompanied by an appropriate legislative proposal preceded by a public consultation, to amend the wholesale charges for regulated roaming services set out in this Regulation or to provide for another solution to address the issues identified at wholesale level with a view to abolishing retail roaming surcharges by 15 June 2017.

3.

In addition, the Commission shall submit a report to the European Parliament and to the Council every two years after the submission of the report referred to in paragraph 2. Each report shall include, inter alia, an assessment of: (a) the availability and quality of services, including those which are an alternative to regulated retail voice, SMS and data roaming services, in particular in the light of technological developments; (b) the degree of competition in both the retail and wholesale roaming markets, in particular the competitive situation of small,

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independent or newly started operators, including the competition effects of commercial agreements and the degree of interconnection between operators; (c)

4.

the extent to which the implementation of the structural measures provided for in Articles  3 and 4 has produced results in the development of competition in the internal market for regulated roaming services.

In order to assess the competitive developments in the Union-wide roaming markets, BEREC shall regularly collect data from national regulatory authorities on the development of retail and wholesale charges for regulated voice, SMS and data roaming services. Those data shall be notified to the Commission at least twice a year. The Commission shall make them public. On the basis of collected data, BEREC shall also report regularly on the evolution of pricing and consumption patterns in the Member States both for domestic and roaming services and the evolution of actual wholesale roaming rates for unbalanced traffic between roaming providers. BEREC shall also annually collect information from national regulatory authorities on transparency and comparability of different tariffs offered by operators to their customers. The Commission shall make those data and findings public.’.

————— Article 9 Review clause By 30  April 2019, and every four years thereafter, the Commission shall review Articles 3, 4, 5 and 6 and shall submit a report to the European Parliament and to the Council thereon, accompanied, if necessary, by appropriate proposals with a view to amending this Regulation. Article 10 Entry into force and transitional provisions 1.

This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Union.

2.

It shall apply from 30 April 2016, except for the following: (a) In the event that the legislative act to be adopted following the proposal referred to in Article 19(2) of Regulation (EU) No 531/2012 is applicable on 15 June 2017, point 5 of Article 7 of this Regulation, as regards Articles 6a to 6d of Regulation (EU) No 531/2012, point 7(a) to (c) of Article 7 of this Regulation and point 8(a), (b) and (d) of Article 7 of this Regulation shall apply from that date. In the event that that legislative act is not applicable on 15 June 2017, point 5 of Article 7 of this Regulation, as regards Article 6f of Regulation (EU) No  531/2012, shall continue to apply until that legislative act becomes applicable. In the event that that legislative act becomes applicable after 15  June 2017, point 5 of Article  7 of this Regulation, as regards Articles  6a to 6d of Regulation (EU) No 531/2012, point 7(a) to (c) of Article 7 of this



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Regulation and point 8(a), (b) and (d) of Article 7 shall apply from the date of application of that legislative act; (b) the conferral of implementing powers on the Commission in point 4(c) of Article 7 of this Regulation and in point 5 of Article 7 of this Regulation, as regards Articles 6d and 6e(2) of Regulation (EU) No 531/2012, shall apply from 29 November 2015; (c)

Article 5(3) shall apply from 29 November 2015;

(d)

point 10 of Article 7 of this Regulation shall apply from 29 November 2015.

3.

Member States may maintain until 31 December 2016 national measures, including self-regulatory schemes, in place before 29 November 2015 that do not comply with Article 3(2) or (3). Member States concerned shall notify those measures to the Commission by 30 April 2016.

4.

The provisions of Commission Implementing Regulation (EU) No  1203/201259 relating to the technical modality for the implementation of accessing local data roaming services on a visited network shall continue to apply for the purposes of separate sale of regulated retail data roaming services until the adoption of the implementing act referred to in point 4(c) of Article 7 of this Regulation.

5.

Article 5a shall expire on 14 May 2024.

This Regulation shall be binding in its entirety and directly applicable in all Member States. —————

Commission Implementing Regulation (EU) No 1203/2012 of 14 December 2012 on the separate sale of regulated retail roaming services within the Union (OJ L 347, 15.12.2012, p. 1).

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COMMISSION IMPLEMENTING REGULATION (EU) 2016/2286 of 15 December 2016 laying down detailed rules on the application of fair use policy and on the methodology for assessing the sustainability of the abolition of retail roaming surcharges and on the application to be submitted by a roaming provider for the purposes of that assessment[60] (Text with EEA relevance) THE EUROPEAN COMMISSION, Having regard to the Treaty on the Functioning of the European Union, Having regard to Regulation (EU) No 531/2012 of the European Parliament and of the Council of 13 June 2012 on roaming on public mobile communications networks within the Union (61), and in particular Article 6d(1) thereof, After consulting the Body of European Regulators for Electronic Communications (BEREC), Whereas: (1) Pursuant to Regulation (EU) No  531/2012, roaming providers should not levy any surcharge additional to the domestic retail price on roaming customers in any Member State, for any regulated roaming call made or received, any regulated roaming SMS message sent or any regulated data roaming service used, including MMS messages, subject to a ‘fair use policy’. This provision applies from 15 June 2017, provided that the legislative act to be adopted further to the proposal on the wholesale roaming market referred to in Article 19(2) of that Regulation has become applicable by that date. (2) Regulation (EU) No  531/2012 provides that in specific and exceptional circumstances a roaming provider may apply to its national regulatory authority for an authorisation to apply a surcharge on its roaming customers. Any such request for authorisation is to be accompanied by all the information necessary to demonstrate that, in the absence of any retail roaming surcharges, the provider is unable to recover its costs of providing regulated retail roaming services, so that the sustainability of its domestic charging model is undermined. (3) In order to ensure a consistent application across the Union of any policy which aims at preventing abusive or anomalous usage of roaming services (‘fair use policy’) and of authorisations to apply a surcharge, it is necessary to lay down detailed rules on the application of such fair use policy and on the methodology for assessing the sustainability of the abolition of retail roaming surcharges and on the application to be submitted by a roaming provider for the purposes of that assessment. (4) According to Regulation (EU) No 531/2012, the objective of a fair use policy is to prevent abusive or anomalous usage by roaming customers of regulated retail roaming services at the applicable domestic price, such as the use of such services for purposes other than periodic travel, for instance the use of such services on a permanent basis. The implementing measures should ensure that the possibility to apply a roaming fair use policy to pursue this objective is not exploited by roaming providers for other purposes, to the detriment of roaming customers engaged in any form of periodic travel.

OJ L 344, 17.12.2016, p. 46. Incorporating amendments as per the consolidated version of 13 March 2019 (amended by Commission Implementing Regulation (EU) 2019/296 of 20 February 2019). 61 OJ L 172, 30.6.2012, p. 10. 60



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(5) With the abolition of retail roaming surcharges in the Union, the same tariff conditions apply for the use of mobile services while roaming abroad in the Union and at home (i.e. in the country of the mobile subscription of the customer). Regulation (EU) No 531/2012 aims at eliminating divergences between domestic prices and those applied to roaming when periodically travelling within the Union, leading to the realisation of ‘roaming like at home’. However, its rules are not meant to enable permanent roaming across the Union, i.e. the situation where a customer in a Member State where domestic mobile prices are higher buys services from operators established in Member States where domestic mobile prices are lower, and in which the customer is neither normally resident nor has any other stable links entailing frequent and substantial presence on its territory, with a view to roam permanently in the former Member State. (6) Use of regulated retail roaming services at the applicable domestic price on a permanent basis for purposes other than periodic travel would be likely to distort competition, put upward pressure on domestic prices in home markets and put at risk investment incentives in both home and visited markets. On the visited market, visited operators would have to compete directly with domestic service providers of other Member States, where prices, costs, regulatory and competitive conditions may be very different, and on the basis of wholesale roaming conditions set close to cost for the sole purpose of facilitating periodic roaming. For the home operator the permanent use of domestic tariffs while roaming may lead to the denial or restriction of wholesale roaming services by visited operators, or the provision by the home operator of restricted domestic volumes or the application of higher domestic prices, with consequential effects on the home operator’s ability to serve its normal domestic clients both at home and abroad. (7) It is necessary to lay down implementing rules based on clear and generally applicable principles capable of encompassing the many and varied patterns of periodic travel by roaming customers, in order to ensure that fair use policy does not act as a barrier to full enjoyment of ‘roam-like-at-home’ by such customers. For the purpose of a fair use policy to be applied by a roaming provider, a customer should ordinarily be considered to be periodically travelling abroad in the Union when that customer is normally residing in the Member State of the roaming provider or has stable links with that Member State entailing frequent and substantial presence on its territory, and consumes regulated retail roaming services in any other Member State. (8) Regulation (EU) No 531/2012 provides that any fair use policy has to enable the roaming provider’s customers to consume volumes of regulated retail roaming services at the applicable domestic retail price that are consistent with their respective domestic tariff plans. (9) This Regulation should be without prejudice to the possibility for roaming providers to offer, and for roaming customers to deliberately choose, an alternative roaming tariff in accordance with Article 6e(3) of Regulation (EU) No 531/2012, which could include contractual usage conditions falling outside a fair use policy established in accordance with this Regulation. (10) In order to ensure that retail roaming services are not subjected to abusive or anomalous usage unrelated to periodic travel outside the Member State of residence of the customer or with which the customer has stable links entailing frequent and substantial presence on its territory, roaming providers may need to determine the normal place of residence of their roaming customers or the existence of such stable

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links. Having regard to the forms of proof which are customary in the respective Member States and to the perceived level of risk of abusive or anomalous usage, the roaming provider should be able to specify the reasonable evidence of the place of residence to be provided, under the supervision of the national regulatory authority as to the proportionality of the overall documentary burden and its appropriateness in the national context. Such evidence, as regards individual users, could include a declaration by the customer, presentation of a valid document confirming the customer’s Member State of residence, specification of the postal address or the billing address of the customer for other services provided in the Member State of the roaming provider, a declaration by a third-level educational institution of enrolment for full-time courses, proof of registration on local electoral rolls or of payment of local/poll taxes. In the case of business customers, such evidence could include documentation on the place of incorporation or of establishment of the corporate entity, the place of effective performance of its main economic activity, or the principal place where employees identified as using a given SIM card perform their tasks. Stable links with a Member State entailing frequent and substantial presence on its territory can arise from a full-time and durable employment relationship, including that of frontier workers; durable contractual relations entailing a similar degree of physical presence of a self-employed person, participation in full-time recurring courses of study; or from other situations, such as those of posted workers or retired persons, whenever they involve an analogous level of territorial presence. (11) Roaming providers should limit requests for the submission of evidence of normal residence or other stable links entailing frequent and substantial presence on its territory after the conclusion of a given contract strictly to circumstances in which data that have to be collected for billing purposes appear to provide indications of abusive or anomalous usage unrelated to periodic travel. The evidence requested should only comprise what is strictly necessary and proportionate to confirm the customer’s attachment to the Member State of the roaming provider. No documentation requirements should be imposed on customers for asserting compliance with the conditions for fair use policy absent such grounds. In particular, there should be no requirement for recurrent submission of such documentation unrelated to a risk-based assessment of the probability of abusive or anomalous usage. (12) In order to enable customers to consume volumes of regulated retail roaming services at the applicable domestic retail price that are consistent with their respective domestic tariff plans, the roaming provider should as a general rule not impose a limit on the volumes of mobile services available to the roaming customer other than the domestic limit, when that customer is periodically travelling in the Union. Such domestic limits should include any applicable fair use policy as regards domestic usage of the tariff plan. (13) Under certain domestic tariff plans, described hereafter as open data bundles, the data consumption may be unlimited or may provide data volumes at a low implicit domestic unit price relative to the regulated maximum wholesale roaming charge referred to in Article 12 of Regulation (EU) No 531/2012. In the absence of any exceptional volume safeguard specific to such open data bundles, such tariff plans are more likely than other tariff plans to be subject to organised resale to persons not residing in or having stable links entailing frequent and substantial presence in the Member State of the roaming provider. Moreover, such anomalous or abusive use of open data bundles while roaming may lead to the disappearance of such tariff plans in domestic markets, or to the restriction of roaming with such tariff plans,



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to the detriment of domestic users, and contrary to the objective of Regulation (EU) No 531/2012. This risk is considerably less acute for voice calls and SMS services as such services are subject to greater physical or temporal constraints, and actual usage patterns have been stable or declining over the last years. This is without prejudice to the right of operators to take measures to tackle highly atypical use patterns of voice or SMS roaming services arising from fraudulent activities. While it is necessary to provide for additional safeguards against such increased risks of abusive usage of regulated retail roaming data services at the applicable domestic retail price under open data bundles, the domestic customer periodically travelling in the Union should nevertheless be able to consume retail volumes of such services equivalent to twice the volumes that can be bought at the wholesale roaming data cap by a monetary amount equal to the overall retail domestic price, excluding VAT, of the mobile services component of the domestic tariff plan for the entire billing period in question. This represents a volume that is consistent with that domestic tariff plan, as it adapts to the domestic retail price of the tariff plan in question, and may therefore be applied in the case of open data bundles, including when bundled with other mobile retail services. The application of a multiplier of two adequately reflects the fact that operators often negotiate wholesale data roaming prices below the applicable caps, and that customers often do not consume the entire data allowance provided under their tariff plan. In this regard, customer transparency will be assured through compliance with the provisions of Regulation (EU) No 531/2012, according to which the roaming provider shall send a notification to the roaming customer when the applicable fair use volume of regulated data roaming services is fully consumed, indicating the surcharge that will be applied to any additional consumption of regulated roaming data services by the roaming customer. (14) In order to address the risk that pre-paid subscriptions, which do not entail a longterm commitment, are used for permanent roaming purposes only, the roaming provider should be entitled, in the alternative to requiring the provision of evidence of residence or of stable links entailing frequent and substantial presence on the territory of the Member State of that roaming provider to limit the usage of regulated retail roaming data services at the applicable domestic retail price with a pre-paid subscription to the volumes that can be bought at the wholesale roaming data cap by the remaining monetary amount, excluding VAT, available on that prepaid subscription at the time of the roaming consumption. (15) The roaming provider should be able to take measures to detect and prevent abusive or anomalous usage of regulated retail roaming services at domestic prices, for purposes other than periodic travel. At the same time, roaming customers should be protected from any measure that may impinge in any manner on their ability to use regulated retail roaming services at domestic prices while periodically travelling abroad in the Union. Measures to detect and prevent abusive or anomalous usage of regulated retail roaming services at domestic prices should be simple and transparent, and should minimise administrative burden for roaming customers as well as excessive and unnecessary alerts. In line with the requirement of residence or stable links entailing frequent and substantial presence in the country of the roaming provider, the indicators substantiating the likelihood of abusive or anomalous usage should be based on objective indicators linked to traffic patterns showing the lack of prevailing domestic presence of the customer in the country of the roaming provider or of prevailing domestic use of the mobile domestic services. By definition, such objective indicators need to be established over a certain period of time. Such a period of time should be sufficiently long, at

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least 4 months, to enable roaming customers to consume retail roaming services at domestic prices while engaging in foreseeable forms of periodic travel in the Union. Indicators of presence in the country of the roaming provider should not be negatively affected by inadvertent roaming in border regions. In this regard, the situation of both inadvertent roamers and of frontier workers should be taken into account by considering that a log-on to the roaming provider’s network at any point in a given day indicates a day of domestic presence for the purposes of applying the objective indicators. In line with Regulation (EU) No 531/2012, roaming providers should also provide adequate information in order to empower their customers to actively prevent instances of inadvertent roaming. Presence and consumption outside the Union should not negatively affect the ability of the roaming customer to benefit from roam-like-at-home in the Union, as they cannot be considered as indicators of risk that the customer is availing of roaming at the applicable domestic retail price in the Member State of the roaming provider for purposes other than periodic travel in the Union. In this regard, such presence and consumption should be counted as domestic for the purposes of applying the objective indicators. The roaming provider may also rely on other clear evidence of abusive or anomalous usage of regulated retail roaming services at domestic prices such as a subscription being hardly used in the Member State of the roaming provider but mostly while roaming, or several subscriptions being used by the same customer in sequence while roaming. (16) In accordance with the provisions of Regulation (EU) No 531/2012 safeguarding transparency in the use of roaming services and in line with the rules on contracts in the electronic communications sector, contractual clauses providing for a fair use policy should be clearly communicated to customers before they become applicable. Fair use policies applied by a roaming provider in accordance with this Regulation should be notified by the roaming provider to the national regulatory authority. (17) Processing of traffic and location data is subject to the provisions of Directive 2002/58/EC of the European Parliament and of the Council (62). In particular, Article  6 enables the roaming provider to process traffic data necessary for the purposes of subscriber billing or interconnection payments. The application of measures by the roaming provider to detect and prevent abusive or anomalous usage of regulated retail roaming services at domestic prices should not lead to the storage and automated processing of personally identifiable customer data, including location and traffic data, that is unrelated or disproportionate to the purpose of detecting and preventing abusive or anomalous usage. (18) In particular, the roaming provider should be able to detect and prevent that, in violation of contract conditions at wholesale or retail level, third parties exploit the ‘roam-like-at-home traffic’ for price arbitrage in order to gain an economic advantage through sales to customers which do not normally reside or have other stable links with the Member State of the roaming provider. Where the operator establishes, with objective and substantiated evidence, such a systematic abusive activity, the operator should notify to the national regulatory authority the evidence characterising the systematic abuse and the measures taken to ensure compliance

Directive 2002/58/EC 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 (Directive on privacy and electronic communications) (OJ L 201, 31.7.2002, p. 37).

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with all conditions of the underlying contract no later than when the measure is taken. (19) In specific cases, where the operator has substantiated evidence of a given roaming customer’s usage patterns showing a likelihood of abusive or anomalous consumption of regulated retail roaming services at domestic price levels for purposes other than periodic travelling, despite the documentary evidence of residence or other stable links provided by that customer, it should first alert the customer to the risk of triggering roaming surcharges. The objective criteria which would serve as indicators substantiating the likelihood of abusive or anomalous usage should be spelled out in detail in advance in the contract. (20) The possibility for the roaming provider to apply surcharges is without prejudice to any proportionate measures that can be taken, in accordance with national law in compliance with Union law, in case the customer has actively provided inaccurate information, in order to ensure compliance with all conditions of the underlying contract. (21) Roaming providers which apply a fair use policy should put in place transparent, simple and efficient procedures to address complaints of customers relating to the application of that policy. Pursuant to Article  17(2) of Regulation (EU) No 531/2012, roaming customers should in any event have access to the competent out-of-court dispute resolution body, which shall settle fairly and promptly unresolved disputes between customers and roaming providers arising from the application of fair use policy in accordance with Article 34 of Directive 2002/22/ EC of the European Parliament and of the Council (63), as amended by Directive 2009/136/EC of the European Parliament and of the Council (64). (22) In accordance with Regulation (EU) No  531/2012, the national regulatory authorities have to strictly monitor and supervise the application of the fair use policy in order to ensure that any fair use policy applied by domestic providers does not impair the availability of ‘roam-like-at-home’ for the customer. If the national regulatory authority finds that a breach of the obligations set out in the Roaming Regulation has occurred, the national authority has the power to require the immediate cessation of such a breach. (23) This Regulation should be without prejudice to existing rights and obligations under Union law, or under national law in compliance with Union law. This includes in particular the right of end users to avail themselves of mobile electronic communications networks and services in any Member State irrespective of their nationality or place of residence in the Union; any national rules requiring proof of identity or other documentary evidence in order to acquire a SIM card or otherwise subscribe to such networks or services; any national measures regarding continuity of service or of pre-paid credit with a given number or SIM card; and

Directive 2002/22/EC of the European Parliament and of the Council of 7  March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ L 108, 24.4.2002, p. 51). 64 Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services, 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 cooperation between national authorities responsible for the enforcement of consumer protection laws (OJ  L  337, 18.12.2009, p. 11). 63

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the right of providers of electronic communications services to apply adequate measures in compliance with national law in order to combat fraud. (24) As roaming usage patterns vary over the course of a year, applications for authorisation to apply a roaming surcharge filed by a roaming provider pursuant to Article 6c(2) of Regulation (EU) No 531/2012 in order to ensure the sustainability of its domestic charging model should be assessed on the basis of traffic data covering at least 12 months. In order to calculate the volume of traffic over the year, the roaming provider should be allowed to show traffic projections. These projections should be based on actual data such as actual roaming usage data, extrapolations of actual domestic usage to roaming usage, extrapolations of actual roaming usage of a significant subset of roaming customers using ‘roam-like-athome’ tariff plans to all roaming customers under the ‘roam-like-at-home’ rules, in accordance with Article 6a of Regulation (EU) No 531/2012. When reviewing the applications for a sustainability derogation by different applicants, national regulatory authorities should ensure that the assumptions used by each of these to derive projected volumes are consistent, after taking due account of relevant differences in commercial positioning and customer bases. (25) Any cost and revenue data supporting the application for authorisations to apply a roaming surcharge filed by a roaming provider pursuant to Article  6c(2) of Regulation (EU) No 531/2012 in order to ensure the sustainability of its domestic charging model should be based on financial accounts which may be adjusted to traffic volume projections. Deviations from cost projections based on financial accounts should be allowed only if supported by proof of financial commitments already entered into at the time of the application. (26) A  harmonised methodology should be provided for determining the costs and revenues of providing regulated retail roaming services, with a view to ensuring consistent assessment of applications for authorisation to apply a surcharge filed by a roaming provider pursuant to Article 6c(2) of Regulation (EU) No 531/2012 in order to ensure the sustainability of its domestic charging model. (27) The provision of regulated retail roaming services entails two general categories of costs: the cost of purchasing wholesale roaming access from visited networks for unbalanced traffic, and other roaming-specific costs. In accordance with Regulation (EU) No 531/2012, the cost of purchasing wholesale roaming access from visited networks for unbalanced traffic is covered by the effective wholesale roaming charges applied to the volumes by which the roaming provider’s outbound roaming traffic exceeds its inbound roaming traffic. In the case of roaming providers that, domestically, purchase wholesale access from another roaming provider (such as Mobile Virtual Network Operators), the cost of wholesale roaming access for the former may be higher than for the latter, when the domestic host network operator charges the roaming provider purchasing domestic wholesale access a higher wholesale roaming access price than that secured from visited network operators for itself and/or the provision of related services. Such high wholesale roaming access cost may make roaming providers purchasing domestic wholesale access more likely to seek an authorisation to apply a roaming surcharge and national regulatory authorities should have due regard to this aspect when reviewing such applications. (28) Other roaming-specific costs of providing regulated retail roaming services are common to the provision of roaming services within the Union and in non-EU countries and some are also common to both wholesale and retail provision of roaming services. For the purposes of an application for authorisation to apply a roaming surcharge filed by a roaming provider pursuant to Article  6c(2) of



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Regulation (EU) No 531/2012 in order to ensure the sustainability of its domestic charging model, those common costs should be allocated to the provision of retail roaming services within the Union and, in the case of those common to retail and wholesale provision of roaming services, in accordance with the general ratio of inbound and outbound roaming revenues. (29) The costs of providing regulated retail roaming services could also be calculated as including a proportion of joint and common costs incurred for the provision of mobile retail services in general, provided that the calculation reflects the ratio used for the allocation to such services of revenues from the provision of all other mobile retail services. (30) In determining the revenues from the provision of regulated retail roaming services, the application for authorisation to apply a surcharge filed by a roaming provider pursuant to Article 6c(2) of Regulation (EU) No 531/2012 in order to ensure the sustainability of its domestic charging model should take full account of all retail revenues directly billed for the provision of mobile retail services originated in a visited Member State, such as revenues for traffic in excess of volumes under any fair use policy or from alternative regulated roaming services, as well as any other per-unit charge or other payment triggered by the use of mobile retail services in a visited Member State. (31) As regulated retail roaming services are provided under applicable domestic conditions, they should be seen as generating some of the revenue from fixed periodic charges for the provision of domestic mobile retail services. They should therefore be taken into account when assessing the application for authorisation to apply a roaming surcharge filed by a roaming provider pursuant to Article 6c(2) of Regulation (EU) No 531/2012 in order to ensure the sustainability of its domestic charging model in accordance with the methodology set out in this Regulation. For that purpose revenues from each mobile retail service should be allocated on the basis of a key reflecting the ratio between traffic of various mobile services, as weighted in accordance with the ratio between per-unit average wholesale roaming charges. (32) To be regarded as having the effect of undermining the sustainability of the operator’s domestic charging model, any roaming retail net margin resulting from the deduction of the costs of providing regulated retail roaming services from the corresponding revenues should be negative at least by an amount that generates a risk of an appreciable effect on domestic price developments. In particular, to be regarded as giving rise to such a risk, the negative roaming retail net margin should represent at least an appreciable proportion of overall earnings, before interest tax depreciation and amortisation, from the provision of other mobile services. (33) Even where the roaming retail net margin represents an appreciable proportion of the overall margin for the provision of other mobile services, specific circumstances, such as the level of competition in the domestic market, or the specific characteristics of the applicant could still rule out a risk of an appreciable effect on domestic price developments. (34) In its application for authorisation to apply a roaming surcharge filed by a roaming provider pursuant to Article 6c(2) of Regulation (EU) No 531/2012 in order to ensure the sustainability of its domestic charging model, the roaming provider should estimate the losses due to the provision of ‘roam-like-at-home’ and the corresponding arrangements for applying the surcharge needed to recoup these, having regard to applicable maximum wholesale charges.

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(35) It should be possible for the national regulatory authorities to grant an authorisation to apply a roaming surcharge on the first day of application of abolition of retail roaming surcharges in the Union in accordance with in Regulation (EU) No  531/2012. For that purpose, exchanges between the roaming provider considering such an application and the national regulatory authority, as well as the provision of information and relevant documentation in this regard, may be envisaged before that date. (36) In accordance with Regulation (EU) No  531/2012, the authorisation to apply a roaming surcharge should be granted by a national regulatory authority for a period of 12 months. In order to renew that authorisation, the roaming provider should update the information and submit it to the national regulatory authority every 12 months in line with Article 6c(2) of Regulation (EU) No 531/2012. (37) In view of national regulatory authorities’ obligations to supervise strictly the application of fair use policy and the measures on the sustainability of the abolition of retail roaming surcharges, as well as to report annually to the Commission on the application of the relevant provisions, this Regulation should specify the minimum information that they should gather and transmit to the Commission to enable it to monitor its application. (38) Pursuant to Regulation (EU) No  531/2012, the Commission is to periodically review this implementing act in the light of market developments. (39) The Communications Committee has not delivered an opinion. (40) This Regulation respects fundamental rights and observes the principles recognised in the Charter of Fundamental Rights of the European Union. Accordingly, this Regulation should be interpreted and applied in accordance with those rights and principles, in particular the right to respect for private and family life, the right to protection of personal data, the freedom of expression and the freedom to conduct a business. Any processing of personal data under this Regulation should respect fundamental rights, including the right to respect for private and family life and the right to protection of personal data under Articles 7 and 8 of the Charter of Fundamental Rights of the European Union and must be in compliance with Directive 95/46/EC of the European Parliament and of the Council (65), Directive 2002/58/EC, as amended by Directives 2006/24/ EC (66) and 2009/136/EC of the European Parliament and of the Council, and Regulation (EU) 2016/679 of the European Parliament and of the Council (67). In particular, service providers must ensure that any processing of personal data under this Regulation must be necessary and proportionate in order to achieve the relevant purpose, HAS ADOPTED THIS REGULATION:

Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31). 66 Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC (OJ L 105, 13.4.2006, p. 54). 67 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27  April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1). 65



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SECTION I GENERAL PROVISIONS Article 1 Subject matter and scope 1.

This Regulation lays down detailed rules to ensure the consistent implementation of a fair use policy that roaming providers may apply to the consumption of regulated retail roaming services provided at the applicable domestic retail price in accordance with Article 6b of Regulation (EU) No 531/2012.

2.

It also lays down detailed rules on: (a) roaming providers’ applications for authorisation to apply a roaming surcharge filed pursuant to Article 6c(2) of Regulation (EU) No 531/2012 in order to ensure the sustainability of their domestic charging model; (b)

the methodology to be applied by national regulatory authorities in assessing whether the roaming provider has established that it is unable to recover its costs of providing regulated roaming services, with the effect that the sustainability of its domestic charging model would be undermined. Article 2 Definitions

1.

For the purposes of this Regulation, the definitions in Regulation (EU) No 531/2012 apply.

2.

The following definitions also apply: (a) ‘stable links’ with a Member State means presence on the territory of the Member State arising from a full-time and durable employment relationship, including that of frontier workers; from durable contractual relations entailing a similar degree of physical presence of a self-employed person; from participation in full-time recurring courses of study; or from other situations, such as those of posted workers or retired persons, whenever they involve an analogous level of territorial presence; (b) ‘mobile retail services’ means public mobile communications services provided to end users, including voice, SMS and data services; (c) ‘open data bundle’ means a tariff plan for the provision of one or more mobile retail services which does not limit the volume of mobile data retail services included against the payment of a fixed periodic fee, or for which the domestic unit price of mobile data retail services, derived by dividing the overall domestic retail price, excluding VAT, for mobile services corresponding to the entire billing period by the total volume of mobile data retail services available domestically, is lower than the regulated maximum wholesale roaming charge referred to in Article  12 of Regulation (EU) No 531/2012; (d) ‘pre-paid tariff plan’ means a tariff plan under which mobile retail services are provided upon deduction of credit made available by the customer to the provider on a per-unit basis, in advance of consumption, and from which a customer may withdraw without penalty upon exhaustion or expiry of credit; (e)

‘visited Member State’ means a Member State other than that of the roaming customer’s domestic provider;

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(f)

‘mobile services margin’ means earnings, before interest tax depreciation and amortisation, from the sale of mobile services other than retail roaming services provided within the Union, thereby excluding costs and revenues from retail roaming services;

(g) ‘group’ means a parent undertaking and all its subsidiary undertakings subject to its control within the meaning of Council Regulation (EC) No 139/2004 ([68]). SECTION II FAIR USE POLICY Article 3 Basic principle 1.

A roaming provider shall provide regulated retail roaming services at domestic price to its roaming customers who are normally resident in or have stable links entailing a frequent and substantial presence in the Member State of that roaming provider while they are periodically travelling in the Union.

2.

Any fair use policy applied by a roaming provider in order to prevent abusive or anomalous usage of regulated retail roaming services shall be subject to the conditions set out in Articles  4 and 5 and shall ensure that all such roaming customers have access to regulated retail roaming services at domestic price during such periodic travel in the Union under the same conditions as if such services were consumed domestically. Article 4 Fair use

1.

For the purposes of any fair use policy the roaming provider may request from its roaming customers to provide proof of normal residence in the Member State of the roaming provider or of other stable links with that Member State entailing a frequent and substantial presence on its territory.

2.

Without prejudice to any applicable domestic volume limit, in the case of an open data bundle, the roaming customer shall be able to consume when periodically travelling in the Union a volume of data roaming retail services at the domestic retail price equivalent to at least twice the volume obtained by dividing the overall domestic retail price of that open data bundle, excluding VAT, corresponding to the entire billing period by the regulated maximum wholesale roaming charge referred to in Article 12 of Regulation (EU) No 531/2012. In the event of bundled sale of mobile retail services with other services or terminals, the overall domestic retail price of a data bundle shall be determined, for the purposes of Article 2(2)(c) and of this paragraph, by taking into account the price applied to the separate sale of the mobile retail services component of the bundle, excluding VAT, if available, or the price for the sale of such services with the same characteristics on a stand-alone basis.

3.

In the case of pre-paid tariff plans, as an alternative to the fair use policy requirement in paragraph 1, the roaming provider may limit the consumption of data roaming retail services within the Union at the domestic retail price to volumes equivalent

Council Regulation (EC) No  139/2004 of 20  January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ L 24, 29.1.2004, p. 1).

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to at least the volume obtained by dividing the overall amount, excluding VAT, of the remaining credit available and already paid by the customer to the provider, at the moment of commencing roaming, by the regulated maximum wholesale roaming charge referred to in Article 12 of Regulation (EU) No 531/2012. 4.

In the context of the processing of traffic data according to Article 6 of Directive 2002/58/EC, in order to prevent abusive or anomalous usage of regulated retail roaming services provided at the applicable domestic retail price, the roaming provider may apply fair, reasonable and proportionate control mechanisms based on objective indicators related to the risk of abusive or anomalous use beyond periodic travelling in the Union. The objective indicators may include measures to establish whether customers have prevailing domestic consumption over roaming consumption or prevailing domestic presence of the customer over presence in other Member States of the Union. In order to ensure that roaming customers engaged in periodic travel are not subjected to unnecessary or excessive alerts pursuant to Article  5(4), roaming providers which apply such measures to establish a risk of abusive or anomalous use of roaming services shall observe such indicators of presence and consumption cumulatively and for a period of time of at least 4 months. The roaming provider shall specify in contracts with roaming customers to which mobile retail service or services the consumption indicator relates and the minimum duration of the observation period. Either prevailing domestic consumption or prevailing domestic presence of the roaming customer during the defined observation period shall be considered as a proof of non-abusive and non-anomalous usage of regulated retail roaming services. For the purpose of the second, third and fifth subparagraph, any day when a roaming customer has logged on to the domestic network shall be counted as a day of domestic presence of that customer. Other objective indicators of a risk of abusive or anomalous use of regulated retail roaming services provided at the applicable domestic retail price may only include: (a) long inactivity of a given SIM card associated with use mostly, if not exclusively, while roaming; (b)

subscription and sequential use of multiple SIM cards by the same customer while roaming.

5. Where the roaming provider establishes, with objective and substantiated evidence, that a number of SIM cards have been the object of organised resale to persons not effectively residing in or having stable links entailing frequent and substantial presence in the Member State of that retail roaming provider in order to enable consumption of regulated retail roaming services provided at the applicable domestic retail price other than for the purpose of periodic travel, the roaming provider may take immediate proportionate measures in order to ensure compliance with all conditions of the underlying contract. 6.

The roaming provider shall comply with Directives 2002/58/EC and 95/46/EC and their national implementing measures, and Regulation (EU) 2016/679 when acting pursuant to this section.

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This Regulation does not apply to any fair use policies defined in the contractual terms of alternative roaming tariffs provided in accordance with Article 6e(3) of Regulation (EU) No 531/2012. Article 5 Transparency and supervision of fair use policies

1.

When a roaming provider applies a fair use policy, it shall include in contracts with roaming customers all the terms and conditions associated with that policy, including any control mechanism applied in accordance with Article  4(4). As part of the fair use policy, the roaming provider shall put in place transparent, simple and efficient procedures to address complaints of customers relating to the application of a fair use policy. This is without prejudice to the rights of the roaming customer, pursuant to Article  17(2) of Regulation (EU) No  531/2012, to avail of transparent, simple, fair and prompt out-of-court dispute resolution procedures established in the Member State of the roaming provider in accordance with Article 34 of Directive 2002/22/EC. Such complaint mechanism and dispute resolution procedures shall permit the roaming customer to provide evidence that it is not using the regulated roaming retail services for other purposes than periodic travel, in response to an alert in accordance with paragraph (3), first subparagraph.

2.

Fair use policies in accordance with this Regulation shall be notified by the roaming provider to the national regulatory authority.

3.

Where there is objective and substantiated evidence, based on the objective indicators referred to in Article  4(4), indicating a risk of abusive or anomalous use of regulated roaming retail services within the Union at the domestic retail price by a given customer, the roaming provider shall alert the customer about the detected behaviour pattern indicating such a risk before applying any surcharge pursuant to Article 6e of Regulation (EU) No 531/2012. In cases where such risk results from non-fulfilment of both the prevailing domestic consumption and the prevailing domestic presence criteria over the defined observation period, referred to in the fifth subparagraph of Article 4(4), additional indications of risk arising from the overall non-domestic presence or usage of the roaming customer shall be taken into account for the purposes of resolving any subsequent complaint as provided in paragraph  (1) or dispute resolution procedure pursuant to Article 17(2) of Regulation (EU) No 531/2012, relative to the applicability of a surcharge. This paragraph shall apply irrespective of the provision by the roaming customer of documentary evidence of residence or other stable links entailing frequent and substantial presence in the Member State of the roaming provider pursuant to Article 4(1).

4.

When alerting the roaming customer pursuant to paragraph  3, the roaming provider shall inform the customer that, in the absence of a change in the usage pattern within a period which cannot be shorter than 2 weeks, demonstrating actual domestic consumption or presence, a surcharge pursuant to Article 6e of Regulation (EU) No 531/2012 may be applied for any further use of regulated retail roaming services with the SIM card in question after the date of such alert.

5.

The roaming provider shall cease to apply the surcharge as soon as the customer’s usage no longer indicates a risk of abusive or anomalous use of the regulated retail roaming services based on the objective indicators referred to in Article 4(4).



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Where a roaming provider establishes that SIM cards have been the object of organised resale to persons who neither normally reside in nor have stable links entailing frequent and substantial presence in the Member State of the retail roaming provider to enable consumption of regulated retail roaming services other than for the purpose of periodic travel outside that Member State in accordance with Article 4(3), the operator shall notify to the national regulatory authority the evidence characterising the systematic abuse in question and the measure taken to ensure compliance with all conditions of the underlying contract at the latest at the same time as such measure is taken.

SECTION III APPLICATION AND METHODOLOGY FOR ASSESSING THE SUSTAINABILITY OF THE ABOLITION OF RETAIL ROAMING CHARGES Article 6 Data supporting the application for authorisation to apply a roaming surcharge filed by a roaming provider pursuant to Article 6c(2) of Regulation (EU) No 531/2012 in order to ensure the sustainability of its domestic charging model 1.

Applications for authorisation to apply a roaming surcharge filed by a roaming provider pursuant to Article 6c(2) of Regulation (EU) No 531/2012 in order to ensure the sustainability of its domestic charging model (‘application’) shall be assessed on the basis of data on the overall volumes of regulated retail roaming services provided by the applicant roaming provider projected over a period of 12 months starting at the earliest on 15 June 2017. For the first application, these volume projections shall be estimated using one or a combination of the following options: (a)

actual volumes of regulated retail roaming services provided by the applicant at the applicable regulated retail roaming price prior to 15 June 2017;

(b) projected volumes of regulated retail roaming services after 15  June 2017, where the projected volumes of regulated retail roaming services over the period in question are estimated based on actual domestic retail consumption of mobile services and time spent abroad in the Union by the roaming customers of the applicant; (c) projected volumes of regulated retail roaming services after 15 June 2017, where the volumes of regulated retail roaming services are estimated based on the proportional change in the volumes of regulated retail roaming services experienced in the applicant’s tariff plans representing a substantial part of the customer base on which the prices of regulated retail roaming services were set by the applicant at the domestic level for a period of at least 30 days, in accordance with the methodology set out in Annex I. In the event of updates to the application being submitted pursuant to Article 6c(2) of Regulation (EU) No  531/2012, the projected overall volumes of regulated roaming services shall be updated on the basis of the actual average pattern of consumption of domestic mobile services multiplied by the observed number of roaming customers and the time they have spent in visited Member States in the previous 12 months. 2.

Any data on the applicant’s costs and revenues shall be based on financial accounts, which shall be made available to the national regulatory authority, and may be adjusted according to volume estimates pursuant to paragraph 1. Where costs are projected, deviations from figures resulting from past financial accounts shall be

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considered only if supported by proof of financial commitments for the period covered by the projections. 3.

The applicant shall provide all necessary data used to determine the mobile services margin and the overall actual and projected costs and revenues of providing regulated roaming services over the relevant period. Article 7 Determination of roaming-specific costs for the provision of regulated retail roaming services

1.

For the purposes of establishing that the applicant is unable to recover its costs, with the effect that the sustainability of its domestic charging system would be undermined, only the following roaming-specific costs shall be taken into consideration, if substantiated in the application for authorisation to apply a roaming surcharge: (a)

the costs for the purchase of wholesale roaming access;

(b) the roaming-specific retail costs. 2.

With regard to the costs incurred for the purchase of regulated wholesale roaming services, only the amount by which the applicant’s overall payments to counterparts providing such services in the Union is expected to exceed the overall sums due to it for the provision of the same services to other roaming providers in the Union shall be taken into account. As regards the sums due to the roaming provider for the provision of regulated wholesale roaming services, the roaming provider shall assume projected volumes of these wholesale roaming services that are consistent with the assumption underlying its projected volumes in Article 6(1).

3.

With regard to the roaming-specific retail costs, only the following costs shall be taken into account, if substantiated in the application: (a) the costs of operating and managing roaming activities, including all business intelligence systems and software dedicated to roaming operation and management; (b) data-clearing and payment costs, including both data-clearing and financial clearing costs; (c)

contract negotiation and agreement costs, including external fees and use of internal resources;

(d) costs sustained in order to comply with the requirements for the provision of regulated retail roaming services laid down in Articles  14 and 15 of Regulation (EU) No 531/2012, taking into account the applicable fair use policy adopted by the roaming provider. 4.

Costs referred to in points (a), (b) and (c) of paragraph 3 shall be taken into account only in proportion to the ratio of overall traffic volume of the applicant’s regulated retail roaming services to the overall retail outbound and wholesale inbound traffic of its roaming services, in accordance with the methodology set out in Annex II, points (1) and (2), and in proportion to the ratio of overall amount of traffic of its retail roaming services within the Union to the overall traffic of its retail roaming services within and outside the Union, in accordance with the methodology set out in Annex II, points (1) and (3).

5.

The costs referred to in point (d) of paragraph 3 shall be taken into account only in proportion to the ratio of overall traffic volume of the applicant’s retail roaming



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services within the Union to the overall traffic of its retail roaming services within and outside the Union, in accordance with the methodology set out in Annex II, points (1) and (3). Article 8 Allocation of retail joint and common costs to the provision of regulated retail roaming services 1.

In addition to the costs determined pursuant to Article 7, a proportion of joint and common costs incurred for the provision of mobile retail services in general may be included in the application for authorisation to apply a roaming surcharge. Only the following costs shall be taken into account, if substantiated in the application: (a) billing and collection costs, including all costs associated with processing, calculating, producing and notifying the actual customer bill; (b)

sales and distribution costs, including the costs of operating shops and other distribution channels for the sale of mobile retail services;

(c) customer care costs, including the cost of operating all customer care services available to the end user; (d) bad debt management costs, including costs incurred in writing off customers’ unredeemable debts and collecting bad debts; (e) 2.

marketing costs, including all expenses for advertising mobile services.

The costs referred to in paragraph 1, if substantiated in the application, shall be taken into account only in proportion to the ratio of overall traffic of the applicant’s retail roaming services within the Union to the overall retail traffic of all mobile retail services, obtained as a weighted average of that ratio per mobile service, with weights reflecting the respective average wholesale roaming prices paid by the applicant in accordance with the methodology set out in Annex II, points (1) and (4).

Article 9 Determination of revenues from the provision of regulated retail roaming services 1.

2.

For the purposes of establishing that the applicant is unable to recover its costs, with the effect that the sustainability of its domestic charging system would be undermined, only the following revenues shall be taken into account and included in the application for authorisation to apply a roaming surcharge: (a)

revenues deriving directly from traffic of mobile retail services originated in a visited Member State;

(b)

a proportion of overall revenues from the sale of mobile retail services based on fixed periodic charges.

The revenues referred to in point (a) of paragraph 1 shall include: (a)

any retail charge levied pursuant to Article 6e of Regulation (EU) No 531/2012 for traffic exceeding any fair use policy applied by the roaming provider;

(b) any revenues from alternative regulated roaming services pursuant to Article 6e(3) of Regulation (EU) No 531/2012; (c) any domestic retail price billed on a per-unit basis or in excess of fixed periodic charges for the provision of mobile retail services and triggered by the use of mobile retail services in a visited Member State.

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3.

For the purposes of determining the revenues referred to in point (b) of paragraph  1, in the event of bundled sale of mobile retail services with other services or terminals, only revenues linked to the sale of mobile retail services shall be considered. Those revenues shall be determined by reference to the price applied to the separate sale of each component of the bundle, if available, or to the sale of such services with the same characteristics on a stand-alone basis.

4.

In order to determine the proportion of overall revenues from the sale of mobile retail services linked to the provision of regulated retail roaming services, the methodology set out in Annex II, points (1) and (5) shall be applied.

Article 10 Assessment of applications for authorisation to apply a roaming surcharge filed by a roaming provider pursuant to Article 6c(2) of Regulation (EU) No 531/2012 in order to ensure the sustainability of its domestic charging model 1.

When assessing an application for authorisation to apply a roaming surcharge filed by a roaming provider pursuant to Article 6c(2) of Regulation (EU) No 531/2012 in order to ensure the sustainability of its domestic charging model, the national regulatory authority may conclude that the applicant is unable to recover its costs of providing regulated retail roaming services, with the effect that the sustainability of its domestic charging model would be undermined, only where the negative roaming retail net margin of the applicant is equivalent to 3 % or more of its mobile services margin. The roaming retail net margin shall be the amount remaining after the costs of providing regulated retail roaming services are deducted from the revenues from providing such services, as determined in accordance with this Regulation. In order to determine it, the national regulatory authority shall review the data provided in the application to ensure compliance with the methodology for determining costs and revenues, as laid down in Articles 7, 8 and 9.

2.

Where the absolute value of the roaming retail net margin is equivalent to 3 % or more of the mobile services margin, the national regulatory authority shall nevertheless refuse the surcharge where it can establish that specific circumstances make it unlikely that the sustainability of the domestic charging model would be undermined. Such circumstances include situations in which: (a) the applicant is part of a group and there is evidence of internal transfer pricing in favour of the other subsidiaries of the group within the Union, in particular in view of substantive imbalance of wholesale roaming charges applied within the group; (b) the degree of competition on domestic markets means that there is capacity to absorb reduced margins; (c)

the application of a more restrictive fair use policy, still in compliance with Articles 3 and 4, would reduce the roaming retail net margin to a proportion of less than 3 %.

3.

In the exceptional circumstances where an operator has a negative mobile services margin and a negative roaming retail net margin, the national regulatory authority shall authorise the application of a surcharge on regulated roaming services.

4.

When authorising the surcharge on regulated roaming services, the final decision of the national regulatory authority shall identify the amount of the ascertained negative retail roaming margin that may be recovered through the application of



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a retail surcharge on roaming services provided within the Union. The surcharge shall be consistent with the roaming traffic assumptions underpinning the assessment of the application and be set in accordance with the principles set out in Article 8 of Directive 2002/21/EC of the European Parliament and of the Council ([69]). SECTION IV FINAL PROVISIONS Article 11 Monitoring of fair use policy and applications for authorisation to apply a roaming surcharge filed by a roaming provider pursuant to Article 6c(2) of Regulation (EU) No 531/2012 in order to ensure the sustainability of its domestic charging model In order to monitor the consistent application of Articles 6b and 6c of Regulation (EU) No  531/2012 and of this Regulation, and with a view to informing the Commission annually of applications pursuant to Article 6d(5) of Regulation (EU) No 531/2012, the national regulatory authorities shall regularly collect information concerning: (a)

any action they take to supervise the application of Article 6b of Regulation (EU) No 531/2012 and the detailed rules laid down in this Regulation;

(b) the number of applications to apply a roaming surcharge filed, authorised and renewed in the course of the year pursuant to Article 6c(2) and (4) of Regulation (EU) No 531/2012; (c)

the extent of negative roaming retail net margins recognised in their decisions to authorise the roaming surcharge and the arrangements concerning a surcharge declared in the applications for authorisation to apply a roaming surcharge filed by a roaming provider pursuant to Article 6c(2) of Regulation (EU) No 531/2012 in order to ensure the sustainability of its domestic charging model.

Article 12 Review Without prejudice to the possibility to conduct an earlier review in the light of initial implementation experience and of any significant changes in the factors mentioned in Article  6d(2) of Regulation (EU) No  531/2012, the Commission shall review this implementing act at the latest by June 2019, after having consulted BEREC. Article 13 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. ________________ ANNEX I Proportional change in actual volumes of regulated roaming services under ‘roam-likeat-home’ compared with the same period in the previous year: 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) (OJ L 108, 24.4.2002, p. 33).

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(

)

∑n n1 volume (t) – 1) ∑ 1 volume (t – 1) k

k

× 100

where: k = service (1 = voice, 2 = SMS, 3 = data); n is the number of days of ‘roam-like-at-home’ application (n ≥ 30); and t is the year of first ‘roam-like-at-home’ application. This percentage should be used to estimate the change in volumes over the projected 12-month period by multiplying it by the volumes in the previous year. ________________ ANNEX II (1) Weights wi of mobile retail services: wk =

∑

average wholesale roaming price paid by operatorki 3 k=1 average wholesale roaming price paid by operatork

where: k = service (1 = voice, 2 = SMS, 3 = data); ‘average wholesale roaming price paid by operator’ refers to the average unit price for unbalanced traffic paid by the operator for each service, where the unit for each service is eurocents per (i) minutes for voice; (ii) SMS for SMS; and (iii) MB for data. (2) Ratio of overall traffic volume of applicant’s retail roaming services to overall retail outbound and wholesale inbound traffic of its roaming services: 3

retail outbound roaming traffic = (retail outbound + wholesale inbound) roaming traffic

retail outbound roaming traffick

w × ∑ (retail outbound + wholesale inbound) roaming traffic k=1 k

k

where: k = service (1 = voice, 2 = SMS, 3 = data). (3) Ratio of overall traffic volume of applicant’s retail roaming services within the Union to overall traffic of its retail roaming services within and outside the Union: retail outbound EU roaming traffic = retail outbound (EU + nonEU) roaming traffic

3

retail outbound EU roaming traffick

w × ∑ retail outbound (EU + nonEU) roaming traffic k=1 k

k

where: k = service (1 = voice, 2 = SMS, 3 = data). (4) Ratio of overall traffic of applicant’s retail roaming services within the Union to overall retail traffic of all mobile retail services: retail outbound EU roaming traffic = retail outbound (EU + nonEU) roaming traffic + retail domestic traffic

3

retail outbound EU roaming traffick

w × ∑ retail outbound (EU + nonEU) roaming traffic + retail domestic traffic k=1 k

where: k = service (1 = voice, 2 = SMS, 3 = data).

k

k



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(5) Retail EU roaming revenue:

(∑ 3

Retail EU roaming revenue = mobile retail services revenues ×

(

retail outbound EU roaming traffick wk × retail outbound (EU + nonEU) roaming traffick + retail domestic traffick k=1

where: k = service (1 = voice, 2 = SMS, 3 = data). __________________

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REGULATION (EU) 2018/1971 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 11 December 2018 establishing the Body of European Regulators for Electronic Communications (BEREC) and the Agency for Support for BEREC (BEREC Office), amending Regulation (EU) 2015/2120 and repealing Regulation (EC) No 1211/2009[70] (Text with EEA relevance) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, Having regard to the opinion of the European Economic and Social Committee (71), After consulting the Committee of the Regions, Acting in accordance with the ordinary legislative procedure (72), Whereas: (1)

Directive (EU) 2018/1972 of the European Parliament and of the Council (73) aims to create an internal market for electronic communications within the Union while ensuring a high level of investment, innovation and consumer protection through enhanced competition. That Directive also establishes a significant number of new tasks for the Body of European Regulators for Electronic Communications (‘BEREC’) such as issuing guidelines on several topics, reporting on technical matters, keeping registers, lists or databases and delivering opinions on internal market procedures for draft national measures on market regulation.

(2) Regulation (EU) No 531/2012 of the European Parliament and of the Council (74) complements and supports, in so far as Union-wide roaming is concerned, the rules provided for by the regulatory framework for electronic communications and lays down certain tasks for BEREC. (3) Regulation (EU) 2015/2120 of the European Parliament and of the Council (75) lays down additional tasks for BEREC in relation to open internet access. Moreover, the BEREC  Guidelines of 30  August 2016 on the Implementation by National Regulators of European Net Neutrality Rules have been welcomed as providing a valuable clarification of the guarantee of a strong, free and open internet by ensuring the consistent application of the rules to safeguard equal and non-discriminatory treatment of traffic in the provision of internet access services and related end-users’ rights.

OJ L 321, 17.12.2018, p. 1. OJ C 125, 21.4.2017, p. 65. 72 Position of the European Parliament of 14 November 2018 (not yet published in the Official Journal) and decision of the Council of 4 December 2018. 73 Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (see page 36 of this Official Journal). 74 Regulation (EU) No 531/2012 of the European Parliament and of the Council of 13 June 2012 on roaming on public mobile communications networks within the Union (OJ L 172, 30.6.2012, p. 10). 75 Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 laying down measures concerning open internet access and amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services and Regulation (EU) No 531/2012 on roaming on public mobile communications networks within the Union (OJ L 310, 26.11.2015, p. 1). 70 71



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(4) In view of the need to ensure the development of consistent regulatory practice and the consistent application of the Union’s regulatory framework for electronic communications, the Commission established, by Commission Decision 2002/627/ EC (76), the European Regulators Group for Electronic Communications Networks and Services (ERG) to advise and assist the Commission in consolidating the internal market for electronic communications networks and services and, more generally, to provide an interface between national regulatory authorities (NRAs) and the Commission. (5) BEREC and the Office were established by Regulation (EC) No 1211/2009 of the European Parliament and of the Council (77). BEREC replaced the ERG and was intended to contribute, on one hand, to the development and, on the other, to the better functioning, of the internal market for electronic communications networks and services by aiming to ensure the consistent implementation of the regulatory framework for electronic communications. BEREC acts as a forum for cooperation among NRAs and between NRAs and the Commission in the exercise of the full range of their responsibilities under the Union regulatory framework. BEREC was established to provide expertise and to act independently and transparently. (6) BEREC also serves as a body for reflection, debate and advice for the European Parliament, the Council and the Commission in the field of electronic communications. (7) The Office was established as a Community body with legal personality to carry out the tasks referred to in Regulation (EC) No  1211/2009, in particular the provision of professional and administrative support services to BEREC. In order to support BEREC efficiently, the Office was given legal, administrative and financial autonomy. (8) By Decision 2010/349/EU (78), the Representatives of the Governments of the Member States decided that the Office would have its seat in Riga. The Seat Agreement between the Government of the Republic of Latvia and the Office entered into force on 5 August 2011. (9)

In its communication of 6 May 2015 entitled ‘A Digital Single Market Strategy for Europe’, the Commission envisaged presenting proposals in 2016 for an ambitious overhaul of the regulatory framework for electronic communications focusing, inter alia, on a more effective regulatory institutional framework in order to make the rules on electronic communications fit for purpose as part of the creation of the right conditions for the digital single market. Those include the deployment of very high capacity networks, more coordinated management of radio spectrum for wireless networks and creating a level playing field for advanced digital networks and innovative services. That communication pointed out that the changing market and technological environment make it necessary to strengthen the institutional framework by enhancing the role of BEREC.

Commission Decision 2002/627/EC of 29  July 2002 establishing the European Regulators Group for Electronic Communications Networks and Services (OJ L 200, 30.7.2002, p. 38). 77 Regulation (EC) No  1211/2009 of the European Parliament and of the Council of 25  November 2009 establishing the Body of European Regulators for Electronic Communications (BEREC) and the Office (OJ L 337, 18.12.2009, p. 1). 78 Decision taken by common accord between the Representatives of the Governments of the Member States of 31 May 2010 on the location of the seat of the Office of the Body of European Regulators for Electronic Communications (BEREC) (2010/349/EU) (OJ L 156, 23.6.2010, p. 12). 76

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(10) In its resolution of 19  January 2016 entitled ‘Towards a Digital Single Market Act’, the European Parliament called on the Commission to integrate the digital single market further by ensuring that a more efficient institutional framework is in place. (11) BEREC and the Office have made a positive contribution towards the consistent implementation of the regulatory framework for electronic communications. However, there are still significant disparities between Member States as regards regulatory practice, which affects companies engaged in cross-border business or active in a significant number of Member States, including where BEREC guidelines exist, but could be further developed. In order to further contribute to the development of the internal market for electronic communications throughout the Union as well as to the promotion of access to, and take-up of, very high capacity networks, competition in the provision of electronic communications networks, services and associated facilities and the interests of the citizens of the Union, this Regulation aims to strengthen the role of BEREC. Such a strengthened role would complement the enhanced role played by BEREC following Regulations (EU) No 531/2012 and (EU) 2015/2120 and Directive (EU) 2018/1972. (12) In light of market and technological developments, which often entail an increased cross-border dimension, and of the experience gained so far in seeking to ensure the consistent implementation in the field of electronic communications, it is necessary to build on the work of BEREC and the Office. Their governance and activities should be streamlined and adapted to the tasks that they are to carry out. Taking into account settled procedures and the new set of tasks assigned to BEREC and to the Office and in order to strengthen their effectiveness, additional stability for their management should be provided for and the decision-making process should be simplified. (13) BEREC should provide expertise and establish confidence by virtue of its independence, the quality of its advice and information, the transparency of its procedures and methods of operation, and its diligence in carrying out its tasks. BEREC’s independence should not prevent its Board of Regulators from deliberating on the basis of drafts prepared by working groups. (14) The new official name of the Office should be ‘Agency for Support for BEREC’ (the ‘BEREC  Office’). The designation ‘BEREC  Office’ should be used as the Agency’s short name. The BEREC  Office should enjoy legal, administrative and financial autonomy. To that end, it is necessary and appropriate that the BEREC Office should be a body of the Union with legal personality that exercises the powers conferred upon it. As a Union decentralised agency, the BEREC Office should operate within its mandate and the existing institutional framework. It should not be seen as representing a Union position to an outside audience or as committing the Union to legal obligations. (15) Moreover, the rules on the governance and operation of the BEREC Office should, where appropriate, be aligned with the principles of the Joint Statement of the European Parliament, the Council and the European Commission of 19 July 2012 on decentralised agencies. (16) The Union institutions and the NRAs should benefit from BEREC’s assistance and advice, including on the relevant regulatory impact of any issue concerning the overall dynamics of digital markets or with regard to their relationship, discussions and exchanges with, and the dissemination of regulatory best practices to, third parties. In addition to its contribution to the Commission’s public consultation,



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BEREC should, when requested, advise the Commission in the preparation of legislative proposals. BEREC should also be able to provide advice to the European Parliament and to the Council, on their request or on its own initiative. (17) BEREC, as a technical body with expertise on electronic communications and composed of representatives from NRAs and the Commission, is best placed to be entrusted with tasks such as contributing to efficient internal market procedures for draft national measures as regards market regulation, providing the necessary guidelines to NRAs and other competent authorities in order to ensure common criteria and a consistent regulatory approach, and keeping certain registries, databases and lists at Union level. This is without prejudice to the tasks established for NRAs, which are closest to the electronic communications markets and their local conditions. (18) In order to carry out its tasks, BEREC should continue to pool expertise from NRAs. BEREC should aim to ensure the participation of all NRAs in the fulfilment of its regulatory tasks and its functioning. To strengthen BEREC, make it more representative and safeguard its expertise, experience and knowledge of the specific situation in the full range of national markets, each Member State should ensure that its NRA has adequate financial and human resources required to participate fully in the work of BEREC. (19) In light of the increasing convergence between the sectors providing electronic communications services, and the horizontal dimension of regulatory issues related to their development, BEREC and the BEREC Office should be allowed to cooperate with, and without prejudice to the role of, NRAs, other Union bodies, offices, agencies and advisory groups, in particular the Radio Spectrum Policy Group established by Commission Decision 2002/622/EC (79), the European Data Protection Supervisor established by Regulation (EU) 2018/1725 of the European Parliament and of the Council (80), the European Data Protection Board established by Regulation (EU) 2016/679 of the European Parliament and of the Council (81), the European Regulators Group for Audiovisual Media Services established by the Directive 2010/13/EU of the European Parliament and the Council (82), the European Union Agency for Network and Information Security established by Regulation (EU) No  526/2013 of the European Parliament and of the Council (83), the European GNSS Agency established by Regulation (EU) No  912/2010

Commission Decision 2002/622/EC of 26  July 2002 establishing a Radio Spectrum Policy Group (OJ L 198, 27.7.2002, p. 49). 80 Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39). 81 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27  April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1). 82 Directive 2010/13/EU of the European Parliament and the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation and administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (OJ L 95, 15.4.2010, p. 1). 83 Regulation (EU) No 526/2013 of the European Parliament and of the Council of 21 May 2013 concerning the European Union Agency for Network and Information Security (ENISA) and repealing Regulation (EC) No 460/2004 (OJ L 165, 18.6.2013, p. 41). 79

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of the European Parliament and of the Council (84), the Consumer Protection Cooperation Network established pursuant to Regulation (EC) No 2006/2004 of the European Parliament and the Council (85), the European Competition Network and European standardisation organisations, as well as with existing committees (such as the Communications Committee and the Radio Spectrum Committee). BEREC and the BEREC  Office should also be able to cooperate with relevant competent authorities of Member States responsible for competition, consumer protection and data protection, and with the competent authorities of third countries, in particular, regulatory authorities competent in the field of electronic communications or groups of those authorities, as well as with international organisations when necessary for the carrying out of their tasks. BEREC should also be able to consult interested parties by means of public consultation. (20) BEREC should be entitled to establish working arrangements with competent Union bodies, offices, agencies and advisory groups, with competent authorities of third countries and with international organisations, which should not create legal obligations. The goal of such working arrangements could be, for instance, to develop cooperative relationships and exchange views on regulatory issues. The Commission should ensure that the necessary working arrangements are consistent with Union policy and priorities, and that BEREC operates within its mandate and the existing institutional framework and is not seen as representing the Union position to an outside audience or as committing the Union to international obligations. (21) BEREC should be composed of the Board of Regulators and working groups. The rotation of the role of Chair of the Board of Regulators is intended to ensure continuity of BEREC’s work. A rotation of the roles of Vice-Chairs representing various NRAs is also promoted. (22) BEREC should be able to act in the interests of the Union, independently from any external intervention, including political pressure or commercial interference. It is therefore important to ensure that the persons appointed to the Board of Regulators enjoy the highest guarantees of personal and functional independence. The head of an NRA, a member of its collegiate body, or the replacement of either of them, enjoy such a level of personal and functional independence. More specifically, they should act independently and objectively, should not seek or take instructions in the exercise of their functions, and should be protected against arbitrary dismissal. The function of the alternate on the Board of Regulators could also be performed by the head of the NRA, a member of its collegiate body, the replacement of either of them, or by another member of staff of the NRA, who acts on behalf of, and in accordance with the scope of the mandate of, the member of the Board of Regulators replaced. (23) Experience has shown that most of BEREC’s tasks are better carried out through working groups, which should always ensure equal consideration of all NRAs’ views and contributions. The Board of Regulators should therefore set up working Regulation (EU) No 912/2010 of the European Parliament and of the Council of 22 September 2010 setting up the European GNSS Agency, repealing Council Regulation (EC) No 1321/2004 on the establishment of structures for the management of the European satellite radio navigation programmes and amending Regulation (EC) No 683/2008 of the European Parliament and of the Council (OJ L 276, 20.10.2010, p. 11). 85 Regulation (EC) No 2006/2004 of the European Parliament and of the Council of 27 October 2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws (the Regulation on consumer protection cooperation) (OJ L 364, 9.12.2004, p. 1). 84



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groups and appoint their Chairs. NRAs should promptly respond to nomination requests in order to ensure the quick establishment of working groups, in particular those related to procedures with time-limits. The working groups should be open to the participation of experts from the Commission. The staff of the BEREC Office should support and contribute to the working groups’ activities. (24) If necessary, and on a case-by-case basis, the Board of Regulators and the Management Board should be able to invite any person whose opinion may be of interest to participate in their meetings as an observer. (25) Where appropriate and depending on the allocation of tasks to authorities in each Member State, the views of other competent authorities should be taken into consideration in the relevant working group, for example through consultation at national level or by inviting those other authorities to the relevant meetings where their expertise is needed. In any event, the independence of BEREC should be maintained. (26) The Board of Regulators and the Management Board should operate in parallel, with the former deciding mainly on regulatory matters and the latter on administrative matters such as the budget, staff and audits. In principle and in addition to the representatives of the Commission, the representatives of the NRAs on the Management Board should be the same persons as those appointed to the Board of Regulators, but NRAs should be able to appoint other representatives fulfilling the same requirements. (27) The appointing authority powers were previously exercised by the Vice-Chair of the Management Committee of the Office. This Regulation provides for the Management Board to delegate relevant appointing authority powers to the Director, who is authorised to sub-delegate those powers. This is intended to contribute to the efficient management of the staff of the BEREC Office. (28) The Board of Regulators and the Management Board should hold at least two ordinary meetings a year. In light of past experience and the enhanced role of BEREC, the Board of Regulators or the Management Board may need to hold additional meetings. (29) The Director should remain the representative of the BEREC Office with regard to legal and administrative matters. The Management Board should appoint the Director following an open and transparent selection procedure in order to guarantee a rigorous evaluation of the candidates and a high level of independence. The term of office of the Administrative Manager of the Office was previously three years. It is necessary that the Director has a sufficiently long mandate in order to ensure stability and delivery of a long-term strategy for the BEREC Office. (30) Commission Delegated Regulation (EU) No 1271/2013 (86) should apply to the BEREC Office. (31) The BEREC Office should provide all necessary professional and administrative support for the work of BEREC, including financial, organisational and logistical support, and should contribute to BEREC’s regulatory work.

Commission Delegated Regulation (EU) No 1271/2013 of 30 September 2013 on the framework financial regulation for the bodies referred to in Article  208 of Regulation (EU, Euratom) No  966/2012 of the European Parliament and of the Council (OJ L 328, 7.12.2013, p. 42).

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(32) In order to guarantee the BEREC  Office’s autonomy and independence, and in order to provide support to the work of BEREC, the BEREC Office should have its own budget, most of which should derive from a contribution from the Union. The budget should be adequate and should reflect the additional tasks assigned and the enhanced role of BEREC and the BEREC Office. The financing of the BEREC Office should be subject to an agreement by the budgetary authority as set out in point 31 of the Inter-institutional Agreement of 2 December 2013 between the European Parliament, the Council and the Commission on budgetary discipline, on cooperation in budgetary matters and on sound financial management (87). (33) The BEREC Office should be adequately staffed for the purpose of carrying out its duties. All tasks assigned to the BEREC  Office, including professional and administrative services supporting BEREC in carrying out its regulatory tasks, together with compliance with the financial, staff and other applicable regulations, and the increased weight of operational tasks required of the BEREC Office visà-vis administrative ones should be duly assessed and reflected in the resource programming. (34) In order to further extend the consistent implementation of the regulatory framework for electronic communications, the Board of Regulators, the working groups and the Management Board should be open to the participation of regulatory authorities of third countries competent in the field of electronic communications where those third countries have entered into agreements with the Union to that effect, such as EEA EFTA States and candidate countries. (35) In line with the principle of transparency, BEREC and the BEREC Office should, where relevant, publish information on their work on their webpage. In particular, BEREC should make public any final documents issued in carrying out its tasks, such as opinions, guidelines, reports, recommendations, common positions and best practices, as well as any study which is commissioned to support its tasks. BEREC and the BEREC Office should also make public up-to-date lists of their tasks and up-to-date lists of members, alternates and other participants in the meetings of their organisational bodies, and the declarations of interests made by the members of the Board of Regulators, the members of the Management Board and the Director. (36) BEREC, supported by the BEREC  Office, should be able to engage in communication activities within its field of competence, which are not detrimental to BEREC’s core tasks. The content and implementation of the BEREC’s communication strategy should be consistent, objective, relevant and coordinated with the strategies and activities of the Commission and the other institutions in order to take into consideration the broader image of the Union. The BEREC  Office’s communication activities should be carried out in accordance with relevant communication and dissemination plans adopted by the Management Board. (37) In order to carry out their tasks effectively, BEREC and the BEREC  Office should have the right to request all necessary information from the Commission, the NRAs, and, as a last resort, other authorities and undertakings. Requests for information should provide reasons, should be proportionate and should not impose an undue burden on the addressees. NRAs should cooperate with BEREC and the BEREC Office and should provide them with timely and accurate OJ C 373, 20.12.2013, p. 1.

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information to ensure that BEREC and the BEREC Office are able to fulfil their tasks. BEREC and the BEREC  Office should also, pursuant to the principle of sincere cooperation, share with the Commission, the NRAs and other competent authorities all necessary information. Where relevant, the confidentiality of information should be ensured. When assessing if a request is duly justified, BEREC should take into consideration if the information requested is related to the carrying out of tasks exclusively attributed to the relevant authorities. (38) The BEREC Office should establish a common information and communication system to avoid duplication of information requests and facilitate communications between all authorities involved. (39) In order to ensure a high level of confidentiality and to avoid conflicts of interests, the rules on those matters applying to members of the organisational bodies of BEREC and the BEREC Office should apply to their alternates. (40) Since this Regulation confers new tasks on BEREC and the BEREC Office and other Union legal acts may confer additional tasks, the Commission should carry out a regular evaluation of the operation of BEREC and the BEREC Office and the effectiveness of their institutional structure in a changing digital environment. If, as the outcome of that evaluation, the Commission finds that the institutional structure is not suited to the carrying out BEREC’s and the BEREC  Office’s tasks, and, in particular, to ensure the consistent implementation of the regulatory framework for electronic communications, it should explore all possible options for improving that structure. (41) The Office which was established as a Community body with legal personality by Regulation (EC) No 1211/2009, is succeeded by the BEREC Office established by this Regulation as regards all ownership, agreements, including the Seat Agreement, legal obligations, employment contracts, financial commitments and liabilities. The BEREC Office should take over the staff of the Office whose rights and obligations should not be affected. In order to ensure continuity in the work of BEREC and the Office, their representatives, namely the Chair and Vice-Chairs of the Board of Regulators, the Management Committee and the Administrative Manager, should continue in office until the end of their term of office. (42) A  significant number of consumers in most Member States continue to rely on traditional international communications such as telephony calls and SMS messages, despite an increasing number of consumers having access to numberindependent interpersonal communications services for their international calling needs at lower charges than traditional services or without monetary payment. (43) In 2013 the Commission proposed an impact-assessed Regulation which included a provision with regulatory measures applicable to intra-EU communications. Additional data on the intra-EU communications market was collected from 2017 to 2018 by BEREC and by the Commission through a Commission study and the Eurobarometer. As shown by that data, significant price differences continue to prevail, for both fixed and mobile communications, between domestic voice and SMS communications and those terminating in another Member State in a context of substantial variations of prices between countries, providers and tariff packages, and between mobile and fixed voice communications. Providers of publicly available number-based interpersonal communications services often charge consumption based intra-EU communications prices that largely exceed the prices for domestic tariffs plus additional costs. On average, the standard price of a fixed or mobile intra-EU call tends to be three times higher than the standard

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price of a domestic call and the standard price of an intra-EU SMS message more than twice as expensive as a domestic one. However, those arithmetic averages hide significant differences across Member States. In some cases the standard price of an intra-EU call can be up to eight times higher than the standard price for domestic calls. As a consequence, customers in several Member States are exposed to very high prices for intra-EU communications. Those high prices mainly affect consumers, in particular those placing such communications infrequently or having a low volume of consumption, which represent the vast majority of the consumers using intra-EU communications. At the same time, several providers propose special offers particularly attractive for business customers and consumers with a significant consumption of intra-EU communications. Such offers are often not charged based on actual consumption and may consist in a certain number of intra-EU call minutes or SMS messages for a fixed monthly fee (add-on offers) or in the inclusion of a certain number of intra-EU call minutes or SMS messages in the monthly allowance of call minutes or SMS messages, either without any surcharge or with a small surcharge. However, the terms of those offers are often not attractive for consumers with only occasional, unpredictable or relatively low volumes of intra-EU communications. Consequently, those consumers risk paying excessive prices for their intra-EU communications and should be protected. (44) Moreover, high prices for intra-EU communications represent a barrier to the functioning of the internal market as they discourage seeking and purchasing goods and services from a provider located in another Member State. It is hence necessary to set specific and proportionate limits to the price that providers of publicly available number-based interpersonal communications services may charge consumers for intra-EU communications in order to eliminate such high prices. (45) When providers of publicly available number-based interpersonal communications services charge their consumers for intra-EU communications at rates wholly or partly based on the consumption of such services, including in cases of consumptionbased deduction from a monthly or prepaid allowance for such services, those rates should not exceed EUR 0,19 per minute for calls and EUR 0,06 per SMS message. Those caps correspond to the maximum prices which currently apply, respectively, to regulated roaming calls and SMS messages. When roaming in the Union, consumers benefit from the protection of the euro-voice tariff and the euroSMS tariff that have been progressively replaced by roaming ‘like at home’. Those caps are also considered to be a suitable benchmark for setting the maximum rate for regulated intra-EU communications for five years starting from 15 May 2019. The current level of the cap represents a simple, transparent and proven safetynet for protection against high prices and is suitable as a cap for retail prices of all regulated intra-EU communications. Both roaming calls within the Union and intra-EU calls share a similar cost structure. (46) The caps should allow the providers of publicly available number-based interpersonal communications services to recoup their costs, thus ensuring a proportionate intervention on both the mobile and fixed calls market. The caps will apply directly only to rates based on actual consumption. They should have a disciplining effect also on those offers where a certain volume of intraEU communications is included without being charged separately as consumers have the choice to switch to a consumption-based tariff for their intra-EU communications. Intra-EU communication volumes which go beyond those included in a bundle and are charged separately should be subject to the caps. The measure should ensure, in a proportionate manner, that consumers with a low level



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of consumption of intra-EU communications are protected against high prices and should, at the same time, have only a moderate impact on providers. (47) Providers of publicly available number-based interpersonal communications services should be able to propose to their consumers alternative tariff offers for international communications with different rates for regulated intra-EU communications and consumers should be free to opt for such offers expressly, and to switch back any time and free of charge, even for offers to which consumers subscribed before the entry into force of such provisions. Only alternative offers for international communications, such as those covering all or some third countries, should, where accepted by a consumer, be able to free a provider from its obligation not to exceed the caps for regulated intra-EU communications. Other advantages, such as subsidised terminal equipment or discounts on other electronic communications services, offered by providers to consumers are a normal part of competitive interaction and should not affect the applicability of the price caps for regulated intra-EU communications. (48) Some providers of publicly available number-based interpersonal communications services may be significantly more affected than the majority of other providers in the Union by a price cap for regulated intra-EU communications. This could, in particular, be the case for those providers which generate a particularly high share of their revenues or operational profits with intra-EU communications or whose domestic margins are low compared to industry benchmarks. As a consequence of margin compression as regards regulated intra-EU communications, a provider might not be able to sustain its domestic pricing model. Such scenarios are highly unlikely to occur because the maximum prices are clearly above the costs for providing intra-EU communications. Nevertheless, in order to address such very exceptional scenarios in a proportionate manner, NRAs should be able to grant a derogation upon the request of such provider in justified and exceptional cases. (49) Any derogation should be granted only where a provider can demonstrate, against a relevant benchmark established by BEREC, that it is significantly more affected than most other providers in the Union and that that impact would significantly weaken that provider’s capacity to maintain its charging model for domestic communications. Where an NRA grants a derogation, it should determine the maximum price level that a provider could apply for regulated intra-EU communications and which would enable it to maintain a competitive price level for domestic communications. Any such derogation should be limited to one year and be renewable if the provider demonstrates that the conditions for a derogation continue to be fulfilled. (50) In light of the principle of proportionality, the applicability of the price caps for regulated intra-EU communications should be limited in time and should expire five years after its entry into force. Such a limited duration should allow proper assessment of the effects of the measures and evaluation to what extent there is an ongoing need to protect consumers. (51) In order to ensure Union-wide, consistent, timely and most effective protection of consumers negatively affected by the significant price differences of intra-EU communications, such provisions should be directly applicable and enshrined in a regulation. The most suitable regulation for that purpose is Regulation (EU) 2015/2120, which was adopted after an impact assessment which proposed, inter alia, a provision on intra-EU communications as a necessary means by which to complete the internal market for electronic communications. The likely impacts on providers’ revenues generated by the provision of intra-EU communications

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are further mitigated by the application of the roaming euro-voice tariff and euroSMS tariff as caps to both fixed and mobile communications, which serve as a safety mechanism; and by evidence, provided by BEREC’s 2018 analysis, of a considerable decline in relevant volumes of fixed traffic affected by the measure in the intervening period. Those provisions should therefore be introduced as an amendment to Regulation (EU) 2015/2120, which should also be adapted to ensure that Member States adopt rules on penalties for the infringement of such provisions. (52) Since the objectives of this Regulation, namely to ensure the consistent implementation of the regulatory framework for electronic communications, in particular in relation to cross-border aspects and through efficient internal market procedures for draft national measures, and to ensure that consumers are not charged excessive prices for making number-based interpersonal communications originating in the Member State of the consumer’s domestic provider and terminating at any fixed or mobile number in another Member State, cannot be sufficiently achieved by the Member States but can rather, by reason of the scale and effects of the action, be better achieved at the level of the Union, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives. (53) This Regulation amends and extends the scope of Regulation (EC) No 1211/2009. Since the amendments to be made are of a substantial nature, that act should, in the interests of clarity, be repealed. References to the repealed regulation should be construed as references to this Regulation, HAVE ADOPTED THIS REGULATION: CHAPTER I SUBJECT MATTER AND SCOPE Article 1 Subject matter and scope 1.

This Regulation establishes the Body of European Regulators for Electronic Communications (‘BEREC’) and the Agency for Support for BEREC (the ‘BEREC Office’).

2.

BEREC and the BEREC Office shall, respectively, replace and succeed the Body of European Regulators for Electronic Communications and the Office, which were established by Regulation (EC) No 1211/2009. Article 2 Legal personality of the BEREC Office

1.

The BEREC Office shall be a body of the Union. It shall have legal personality.

2.

In each Member State the BEREC  Office shall enjoy the most extensive legal capacity accorded to legal persons under national law. It shall, in particular, be capable of acquiring and disposing of movable and immovable property and being party to legal proceedings.

3.

The BEREC Office shall be represented by its Director.

4.

The BEREC Office shall have sole responsibility for the tasks assigned to and the powers conferred on it.

5.

The BEREC Office shall have its seat in Riga.



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CHAPTER II OBJECTIVES AND TASKS OF BEREC Article 3 Objectives of BEREC 1.

BEREC shall act within the scope of Regulations (EU) No 531/2012 and (EU) 2015/2120 and Directive (EU) 2018/1972.

2.

BEREC shall pursue the objectives set out in Article 3 of Directive (EU) 2018/1972. In particular, BEREC shall aim to ensure the consistent implementation of the regulatory framework for electronic communications within the scope referred to in paragraph 1 of this Article.

3.

BEREC shall carry out its tasks independently, impartially, transparently and in a timely manner.

4.

BEREC shall draw upon the expertise available in the national regulatory authorities (NRAs).

5.

In accordance with Article 9(3) of Directive (EU) 2018/1972, each Member State shall ensure that its NRAs are able to participate fully in the work of organisational bodies of BEREC.

6.

In Member States where there is more than one NRA responsible under Directive (EU) 2018/1972, those NRAs shall coordinate with each other as necessary. Article 4 Regulatory tasks of BEREC

1.

BEREC shall have the following regulatory tasks: (a) to assist and advise the NRAs, the European Parliament, the Council and the Commission, and cooperate with the NRAs and the Commission, upon request or on its own initiative, on any technical matter regarding electronic communications within its competence; (b) to assist and advise the Commission, upon request, in relation to the preparation of legislative proposals in the field of electronic communications, including on any proposed amendment of this Regulation or of Directive (EU) 2018/1972; (c) to issue opinions as referred to in Regulation (EU) No  531/2012 and Directive (EU) 2018/1972, in particular on: (i)

the resolution of cross-border disputes, in accordance with Article 27 of Directive (EU) 2018/1972;

(ii) draft national measures related to the internal market procedures for market regulation, in accordance with Articles 32, 33 and 68 of Directive (EU) 2018/1972; (iii) draft decisions and recommendations on harmonisation, in accordance with Articles 38 and 93 of Directive (EU) 2018/1972; (iv) end-to-end connectivity between end-users, in accordance with Article 61(2) of Directive (EU) 2018/1972; (v) the determination of a single maximum Union-wide mobile voice termination rate and a single maximum Union-wide fixed voice termination rate, in accordance with Article  75 of Directive (EU) 2018/1972;

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(vi) the contract summary template, in accordance with Article  102 of Directive (EU) 2018/1972; (vii) the national implementation and functioning of the general authorisation, and their impact on the functioning of the internal market, in accordance with Article  122(3) of Directive (EU) 2018/1972; (viii) where relevant, the market and technological developments regarding the different types of electronic communications services and their impact on the application of Title III of Part III of Directive (EU) 2018/1972, in accordance with Article 123(1) of that Directive; (d) to issue guidelines on the implementation of the Union regulatory framework for electronic communications, in particular, as referred to in Regulations (EU) No 531/2012 and (EU) 2015/2120 and Directive (EU) 2018/1972, on: (i)

the notification template, in accordance with Article 12 of Directive (EU) 2018/1972;

(ii) the consistent implementation of obligations as regards geographical surveys and forecasts, in accordance with Article 22 of Directive (EU) 2018/1972; (iii) relevant criteria to foster the consistent application of Article 61(3) of Directive (EU) 2018/1972; (iv) common approaches to the identification of the network termination point in different network topologies, in accordance with Article 61(7) of Directive (EU) 2018/1972; (v) common approaches to meet transnational end-user demand, in accordance with Article 66 of Directive (EU) 2018/1972; (vi) minimum criteria for a reference offer, in accordance with Article 69 of Directive (EU) 2018/1972; (vii) the fostering of the consistent application by NRAs of the conditions set out in Article  76(1) of, and the criteria set out in Annex IV to, Directive (EU) 2018/1972; (viii) criteria for a network to be considered a very high capacity network, in accordance with Article 82 of Directive (EU) 2018/1972; (ix) common criteria for the assessment of the ability to manage numbering resources and of the risk of exhaustion of numbering resources, in accordance with Article 93 of Directive (EU) 2018/1972; (x) relevant quality of service parameters, the applicable measurement methods, the content and format of publication of the information, and quality certification mechanisms, in accordance with Article 104 of Directive (EU) 2018/1972; (xi) how to assess whether the effectiveness of public warning systems under Article 110(2) of Directive (EU) 2018/1972 is equivalent to the effectiveness of those under paragraph 1 of that Article; (xii) wholesale roaming access, in accordance with Article  3(8) of Regulation (EU) No 531/2012;



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(xiii) the implementation of NRAs’ obligations as regards open internet access, in accordance with Article 5(3) of Regulation (EU) 2015/2120; (xiv) the parameters to be taken into account by NRAs in their assessment of the sustainability of the domestic charging model, in accordance with Article 5a(6) of Regulation (EU) 2015/2120; (e) to issue other guidelines ensuring the consistent implementation of the regulatory framework for electronic communications and consistent regulatory decisions by the NRAs, on its own initiative or upon the request of an NRA, the European Parliament, the Council or the Commission, in particular for regulatory issues affecting a significant number of Member States or with a cross-border element; (f)

where relevant, to participate in the Peer Review Forum on draft measures on selection procedures, in accordance with Article  35 of Directive (EU) 2018/1972;

(g) to participate on issues concerning its competence relating to market regulation and competition related to radio spectrum, in accordance with Article 4 of Directive (EU) 2018/1972; (h) to conduct analyses of potential transnational markets in accordance with Article  65 of Directive (EU) 2018/1972 and of transnational end-user demand, in accordance with Article 66 of that Directive; (i)

to monitor and collect information and, where relevant, make up-to-date information publicly available on the application of Regulation (EU) No 531/2012, in accordance with Articles 16 and 19 thereof;

(j)

to report on technical matters within its competence, in particular on: (i)

the practical application of the opinions and guidelines referred to in points (c), (d) and (e);

(ii) Member States’ best practices to support the defining of adequate broadband internet access service, in accordance with Article 84 of Directive (EU) 2018/1972; (iii) the evolution of pricing and consumption patterns both for domestic and roaming services, the evolution of actual wholesale roaming rates for unbalanced traffic, the relationship between retail prices, wholesale charges and wholesale costs for roaming services as well as on transparency and comparability of tariffs, in accordance with Article 19 of Regulation (EU) No 531/2012; (iv) the outcomes of the annual reports that NRAs shall provide in accordance with Article 5 of Regulation (EU) 2015/2120, through the publication of an annual synthesis report; (v) the market developments in the electronic communications sector, on an annual basis; (k) to issue recommendations and common positions, and disseminate regulatory best practices addressed to the NRAs in order to encourage the consistent and better implementation of the regulatory framework for electronic communications; (l)

to establish and maintain a database of:

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(i) the notifications transmitted to the competent authorities by undertakings subject to general authorisation, in accordance with Article 12 of Directive (EU) 2018/1972; (ii) the numbering resources with a right of extraterritorial use within the Union, in accordance with the fourth subparagraph of Article 93(4) of Directive (EU) 2018/1972; (iii) where relevant, E.164 numbers of Member State emergency services, in accordance with the third subparagraph of Article  109(8) of Directive (EU) 2018/1972; (m) to evaluate the needs for regulatory innovation and coordinate actions between NRAs to enable the development of new innovative electronic communications; (n) to promote the modernisation, coordination and standardisation of the collection of data by NRAs, such data being made available to the public in an open, reusable and machine-readable format on the BEREC website and the European data portal, without prejudice to intellectual property rights, personal data protection rules and the required level of confidentiality; (o)

2.

to carry out other tasks assigned to it by legal acts of the Union, in particular by Regulations (EU) No 531/2012 and (EU) 2015/2120 and Directive (EU) 2018/1972.

BEREC shall make public its regulatory tasks and shall update that information when new tasks are assigned to it.

3. BEREC shall make public all of its final opinions, guidelines, reports, recommendations, common positions and best practices, and any commissioned studies, as well as the relevant draft documents for the purpose of the public consultations referred to in paragraph 5. 4. Without prejudice to compliance with relevant Union law, NRAs and the Commission shall take the utmost account of any guideline, opinion, recommendation, common position and best practices adopted by BEREC with the aim of ensuring the consistent implementation of the regulatory framework for electronic communications within the scope referred to in Article 3(1). Where an NRA deviates from the guidelines referred to in point (e) of paragraph 1, it shall provide the reasons therefor. 5.

BEREC shall, where appropriate, consult interested parties and give them the opportunity to comment within a reasonable period having regard to the complexity of the matter. Save in exceptional circumstances, that period shall not be shorter than 30 days. BEREC shall, without prejudice to Article 38, make the results of such public consultations publicly available. Such consultations shall take place as early as possible in the decision-making process.

6.

BEREC may, where appropriate, consult and cooperate with relevant national authorities, such as those competent in the fields of competition, consumer protection and data protection.

7.

BEREC may, where appropriate, cooperate with competent Union bodies, offices, agencies and advisory groups, as well as with the competent authorities of third countries and with international organisations, in accordance with Article 35(1).



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CHAPTER III TASKS OF THE BEREC OFFICE Article 5 Tasks of the BEREC Office The BEREC Office shall have the following tasks: (a) to provide professional and administrative support services to BEREC, in particular in fulfilling its regulatory tasks pursuant to Article 4; (b) to collect information from NRAs and to exchange and transmit information in relation to the regulatory tasks assigned to BEREC pursuant to Article 4; (c) to produce, on the basis of the information referred to in point (b), regular draft reports on specific aspects of developments in the European electronic communications market, such as roaming and benchmarking reports, to be submitted to BEREC; (d) to disseminate regulatory best practices among NRAs, in accordance with point (k) of Article 4(1); (e) to assist BEREC in establishing and maintaining registries and databases, in accordance with point (l) of Article 4(1); (f)

to assist BEREC in establishing and managing an information and communications system, in accordance with Article 41;

(g) to assist BEREC in conducting public consultations, in accordance with Article 4(5); (h)

to assist in the preparation of the work and provide other administrative and contentrelated support to ensure the smooth functioning of the Board of Regulators;

(i)

to assist in setting up working groups, upon the request of the Board of Regulators, contribute to the regulatory work and provide administrative support to ensure the smooth functioning of those groups;

(j)

to carry out other tasks assigned to it by this Regulation or by other legal acts of the Union.

BEREC shall comprise: (a)

CHAPTER IV ORGANISATION OF BEREC Article 6 Organisational structure of BEREC

a Board of Regulators;

(b) working groups. Article 7 Composition of the Board of Regulators 1.

The Board of Regulators shall be composed of one member from each Member State. Each member shall have the right to vote. Each member shall be appointed by the NRA that has primary responsibility for overseeing the day-to-day operation of the markets for electronic communications networks and services under Directive (EU) 2018/1972. The member shall be appointed from among the head of the NRA, a member of its collegiate body, or the replacement of either of them.

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2.

Each member of the Board of Regulators shall have an alternate, appointed by the NRA. The alternate shall represent the member in his or her absence. The alternate shall be appointed from among the head of the NRA, a member of its collegiate body, the replacement of either of them, or the staff of the NRA.

3.

Members of the Board of Regulators and their alternates shall be appointed in light of their knowledge in the field of electronic communications, taking into account relevant managerial, administrative and budgetary skills. In order to ensure continuity of the work of the Board of Regulators, all appointing NRAs shall make efforts to limit the turnover of their members and, where possible, also of their alternates, and shall aim to achieve a balanced representation between men and women.

4.

The Commission shall participate in all deliberations of the Board of Regulators without the right to vote and shall be represented at an appropriately high level.

5.

An up-to-date list of members of the Board of Regulators and their alternates, together with their declarations of interest, shall be made public. Article 8 Independence of the Board of Regulators

1.

When carrying out the tasks conferred upon it and without prejudice to its members acting on behalf of their respective NRA, the Board of Regulators shall act independently and objectively in the interests of the Union, regardless of any particular national or personal interests.

2.

Without prejudice to coordination as referred to in Article 3(6), the members of the Board of Regulators and their alternates shall neither seek nor take instructions from any government, institution, person or body.

Article 9 Functions of the Board of Regulators The Board of Regulators shall have the following functions: (a) to fulfil the regulatory tasks of BEREC set out in Article  4, namely to adopt the opinions, guidelines, reports, recommendations and common positions and disseminate best practices referred to in that Article, relying, in doing so, on the preparatory work carried out by the working groups; (b) to take administrative decisions relating to the organisation of BEREC’s work; (c)

to adopt BEREC’s annual work programme as referred to in Article 21;

(d) to adopt BEREC’s annual report on its activities as referred to in Article 22; (e) to adopt rules for the prevention and management of conflicts of interests as referred to in Article 42, as well as in respect of members of the working groups; (f)

to adopt detailed rules on the right of access to documents held by BEREC in accordance with Article 36;

(g) to adopt and regularly update the communication and dissemination plans as referred to in Article 37(2), based on an analysis of needs; (h)

to adopt, acting by a two-thirds majority of its members, and make public, its rules of procedure;

(i)

to authorise, together with the Director, the conclusion of working arrangements with competent Union bodies, offices, agencies and advisory groups and with



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competent authorities of third countries and with international organisations in accordance with Article 35; (j)

to set up working groups and appoint their Chairs;

(k) to provide the Director of the BEREC  Office with guidance with regard to the carrying out of the tasks of the BEREC Office. Article 10 Chair and Vice-Chairs of the Board of Regulators 1.

The Board of Regulators shall appoint, acting by a two-thirds majority of its members, a Chair and at least two Vice-Chairs from among its members.

2.

One of the Vice-Chairs shall automatically assume the duties of the Chair if the latter is not in a position to perform those duties.

3.

The term of office of the Chair shall be one year, renewable once. In order to ensure continuity of BEREC’s work, the incoming Chair shall serve, where possible, one year as Vice-Chair before his or her term of office as Chair. The rules of procedure shall provide for a shorter term where it is not possible for the incoming Chair to serve as Vice-Chair one year before his or her term of office as Chair.

4.

Without prejudice to the role of the Board of Regulators in relation to the Chair’s tasks, the Chair shall neither seek nor take instruction from any government, institution, person or body.

5.

The Chair shall report to the European Parliament and to the Council on the performance of BEREC’s tasks when invited to do so. Article 11 Meetings of the Board of Regulators

1.

The Chair shall convene the meetings of the Board of Regulators and shall set the agendas for those meetings, which shall be made public.

2.

The Board of Regulators shall hold at least two ordinary meetings a year. Extraordinary meetings shall be convened at the initiative of the Chair, upon the request of at least three of its members or upon the request of the Commission.

3.

The Director of the BEREC Office shall take part in all deliberations without the right to vote.

4.

The Board of Regulators may invite any person whose opinion may be of interest to it, to participate in its meetings as an observer.

5.

The members and the alternates of the Board of Regulators may, subject to its rules of procedure, be assisted at the meetings by their advisers or other experts.

6.

The BEREC Office shall provide the secretariat for the Board of Regulators. Article 12 Voting rules of the Board of Regulators

1.

The Board of Regulators shall take decisions by a simple majority of its members unless otherwise provided for in this Regulation or in another legal act of the Union. A  majority of two thirds of the members of the Board of Regulators shall be required for the opinions referred to in points (c)(ii) and (v) of Article 4(1) and the guidelines referred to in points (d)(i) to (iv), (vi), (vii) and (x) of Article 4(1).

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Notwithstanding the second subparagraph of this paragraph, the Board of Regulators may decide, by a simple majority and on a case-by-case basis, to adopt opinions referred to in point (c)(ii) of Article 4(1) of this Regulation by simple majority, related to draft measures falling under Article 76(2) of Directive (EU) 2018/1972, that lead to the launching of the procedure under Article 33(5) of that Directive. The decisions of the Board of Regulators shall be made public and shall indicate any reservations of any member upon his or her request. 2.

Each member shall have one vote. In the absence of a member, the alternate shall be entitled to exercise that member’s right to vote. In the absence of a member and the alternate, the right to vote may be delegated to another member. The Chair may delegate the right to vote in any event. The Chair shall take part in the voting unless he or she has delegated the right to vote.

3.

The rules of procedure of the Board of Regulators shall set out in detail the arrangements governing voting, including the conditions under which one member may act on behalf of another member, the quorum, and the notification deadlines for meetings. Furthermore, the rules of procedure shall ensure that the members of the Board of Regulators are provided with full agendas and draft proposals in advance of each meeting so that they have the opportunity to propose amendments prior to the vote. The rules of procedure may, inter alia, set out a procedure for voting on urgent matters and other practical arrangements for the operation of the Board of Regulators. Article 13 Working groups

1.

Where justified and, in particular, in order to implement BEREC’s annual work programme, the Board of Regulators may set up working groups.

2.

The Board of Regulators shall appoint the Chairs of the working groups, representing, where possible, different NRAs.

3.

The working groups shall be open to the participation of experts from all the NRAs participating in the work of BEREC and the Commission. The working groups shall also be open to the participation of the staff of the BEREC  Office, who shall contribute to the regulatory work of, and provide administrative support to, the working groups. In the case of the working groups which are set up to carry out the tasks referred to in point (c)(ii) of Article  4(1), the experts from the Commission shall not participate. In working groups which are set up to carry out the tasks referred to in points (c)(iv), (vi), (vii) and (viii), points (d)(i), (ii), (ix), (x) and (xi), point (j)(ii) and point (l), of Article 4(1) of this Regulation as well as, where relevant, point (c)(iii) and point (j)(i) of Article 4(1) thereof, the views of experts from other competent authorities notified pursuant to Article 5(4) of Directive (EU) 2018/1972 shall be taken into consideration. The Board of Regulators or the Chairs of the working groups may invite individual experts recognised as competent in the relevant field to participate in the working group meetings if necessary on a case-by-case basis.



4.

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The Board of Regulators shall adopt rules of procedure laying down the practical arrangements for the operation of the working groups.

CHAPTER V ORGANISATION OF THE BEREC OFFICE Article 14 Organisational structure of the BEREC Office The BEREC Office shall comprise: (a)

a Management Board;

(b) a Director. Article 15 Composition of the Management Board 1.

The Management Board shall be composed of the persons appointed as members of the Board of Regulators and of one high level representative of the Commission. Each member of the Management Board shall have the right to vote. Each appointing NRA, as referred to in the second subparagraph of Article 7(1), may appoint a person other than the member of the Board of Regulators as member of the Management Board. That person shall be the head of the NRA, a member of its collegiate body, or the replacement of either of them.

2.

Each member of the Management Board shall have an alternate who represents the member in his or her absence. The alternates of each member shall be the persons appointed as alternates of the members of the Board of Regulators. The representative of the Commission shall also have an alternate. Each appointing NRA, as referred to in the second subparagraph of Article 7(1), may appoint a person other than the alternate of the member of the Board of Regulators as the alternate of the member of the Management Board. That person shall be the head of the NRA, a member of its collegiate body, the replacement of either of them, or the staff of the NRA.

3.

The members of the Management Board and their alternates shall neither seek nor take instructions from any government, institution, person or body.

4.

An up-to-date list of members of the Management Board and their alternates, together with their declarations of interests, shall be made public. Article 16 Administrative Functions of the Management Board

1.

The Management Board shall have the following administrative functions: (a)

to provide general orientations for the BEREC Office’s activities and adopt, on an annual basis, the BEREC Office’s single programming document by a majority of two thirds of its members, taking into account the opinion of the Commission and in accordance with Article 23;

(b)

to adopt, by a majority of two thirds of its members, the annual budget of the BEREC Office and exercise other functions in respect of the BEREC Office’s budget pursuant to Chapter VII;

(c) to adopt, make public and proceed with an assessment of the consolidated annual activity report on the BEREC  Office’s activities referred to in

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Article 27 and submit both the report and its assessment, by 1 July each year to the European Parliament, the Council, the Commission and the Court of Auditors; (d) to adopt the financial rules applicable to the BEREC Office in accordance with Article 29; (e) to adopt an anti-fraud strategy proportionate to fraud risks, taking into account the costs and benefits of the measures to be implemented; (f)

to ensure adequate follow-up to findings and recommendations stemming from the internal or external audit reports and evaluations, as well as from investigations of the European Anti-Fraud Office (OLAF);

(g)

to adopt rules for the prevention and management of conflicts of interests as referred to in Article 42(3);

(h) to adopt and regularly update the communication and dissemination plans referred to in Article 37(2), based on an analysis of needs; (i)

to adopt its rules of procedure;

(j)

to adopt implementing rules for giving effect to the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European Union (88), in accordance with Article 110 of the Staff Regulations;

(k) without prejudice to the decision referred to in the first subparagraph of paragraph 2, to exercise, with respect to the staff of the BEREC Office, the powers conferred by the Staff Regulations on the Appointing Authority and by the Conditions of Employment of Other Servants on the Authority Empowered to Conclude a Contract of Employment (the ‘appointing authority powers’); (l)

to appoint the Director and, where relevant, extend his or her term of office or remove him or her from office in accordance with Article 32;

(m) to appoint an Accounting Officer, subject to the Staff Regulations and the Conditions of Employment of Other Servants, who shall be wholly independent in the performance of his or her duties; (n) to take all decisions on the establishment of the BEREC Office’s internal structures and, where necessary, their modification, taking into consideration the BEREC  Office’s activity needs as well as having regard to sound budgetary management. With regard to point (m) of the first subparagraph, the BEREC Office may appoint the same Accounting Officer as another Union body or institution. In particular, the BEREC Office and the Commission may agree that the Commission’s accounting officer shall also act as Accounting Officer of the BEREC Office. 2.

The Management Board shall adopt, in accordance with Article 110 of the Staff Regulations, a decision based on Article  2(1) of the Staff Regulations and on Article 6 of the Conditions of Employment of Other Servants, delegating relevant

Regulation (EEC, Euratom, ECSC) No  259/68 of the Council of 29  February 1968 laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Communities and instituting special measures temporarily applicable to officials of the Commission (OJ L 56, 4.3.1968, p. 1).

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appointing authority powers to the Director and specifying the conditions under which this delegation of powers can be suspended. The Director shall be authorised to sub-delegate those powers. Where exceptional circumstances so require, the Management Board may, by way of a decision, temporarily suspend the delegation of the appointing authority powers to the Director and those sub-delegated by the latter and exercise them itself or delegate them to one of its members or to a member of staff other than the Director. Article 17 Chairperson and Deputy Chairpersons of the Management Board 1.

The Chairperson and the Deputy Chairpersons of the Management Board shall be the persons appointed as the Chair and Vice-Chairs of the Board of Regulators. The same term of office shall apply. By derogation from the first subparagraph, the Management Board may, by a majority of two thirds of its members, elect other members of the Management Board as Chairperson or Deputy Chairperson(s) from among its members, representing Member States. Their term of office shall be the same as that of the Chair and Vice-Chairs of the Board of Regulators.

2.

One of the Deputy Chairpersons shall automatically assume the duties of the Chairperson if the latter is not in a position to perform those duties.

3.

The Chairperson of the Management Board shall report to the European Parliament and to the Council on the carrying out of the tasks of the BEREC Office when invited to do so. Article 18 Meetings of the Management Board

1.

The Chairperson shall convene the meetings of the Management Board.

2.

The Director of the BEREC Office shall take part in the deliberations, except those related to Article 32, without the right to vote.

3.

The Management Board shall hold at least two ordinary meetings a year. In addition, the Chairperson shall convene extraordinary meetings on his or her own initiative, upon the request of the Commission, or of at least three of its members.

4.

The Management Board may invite any person whose opinion may be of interest to attend its meetings as an observer.

5.

The members of the Management Board and their alternates may, subject to its rules of procedure, be assisted at the meetings by advisers or experts.

6.

The BEREC Office shall provide the secretariat for the Management Board. Article 19 Voting rules of the Management Board

1.

The Management Board shall take decisions by a simple majority of its members, unless otherwise provided for in this Regulation.

2.

Each member shall have one vote. In the absence of a member, the alternate shall be entitled to exercise the right to vote. In the absence of a member and the alternate, the right to vote may be delegated to another member.

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3.

The Chairperson may delegate the right to vote in any event. He or she shall take part in the voting unless he or she has delegated the right to vote.

4.

The Management Board’s rules of procedure shall establish more detailed voting arrangements, in particular the procedure for voting on urgent matters and the circumstances in which a member may act on behalf of another member. Article 20 Responsibilities of the Director

1.

The Director shall be in charge of the administrative management of the BEREC Office. The Director shall be accountable to the Management Board.

2.

The Director shall assist the Chair of the Board of Regulators and the Chairperson of the Management Board in preparing the meetings of their respective bodies.

3.

Without prejudice to the powers of the Board of Regulators, the Management Board and the Commission, the Director shall be independent in the performance of his or her duties and shall neither seek nor take instructions from any government, institution, person or body.

4.

The Director shall report to the European Parliament and to the Council on the performance of his or her duties when invited to do so.

5.

The Director shall be the legal representative of the BEREC Office.

6.

The Director shall be responsible for the implementation of the BEREC Office’s tasks and following the guidance provided by the Board of Regulators and the Management Board. In particular, the Director shall be responsible for: (a)

the day-to-day administration of the BEREC Office;

(b) implementing administrative decisions adopted by the Board of Regulators and the Management Board; (c)

preparing, and submitting to the Management Board, the single programming document referred to in Article 23;

(d) assisting the Board of Regulators in the preparation of BEREC’s annual activity report as referred to in Article 22; (e) assisting the Board of Regulators in the preparation of BEREC’s annual work programme as referred to in Article 21; (f) implementing the single programming document, and reporting to the Management Board on its implementation; (g) preparing the draft consolidated annual report on the BEREC  Office’s activities as referred to in Article 27 and presenting it to the Management Board for assessment and adoption; (h) preparing an action plan following-up conclusions of internal or external audit reports and evaluations, as well as investigations by the OLAF and reporting on progress at least once a year to the Management Board; (i) protecting the financial interests of the Union by applying preventive measures against fraud, corruption and any other illegal activities, by carrying out effective checks and, if irregularities are detected, by recovering amounts wrongly paid and, where appropriate, by imposing effective, proportionate and dissuasive administrative measures, including financial penalties;



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preparing an anti-fraud strategy for the BEREC Office and presenting it to the Management Board for approval;

(k) preparing draft financial rules applicable to the BEREC Office; (l)

preparing the BEREC Office’s draft statement of estimates of revenue and expenditure and implementing its budget;

(m) authorising, together with the Board of Regulators, the conclusion of working arrangements with competent Union bodies, offices, agencies and advisory groups and with competent authorities of third countries and with international organisations in accordance with Article 35. 7.

The Director shall, under the supervision of the Management Board, take the necessary measures, in particular with regard to adopting internal administrative instructions and publishing notices, in order to ensure the functioning of the BEREC Office in accordance with this Regulation.

8.

The Director shall, subject to the prior consent of the Commission, the Management Board and the Member States concerned, decide whether it is necessary for the purpose of carrying out the BEREC  Office’s tasks in an efficient and effective manner to locate one or more members of staff in one or more Member States. The decision shall specify the scope of the activities to be carried out in a manner that avoids unnecessary costs and duplication of administrative functions of the BEREC Office. Before such a decision is taken, its impact in terms of staff allocation and budget shall be set out in the multi-annual programming document referred to in Article 23(4). CHAPTER VI BEREC PROGRAMMING Article 21 Annual Work Programme of BEREC

1.

The Board of Regulators shall adopt the outline of the annual work programme by 31 January of the year preceding that to which the annual work programme relates. After consulting the European Parliament, the Council and the Commission on their priorities, as well as other interested parties in accordance with Article 4(5), the Board of Regulators shall adopt the final annual work programme by 31 December of that year.

2.

The Board of Regulators shall transmit the annual work programme to the European Parliament, the Council and the Commission as soon as it is adopted. Article 22 Annual Activity Report of BEREC

1.

The Board of Regulators shall adopt the annual report on the activities of BEREC.

2.

The Board of Regulators shall transmit the annual activity report to the European Parliament, the Council, the Commission and the European Economic and Social Committee by 15 June each year. CHAPTER VII BUDGET AND PROGRAMMING OF THE BEREC OFFICE Article 23 Annual and multi-annual programming

1.

Each year, the Director shall draw up a draft programming document containing annual and multiannual programming (‘single programming document’) in line

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with Article 32 of Delegated Regulation (EU) No 1271/2013, taking into account guidelines set by the Commission. By 31  January each year, the Management Board shall adopt the draft single programming document and forward it to the Commission for it to provide its opinion. The draft single programming document shall also be submitted to the European Parliament and to the Council. The Management Board shall subsequently adopt the single programming document, taking into account the opinion of the Commission. It shall submit the single programming document, as well as any subsequent updates, to the European Parliament, the Council and the Commission. The single programming document shall become definitive after adoption of the general budget of the Union and, if necessary, shall be adjusted accordingly. 2.

The annual programming document shall comprise detailed objectives and expected results, including performance indicators. It shall also contain a description of the actions to be financed and an indication of the financial and human resources allocated to each action, in accordance with the principles of activity-based budgeting and management, as referred to in Article 31. The annual programming document shall be consistent with the BEREC’s outline of the annual work programme and the final annual work programme as referred to in Article 21 and with the multiannual programming document of the BEREC Office referred to in paragraph 4 of this Article. It shall clearly indicate tasks that have been added, changed or deleted in comparison with the previous financial year.

3.

The Management Board shall, where necessary, amend the annual programming document after adoption of BEREC’s final annual work programme referred to in Article 21 and where a new task is assigned to BEREC or to the BEREC Office. Any substantial amendment to the annual programming document shall be adopted by the same procedure as that used to adopt the initial annual programming document. The Management Board may delegate the power to make nonsubstantial amendments to the annual programming document to the Director.

4. The multiannual programming document shall set out overall strategic programming including objectives, expected results and performance indicators. It shall also set out resource programming including multi-annual budget and staff. The resource programming shall be updated annually. The strategic programming shall be updated where appropriate, and in particular to address the outcome of the evaluation referred to in Article 48. 5.

The single programming document of the BEREC  Office shall include the implementation of BEREC’s strategy for relations with competent Union bodies, offices, agencies and advisory groups, with competent authorities of third countries and with international organisations as referred to in Article  35(3), the actions linked to that strategy and the specification of associated resources. Article 24 Establishment of the budget

1.

Each year, the Director shall draw up a provisional draft estimate of the BEREC Office’s revenue and expenditure (the ‘draft estimate’) for the following financial year, including the establishment plan, and submit it to the Management Board.



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The information contained in the draft estimate shall be consistent with the draft single programming document referred to in Article 23(1). 2.

The Director shall submit the draft estimate to the Commission by 31  January each year.

3.

The Commission shall submit the draft estimate to the budgetary authority together with the draft general budget of the Union.

4.

On the basis of the draft estimate, the Commission shall enter in the draft general budget of the Union the estimates it considers necessary for the establishment plan and the amount of the contribution to be charged to the general budget, which it shall place before the budgetary authority in accordance with Articles 313 and 314 of the Treaty on the Functioning of the European Union (TFEU).

5.

The budgetary authority shall authorise the appropriations for the contribution to the BEREC Office.

6.

The budgetary authority shall adopt the BEREC Office’s establishment plan.

7.

The Management Board shall adopt the BEREC Office’s budget. The budget shall become final following final adoption of the general budget of the Union. Where necessary, it shall be adjusted accordingly.

8.

For any building project likely to have significant implications for the budget of the BEREC Office, Delegated Regulation (EU) No 1271/2013 shall apply. Article 25 Structure of the budget

1.

Estimates of all revenue and expenditure for the BEREC Office shall be prepared each financial year, corresponding to the calendar year, and shall be shown in the BEREC Office’s budget.

2.

The BEREC  Office’s budget shall be balanced in terms of revenue and of expenditure.

3.

Without prejudice to other resources, the BEREC Office’s revenue shall comprise: (a)

a contribution from the Union;

(b) any voluntary financial contribution from the Member States or the NRAs; (c) charges for publications and any other service provided by the BEREC Office; (d)

any contribution from third countries or the regulatory authorities competent in the field of electronic communications of third countries participating in the work of the BEREC Office, as provided for in Article 35.

4. The expenditure of the BEREC  Office shall include staff remuneration, administrative and infrastructure expenses and operational expenditure. Article 26 Implementation of the budget 1.

The Director shall implement the BEREC Office’s budget.

2.

Each year the Director shall submit to the European Parliament and the Council all information relevant to the findings of evaluation procedures.

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Article 27 Consolidated Annual Activity Report The Management Board shall adopt consolidated annual activity reports in accordance with Article  47 of Delegated Regulation (EU) No  1271/2013, taking into account guidelines set by the Commission. Article 28 Presentation of accounts and discharge 1.

The BEREC Office’s accounting officer shall submit the provisional accounts for the financial year to the Commission’s Accounting Officer and to the Court of Auditors by 1 March of the following financial year.

2.

The BEREC  Office shall submit the report on the budgetary and financial management to the European Parliament, the Council and the Court of Auditors by 31 March of the following financial year.

3.

On receipt of the Court of Auditors’ observations on the BEREC  Office’s provisional accounts, the BEREC  Office’s accounting officer shall draw up the BEREC Office’s final accounts under his or her own responsibility. The Director shall submit the final accounts to the Management Board for an opinion.

4.

The Management Board shall deliver an opinion on the BEREC  Office’s final accounts.

5.

The Director shall submit the final accounts to the European Parliament, the Council, the Commission and the Court of Auditors, together with the Management Board’s opinion by 1 July following each financial year.

6.

The BEREC Office shall publish the final accounts in the Official Journal of the European Union by 15 November of the following year.

7.

The Director shall submit to the Court of Auditors a reply to its observations by 30 September of the following financial year. The Director shall also submit that reply to the Management Board.

8.

The Director shall submit to the European Parliament, upon the latter’s request, any information required for the smooth application of the discharge procedure for the financial year in question, in accordance with Article 165(3) of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council (89).

9.

On a recommendation from the Council acting by a qualified majority, the European Parliament shall, before 15 May of year N + 2, give a discharge to the Director in respect of the implementation of the budget for year N.

Article 29 Financial rules The financial rules applicable to the BEREC Office shall be adopted by the Management Board after consulting the Commission. They shall not diverge from Delegated Regulation (EU) No  1271/2013 unless such a divergence is required for the BEREC  Office’s operation and the Commission has given its prior consent.

Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No  283/2014, and Decision No  541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ L 193, 30.7.2018, p. 1).

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CHAPTER VIII STAFF OF THE BEREC OFFICE Article 30 General provision The Staff Regulations and the Conditions of Employment of Other Servants and the rules adopted by agreement between the institutions of the Union for giving effect to those Staff Regulations and the Conditions of Employment of Other Servants shall apply to the staff of the BEREC Office. Article 31 Number of staff of the BEREC Office 1.

In accordance with the principle of activity-based management of human resources, the BEREC Office shall have the staff required to carry out its duties.

2.

The number of staff and corresponding financial resources shall be proposed in accordance with Article 23(2) and (4) and Article 24(1), taking account of point (a) of Article 5 and all other tasks assigned to the BEREC Office by this Regulation or by other Union legal acts, as well as the need for compliance with the regulations applicable to all Union decentralised agencies. Article 32 Appointment of the Director

1.

The Director shall be engaged as a temporary agent of the BEREC  Office in accordance with point (a) of Article 2 of the Conditions of Employment of Other Servants.

2.

The Director shall be appointed by the Management Board, following an open and transparent selection procedure, on the basis of merit, management, administrative and budgetary skills and the skills and experience relevant to electronic communications networks and services. The list of candidates shall not be proposed by the Chairperson or by a Deputy Chairperson alone. The rules of procedure of the Management Board shall set out in detail the arrangements governing a procedure to shortlist the number of eligible candidates and a voting procedure.

3.

For the purpose of concluding the contract with the Director, the BEREC Office shall be represented by the Chairperson of the Management Board.

4.

Before appointment, the candidate selected by the Management Board shall be invited to make a statement before the competent committee of the European Parliament and to answer questions put by its members.

5.

The term of office of the Director shall be five years. By the end of that period, the Chairperson of the Management Board shall carry out an assessment that takes into account an evaluation of the Director’s performance and the BEREC Office’s tasks and challenges. That assessment shall be submitted to the European Parliament and to the Council.

6.

The Management Board, taking into account the assessment referred to in paragraph 5, may extend the Director’s term of office once, for no more than five years.

7.

The Management Board shall inform the European Parliament if it intends to extend the Director’s term of office. Within one month before any such extension, the Director may be invited to make a statement before the competent committee of the European Parliament and to answer questions put by its members.

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8.

A Director whose term of office has been extended shall not participate in another selection procedure for the same post after the end of the cumulative period.

9.

Where the term of office is not extended, the Director shall, upon a decision of the Management Board, remain in office beyond the expiry of the initial term of office until the appointment of a successor.

10. The Director may be removed from office only upon a decision of the Management Board acting on a proposal from a member. 11. The Management Board shall reach decisions on appointment, extension of the term of office or removal from office of the Director on the basis of a vote of a two-thirds majority of its members. Article 33 Seconded national experts and other staff 1.

The BEREC  Office may make use of seconded national experts or other staff not employed by it. The Staff Regulations and the Conditions of Employment of Other Servants shall not apply to such staff.

2.

The Management Board shall adopt a decision laying down rules on the secondment of national experts to the BEREC Office.

CHAPTER IX GENERAL PROVISIONS Article 34 Privileges and immunities The Protocol on the Privileges and Immunities of the European Union shall apply to the BEREC Office and its staff. Article 35 Cooperation with Union bodies, third countries and international organisations 1.

In so far as necessary in order to achieve the objectives set out in this Regulation and carry out its tasks, and without prejudice to the competences of the Member States and the institutions of the Union, BEREC and the BEREC  Office may cooperate with competent Union bodies, offices, agencies and advisory groups, with competent authorities of third countries and with international organisations. To that end, BEREC and the BEREC  Office may, subject to prior approval by the Commission, establish working arrangements. Those arrangements shall not create legal obligations.

2.

The Board of Regulators, the working groups and the Management Board shall be open to the participation of regulatory authorities of third countries with primary responsibility in the field of electronic communications, where those third countries have entered into agreements with the Union to that effect. Under the relevant provisions of those agreements, working arrangements shall be developed specifying, in particular, the nature, extent and manner in which the regulatory authorities of the third countries concerned will participate without the right to vote in the work of BEREC and of the BEREC  Office, including provisions relating to participation in the initiatives carried out by BEREC, financial contributions and staff to the BEREC Office. As regards staff matters, those arrangements shall, in any event, comply with the Staff Regulations.

3.

As part of the annual work programme referred to in Article  21, the Board of Regulators shall adopt BEREC’s strategy for relations with competent Union



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bodies, offices, agencies and advisory groups, with competent authorities of third countries and with international organisations concerning matters for which BEREC is competent. The Commission, BEREC and the BEREC  Office shall conclude an appropriate working arrangement for the purpose of ensuring that BEREC and the BEREC  Office operate within their mandate and the existing institutional framework. Article 36 Access to documents and data protection 1.

Regulation (EC) No 1049/2001 of the European Parliament and of the Council (90) shall apply to documents held by BEREC and the BEREC Office.

2.

The Board of Regulators and the Management Board shall, by 21  June 2019, adopt detailed rules for applying Regulation (EC) No 1049/2001.

3.

The processing of personal data by BEREC and the BEREC Office shall be subject to Regulation (EU) 2018/1725.

4.

The Board of Regulators and the Management Board shall, by 21  June 2019, establish measures for the application of Regulation (EU) 2018/1725 by BEREC and the BEREC  Office, including those concerning the appointment of a Data Protection Officer of the BEREC Office. Those measures shall be established after consulting the European Data Protection Supervisor. Article 37 Transparency and communication

1.

BEREC and the BEREC Office shall carry out their activities with a high level of transparency. BEREC and the BEREC Office shall ensure that the public and any interested parties are given appropriate, objective, reliable and easily accessible information, in particular in relation to their tasks and the results of their work.

2.

BEREC, supported by the BEREC Office, may engage in communication activities on its own initiative within its field of competence in accordance with relevant communication and dissemination plans adopted by the Board of Regulators. The allocation of resources for such support for communication activities within the BEREC Office’s budget shall not be detrimental to the effective exercise of BEREC’s tasks as referred to in Article 4 or the BEREC Office’s tasks as referred to in Article 5. Communication activities of the BEREC Office shall be carried out in accordance with relevant communication and dissemination plans adopted by the Management Board. Article 38 Confidentiality

1. Without prejudice to Article  36(1) and Article  40(2), BEREC and the BEREC Office shall not disclose to third parties information that they process or receive in relation to which a reasoned request for confidential treatment has been made in whole or in part. 2.

Members and other participants at the meetings of the Board of Regulators, the Management Board and the working groups, the Director, seconded national

Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p. 43).

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experts and other staff not employed by the BEREC Office shall comply with the confidentiality requirements under Article 339 TFEU, even after their duties have ceased. 3.

The Board of Regulators and the Management Board shall lay down the practical arrangements for implementing the confidentiality rules referred to in paragraphs 1 and 2.

Article 39 Security rules on the protection of classified and sensitive non-classified information BEREC and the BEREC Office shall adopt their own security rules equivalent to the Commission’s security rules for protecting European Union Classified Information and sensitive non-classified information, inter alia, provisions for the exchange, processing and storage of such information as set out in Commission Decisions (EU, Euratom) 2015/443 (91)and (EU, Euratom) 2015/444 (92). Alternatively, BEREC or the BEREC Office may adopt a decision applying the Commission’s rules mutatis mutandis. Article 40 Exchange of information 1.

Upon the reasoned request of BEREC or the BEREC Office, the Commission and the NRAs represented in the Board of Regulators and other competent authorities shall provide BEREC or the BEREC Office with all the necessary information, in a timely and accurate manner, to carry out their tasks, provided that they have legal access to the relevant information and that the request for information is necessary in relation to the nature of the task in question. BEREC or the BEREC Office may also request such information to be provided at regular intervals and in specified formats. Such requests shall, where possible, be made using common reporting formats.

2.

Upon the reasoned request of the Commission or an NRA, BEREC or the BEREC Office shall provide, in a timely and accurate manner, any information that is necessary to enable the Commission, the NRA or other competent authority, to carry out their tasks, pursuant to the principle of sincere cooperation. Where BEREC or the BEREC  Office considers information to be confidential, the Commission, the NRA or the other competent authority shall ensure such confidentiality in accordance with Union and national law, including Regulation (EC) No 1049/2001. Business confidentiality shall not prevent the timely sharing of information.

3.

Before requesting information in accordance with this Article and in order to avoid the duplication of reporting obligations, BEREC or the BEREC Office shall take account of any relevant existing information publicly available.

4.

Where information is not made available by the NRAs in a timely manner, BEREC or the BEREC Office may address a reasoned request either to other NRAs and other competent authorities of the Member State concerned, or directly to the relevant undertakings providing electronic communications networks, services and associated facilities.

Commission Decision (EU, Euratom) 2015/443 of 13  March 2015 on Security in the Commission (OJ L 72, 17.3.2015, p. 41). 92 Commission Decision (EU, Euratom) 2015/444 of 13 March 2015 on the security rules for protecting EU classified information (OJ L 72, 17.3.2015, p. 53). 91



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BEREC or the BEREC Office shall notify the NRAs that have failed to provide the information of requests in accordance with the first subparagraph. Upon the request of BEREC or the BEREC Office, the NRAs shall assist BEREC in collecting the information. 5.

Member States shall ensure that NRAs and other competent authorities have the power to require other responsible national authorities or undertakings providing electronic communications networks and services, associated facilities, or associated services to submit all information necessary to carry out their tasks referred to in this Article. Other responsible national authorities or undertakings as referred to in the first subparagraph shall provide such information promptly upon request and in accordance with the timescales and level of detail required. Member States shall ensure that NRAs and other competent authorities are empowered to enforce such information requests by imposing penalties that are appropriate, effective, proportionate and dissuasive. Article 41 Information and communication system

1.

The BEREC Office shall establish and manage an information and communication system with at least the following functions: (a) a common platform for the exchange of information, providing BEREC, the Commission and NRAs with the necessary information for the consistent implementation of the Union regulatory framework for electronic communications; (b) a dedicated interface for requests for information and notification of those requests as referred to in Article  40, for access by BEREC, the BEREC Office, the Commission and NRAs; (c)

a platform for early identification of the need for coordination between NRAs.

2.

The Management Board shall adopt the technical and functional specifications for the purpose of establishing the information and communication system referred to in paragraph 1. That system shall be subject to intellectual property rights and the required confidentiality level.

3.

The information and communication system shall be operational by 21 June 2020. Article 42 Declarations of interests

1.

Members of the Board of Regulators and the Management Board, the Director, seconded national experts and other staff not employed by the BEREC Office shall each make a written declaration indicating their commitments and the absence or presence of any direct or indirect interests that might be considered to prejudice their independence. Such declarations shall be made at the time of taking up responsibilities, shall be accurate and complete, and shall be updated where there is a risk of there being any direct or indirect interest that might be considered to prejudice the independence of the person making the declaration. The declarations made by the members of the Board of Regulators, the members of the Management Board and the Director shall be made public.

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2.

Members of the Board of Regulators, the Management Board and the working groups, and other participants in their meetings, the Director, seconded national experts and other staff not employed by the BEREC Office shall each accurately and completely declare, at the latest at the start of each meeting, any interest which might be considered to be prejudicial to their independence in relation to the items on the agenda, and shall abstain from participating in the discussion and the voting on, such points.

3.

The Board of Regulators and the Management Board shall lay down the rules for the prevention and management of conflicts of interests and, in particular, for the practical arrangements for the application of paragraphs 1 and 2. Article 43 Combating fraud

1.

In order to facilitate combating fraud, corruption and other unlawful activities under Regulation (EU, Euratom) No  883/2013 of the European Parliament and of the Council (93), by 21  June 2019, the BEREC  Office shall accede to the Interinstitutional 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) (94) and adopt appropriate provisions applicable to all staff of the BEREC Office using the template set out in the Annex to that Agreement.

2.

The Court of Auditors shall have the power of audit, on the basis of documents and on-the-spot inspections, over all grant beneficiaries, contractors and subcontractors who have received Union funds from the BEREC Office.

3.

OLAF may carry out investigations, including on-the-spot checks and inspections, in accordance with the provisions and procedures laid down in Regulation (EU, Euratom) No 883/2013 and Council Regulation (Euratom, EC) No 2185/96 (95) with a view to establishing whether there has been fraud, corruption or any other illegal activity affecting the financial interests of the Union in connection with a grant agreement or grant decision or a contract funded by the BEREC Office.

4.

Without prejudice to paragraphs 1, 2 and 3, cooperation agreements with third countries and international organisations, contracts, grant agreements and grant decisions shall contain provisions expressly empowering the Court of Auditors and OLAF to conduct such audits and investigations, in accordance with their respective competences. Article 44 Liability

1.

The BEREC Office’s contractual liability shall be governed by the law applicable to the contract in question.

Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ L 248, 18.9.2013, p. 1). 94 OJ L 136, 31.5.1999, p. 15. 95 Council Regulation (Euratom, EC) No  2185/96 of 11  November 1996 concerning on-the-spot checks and inspections carried out by the Commission in order to protect the European Communities’ financial interests against fraud and other irregularities (OJ L 292, 15.11.1996, p. 2). 93



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2.

The Court of Justice of the European Union (Court of Justice) shall have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by the BEREC Office.

3.

In the case of non-contractual liability, the BEREC  Office shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its departments or by its staff in the performance of their duties.

4.

The Court of Justice shall have jurisdiction in disputes over compensation for damages referred to in paragraph 3.

5.

The personal liability of its staff towards the BEREC Office shall be governed by the provisions laid down in the Staff Regulations or the Conditions of Employment of Other Servants applicable to them.

Article 45 Administrative inquiries The activities of BEREC and of the BEREC Office shall be subject to the inquiries of the European Ombudsman in accordance with Article 228 TFEU. Article 46 Language arrangements 1.

Regulation No 1 (96) shall apply to the BEREC Office.

2.

The translation services required for the functioning of the BEREC Office shall be provided by the Translation Centre of the Bodies of the European Union. CHAPTER X FINAL PROVISIONS Article 47 Headquarters Agreement and operating conditions

1.

The arrangements concerning the accommodation to be provided for the BEREC Office in the host Member State and the facilities to be made available by that Member State as well as the specific rules applicable in the host Member State to the Director, members of the Management Board, the BEREC Office staff and members of their families shall be laid down in a Headquarters Agreement between the BEREC Office and the host Member State, concluded after obtaining the approval of the Management Board and no later than 21 December 2020.

2.

The host Member State shall provide the necessary conditions to ensure the smooth and efficient functioning of the BEREC  Office, including multilingual, European-oriented schooling and appropriate transport connections. Article 48 Evaluation

1.

By 21  December 2023, and every five years thereafter, the Commission shall carry out an evaluation in compliance with the Commission guidelines to assess BEREC’s and the BEREC  Office’s performance in relation to their objectives, mandate, tasks and location. The evaluation shall, in particular, address the possible need to modify the structure or mandate of BEREC and the BEREC Office, and the financial implications of any such modification.

Regulation No 1 determining the languages to be used by the European Economic Community (OJ 17, 6.10.1958, p. 385).

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2.

Where the Commission considers that the continuation of BEREC or the BEREC  Office is no longer justified with regard to its assigned objectives, mandate and tasks, it may propose that this Regulation be amended or repealed accordingly.

3.

The Commission shall report to the European Parliament, the Council and the Management Board on the findings of its evaluation and shall make those findings public. Article 49 Transitional Provisions

1.

The BEREC Office shall succeed the Office that was established by Regulation (EC) No  1211/2009 as regards all ownership, agreements, legal obligations, employment contracts, financial commitments and liabilities. In particular, this Regulation shall not affect the rights and obligations of the staff of the Office. Their contracts may be renewed under this Regulation in accordance with the Staff Regulations and the Conditions of Employment of Other Servants and in accordance with the budgetary constraints of the BEREC Office.

2.

With effect from 20 December 2018, the Administrative Manager appointed on the basis of Regulation (EC) No 1211/2009 shall act as Director with the functions provided for in this Regulation. The other conditions of the Administrative Manager’s contract shall remain unchanged.

3.

The Management Board may decide to renew the term of office of the Director referred to in paragraph 2 of this Article for a further term. Article 32(5) and (6) shall apply mutatis mutandis. The cumulative term of office of the Director shall not exceed 10 years.

4.

The Board of Regulators and the Management Board referred to in Articles 7 and 15 of this Regulation shall be composed of the members of the Board of Regulators and Management Committee referred to in Articles 4 and 7 of Regulation (EC) No 1211/2009, until new representatives are appointed.

5.

The Chairs and the Vice-Chairs of the Board of Regulators and of the Management Committee who have been appointed on the basis of Regulation (EC) No 1211/2009, shall remain in office as Chair and Vice-Chairs of the Board of Regulators as referred to in Article 10 of this Regulation, and as Chairperson and Deputy Chairpersons of the Management Board as referred to in Article 17 of this Regulation for the remaining period of their one-year term. Appointments of the Chairs and Vice-Chairs of the Board of Regulators and of the Management Committee on the basis of Regulation (EC) No 1211/2009, which are made before 20 December 2018 but extend beyond that date, shall be respected.

6.

The discharge procedure in respect of the budget approved on the basis of Article 11 of Regulation (EC) No 1211/2009 shall be carried out in accordance with the rules established by that Regulation.

Article 50 Amendments to Regulation (EU) 2015/2120 Regulation (EU) 2015/2120 is amended as follows: (1) the title is replaced by the following: ‘Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 laying down measures concerning open internet access and



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retail charges for regulated intra-EU communications and amending Directive 2002/22/EC and Regulation (EU) No 531/2012’; (2) in Article 1, the following paragraph is added: ‘3. This Regulation also lays down common rules to ensure that consumers are not charged excessive prices for making number-based interpersonal communications originating in the Member State of the consumer’s domestic provider and terminating at any fixed or mobile number in another Member State.’; (3) in the second paragraph of Article 2, the following points are added: ‘(3) “regulated intra-EU communications” means any number-based interpersonal communications service originating in the Member State of the consumer’s domestic provider and terminating at any fixed or mobile number of the national numbering plan of another Member State, and which is charged wholly or partly based on actual consumption; (4) “number-based interpersonal communications service” means number-based interpersonal communications service as defined in point (6) of Article  2 of Directive (EU) 2018/1972 of the European Parliament and of the Council (*). (*) Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (OJ L 321, 17.12.2018, p. 36).’;” (4) the following Article is inserted: ‘Article 5a Retail charges for regulated intra-EU communications 1.

From 15 May 2019, any retail price (excluding VAT) charged to consumers for regulated intra-EU communications shall not exceed EUR  0,19 per minute for calls and EUR 0,06 per SMS message.

2.

Notwithstanding the obligations laid down in paragraph  1, providers of regulated intra-EU communications may additionally offer, and consumers may expressly choose, a tariff for international communications including regulated intra-EU communications different from that set in accordance with paragraph  1, by virtue of which consumers benefit from a different tariff for regulated intra-EU communications than they would have been accorded in the absence of such a choice. Before consumers choose such a different tariff, the provider of regulated intra-EU communications shall inform them of the nature of the advantages which would thereby be lost.

3.

Where a tariff for regulated intra-EU communications as referred to in paragraph 2 exceeds the caps laid down in paragraph 1, consumers who have not confirmed or expressed, within a period of two months from 15 May 2019, a choice for any tariff as referred to in paragraph 2, shall automatically be provided with the tariffs laid down in paragraph 1.

4.

Consumers may switch from or back to the tariffs laid down in paragraph 1 within one working day of receipt of the request by the provider, free of charge and providers shall ensure that such a switch does not entail conditions or restrictions with regard to elements of the subscriptions other than regulated intra-EU communications.

5.

Where the maximum prices referred to in paragraph 1 are denominated in a currency other than the euro, the initial limits shall be determined in those

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currencies by applying the average of the reference exchange rates published on 15 January, 15 February and 15 March 2019 by the European Central Bank in the Official Journal of the European Union. The limits in currencies other than the euro shall be revised annually from 2020. The annually revised limits in those currencies shall apply from 15 May using the average of the reference exchange rates published on 15 January, 15 February and 15 March of the same year. 6. National regulatory authorities shall monitor the market and price developments for regulated intra-EU communications and shall report to the Commission. Where a provider of regulated intra-EU communications establishes that, due to specific and exceptional circumstances distinguishing it from most other Union providers, the application of the cap referred to in paragraph 1 would have significant impact on that provider’s capacity to sustain its existing prices for domestic communications, a national regulatory authority may, upon that provider’s request, grant a derogation from paragraph 1 only to the extent necessary and for a renewable period of one year. The assessment of the sustainability of the domestic charging model shall be based on relevant objective factors specific to the provider of regulated intra-EU communications, as well as the level of domestic prices and revenues. Where the applicant provider has discharged the applicable evidentiary burden, the national regulatory authority shall determine the maximum price level in excess of one or both of the caps set out in paragraph  1 which would be indispensable in order to ensure the sustainability of the provider’s domestic charging model. BEREC shall publish guidelines on the parameters to be taken into account by national regulatory authorities in their assessments.’; (5) in Article 6, the following paragraph is added: ‘Member States shall lay down the rules on penalties applicable to infringements of Article  5a and shall take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive. Member States shall notify the Commission of the rules and measures laid down to ensure the implementation of Article 5a by 15 May 2019 and shall notify the Commission without delay of any subsequent amendment affecting them.’; (6) in Article 10, the following paragraph is added: ‘5. Article 5a shall expire on 14 May 2024.’. Article 51 Repeal Regulation (EC) No 1211/2009 is repealed. References to the repealed Regulation shall be construed as references to this Regulation and shall be read in accordance with the correlation table in the Annex. Article 52 Entry into force This Regulation shall enter into force on the third 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.



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Done at Strasbourg, 11 December 2018. For the European Parliament The President A. TAJANI

For the Council The President J. BOGNER-STRAUSS ANNEX Correlation table

Regulation (EC) No 1211/2009

This Regulation

Article 1(1)

Article 1

Article 1(2)

Article 3(1)

Article 1(3)

Article 3(2) and (3)

Article 1(4)

Article 3(4) and points (a) and (b) of Article 4(1)

Article 2

Article 4

Article 3

Article 4

Article 4(1)

Article 6

Article 4(2)

Article 7(1), (2) and (4), Article 8(1) and (2)

Article 4(3)

Article 11(4) and (5) and Article 36

Article 4(4)

Article 10(1), (2) and (3)

Article 4(5)

Article 10(4)

Article 4(6)

Article 11

Article 4(7)

Article 13

Article 4(8)

Article 7(4)

Article 4(9)

Article 12(1) and (2)

Article 4(10)

Article 12(3)

Article 4(11)

Article 5

Article 5

Article 4

Article 6(1)

Article 2(1)

Article 6(2)

Article 5

Article 6(3)

Article 14(1)

Article 6(4)

Article 2(2)

Article 6(5)

Articles 20 and 31

Article 7(1)

Article 15(1)

Article 7(2)

Article 32

Article 7(3)

Article 20(6)

Article 7(4)

Point (k) of Article 16(1)

Article 7(5)

Article 13

Article 8

Article 32

Article 9

Article 20

Article 10(1)

Articles 30 and 34

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Article 10(2)

Point (j) of Article 16(1)

Article 10(3)

Article 16(2)

Article 10(4)

Article 33

Article 11

Article 25

Article 12

Article 24

Article 13

Article 26

Article 14

—

Article 15

Article 29

Article 16

Article 43

Article 17

Article 4(5)

Article 18

Article 37

Article 19

Articles 39 and 40

Article 20

Article 38

Article 21

Article 42

Article 22

Article 36

Article 23

Article 34

Article 24

Article 44

Article 25

Article 48

Article 26

Article 52



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COMMISSION DELEGATED REGULATION (EU) 2019/320 of 12 December 2018 supplementing of Directive 2014/53/EU of the European Parliament and of the Council with regard to the application of the essential requirements referred to in Article 3(3)(g) of that Directive in order to ensure caller location in emergency communications from mobile devices[97] THE EUROPEAN COMMISSION, Having regard to the Treaty on the Functioning of the European Union, Having regard to Directive 2014/53/EU of the European Parliament and of the Council of 16 April 2014 on the harmonisation of the laws of the Member States relating to the making available on the market of radio equipment and repealing Directive 1999/5/EC (98) and in particular Article 3(3) thereof, Whereas: (1) As stated in recital 14 of Directive 2014/53/EU, radio equipment can be instrumental in providing access to emergency services and should therefore in appropriate cases be designed to support the features required for access to those services. (2) The system established under the Galileo programme on the basis of Regulation (EU) No 1285/2013 of the European Parliament and of the Council (99) is a global navigation satellite system (‘GNSS’) fully owned and controlled by the Union which provides a highly accurate positioning service under civilian control. The Galileo system can be used in combination with other GNSS. (3) The Space Strategy for Europe (100), adopted in 2016 announces measures introducing the use of Galileo positioning and navigation services in mobile phones. (4)

In its conclusions of 5 December 2017 (101), the Council supports the development of a strong downstream market for space-based applications and services, and underlines that adequate measures, including regulatory ones, where appropriate, should be taken to achieve the full compatibility of devices sold in the Union with the Galileo system and to encourage the uptake of Galileo-ready devices on the global market.

(5)

Directive 2002/22/EC of the European Parliament and of the Council (102) provides for the deployment of the single European emergency call number (‘112’) throughout the Union and obliges Member States to ensure that undertakings providing end-users with an electronic communication service for originating calls to a number or numbers in the national numbering plan make caller location

OJ L 55, 25.2.2019, p. 1. OJ L 153, 22.5.2014, p. 62. 99 Regulation (EU) No  1285/2013 of the European Parliament and of the Council of 11  December 2013 on the implementation and exploitation of European satellite navigation systems and repealing Council Regulation (EC) No 876/2002 and Regulation (EC) No 683/2008 of the European Parliament and of the Council (OJ L 347, 20.12.2013, p. 1). 100 Communication from the Commission to the European Parliament, the Council, the European and Social Committee and the Committee of the Regions — Space Strategy for Europe (COM(2016) 705 final). 101 Council Conclusions of 5  December 2017 on ‘The Mid-term Evaluation of the Galileo and EGNOS programmes and of the performance of the European GNSS Agency’, 15435/17. 102 Directive 2002/22/EC of the European Parliament and of the Council of 7  March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ L 108, 24.4.2002, p. 51). 97 98

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information available to authorities handling emergency calls to at least the single European emergency call number ‘112’. (6) Hand-held mobile telephones with advanced computing capabilities (‘mobile devices’) is the category of telecommunication radio equipment that is most used in the Union to make calls to the single European emergency call number ‘112’. (7) The level of accuracy regarding the location of the radio equipment accessing the emergency services plays a key role in ensuring that the required access to those services is effective. Currently, caller location in emergency communications from mobile devices is established using a cell-ID based on the coverage area of the serving cell-tower of the mobile device. The area of coverage of a cell tower varies from 100 metres to several kilometres. In certain cases, notably in mountains, cities and large buildings, this can lead to significant errors in positioning emergency callers. (8) A caller location identification based on a cell-ID complemented with the Wi-Fi and GNSS information allows for much more accurate caller location and permits faster and more efficient rescue efforts, as well as an optimisation of resources. (9) Caller-location solutions based on GNSS positioning have already been deployed in eight Member States and certain third countries. (10) With respect to 112-based eCall in-vehicle systems, Regulation (EU) 2015/758 of the European Parliament and of the Council (103) already requires that receivers in those systems be compatible with the positioning services provided by the Galileo and the EGNOS systems. (11) For the reasons set out, mobile devices should also fall within the category of radio equipment which supports certain features ensuring access to emergency services referred to in Article  3(3)(g) of Directive 2014/53/EU. New mobile devices should be capable of providing access to Wi-Fi and GNSS location information in emergency communications and the location positioning feature should be compatible with and interwork with the services provided by the Galileo programme. (12) Directive 2014/53/EU is limited to the expression of essential requirements. In order to facilitate conformity assessment with those requirements, it provides for a presumption of conformity for radio equipment which complies with voluntary harmonised standards that are adopted in accordance with Regulation (EU) No 1025/2012 of the European Parliament and of the Council (104) for the purpose of expressing detailed technical specifications of those requirements. (13) The European Committee for Electrotechnical Standardisation (Cenelec) and the European Telecommunications Standards Institute (ETSI) were requested

Regulation (EU) 2015/758 of the European Parliament and of the Council of 29 April 2015 concerning type approval requirements for the deployment of the eCall in vehicle system based on the 112 service and amending Directive 2007/46/EC (OJ L 123, 19.5.2015, p. 77). 104 Regulation (EU) No 1025/2012 of the European Parliament and of the Council of 25 October 2012 on European standardisation, amending Council Directives 89/686/EEC and 93/15/EEC and Directives 94/9/ EC, 94/25/EC, 95/16/EC, 97/23/EC, 98/34/EC, 2004/22/EC, 2007/23/EC, 2009/23/EC and 2009/105/EC of the European Parliament and of the Council and repealing Council Decision 87/95/EEC and Decision No 1673/2006/EC of the European Parliament and of the Council (OJ L 316, 14.11.2012, p. 12). 103



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to draft, in support of the implementation of Article 3 of Directive 2014/53/EU, harmonised standards for radio equipment (M/536) (105). (14) Economic operators should be provided with a sufficient time period to proceed with the necessary adaptations to mobile devices they intend to put on the market. Nothing in this Regulation should be interpreted as preventing economic operators from complying with it from the date of its entry into force. (15) The Commission has carried out appropriate consultations, including at expert level, during the preparatory work of the measures set out in this Regulation and has consulted the Space Policy Expert Group at its meetings of 14 November 2017 and 14 March 2018, HAS ADOPTED THIS REGULATION: Article 1 1.

The essential requirements set out in Article 3(3)(g) of Directive 2014/53/EU shall apply to hand-held mobile telephones with features similar to those of a computer in terms of capability to treat and store data.

2.

Compliance with paragraph  1 shall be ensured through technical solutions for the reception and processing of Wi-Fi data, data from Global Navigation Satellite Systems compatible and interoperable with at least the Galileo system referred to in Regulation (EU) No 1285/2013, and for the making available of that data for transmission in emergency communications.

Article 2 This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. It shall apply from 17 March 2022. This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 12 December 2018. For the Commission The President Jean-Claude JUNCKER

Commission Implementing Decision C(2015) 5376 final of 4 August 2015 on a standardisation request to the European Committee for Electrotechnical Standardisation and to the European Telecommunications Standards Institute as regards radio equipment in support of Directive 2014/53/EU of the European Parliament and of the Council.

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REGULATION (EU) 2019/881 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 17 April 2019 on ENISA (the European Union Agency for Cybersecurity) and on information and communications technology cybersecurity certification and repealing Regulation (EU) No 526/2013 (Cybersecurity Act)[106] (Text with EEA relevance) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, Having regard to the opinion of the European Economic and Social Committee (107), Having regard to the opinion of the Committee of the Regions (108), Acting in accordance with the ordinary legislative procedure (109), Whereas: (1) Network and information systems and electronic communications networks and services play a vital role in society and have become the backbone of economic growth. Information and communications technology (ICT) underpins the complex systems which support everyday societal activities, keep our economies running in key sectors such as health, energy, finance and transport, and, in particular, support the functioning of the internal market. (2) The use of network and information systems by citizens, organisations and businesses across the Union is now pervasive. Digitisation and connectivity are becoming core features in an ever growing number of products and services and with the advent of the internet of Things (IoT) an extremely high number of connected digital devices are expected to be deployed across the Union during the next decade. While an increasing number of devices is connected to the internet, security and resilience are not sufficiently built in by design, leading to insufficient cybersecurity. In that context, the limited use of certification leads to individual, organisational and business users having insufficient information about the cybersecurity features of ICT products, ICT services and ICT processes, which undermines trust in digital solutions. Network and information systems are capable of supporting all aspects of our lives and drive the Union’s economic growth. They are the cornerstone for achieving the digital single market. (3) Increased digitisation and connectivity increase cybersecurity risks, thus making society as a whole more vulnerable to cyber threats and exacerbating the dangers faced by individuals, including vulnerable persons such as children. In order to mitigate those risks, all necessary actions need to be taken to improve cybersecurity in the Union so that network and information systems, communications networks, digital products, services and devices used by citizens, organisations and businesses – ranging from small and medium-sized enterprises (SMEs), as defined

OJ L 151, 7.6.2019, p. 15. OJ C 227, 28.6.2018, p. 86. 108 OJ C 176, 23.5.2018, p. 29. 109 Position of the European Parliament of 12  March 2019 (not yet published in the Official Journal) and decision of the Council of 9 April 2019. 106 107



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in Commission Recommendation 2003/361/EC (110), to operators of critical infrastructure – are better protected from cyber threats. (4) By making the relevant information available to the public, the European Union Agency for Network and Information Security (ENISA), as established by Regulation (EU) No  526/2013 of the European Parliament and of the Council (111) contributes to the development of the cybersecurity industry in the Union, in particular SMEs and start-ups. ENISA should strive for closer cooperation with universities and research entities in order to contribute to reducing dependence on cybersecurity products and services from outside the Union and to reinforce supply chains inside the Union. (5) Cyberattacks are on the increase and a connected economy and society that is more vulnerable to cyber threats and attacks requires stronger defences. However, while cyberattacks often take place across borders, the competence of, and policy responses by, cybersecurity and law enforcement authorities are predominantly national. Large-scale incidents could disrupt the provision of essential services across the Union. This necessitates effective and coordinated responses and crisis management at Union level, building on dedicated policies and wider instruments for European solidarity and mutual assistance. Moreover, a regular assessment of the state of cybersecurity and resilience in the Union, based on reliable Union data, as well as systematic forecasts of future developments, challenges and threats, at Union and global level, are important for policy makers, industry and users. (6)

In light of the increased cybersecurity challenges faced by the Union, there is a need for a comprehensive set of measures that would build on previous Union action and would foster mutually reinforcing objectives. Those objectives include further increasing the capabilities and preparedness of Member States and businesses, as well as improving cooperation, information sharing and coordination across Member States and Union institutions, bodies, offices and agencies. Furthermore, given the borderless nature of cyber threats, there is a need to increase capabilities at Union level that could complement the action of Member States, in particular in cases of large-scale cross-border incidents and crises, while taking into account the importance of maintaining and further enhancing the national capabilities to respond to cyber threats of all scales.

(7) Additional efforts are also needed to increase citizens’, organisations’ and businesses’ awareness of cybersecurity issues. Moreover, given that incidents undermine trust in digital service providers and in the digital single market itself, especially among consumers, trust should be further strengthened by offering information in a transparent manner on the level of security of ICT products, ICT services and ICT processes that stresses that even a high level of cybersecurity certification cannot guarantee that an ICT product, ICT service or ICT process is completely secure. An increase in trust can be facilitated by Union-wide certification providing for common cybersecurity requirements and evaluation criteria across national markets and sectors. (8) Cybersecurity is not only an issue related to technology, but one where human behaviour is equally important. Therefore, ‘cyber-hygiene’, namely, simple, Commission Recommendation of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ L 124, 20.5.2003, p. 36). 111 Regulation (EU) No 526/2013 of the European Parliament and of the Council of 21 May 2013 concerning the European Union Agency for Network and Information Security (ENISA) and repealing Regulation (EC) No 460/2004 (OJ L 165, 18.6.2013, p. 41). 110

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routine measures that, where implemented and carried out regularly by citizens, organisations and businesses, minimise their exposure to risks from cyber threats, should be strongly promoted. (9) For the purpose of strengthening Union cybersecurity structures, it is important to maintain and develop the capabilities of Member States to comprehensively respond to cyber threats, including to cross-border incidents. (10) Businesses and individual consumers should have accurate information regarding the assurance level with which the security of their ICT products, ICT services and ICT processes has been certified. At the same time, no ICT product or ICT service is wholly cyber-secure and basic rules of cyber-hygiene have to be promoted and prioritised. Given the growing availability of IoT devices, there is a range of voluntary measures that the private sector can take to reinforce trust in the security of ICT products, ICT services and ICT processes. (11) Modern ICT products and systems often integrate and rely on one or more third-party technologies and components such as software modules, libraries or application programming interfaces. This reliance, which is referred to as a ‘dependency’, could pose additional cybersecurity risks as vulnerabilities found in third-party components could also affect the security of the ICT products, ICT services and ICT processes. In many cases, identifying and documenting such dependencies enables end users of ICT products, ICT services and ICT processes to improve their cybersecurity risk management activities by improving, for example, users’ cybersecurity vulnerability management and remediation procedures. (12) Organisations, manufacturers or providers involved in the design and development of ICT products, ICT services or ICT processes should be encouraged to implement measures at the earliest stages of design and development to protect the security of those products, services and processes to the highest possible degree, in such a way that the occurrence of cyberattacks is presumed and their impact is anticipated and minimised (‘security-by-design’). Security should be ensured throughout the lifetime of the ICT product, ICT service or ICT process by design and development processes that constantly evolve to reduce the risk of harm from malicious exploitation. (13) Undertakings, organisations and the public sector should configure the ICT products, ICT services or ICT processes designed by them in a way that ensures a higher level of security which should enable the first user to receive a default configuration with the most secure settings possible (‘security by default’), thereby reducing the burden on users of having to configure an ICT product, ICT service or ICT process appropriately. Security by default should not require extensive configuration or specific technical understanding or non-intuitive behaviour on the part of the user, and should work easily and reliably when implemented. If, on a case-by-case basis, a risk and usability analysis leads to the conclusion that such a setting by default is not feasible, users should be prompted to opt for the most secure setting. (14) Regulation (EC) No 460/2004 of the European Parliament and of the Council (112) established ENISA with the purposes of contributing to the goals of ensuring a high and effective level of network and information security within the Union, and developing a culture of network and information security for the benefit of citizens, Regulation (EC) No 460/2004 of the European Parliament and of the Council of 10 March 2004 establishing the European Network and Information Security Agency (OJ L 77, 13.3.2004, p. 1).

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consumers, enterprises and public administrations. Regulation (EC) No 1007/2008 of the European Parliament and of the Council (113) extended ENISA’s mandate until March 2012. Regulation (EU) No 580/2011 of the European Parliament and of the Council (114) further extended ENISA’s mandate until 13 September 2013. Regulation (EU) No 526/2013 extended ENISA’s mandate until 19 June 2020. (15) The Union has already taken important steps to ensure cybersecurity and to increase trust in digital technologies. In 2013, the Cybersecurity Strategy of the European Union was adopted to guide the Union’s policy response to cyber threats and risks. In an effort to better protect citizens online, the Union’s first legal act in the field of cybersecurity was adopted in 2016 in the form of Directive (EU) 2016/1148 of the European Parliament and of the Council (115). Directive (EU) 2016/1148 put in place requirements concerning national capabilities in the field of cybersecurity, established the first mechanisms to enhance strategic and operational cooperation between Member States, and introduced obligations concerning security measures and incident notifications across sectors which are vital for the economy and society, such as energy, transport, drinking water supply and distribution, banking, financial market infrastructures, healthcare, digital infrastructure as well as key digital service providers (search engines, cloud computing services and online marketplaces). A  key role was attributed to ENISA in supporting the implementation of that Directive. In addition, fighting effectively against cybercrime is an important priority in the European Agenda on Security, contributing to the overall aim of achieving a high level of cybersecurity. Other legal acts such as Regulation (EU) 2016/679 of the European Parliament and of the Council  (116) and Directives 2002/58/EC (117) and (EU) 2018/1972 (118) of the European Parliament and of the Council also contribute to a high level of cybersecurity in the digital single market. (16) Since the adoption of the Cybersecurity Strategy of the European Union in 2013 and the last revision of ENISA’s mandate, the overall policy context has changed significantly as the global environment has become more uncertain and less secure. Against that background and in the context of the positive development of the role of ENISA as a reference point for advice and expertise, as a facilitator of cooperation and of capacity-building as well as within the framework of the new Union cybersecurity policy, it is necessary to review ENISA’s mandate, to establish its role in the changed cybersecurity ecosystem and to ensure that it contributes Regulation (EC) No  1007/2008 of the European Parliament and of the Council of 24  September 2008 amending Regulation (EC) No  460/2004 establishing the European Network and Information Security Agency as regards its duration (OJ L 293, 31.10.2008, p. 1). 114 Regulation (EU) No 580/2011 of the European Parliament and of the Council of 8 June 2011 amending Regulation (EC) No 460/2004 establishing the European Network and Information Security Agency as regards its duration (OJ L 165, 24.6.2011, p. 3). 115 Directive (EU) 2016/1148 of the European Parliament and of the Council of 6  July 2016 concerning measures for a high common level of security of network and information systems across the Union (OJ L 194, 19.7.2016, p. 1). 116 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27  April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1). 117 Directive 2002/58/EC 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 (Directive on privacy and electronic communications) (OJ L 201, 31.7.2002, p. 37). 118 Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (OJ L 321, 17.12.2018, p. 36). 113

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effectively to the Union’s response to cybersecurity challenges emanating from the radically transformed cyber threat landscape, for which, as recognised during the evaluation of ENISA, the current mandate is not sufficient. (17) ENISA as established by this Regulation should succeed ENISA as established by Regulation (EU) No 526/2013. ENISA should carry out the tasks conferred on it by this Regulation and other legal acts of the Union in the field of cybersecurity, among other things, by providing advice and expertise and by acting as a Union centre of information and knowledge. It should promote the exchange of best practices between Member States and private stakeholders, offer policy suggestions to the Commission and the Member States, act as a reference point for Union sectoral policy initiatives with regard to cybersecurity matters, and foster operational cooperation, both between Member States and between the Member States and Union institutions, bodies, office and agencies. (18) Within the framework of Decision 2004/97/EC, Euratom taken by common agreement between the Representatives of the Member States, meeting at Head of State or Government level (119), the representatives of the Member States decided that ENISA would have its seat in a town in Greece to be determined by the Greek Government. ENISA’s host Member State should ensure the best possible conditions for the smooth and efficient operation of ENISA. It is imperative for the proper and efficient performance of its tasks, for staff recruitment and retention and for enhancing the efficiency of networking activities that ENISA be based in an appropriate location, among other things providing appropriate transport connections and facilities for spouses and children accompanying members of staff of ENISA. The necessary arrangements should be laid down in an agreement between ENISA and the host Member State concluded after obtaining the approval of the Management Board of ENISA. (19) Given the increasing cybersecurity risks and challenges the Union is facing, the financial and human resources allocated to ENISA should be increased to reflect its enhanced role and tasks, and its critical position in the ecosystem of organisations defending the digital ecosystem of the Union, allowing ENISA to effectively carry out the tasks conferred on it by this Regulation. (20) ENISA should develop and maintain a high level of expertise and operate as a reference point, establishing trust and confidence in the single market by virtue of its independence, the quality of the advice it delivers, the quality of information it disseminates, the transparency of its procedures, the transparency of its methods of operation, and its diligence in carrying out its tasks. ENISA should actively support national efforts and should proactively contribute to Union efforts while carrying out its tasks in full cooperation with the Union institutions, bodies, offices and agencies and with the Member States, avoiding any duplication of work and promoting synergy. In addition, ENISA should build on input from and cooperation with the private sector as well as other relevant stakeholders. A set of tasks should establish how ENISA is to accomplish its objectives while allowing flexibility in its operations. (21) In order to be able to provide adequate support to the operational cooperation between Member States, ENISA should further strengthen its technical and human

Decision 2004/97/EC, Euratom taken by common agreement between the Representatives of the Member States, meeting at Head of State or Government level, of 13 December 2003 on the location of the seats of certain offices and agencies of the European Union (OJ L 29, 3.2.2004, p. 15).

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capabilities and skills. ENISA should increase its know-how and capabilities. ENISA and Member States, on a voluntary basis, could develop programmes for seconding national experts to ENISA, creating pools of experts and staff exchanges. (22) ENISA should assist the Commission by means of advice, opinions and analyses regarding all Union matters related to policy and law development, updates and reviews in the field of cybersecurity and sector-specific aspects thereof in order to enhance the relevance of Union policies and laws with a cybersecurity dimension and to enable consistency in the implementation of those policies and laws at national level. ENISA should act as a reference point for advice and expertise for Union sector-specific policy and law initiatives where matters related to cybersecurity are involved. ENISA should regularly inform the European Parliament about its activities. (23) The public core of the open internet, namely its main protocols and infrastructure, which are a global public good, provides the essential functionality of the internet as a whole and underpins its normal operation. ENISA should support the security of the public core of the open internet and the stability of its functioning, including, but not limited to, key protocols (in particular DNS, BGP, and IPv6), the operation of the domain name system (such as the operation of all top-level domains), and the operation of the root zone. (24) The underlying task of ENISA is to promote the consistent implementation of the relevant legal framework, in particular the effective implementation of Directive (EU) 2016/1148 and other relevant legal instruments containing cybersecurity aspects, which is essential to increasing cyber resilience. In light of the fast evolving cyber threat landscape, it is clear that Member States have to be supported by more comprehensive, cross-policy approach to building cyber resilience. (25) ENISA should assist the Member States and Union institutions, bodies, offices and agencies in their efforts to build and enhance capabilities and preparedness to prevent, detect and respond to cyber threats and incidents and in relation to the security of network and information systems. In particular, ENISA should support the development and enhancement of national and Union computer security incident response teams (‘CSIRTs’) provided for in Directive (EU) 2016/1148, with a view to achieving a high common level of their maturity in the Union. Activities carried out by ENISA relating to the operational capacities of Member States should actively support actions taken by Member States to comply with their obligations under Directive (EU) 2016/1148 and therefore should not supersede them. (26) ENISA should also assist with the development and updating of strategies on the security of network and information systems at Union level and, upon request, at Member State level, in particular on cybersecurity, and should promote the dissemination of such strategies and follow the progress of their implementation. ENISA should also contribute to covering the need for training and training materials, including the needs of public bodies, and where appropriate, to a high extent, ‘train the trainers’, building on the Digital Competence Framework for Citizens with a view to assisting Member States and Union institutions, bodies, offices and agencies in developing their own training capabilities. (27) ENISA should support Member States in the field of cybersecurity awarenessraising and education by facilitating closer coordination and the exchange of best practices between Member States. Such support could consist in the development

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of a network of national education points of contact and the development of a cybersecurity training platform. The network of national education points of contact could operate within the National Liaison Officers Network and be a starting point for future coordination within the Members States. (28) ENISA should assist the Cooperation Group created by Directive (EU) 2016/1148 in the execution of its tasks, in particular by providing expertise, advice and by facilitating the exchange of best practices, inter alia, with regard to the identification of operators of essential services by Member States, as well as in relation to crossborder dependencies, regarding risks and incidents. (29) With a view to stimulating cooperation between the public and private sector and within the private sector, in particular to support the protection of the critical infrastructures, ENISA should support information sharing within and among sectors, in particular the sectors listed in Annex II to Directive (EU) 2016/1148, by providing best practices and guidance on available tools and on procedure, as well as by providing guidance on how to address regulatory issues related to information sharing, for example through facilitating the establishment of sectoral information sharing and analysis centres. (30) Whereas the potential negative impact of vulnerabilities in ICT products, ICT services and ICT processes is constantly increasing, finding and remedying such vulnerabilities plays an important role in reducing the overall cybersecurity risk. Cooperation between organisations, manufacturers or providers of vulnerable ICT products, ICT services and ICT processes and members of the cybersecurity research community and governments who find vulnerabilities has been proven to significantly increase both the rate of discovery and the remedy of vulnerabilities in ICT products, ICT services and ICT processes. Coordinated vulnerability disclosure specifies a structured process of cooperation in which vulnerabilities are reported to the owner of the information system, allowing the organisation the opportunity to diagnose and remedy the vulnerability before detailed vulnerability information is disclosed to third parties or to the public. The process also provides for coordination between the finder and the organisation as regards the publication of those vulnerabilities. Coordinated vulnerability disclosure policies could play an important role in Member States’ efforts to enhance cybersecurity. (31) ENISA should aggregate and analyse voluntarily shared national reports from CSIRTs and the inter-institutional computer emergency response team for the Union’s institutions, bodies and agencies established by the Arrangement between the European Parliament, the European Council, the Council of the European Union, the European Commission, the Court of Justice of the European Union, the European Central Bank, the European Court of Auditors, the European External Action Service, the European Economic and Social Committee, the European Committee of the Regions and the European Investment Bank on the organisation and operation of a computer emergency response team for the Union’s institutions, bodies and agencies (CERT-EU) (120) in order to contribute to the setting up of common procedures, language and terminology for the exchange of information. In that context ENISA should involve the private sector within the framework of Directive (EU) 2016/1148 which lays down the grounds for the voluntary exchange of technical information at the operational level, in the computer security incident response teams network (‘CSIRTs network’) created by that Directive.

OJ C 12, 13.1.2018, p. 1.

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(32) ENISA should contribute to responses at Union level in the case of large-scale cross-border incidents and crises related to cybersecurity. That task should be performed in accordance with ENISA’s mandate under this Regulation and an approach to be agreed by Member States in the context of Commission Recommendation (EU) 2017/1584 (121) and the Council conclusions of 26 June 2018 on EU Coordinated Response to Large-Scale Cybersecurity Incidents and Crises. That task could include gathering relevant information and acting as a facilitator between the CSIRTs network and the technical community, as well as between decision makers responsible for crisis management. Furthermore, ENISA should support operational cooperation among Member States, where requested by one or more Member States, in the handling of incidents from a technical perspective, by facilitating relevant exchanges of technical solutions between Member States, and by providing input into public communications. ENISA should support operational cooperation by testing the arrangements for such cooperation through regular cybersecurity exercises. (33) In supporting operational cooperation, ENISA should make use of the available technical and operational expertise of CERT-EU through structured cooperation. Such structured cooperation could build on ENISA’s expertise. Where appropriate, dedicated arrangements between the two entities should be established to define the practical implementation of such cooperation and to avoid the duplication of activities. (34) In performing its task to support operational cooperation within the CSIRTs network, ENISA should be able to provide support to Member States at their request, such as by providing advice on how to improve their capabilities to prevent, detect and respond to incidents, by facilitating the technical handling of incidents having a significant or substantial impact or by ensuring that cyber threats and incidents are analysed. ENISA should facilitate the technical handling of incidents having a significant or substantial impact in particular by supporting the voluntary sharing of technical solutions between Member States or by producing combined technical information, such as technical solutions voluntarily shared by the Member States. Recommendation (EU) 2017/1584 recommends that Member States cooperate in good faith and share among themselves and with ENISA information on large-scale incidents and crises related to cybersecurity without undue delay. Such information would further help ENISA in performing its task of supporting operational cooperation. (35) As part of the regular cooperation at technical level to support Union situational awareness, ENISA, in close cooperation with the Member States, should prepare a regular in-depth EU Cybersecurity Technical Situation Report on incidents and cyber threats, based on publicly available information, its own analysis and reports shared with it by Member States’ CSIRTs or the national single points of contact on the security of network and information systems (‘single points of contact’) provided for in Directive (EU) 2016/1148, both on a voluntary basis, the European Cybercrime Centre (EC3) at Europol, CERT-EU and, where appropriate, the European Union Intelligence and Situation Centre (EU INTCEN) at the European External Action Service. That report should be made available to the Council, the Commission, the High Representative of the Union for Foreign Affairs and Security Policy and the CSIRTs network.

Commission Recommendation (EU) 2017/1584 of 13 September 2017 on coordinated response to largescale cybersecurity incidents and crises (OJ L 239, 19.9.2017, p. 36).

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(36) The support by ENISA for ex-post technical inquiries of incidents having a significant or substantial impact undertaken at the request of the Member States concerned should focus on the prevention of future incidents. The Member States concerned should provide the necessary information and assistance in order to enable ENISA to support the ex-post technical inquiry effectively. (37) Member States may invite the undertakings concerned by the incident to cooperate by providing necessary information and assistance to ENISA without prejudice to their right to protect commercially sensitive information and information that is relevant to public security. (38) To understand better the challenges in the area of cybersecurity, and with a view to providing strategic long-term advice to Member States and Union institutions, bodies, offices and agencies, ENISA needs to analyse current and emerging cybersecurity risks. For that purpose, ENISA should, in cooperation with Member States and, as appropriate, with statistical bodies and other bodies, collect relevant publicly available or voluntarily shared information and perform analyses of emerging technologies and provide topic-specific assessments on the expected societal, legal, economic and regulatory impact of technological innovations on network and information security, in particular cybersecurity. ENISA should, furthermore, support Member States and Union institutions, bodies, offices and agencies in identifying emerging cybersecurity risks and preventing incidents, by performing analyses of cyber threats, vulnerabilities and incidents. (39) In order to increase the resilience of the Union, ENISA should develop expertise in the field of cybersecurity of infrastructures, in particular to support the sectors listed in Annex II to Directive (EU) 2016/1148 and those used by the providers of the digital services listed in Annex III to that Directive, by providing advice, issuing guidelines and exchanging best practices. With a view to ensuring easier access to better-structured information on cybersecurity risks and possible remedies, ENISA should develop and maintain the ‘information hub’ of the Union, a one-stop-shop portal providing the public with information on cybersecurity originating in Union and national institutions, bodies, offices and agencies. Facilitating access to better-structured information on cybersecurity risks and possible remedies could also help Member States bolster their capacities and align their practices, thus increasing their overall resilience to cyberattacks. (40) ENISA should contribute to raising the public’s awareness of cybersecurity risks, including through an EU-wide awareness-raising campaign by promoting education, and to providing guidance on good practices for individual users aimed at citizens, organisations and businesses. ENISA should also contribute to promoting best practices and solutions, including cyber-hygiene and cyberliteracy at the level of citizens, organisations and businesses by collecting and analysing publicly available information regarding significant incidents, and by compiling and publishing reports and guidance for citizens, organisations and businesses, to improve their overall level of preparedness and resilience. ENISA should also strive to provide consumers with relevant information on applicable certification schemes, for example by providing guidelines and recommendations. ENISA should furthermore organise, in line with the Digital Education Action Plan established in the Commission Communication of 17 January 2018 and in cooperation with the Member States and Union institutions, bodies, offices and agencies regular outreach and public education campaigns directed at end users, to promote safer online behaviour by individuals and digital literacy, to raise awareness of potential cyber threats, including online criminal activities such as



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phishing attacks, botnets, financial and banking fraud, data fraud incidents, and to promote basic multi-factor authentication, patching, encryption, anonymisation and data protection advice. (41) ENISA should play a central role in accelerating end-user awareness of the security of devices and the secure use of services, and should promote security-by-design and privacy-by-design at Union level. In pursuing that objective, ENISA should make use of available best practices and experience, especially the best practices and experience of academic institutions and IT security researchers. (42) In order to support the businesses operating in the cybersecurity sector, as well as the users of cybersecurity solutions, ENISA should develop and maintain a ‘market observatory’ by performing regular analyses and disseminating information on the main trends in the cybersecurity market, on both the demand and supply sides. (43) ENISA should contribute to the Union’s efforts to cooperate with international organisations as well as within relevant international cooperation frameworks in the field of cybersecurity. In particular, ENISA should contribute, where appropriate, to cooperation with organisations such as the OECD, the OSCE and NATO. Such cooperation could include joint cybersecurity exercises and joint incident response coordination. Those activities are to be carried out in full respect of the principles of inclusiveness, reciprocity and the decision-making autonomy of the Union, without prejudice to the specific character of the security and defence policy of any Member State. (44) In order to ensure that it fully achieves its objectives, ENISA should liaise with the relevant Union supervisory authorities and with other competent authorities in the Union, Union institutions, bodies, offices and agencies, including CERTEU, EC3, the European Defence Agency (EDA), the European Global Navigation Satellite Systems Agency (European GNSS  Agency), the Body of European Regulators for Electronic Communications (BEREC), the European Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA), the European Central Bank (ECB), the European Banking Authority (EBA), the European Data Protection Board, the Agency for the Cooperation of Energy Regulators (ACER), the European Union Aviation Safety Agency (EASA) and any other Union agency involved in cybersecurity. ENISA should also liaise with authorities that deal with data protection in order to exchange know-how and best practices and should provide advice on cybersecurity issues that might have an impact on their work. Representatives of national and Union law enforcement and data protection authorities should be eligible to be represented in the ENISA Advisory Group. In liaising with law enforcement authorities regarding network and information security issues that might have an impact on their work, ENISA should respect existing channels of information and established networks. (45) Partnerships could be established with academic institutions that have research initiatives in relevant fields, and there should be appropriate channels for input from consumer organisations and other organisations, which should be taken into consideration. (46) ENISA, in its role as the secretariat of the CSIRTs network, should support Member States’ CSIRTs and the CERT-EU in the operational cooperation in relation to the relevant tasks of the CSIRTs network, as referred to in Directive (EU) 2016/1148. Furthermore, ENISA should promote and support cooperation between the relevant CSIRTs in the event of incidents, attacks or disruptions of

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networks or infrastructure managed or protected by the CSIRTs and involving or being capable of involving at least two CSIRTs while taking due account of the Standard Operating Procedures of the CSIRTs network. (47) With a view to increasing Union preparedness in responding to incidents, ENISA should regularly organise cybersecurity exercises at Union level, and, at their request, support Member States and Union institutions, bodies, offices and agencies in organising such exercises. Large-scale comprehensive exercises which include technical, operational or strategic elements should be organised on a biennial basis. In addition, ENISA should be able to regularly organise less comprehensive exercises with the same goal of increasing Union preparedness in responding to incidents. (48) ENISA should further develop and maintain its expertise on cybersecurity certification with a view to supporting the Union policy in that area. ENISA should build on existing best practices and should promote the uptake of cybersecurity certification within the Union, including by contributing to the establishment and maintenance of a cybersecurity certification framework at Union level (European cybersecurity certification framework) with a view to increasing the transparency of the cybersecurity assurance of ICT products, ICT services and ICT processes, thereby strengthening trust in the digital internal market and its competitiveness. (49) Efficient cybersecurity policies should be based on well-developed risk assessment methods, in both the public and private sectors. Risk assessment methods are used at different levels, with no common practice regarding how to apply them efficiently. Promoting and developing best practices for risk assessment and for interoperable risk management solutions in public-sector and private-sector organisations will increase the level of cybersecurity in the Union. To that end, ENISA should support cooperation between stakeholders at Union level and facilitate their efforts relating to the establishment and take-up of European and international standards for risk management and for the measurable security of electronic products, systems, networks and services which, together with software, comprise the network and information systems. (50) ENISA should encourage Member States, manufacturers or providers of ICT products, ICT services or ICT processes to raise their general security standards so that all internet users can take the necessary steps to ensure their own personal cybersecurity and should give incentives to do so. In particular, manufacturers and providers of ICT products, ICT services or ICT processes should provide any necessary updates and should recall, withdraw or recycle ICT products, ICT services or ICT processes that do not meet cybersecurity standards, while importers and distributors should make sure that the ICT products, ICT services and ICT processes they place on the Union market comply with the applicable requirements and do not present a risk to Union consumers. (51) In cooperation with competent authorities, ENISA should be able to disseminate information regarding the level of the cybersecurity of the ICT products, ICT services and ICT processes offered in the internal market, and should issue warnings targeting manufacturers or providers of ICT products, ICT services or ICT processes and requiring them to improve the security of their ICT products, ICT services and ICT processes, including the cybersecurity. (52) ENISA should take full account of the ongoing research, development and technological assessment activities, in particular those activities carried out by the various Union research initiatives to advise Union institutions, bodies, offices



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and agencies and where relevant, the Member States at their request, on research needs and priorities in the field of cybersecurity. In order to identify the research needs and priorities, ENISA should also consult the relevant user groups. More specifically, cooperation with the European Research Council, the European Institute for Innovation and Technology and the European Union Institute for Security Studies could be established. (53) ENISA should regularly consult standardisation organisations, in particular European standardisation organisations, when preparing the European cybersecurity certification schemes. (54) Cyber threats are a global issue. There is a need for closer international cooperation to improve cybersecurity standards, including the need for definitions of common norms of behaviour, the adoption of codes of conduct, the use of international standards, and information sharing, promoting swifter international collaboration in response to network and information security issues and promoting a common global approach to such issues. To that end, ENISA should support further Union involvement and cooperation with third countries and international organisations by providing the necessary expertise and analysis to the relevant Union institutions, bodies, offices and agencies, where appropriate. (55) ENISA should be able to respond to ad hoc requests for advice and assistance by Member States and Union institutions, bodies, offices and agencies on matters falling within ENISA’s mandate. (56) It is sensible and recommended to implement certain principles regarding the governance of ENISA in order to comply with the Joint Statement and Common Approach agreed upon in July 2012 by the Inter-Institutional Working Group on EU decentralised agencies, the purpose of which is to streamline the activities of decentralised agencies and improve their performance. The recommendations in the Joint Statement and Common Approach should also be reflected, as appropriate, in ENISA’s work programmes, evaluations of ENISA, and ENISA’s reporting and administrative practice. (57) The Management Board, composed of the representatives of the Member States and of the Commission, should establish the general direction of ENISA’s operations and ensure that it carries out its tasks in accordance with this Regulation. The Management Board should be entrusted with the powers necessary to establish the budget, verify the execution of the budget, adopt appropriate financial rules, establish transparent working procedures for decision making by ENISA, adopt ENISA’s single programming document, adopt its own rules of procedure, appoint the Executive Director and decide on the extension and termination of the Executive Director’s term of office. (58) In order for ENISA to function properly and effectively, the Commission and the Member States should ensure that persons to be appointed to the Management Board have appropriate professional expertise and experience. The Commission and the Member States should also make efforts to limit the turnover of their respective representatives on the Management Board in order to ensure continuity in its work. (59) The smooth functioning of ENISA requires that its Executive Director be appointed on grounds of merit and documented administrative and managerial skills, as well as competence and experience relevant to cybersecurity. The duties of the Executive Director should be carried out with complete independence. The Executive Director should prepare a proposal for ENISA’s annual work programme, after prior

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consultation with the Commission, and should take all steps necessary to ensure the proper implementation of that work programme. The Executive Director should prepare an annual report to be submitted to the Management Board, covering the implementation of ENISA’s annual work programme, draw up a draft statement of estimates of revenue and expenditure for ENISA, and implement the budget. Furthermore, the Executive Director should have the option of setting up ad hoc working groups to address specific matters, in particular matters of a scientific, technical, legal or socioeconomic nature. In particular, in relation to the preparation of a specific candidate European cybersecurity certification scheme (‘candidate scheme’), the setting up of an ad hoc working group is considered to be necessary. The Executive Director should ensure that the members of ad hoc working groups are selected according to the highest standards of expertise, aiming to ensure gender balance and an appropriate balance, according to the specific issues in question, between the public administrations of the Member States, the Union institutions, bodies, offices and agencies and the private sector, including industry, users, and academic experts in network and information security. (60) The Executive Board should contribute to the effective functioning of the Management Board. As part of its preparatory work related to Management Board decisions, the Executive Board should examine relevant information in detail, explore available options and offer advice and solutions to prepare the decisions of the Management Board. (61) ENISA should have an ENISA  Advisory Group as an advisory body to ensure regular dialogue with the private sector, consumers’ organisations and other relevant stakeholders. The ENISA  Advisory Group, established by the Management Board on a proposal from the Executive Director, should focus on issues relevant to stakeholders and should bring them to the attention of ENISA. The ENISA  Advisory Group should be consulted in particular with regard to ENISA’s draft annual work programme. The composition of the ENISA Advisory Group and the tasks assigned to it should ensure sufficient representation of stakeholders in the work of ENISA. (62) The Stakeholder Cybersecurity Certification Group should be established in order to help ENISA and the Commission facilitate the consultation of relevant stakeholders. The Stakeholder Cybersecurity Certification Group should be composed of members representing industry in balanced proportions, both on the demand side and the supply side of ICT products and ICT services, and including, in particular, SMEs, digital service providers, European and international standardisation bodies, national accreditation bodies, data protection supervisory authorities and conformity assessment bodies pursuant to Regulation (EC) No 765/2008 of the European Parliament and of the Council (122), and academia as well as consumer organisations. (63) ENISA should have rules in place regarding the prevention and the management of conflicts of interest. ENISA should also apply the relevant Union provisions concerning public access to documents as set out in Regulation (EC) No 1049/2001 of the European Parliament and of the Council (123). The processing of personal

Regulation (EC) No 765/2008 of the European Parliament and of the Council of 9 July 2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93 (OJ L 218, 13.8.2008, p. 30) 123 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p. 43). 122



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data by ENISA should be subject to Regulation (EU) 2018/1725 of the European Parliament and of the Council (124). ENISA should comply with the provisions applicable to the Union institutions, bodies, offices and agencies, and with national legislation regarding the handling of information, in particular sensitive non-classified information and European Union classified information (EUCI). (64) In order to guarantee the full autonomy and independence of ENISA and to enable it to perform additional tasks, including unforeseen emergency tasks, ENISA should be granted a sufficient and autonomous budget whose revenue should primarily come from a contribution from the Union and contributions from third countries participating in ENISA’s work. An appropriate budget is paramount for ensuring that ENISA has sufficient capacity to perform all of its growing tasks and to achieve its objectives. The majority of ENISA’s staff should be directly engaged in the operational implementation of ENISA’s mandate. The host Member State, and any other Member State, should be allowed to make voluntary contributions to ENISA’s budget. The Union’s budgetary procedure should remain applicable as far as any subsidies chargeable to the general budget of the Union are concerned. Moreover, the Court of Auditors should audit ENISA’s accounts to ensure transparency and accountability. (65) Cybersecurity certification plays an important role in increasing trust and security in ICT products, ICT services and ICT processes. The digital single market, and in particular the data economy and the IoT, can thrive only if there is general public trust that such products, services and processes provide a certain level of cybersecurity. Connected and automated cars, electronic medical devices, industrial automation control systems and smart grids are only some examples of sectors in which certification is already widely used or is likely to be used in the near future. The sectors regulated by Directive (EU) 2016/1148 are also sectors in which cybersecurity certification is critical. (66) In the 2016 Communication ‘Strengthening Europe’s Cyber Resilience System and Fostering a Competitive and Innovative Cybersecurity Industry’, the Commission outlined the need for high-quality, affordable and interoperable cybersecurity products and solutions. The supply of ICT products, ICT services and ICT processes within the single market remains very fragmented geographically. This is because the cybersecurity industry in Europe has developed largely on the basis of national governmental demand. In addition, the lack of interoperable solutions (technical standards), practices and Union-wide mechanisms of certification are among the other gaps affecting the single market in the field of cybersecurity. This makes it difficult for European businesses to compete at national, Union and global level. It also reduces the choice of viable and usable cybersecurity technologies that individuals and businesses have access to. Similarly, in the 2017 Communication on the Mid-Term Review on the implementation of the Digital Single Market Strategy – A Connected Digital Single Market for All, the Commission highlighted the need for safe connected products and systems, and indicated that the creation of a European ICT security framework setting rules on how to organise ICT security certification in the Union could both preserve trust in the internet and tackle the current fragmentation of the internal market.

Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39).

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(67) Currently, the cybersecurity certification of ICT products, ICT services and ICT processes is used only to a limited extent. When it exists, it mostly occurs at Member State level or in the framework of industry driven schemes. In that context, a certificate issued by a national cybersecurity certification authority is not in principle recognised in other Member States. Companies thus may have to certify their ICT products, ICT services and ICT processes in several Member States where they operate, for example, with a view to participating in national procurement procedures, which thereby adds to their costs. Moreover, while new schemes are emerging, there seems to be no coherent and holistic approach to horizontal cybersecurity issues, for instance in the field of the IoT. Existing schemes present significant shortcomings and differences in terms of product coverage, levels of assurance, substantive criteria and actual use, impeding mutual recognition mechanisms within the Union. (68) Some efforts have been made in order to ensure the mutual recognition of certificates within the Union. However, they have been only partly successful. The most important example in this regard is the Senior Officials Group – Information Systems Security (SOG-IS) Mutual Recognition Agreement (MRA). While it represents the most important model for cooperation and mutual recognition in the field of security certification, SOG-IS includes only some of the Member States. That fact has limited the effectiveness of SOG-IS MRA from the point of view of the internal market. (69) Therefore, it is necessary to adopt a common approach and to establish a European cybersecurity certification framework that lays down the main horizontal requirements for European cybersecurity certification schemes to be developed and allows European cybersecurity certificates and EU statements of conformity for ICT products, ICT services or ICT processes to be recognised and used in all Member States. In doing so, it is essential to build on existing national and international schemes, as well as on mutual recognition systems, in particular SOG-IS, and to make possible a smooth transition from the existing schemes under such systems to schemes under the new European cybersecurity certification framework. The European cybersecurity certification framework should have a twofold purpose. First, it should help increase trust in ICT products, ICT services and ICT processes that have been certified under European cybersecurity certification schemes. Second, it should help avoid the multiplication of conflicting or overlapping national cybersecurity certification schemes and thus reduce costs for undertakings operating in the digital single market. The European cybersecurity certification schemes should be non-discriminatory and based on European or international standards, unless those standards are ineffective or inappropriate to fulfil the Union’s legitimate objectives in that regard. (70) The European cybersecurity certification framework should be established in a uniform manner in all Member States in order to prevent ‘certification shopping’ based on different levels of stringency in different Member States. (71) European cybersecurity certification schemes should be built on what already exists at international and national level and, if necessary, on technical specifications from forums and consortia, learning from current strong points and assessing and correcting weaknesses. (72) Flexible cybersecurity solutions are necessary for the industry to stay ahead of cyber threats, and therefore any certification scheme should be designed in a way that avoids the risk of being outdated quickly.



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(73) The Commission should be empowered to adopt European cybersecurity certification schemes concerning specific groups of ICT products, ICT services and ICT processes. Those schemes should be implemented and supervised by national cybersecurity certification authorities, and certificates issued under those schemes should be valid and recognised throughout the Union. Certification schemes operated by the industry or by other private organisations should fall outside of the scope of this Regulation. However, the bodies operating such schemes should be able to propose that the Commission consider such schemes as a basis for approving them as a European cybersecurity certification scheme. (74) The provisions of this Regulation should be without prejudice to Union law providing specific rules on the certification of ICT products, ICT services and ICT processes. In particular, Regulation (EU) 2016/679 lays down provisions for the establishment of certification mechanisms and of data protection seals and marks, for the purpose of demonstrating the compliance of processing operations by controllers and processors with that Regulation. Such certification mechanisms and data protection seals and marks should allow data subjects to quickly assess the level of data protection of the relevant ICT products, ICT services and ICT processes. This Regulation is without prejudice to the certification of data processing operations under Regulation (EU) 2016/679, including when such operations are embedded in ICT products, ICT services and ICT processes. (75) The purpose of European cybersecurity certification schemes should be to ensure that ICT products, ICT services and ICT processes certified under such schemes comply with specified requirements that aim to protect the availability, authenticity, integrity and confidentiality of stored, transmitted or processed data or of the related functions of or services offered by, or accessible via those products, services and processes throughout their life cycle. It is not possible to set out in detail the cybersecurity requirements relating to all ICT products, ICT services and ICT processes in this Regulation. ICT products, ICT services and ICT processes and the cybersecurity needs related to those products, services and processes are so diverse that it is very difficult to develop general cybersecurity requirements that are valid in all circumstances. It is therefore necessary to adopt a broad and general notion of cybersecurity for the purpose of certification, which should be complemented by a set of specific cybersecurity objectives that are to be taken into account when designing European cybersecurity certification schemes. The arrangements by which such objectives are to be achieved in specific ICT products, ICT services and ICT processes should then be further specified in detail at the level of the individual certification scheme adopted by the Commission, for example by reference to standards or technical specifications if no appropriate standards are available. (76) The technical specifications to be used in European cybersecurity certification schemes should respect the requirements set out in Annex II to Regulation (EU) No 1025/2012 of the European Parliament and of the Council (125). Some deviations from those requirements could, however, be considered to be necessary in duly justified cases where those technical specifications are to be used in a

Regulation (EU) No 1025/2012 of the European Parliament and of the Council of 25 October 2012 on European standardisation, amending Council Directives 89/686/EEC and 93/15/EEC and Directives 94/9/ EC, 94/25/EC, 95/16/EC, 97/23/EC, 98/34/EC, 2004/22/EC, 2007/23/EC, 2009/23/EC and 2009/105/EC of the European Parliament and of the Council and repealing Council Decision 87/95/EEC and Decision No 1673/2006/EC of the European Parliament and of the Council (OJ L 316, 14.11.2012, p. 12).

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European cybersecurity certification scheme referring to assurance level ‘high’. The reasons for such deviations should be made publicly available. (77) A  conformity assessment is a procedure for evaluating whether specified requirements relating to an ICT product, ICT service or ICT process have been fulfilled. That procedure is carried out by an independent third party that is not the manufacturer or provider of the ICT products, ICT services or ICT processes that are being assessed. A  European cybersecurity certificate should be issued following the successful evaluation of an ICT product, ICT service or ICT process. A European cybersecurity certificate should be considered to be a confirmation that the evaluation has been properly carried out. Depending on the assurance level, the European cybersecurity certification scheme should indicate whether the European cybersecurity certificate is to be issued by a private or public body. Conformity assessment and certification cannot guarantee per se that certified ICT products, ICT services and ICT processes are cyber secure. They are instead procedures and technical methodologies for attesting that ICT products, ICT services and ICT processes have been tested and that they comply with certain cybersecurity requirements laid down elsewhere, for example in technical standards. (78) The choice of the appropriate certification and associated security requirements by the users of European cybersecurity certificates should be based on an analysis of the risks associated with the use of the ICT products, ICT services or ICT processes. Accordingly, the assurance level should be commensurate with the level of the risk associated with the intended use of an ICT product, ICT service or ICT process. (79) European cybersecurity certification schemes could provide for a conformity assessment to be carried out under the sole responsibility of the manufacturer or provider of ICT products, ICT services or ICT processes (‘conformity selfassessment’). In such cases, it should be sufficient that the manufacturer or provider of ICT products, ICT services or ICT processes itself carry out all of the checks to ensure that the ICT products, ICT services or ICT processes conform with the European cybersecurity certification scheme. Conformity self-assessment should be considered to be appropriate for low complexity ICT products, ICT services or ICT processes that present a low risk to the public, such as simple design and production mechanisms. Moreover, conformity self-assessment should be permitted for ICT products, ICT services or ICT processes only where they correspond to assurance level ‘basic’. (80) European cybersecurity certification schemes could allow for both conformity selfassessments and certifications of ICT products, ICT services or ICT processes. In such a case, the scheme should provide for clear and understandable means for consumers or other users to differentiate between ICT products, ICT services or ICT processes with regard to which the manufacturer or provider of ICT products, ICT services or ICT processes is responsible for the assessment, and ICT products, ICT services or ICT processes that are certified by a third party. (81) The manufacturer or provider of ICT products, ICT services or ICT processes who carry out a conformity self-assessment should be able to issue and sign the EU statement of conformity as part of the conformity assessment procedure. An EU statement of conformity is a document that states that a specific ICT product, ICT service or ICT process complies with the requirements of the European cybersecurity certification scheme. By issuing and signing the EU statement of conformity, the manufacturer or provider of ICT products, ICT services or ICT



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processes assumes responsibility for the compliance of the ICT product, ICT service or ICT process with the legal requirements of the European cybersecurity certification scheme. A  copy of the EU statement of conformity should be submitted to the national cybersecurity certification authority and to ENISA. (82) Manufacturers or providers of ICT products, ICT services or ICT processes should make the EU statement of conformity, technical documentation, and all other relevant information relating to the conformity of the ICT products, ICT services or ICT processes with a European cybersecurity certification scheme available to the competent national cybersecurity certification authority for a period provided for in the relevant European cybersecurity certification scheme. The technical documentation should specify the requirements applicable under the scheme and should cover the design, manufacture and operation of the ICT product, ICT service or ICT process to the extent relevant to the conformity self-assessment. The technical documentation should be so compiled as to enable the assessment of whether an ICT product or ICT service complies with the requirements applicable under that scheme. (83) The governance of the European cybersecurity certification framework takes into account the involvement of Member States as well as the appropriate involvement of stakeholders, and establishes the role of the Commission during the planning and proposing, requesting, preparing, adopting and reviewing of European cybersecurity certification schemes. (84) The Commission should prepare, with the support of the European Cybersecurity Certification Group (the ‘ECCG’) and the Stakeholder Cybersecurity Certification Group and after an open and wide consultation, a Union rolling work programme for European cybersecurity certification schemes and should publish it in the form of a non-binding instrument. The Union rolling work programme should be a strategic document that allows industry, national authorities and standardisation bodies, in particular, to prepare in advance for future European cybersecurity certification schemes. The Union rolling work programme should include a multiannual overview of the requests for candidate schemes which the Commission intends to submit to ENISA for preparation on the basis of specific grounds. The Commission should take into account the Union rolling work programme while preparing its Rolling Plan for ICT  Standardisation and standardisation requests to European standardisation organisations. In light of the rapid introduction and uptake of new technologies, the emergence of previously unknown cybersecurity risks, and legislative and market developments, the Commission or the ECCG should be entitled to request ENISA to prepare candidate schemes which have not been included in the Union rolling work programme. In such cases, the Commission and the ECCG should also assess the necessity of such a request, taking into account the overall aims and objectives of this Regulation and the need to ensure continuity as regards ENISA’s planning and use of resources. Following such a request, ENISA should prepare the candidate schemes for specific ICT products, ICT services and ICT processes without undue delay. The Commission should evaluate the positive and negative impact of its request on the specific market in question, especially its impact on SMEs, on innovation, on barriers to entry to that market and on costs to end users. The Commission, on the basis of the candidate scheme prepared by ENISA, should be empowered to adopt the European cybersecurity certification scheme by means of implementing acts. Taking account of the general purpose and security objectives laid down in this Regulation, European cybersecurity certification schemes adopted by

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the Commission should specify a minimum set of elements concerning the subject matter, scope and functioning of the individual scheme. Those elements should include, among other things, the scope and object of the cybersecurity certification, including the categories of ICT products, ICT services and ICT processes covered, the detailed specification of the cybersecurity requirements, for example by reference to standards or technical specifications, the specific evaluation criteria and evaluation methods, as well as the intended assurance level (‘basic’, ‘substantial’ or ‘high’) and the evaluation levels where applicable. ENISA should be able to refuse a request by the ECCG. Such decisions should be taken by the Management Board and should be duly reasoned. (85) ENISA should maintain a website providing information on and publicising European cybersecurity certification schemes, which should include, among other things, the requests for the preparation of a candidate scheme as well as the feedback received in the consultation process carried out by ENISA in the preparation phase. The website should also provide information about the European cybersecurity certificates and EU statements of conformity issued under this Regulation including information regarding the withdrawal and expiry of such European cybersecurity certificates and EU statements of conformity. The website should also indicate the national cybersecurity certification schemes that have been replaced by a European cybersecurity certification scheme. (86) The assurance level of a European certification scheme is a basis for confidence that an ICT product, ICT service or ICT process meets the security requirements of a specific European cybersecurity certification scheme. In order to ensure the consistency of the European cybersecurity certification framework, a European cybersecurity certification scheme should be able to specify assurance levels for European cybersecurity certificates and EU statements of conformity issued under that scheme. Each European cybersecurity certificate might refer to one of the assurance levels: ‘basic’, ‘substantial’ or ‘high’, while the EU statement of conformity might only refer to the assurance level ‘basic’. The assurance levels would provide the corresponding rigour and depth of the evaluation of the ICT product, ICT service or ICT process and would be characterised by reference to technical specifications, standards and procedures related thereto, including technical controls, the purpose of which is to mitigate or prevent incidents. Each assurance level should be consistent among the different sectorial domains where certification is applied. (87) A European cybersecurity certification scheme might specify several evaluation levels depending on the rigour and depth of the evaluation methodology used. Evaluation levels should correspond to one of the assurance levels and should be associated with an appropriate combination of assurance components. For all assurance levels, the ICT product, ICT service or ICT process should contain a number of secure functions, as specified by the scheme, which may include: a secure out-of-the-box configuration, a signed code, secure update and exploit mitigations and full stack or heap memory protections. Those functions should have been developed, and be maintained, using security-focused development approaches and associated tools to ensure that effective software and hardware mechanisms are reliably incorporated. (88) For assurance level ‘basic’, the evaluation should be guided at least by the following assurance components: the evaluation should at least include a review of the technical documentation of the ICT product, ICT service or ICT process by the conformity assessment body. Where the certification includes ICT processes,



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the process used to design, develop and maintain an ICT product or ICT service should also be subject to the technical review. Where a European cybersecurity certification scheme provides for a conformity self-assessment, it should be sufficient that the manufacturer or provider of ICT products, ICT services or ICT processes has carried out a self-assessment of the compliance of the ICT product, ICT service or ICT process with the certification scheme. (89) For assurance level ‘substantial’, the evaluation, in addition to the requirements for assurance level ‘basic’, should be guided at least by the verification of the compliance of the security functionalities of the ICT product, ICT service or ICT process with its technical documentation. (90) For assurance level ‘high’, the evaluation, in addition to the requirements for assurance level ‘substantial’, should be guided at least by an efficiency testing which assesses the resistance of the security functionalities of ICT product, ICT service or ICT process against elaborate cyberattacks performed by persons who have significant skills and resources. (91) Recourse to European cybersecurity certification and to EU statements of conformity should remain voluntary, unless otherwise provided for in Union law, or in Member State law adopted in accordance with Union law. In the absence of harmonised Union law, Member States are able to adopt national technical regulations providing for mandatory certification under a European cybersecurity certification scheme in accordance with Directive (EU) 2015/1535 of the European Parliament and of the Council (126). Member States also have recourse to European cybersecurity certification in the context of public procurement and of Directive 2014/24/EU of the European Parliament and of the Council (127). (92) In some areas, it could be necessary in the future to impose specific cybersecurity requirements and make the certification thereof mandatory for certain ICT products, ICT services or ICT processes, in order to improve the level of cybersecurity in the Union. The Commission should regularly monitor the impact of adopted European cybersecurity certification schemes on the availability of secure ICT products, ICT services and ICT processes in the internal market and should regularly assess the level of use of the certification schemes by the manufacturers or providers of ICT products, ICT services or ICT processes in the Union. The efficiency of the European cybersecurity certification schemes, and whether specific schemes should be made mandatory, should be assessed in light of the cybersecurity-related legislation of the Union, in particular Directive (EU) 2016/1148, taking into consideration the security of the network and information systems used by operators of essential services. (93) European cybersecurity certificates and EU statements of conformity should help end users to make informed choices. Therefore, ICT products, ICT services and ICT processes that have been certified or for which an EU statement of conformity has been issued should be accompanied by structured information that is adapted to the expected technical level of the intended end user. All such information should be available online, and, where appropriate, in physical form. The end user should have access to information regarding the reference number of the certification Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ L 241, 17.9.2015, p. 1). 127 Directive 2014/24/EU of the European Parliament and of the Council of 26  February 2014 on public procurement and repealing Directive 2004/18/EC (OJ L 94, 28.3.2014, p. 65). 126

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scheme, the assurance level, the description of the cybersecurity risks associated with the ICT product, ICT service or ICT process, and the issuing authority or body, or should be able to obtain a copy of the European cybersecurity certificate. In addition, the end user should be informed of the cybersecurity support policy, namely for how long the end user can expect to receive cybersecurity updates or patches, of the manufacturer or provider of ICT products, ICT services or ICT processes. Where applicable, guidance on actions or settings that the end user can implement to maintain or increase the cybersecurity of the ICT product or of the ICT service and contact information of a single point of contact to report and receive support in the case of cyberattacks (in addition to automatic reporting) should be provided. That information should be regularly updated and made available on a website providing information on European cybersecurity certification schemes. (94) With a view to achieving the objectives of this Regulation and avoiding the fragmentation of the internal market, national cybersecurity certification schemes or procedures for ICT products, ICT services or ICT processes covered by a European cybersecurity certification scheme should cease to be effective from a date established by the Commission by means of implementing acts. Moreover, Member States should not introduce new national cybersecurity certification schemes for ICT products, ICT services or ICT processes already covered by an existing European cybersecurity certification scheme. However, Member States should not be prevented from adopting or maintaining national cybersecurity certification schemes for national security purposes. Member States should inform the Commission and the ECCG of any intention to draw up new national cybersecurity certification schemes. The Commission and the ECCG should evaluate the impact of the new national cybersecurity certification schemes on the proper functioning of the internal market and in light of any strategic interest in requesting a European cybersecurity certification scheme instead. (95) European cybersecurity certification schemes are intended to help harmonise cybersecurity practices within the Union. They need to contribute to increasing the level of cybersecurity within the Union. The design of the European cybersecurity certification schemes should take into account and allow for the development of innovations in the field of cybersecurity. (96) European cybersecurity certification schemes should take into account current software and hardware development methods and, in particular, the impact of frequent software or firmware updates on individual European cybersecurity certificates. European cybersecurity certification schemes should specify the conditions under which an update may require that an ICT product, ICT service or ICT process be recertified or that the scope of a specific European cybersecurity certificate be reduced, taking into account any possible adverse effects of the update on compliance with the security requirements of that certificate. (97) Once a European cybersecurity certification scheme is adopted, manufacturers or providers of ICT products, ICT services or ICT processes should be able to submit applications for certification of their ICT products or ICT services to the conformity assessment body of their choice anywhere in the Union. Conformity assessment bodies should be accredited by a national accreditation body if they comply with certain specified requirements set out in this Regulation. Accreditation should be issued for a maximum of five years and should be renewable on the same conditions provided that the conformity assessment body still meets the requirements. National accreditation bodies should restrict, suspend or revoke



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the accreditation of a conformity assessment body where the conditions for the accreditation have not been met or are no longer met, or where the conformity assessment body infringes this Regulation. (98) References in national legislation to national standards which have ceased to be effective due to the entry into force of a European cybersecurity certification scheme can be a source of confusion. Therefore, Member States should reflect the adoption of a European cybersecurity certification scheme in their national legislation. (99) In order to achieve equivalent standards throughout the Union, to facilitate mutual recognition and to promote the overall acceptance of European cybersecurity certificates and EU statements of conformity, it is necessary to put in place a system of peer review between national cybersecurity certification authorities. Peer review should cover procedures for supervising the compliance of ICT products, ICT services and ICT processes with European cybersecurity certificates, for monitoring the obligations of manufacturers or providers of ICT products, ICT services or ICT processes who carry out the conformity self-assessment, for monitoring conformity assessment bodies, as well as the appropriateness of the expertise of the staff of bodies issuing certificates for assurance level ‘high’. The Commission should be able, by means of implementing acts, to establish at least a five-year plan for peer reviews, as well as lay down criteria and methodologies for the operation of the peer review system. (100) Without prejudice to the general peer review system to be put in place across all national cybersecurity certification authorities within the European cybersecurity certification framework, certain European cybersecurity certification schemes may include a peer-assessment mechanism for the bodies that issue European cybersecurity certificates for ICT products, ICT services and ICT processes with an assurance level ‘high’ under such schemes. The ECCG should support the implementation of such peer-assessment mechanisms. The peer assessments should assess in particular whether the bodies concerned carry out their tasks in a harmonised way, and may include appeal mechanisms. The results of the peer assessments should be made publicly available. The bodies concerned may adopt appropriate measures to adapt their practices and expertise accordingly. (101) Member States should designate one or more national cybersecurity certification authorities to supervise compliance with obligations arising from this Regulation. A  national cybersecurity certification authority may be an existing or new authority. A Member State should also be able to designate, after agreeing with another Member State, one or more national cybersecurity certification authorities in the territory of that other Member State. (102) National cybersecurity certification authorities should in particular monitor and enforce the obligations of manufacturers or providers of ICT products, ICT services or ICT processes established in its respective territory in relation to the EU statement of conformity, should assist the national accreditation bodies in the monitoring and supervision of the activities of conformity assessment bodies by providing them with expertise and relevant information, should authorise conformity assessment bodies to carry out their tasks where such bodies meet additional requirements set out in a European cybersecurity certification scheme, and should monitor relevant developments in the field of cybersecurity certification. National cybersecurity certification authorities should also handle complaints lodged by natural or legal persons in relation to European cybersecurity certificates issued by those authorities or in relation to European cybersecurity certificates

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issued by conformity assessment bodies, where such certificates indicate assurance level ‘high’, should investigate, to the extent appropriate, the subject matter of the complaint and should inform the complainant of the progress and the outcome of the investigation within a reasonable period. Moreover, national cybersecurity certification authorities should cooperate with other national cybersecurity certification authorities or other public authorities, including by the sharing of information on the possible non-compliance of ICT products, ICT services and ICT processes with the requirements of this Regulation or with specific European cybersecurity certification schemes. The Commission should facilitate that sharing of information by making available a general electronic information support system, for example the Information and Communication System on Market Surveillance (ICSMS) and the Rapid Alert System for dangerous nonfood products (RAPEX), already used by market surveillance authorities pursuant to Regulation (EC) No 765/2008. (103) With a view to ensuring the consistent application of the European cybersecurity certification framework, an ECCG that consists of representatives of national cybersecurity certification authorities or other relevant national authorities should be established. The main tasks of the ECCG should be to advise and assist the Commission in its work towards ensuring the consistent implementation and application of the European cybersecurity certification framework, to assist and closely cooperate with ENISA in the preparation of candidate cybersecurity certification schemes, in duly justified cases to request ENISA to prepare a candidate scheme, to adopt opinions addressed to ENISA on candidate schemes and to adopt opinions addressed to the Commission on the maintenance and review of existing European cybersecurity certifications schemes. The ECCG should facilitate the exchange of good practices and expertise between the various national cybersecurity certification authorities that are responsible for the authorisation of conformity assessment bodies and the issuance of European cybersecurity certificates. (104) In order to raise awareness and to facilitate the acceptance of future European cybersecurity certification schemes, the Commission may issue general or sectorspecific cybersecurity guidelines, for example on good cybersecurity practices or responsible cybersecurity behaviour highlighting the positive effect of the use of certified ICT products, ICT services and ICT processes. (105) In order to further facilitate trade, and recognising that ICT supply chains are global, mutual recognition agreements concerning European cybersecurity certificates may be concluded by the Union in accordance with Article  218 of the Treaty on the Functioning of the European Union (TFEU). The Commission, taking into account the advice from ENISA and the European Cybersecurity Certification Group, may recommend the opening of relevant negotiations. Each European cybersecurity certification scheme should provide specific conditions for such mutual recognition agreements with third countries. (106) In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No  182/2011 of the European Parliament and of the Council (128). Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).

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(107) The examination procedure should be used for the adoption of implementing acts on European cybersecurity certification schemes for ICT products, ICT services or ICT processes, for the adoption of implementing acts on arrangements for carrying out inquiries by ENISA, for the adoption of implementing acts on a plan for the peer review of national cybersecurity certification authorities, as well as for the adoption of implementing acts on the circumstances, formats and procedures of notifications of accredited conformity assessment bodies by the national cybersecurity certification authorities to the Commission. (108) ENISA’s operations should be subject to regular and independent evaluation. That evaluation should have regard to ENISA’s objectives, its working practices and the relevance of its tasks, in particular its tasks relating to the operational cooperation at Union level. That evaluation should also assess the impact, effectiveness and efficiency of the European cybersecurity certification framework. In the event of a review, the Commission should evaluate how ENISA’s role as a reference point for advice and expertise can be reinforced and should also evaluate the possibility of a role for ENISA in supporting the assessment of third country ICT products, ICT services and ICT processes that do not comply with Union rules, where such products, services and processes enter the Union. (109) Since the objectives of this Regulation cannot be sufficiently achieved by the Member States but can rather, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article  5 of the Treaty on European Union (TEU). In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives. (110) Regulation (EU) No 526/2013 should be repealed, HAVE ADOPTED THIS REGULATION: TITLE I GENERAL PROVISIONS Article 1 Subject matter and scope 1.

With a view to ensuring the proper functioning of the internal market while aiming to achieve a high level of cybersecurity, cyber resilience and trust within the Union, this Regulation lays down: (a)

objectives, tasks and organisational matters relating to ENISA (the European Union Agency for Cybersecurity); and

(b) a framework for the establishment of European cybersecurity certification schemes for the purpose of ensuring an adequate level of cybersecurity for ICT products, ICT services and ICT processes in the Union, as well as for the purpose of avoiding the fragmentation of the internal market with regard to cybersecurity certification schemes in the Union. The framework referred to in point (b) of the first subparagraph applies without prejudice to specific provisions in other Union legal acts regarding voluntary or mandatory certification. 2.

This Regulation is without prejudice to the competences of the Member States regarding activities concerning public security, defence, national security and the activities of the State in areas of criminal law.

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Article 2 Definitions For the purposes of this Regulation, the following definitions apply: (1) ‘cybersecurity’ means the activities necessary to protect network and information systems, the users of such systems, and other persons affected by cyber threats; (2) ‘network and information system’ means a network and information system as defined in point (1) of Article 4 of Directive (EU) 2016/1148; (3) ‘national strategy on the security of network and information systems’ means a national strategy on the security of network and information systems as defined in point (3) of Article 4 of Directive (EU) 2016/1148; (4) ‘operator of essential services’ means an operator of essential services as defined in point (4) of Article 4 of Directive (EU) 2016/1148; (5)

‘digital service provider’ means a digital service provider as defined in point (6) of Article 4 of Directive (EU) 2016/1148;

(6) ‘incident’ means an incident as defined in point (7) of Article 4 of Directive (EU) 2016/1148; (7) ‘incident handling’ means incident handling as defined in point (8) of Article 4 of Directive (EU) 2016/1148; (8)

‘cyber threat’ means any potential circumstance, event or action that could damage, disrupt or otherwise adversely impact network and information systems, the users of such systems and other persons;

(9)

‘European cybersecurity certification scheme’ means a comprehensive set of rules, technical requirements, standards and procedures that are established at Union level and that apply to the certification or conformity assessment of specific ICT products, ICT services or ICT processes;

(10) ‘national cybersecurity certification scheme’ means a comprehensive set of rules, technical requirements, standards and procedures developed and adopted by a national public authority and that apply to the certification or conformity assessment of ICT products, ICT services and ICT processes falling under the scope of the specific scheme; (11) ‘European cybersecurity certificate’ means a document issued by a relevant body, attesting that a given ICT product, ICT service or ICT process has been evaluated for compliance with specific security requirements laid down in a European cybersecurity certification scheme; (12) ‘ICT product’ means an element or a group of elements of a network or information system; (13) ‘ICT service’ means a service consisting fully or mainly in the transmission, storing, retrieving or processing of information by means of network and information systems; (14) ‘ICT process’ means a set of activities performed to design, develop, deliver or maintain an ICT product or ICT service; (15) ‘accreditation’ means accreditation as defined in point (10) of Article  2 of Regulation (EC) No 765/2008; (16) ‘national accreditation body’ means a national accreditation body as defined in point (11) of Article 2 of Regulation (EC) No 765/2008;



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(17) ‘conformity assessment’ means a conformity assessment as defined in point (12) of Article 2 of Regulation (EC) No 765/2008; (18) ‘conformity assessment body’ means a conformity assessment body as defined in point (13) of Article 2 of Regulation (EC) No 765/2008; (19) ‘standard’ means a standard as defined in point (1) of Article 2 of Regulation (EU) No 1025/2012; (20) ‘technical specification’ means a document that prescribes the technical requirements to be met by, or conformity assessment procedures relating to, an ICT product, ICT service or ICT process; (21) ‘assurance level’ means a basis for confidence that an ICT product, ICT service or ICT process meets the security requirements of a specific European cybersecurity certification scheme, indicates the level at which an ICT product, ICT service or ICT process has been evaluated but as such does not measure the security of the ICT product, ICT service or ICT process concerned; (22) ‘conformity self-assessment’ means an action carried out by a manufacturer or provider of ICT products, ICT services or ICT processes, which evaluates whether those ICT products, ICT services or ICT processes meet the requirements of a specific European cybersecurity certification scheme. TITLE II ENISA (THE EUROPEAN UNION AGENCY FOR CYBERSECURITY) CHAPTER I Mandate and objectives Article 3 Mandate 1.

ENISA shall carry out the tasks assigned to it under this Regulation for the purpose of achieving a high common level of cybersecurity across the Union, including by actively supporting Member States, Union institutions, bodies, offices and agencies in improving cybersecurity. ENISA shall act as a reference point for advice and expertise on cybersecurity for Union institutions, bodies, offices and agencies as well as for other relevant Union stakeholders. ENISA shall contribute to reducing the fragmentation of the internal market by carrying out the tasks assigned to it under this Regulation.

2.

ENISA shall carry out the tasks assigned to it by Union legal acts that set out measures for approximating Member State laws, regulations and administrative provisions which are related to cybersecurity.

3.

When carrying out its tasks, ENISA shall act independently while avoiding the duplication of Member State activities and taking into consideration existing Member State expertise.

4.

ENISA shall develop its own resources, including technical and human capabilities and skills, necessary to perform the tasks assigned to it under this Regulation. Article 4 Objectives

1.

ENISA shall be a centre of expertise on cybersecurity by virtue of its independence, the scientific and technical quality of the advice and assistance it delivers, the information it provides, the transparency of its operating procedures, the methods of operation, and its diligence in carrying out its tasks.

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2.

ENISA shall assist the Union institutions, bodies, offices and agencies, as well as Member States, in developing and implementing Union policies related to cybersecurity, including sectoral policies on cybersecurity.

3.

ENISA shall support capacity-building and preparedness across the Union by assisting the Union institutions, bodies, offices and agencies, as well as Member States and public and private stakeholders, to increase the protection of their network and information systems, to develop and improve cyber resilience and response capacities, and to develop skills and competencies in the field of cybersecurity.

4.

ENISA shall promote cooperation, including information sharing and coordination at Union level, among Member States, Union institutions, bodies, offices and agencies, and relevant private and public stakeholders on matters related to cybersecurity.

5.

ENISA shall contribute to increasing cybersecurity capabilities at Union level in order to support the actions of Member States in preventing and responding to cyber threats, in particular in the event of cross-border incidents.

6.

ENISA shall promote the use of European cybersecurity certification, with a view to avoiding the fragmentation of the internal market. ENISA shall contribute to the establishment and maintenance of a European cybersecurity certification framework in accordance with Title III of this Regulation, with a view to increasing the transparency of the cybersecurity of ICT products, ICT services and ICT processes, thereby strengthening trust in the digital internal market and its competitiveness.

7.

ENISA shall promote a high level of cybersecurity awareness, including cyberhygiene and cyber-literacy among citizens, organisations and businesses.

CHAPTER II Tasks Article 5 Development and implementation of Union policy and law ENISA shall contribute to the development and implementation of Union policy and law, by: (1) assisting and advising on the development and review of Union policy and law in the field of cybersecurity and on sector-specific policy and law initiatives where matters related to cybersecurity are involved, in particular by providing its independent opinion and analysis as well as carrying out preparatory work; (2) assisting Member States to implement the Union policy and law regarding cybersecurity consistently, in particular in relation to Directive (EU) 2016/1148, including by means of issuing opinions, guidelines, providing advice and best practices on topics such as risk management, incident reporting and information sharing, as well as by facilitating the exchange of best practices between competent authorities in that regard; (3) assisting Member States and Union institutions, bodies, offices and agencies in developing and promoting cybersecurity policies related to sustaining the general availability or integrity of the public core of the open internet; (4) contributing to the work of the Cooperation Group pursuant to Article  11 of Directive (EU) 2016/1148, by providing its expertise and assistance;



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(5) supporting: (a) the development and implementation of Union policy in the field of electronic identity and trust services, in particular by providing advice and issuing technical guidelines, as well as by facilitating the exchange of best practices between competent authorities; (b)

the promotion of an enhanced level of security of electronic communications, including by providing advice and expertise, as well as by facilitating the exchange of best practices between competent authorities;

(c) Member States in the implementation of specific cybersecurity aspects of Union policy and law relating to data protection and privacy, including by providing advice to the European Data Protection Board upon request; (6) supporting the regular review of Union policy activities by preparing an annual report on the state of the implementation of the respective legal framework regarding: (a)

information on Member States’ incident notifications provided by the single points of contact to the Cooperation Group pursuant to Article  10(3) of Directive (EU) 2016/1148;

(b)

summaries of notifications of breach of security or loss of integrity received from trust service providers provided by the supervisory bodies to ENISA, pursuant to Article 19(3) of Regulation (EU) No 910/2014 of the European Parliament and of the Council (129);

(c) notifications of security incidents transmitted by the providers of public electronic communications networks or of publicly available electronic communications services, provided by the competent authorities to ENISA, pursuant to Article 40 of Directive (EU) 2018/1972. Article 6 Capacity-building 1.

ENISA shall assist: (a) Member States in their efforts to improve the prevention, detection and analysis of, and the capability to respond to cyber threats and incidents by providing them with knowledge and expertise; (b) Member States and Union institutions, bodies, offices and agencies in establishing and implementing vulnerability disclosure policies on a voluntary basis; (c) Union institutions, bodies, offices and agencies in their efforts to improve the prevention, detection and analysis of cyber threats and incidents and to improve their capabilities to respond to such cyber threats and incidents, in particular through appropriate support for the CERT-EU; (d)

Member States in developing national CSIRTs, where requested pursuant to Article 9(5) of Directive (EU) 2016/1148;

Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC (OJ L 257, 28.8.2014, p. 73).

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(e)

Member States in developing national strategies on the security of network and information systems, where requested pursuant to Article  7(2) of Directive (EU) 2016/1148, and promote the dissemination of those strategies and note the progress in their implementation across the Union in order to promote best practices;

(f)

Union institutions in developing and reviewing Union strategies regarding cybersecurity, promoting their dissemination and tracking the progress in their implementation;

(g) national and Union CSIRTs in raising the level of their capabilities, including by promoting dialogue and exchanges of information, with a view to ensuring that, with regard to the state of the art, each CSIRT possesses a common set of minimum capabilities and operates according to best practices;

2.

(h)

Member States by regularly organising the cybersecurity exercises at Union level referred to in Article 7(5) on at least a biennial basis and by making policy recommendations based on the evaluation process of the exercises and lessons learned from them;

(i)

relevant public bodies by offering trainings regarding cybersecurity, where appropriate in cooperation with stakeholders;

(j)

the Cooperation Group, in the exchange of best practices, in particular with regard to the identification by Member States of operators of essential services, pursuant to point (l) of Article 11(3) of Directive (EU) 2016/1148, including in relation to cross-border dependencies, regarding risks and incidents.

ENISA shall support information sharing in and between sectors, in particular in the sectors listed in Annex II to Directive (EU) 2016/1148, by providing best practices and guidance on available tools, procedures, as well as on how to address regulatory issues related to information-sharing. Article 7 Operational cooperation at Union level

1.

ENISA shall support operational cooperation among Member States, Union institutions, bodies, offices and agencies, and between stakeholders.

2.

ENISA shall cooperate at the operational level and establish synergies with Union institutions, bodies, offices and agencies, including the CERT-EU, with the services dealing with cybercrime and with supervisory authorities dealing with the protection of privacy and personal data, with a view to addressing issues of common concern, including by means of: (a)

the exchange of know-how and best practices;

(b) the provision of advice and issuing of guidelines on relevant matters related to cybersecurity; (c) the establishment of practical arrangements for the execution of specific tasks, after consulting the Commission. 3. ENISA shall provide the secretariat of the CSIRTs network pursuant to Article  12(2) of Directive (EU) 2016/1148, and in that capacity shall actively support the information sharing and the cooperation among its members.



4.

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ENISA shall support Member States with respect to operational cooperation within the CSIRTs network by: (a)

advising on how to improve their capabilities to prevent, detect and respond to incidents and, at the request of one or more Member States, providing advice in relation to a specific cyber threat;

(b) assisting, at the request of one or more Member States, in the assessment of incidents having a significant or substantial impact through the provision of expertise and facilitating the technical handling of such incidents including in particular by supporting the voluntary sharing of relevant information and technical solutions between Member States; (c) analysing vulnerabilities and incidents on the basis of publicly available information or information provided voluntarily by Member States for that purpose; and (d) at the request of one or more Member States, providing support in relation to ex-post technical inquiries regarding incidents having a significant or substantial impact within the meaning of Directive (EU) 2016/1148. In performing those tasks, ENISA and CERT-EU shall engage in structured cooperation to benefit from synergies and to avoid the duplication of activities. 5.

ENISA shall regularly organise cybersecurity exercises at Union level, and shall support Member States and Union institutions, bodies, offices and agencies in organising cybersecurity exercises following their requests. Such cybersecurity exercises at Union level may include technical, operational or strategic elements. On a biennial basis, ENISA shall organise a large-scale comprehensive exercise. Where appropriate, ENISA shall also contribute to and help organise sectoral cybersecurity exercises together with relevant organisations that also participate in cybersecurity exercises at Union level.

6.

ENISA, in close cooperation with the Member States, shall prepare a regular indepth EU Cybersecurity Technical Situation Report on incidents and cyber threats based on publicly available information, its own analysis, and reports shared by, among others, the Member States’ CSIRTs or the single points of contact established by Directive (EU) 2016/1148, both on a voluntary basis, EC3 and CERT-EU.

7.

ENISA shall contribute to developing a cooperative response at Union and Member States level to large-scale cross-border incidents or crises related to cybersecurity, mainly by: (a) aggregating and analysing reports from national sources that are in the public domain or shared on a voluntary basis with a view to contributing to the establishment of common situational awareness; (b) ensuring the efficient flow of information and the provision of escalation mechanisms between the CSIRTs network and the technical and political decision-makers at Union level; (c) upon request, facilitating the technical handling of such incidents or crises, including, in particular, by supporting the voluntary sharing of technical solutions between Member States; (d) supporting Union institutions, bodies, offices and agencies and, at their request, Member States, in the public communication relating to such incidents or crises;

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(e) testing the cooperation plans for responding to such incidents or crises at Union level and, at their request, supporting Member States in testing such plans at national level. Article 8 Market, cybersecurity certification, and standardisation 1.

ENISA shall support and promote the development and implementation of Union policy on cybersecurity certification of ICT products, ICT services and ICT processes, as established in Title III of this Regulation, by: (a) monitoring developments, on an ongoing basis, in related areas of standardisation and recommending appropriate technical specifications for use in the development of European cybersecurity certification schemes pursuant to point (c) of Article 54(1) where standards are not available; (b) preparing candidate European cybersecurity certification schemes (‘candidate schemes’) for ICT products, ICT services and ICT processes in accordance with Article 49; (c) evaluating adopted European cybersecurity certification schemes in accordance with Article 49(8); (d) participating in peer reviews pursuant to Article 59(4); (e)

assisting the Commission in providing the secretariat of the ECCG pursuant to Article 62(5).

2.

ENISA shall provide the secretariat of the Stakeholder Cybersecurity Certification Group pursuant to Article 22(4).

3.

ENISA shall compile and publish guidelines and develop good practices, concerning the cybersecurity requirements for ICT products, ICT services and ICT processes, in cooperation with national cybersecurity certification authorities and industry in a formal, structured and transparent way.

4.

ENISA shall contribute to capacity-building related to evaluation and certification processes by compiling and issuing guidelines as well as by providing support to Member States at their request.

5.

ENISA shall facilitate the establishment and take-up of European and international standards for risk management and for the security of ICT products, ICT services and ICT processes.

6.

ENISA shall draw up, in collaboration with Member States and industry, advice and guidelines regarding the technical areas related to the security requirements for operators of essential services and digital service providers, as well as regarding already existing standards, including Member States’ national standards, pursuant to Article 19(2) of Directive (EU) 2016/1148.

7.

ENISA shall perform and disseminate regular analyses of the main trends in the cybersecurity market on both the demand and supply sides, with a view to fostering the cybersecurity market in the Union. Article 9 Knowledge and information ENISA shall:

(a)

perform analyses of emerging technologies and provide topic-specific assessments on the expected societal, legal, economic and regulatory impact of technological innovations on cybersecurity;



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(b) perform long-term strategic analyses of cyber threats and incidents in order to identify emerging trends and help prevent incidents; (c) in cooperation with experts from Member States authorities and relevant stakeholders, provide advice, guidance and best practices for the security of network and information systems, in particular for the security of the infrastructures supporting the sectors listed in Annex II to Directive (EU) 2016/1148 and those used by the providers of the digital services listed in Annex III to that Directive; (d) through a dedicated portal, pool, organise and make available to the public information on cybersecurity provided by the Union institutions, bodies, offices and agencies and information on cybersecurity provided on a voluntary basis by Member States and private and public stakeholders; (e)

collect and analyse publicly available information regarding significant incidents and compile reports with a view to providing guidance to citizens, organisations and businesses across the Union.

ENISA shall:

Article 10 Awareness-raising and education

(a) raise public awareness of cybersecurity risks, and provide guidance on good practices for individual users aimed at citizens, organisations and businesses, including cyber-hygiene and cyber-literacy; (b) in cooperation with the Member States, Union institutions, bodies, offices and agencies and industry, organise regular outreach campaigns to increase cybersecurity and its visibility in the Union and encourage a broad public debate; (c)

assist Member States in their efforts to raise cybersecurity awareness and promote cybersecurity education;

(d)

support closer coordination and exchange of best practices among Member States on cybersecurity awareness and education.

Article 11 Research and innovation In relation to research and innovation, ENISA shall: (a) advise the Union institutions, bodies, offices and agencies and the Member States on research needs and priorities in the field of cybersecurity, with a view to enabling effective responses to current and emerging risks and cyber threats, including with respect to new and emerging information and communications technologies, and with a view to using risk-prevention technologies effectively; (b) where the Commission has conferred the relevant powers on it, participate in the implementation phase of research and innovation funding programmes or as a beneficiary; (c) contribute to the strategic research and innovation agenda at Union level in the field of cybersecurity. Article 12 International cooperation ENISA shall contribute to the Union’s efforts to cooperate with third countries and international organisations as well as within relevant international cooperation frameworks to promote international cooperation on issues related to cybersecurity, by:

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(a) where appropriate, engaging as an observer in the organisation of international exercises, and analysing and reporting to the Management Board on the outcome of such exercises; (b) at the request of the Commission, facilitating the exchange of best practices; (c)

at the request of the Commission, providing it with expertise;

(d)

providing advice and support to the Commission on matters concerning agreements for the mutual recognition of cybersecurity certificates with third countries, in collaboration with the ECCG established under Article 62.

CHAPTER III Organisation of ENISA Article 13 Structure of ENISA The administrative and management structure of ENISA shall be composed of the following: (a)

a Management Board;

(b) an Executive Board; (c)

an Executive Director;

(d) an ENISA Advisory Group; (e)

a National Liaison Officers Network. SECTION 1 Management Board Article 14 Composition of the Management Board

1.

The Management Board shall be composed of one member appointed by each Member State, and two members appointed by the Commission. All members shall have the right to vote.

2.

Each member of the Management Board shall have an alternate. That alternate shall represent the member in the member’s absence.

3.

Members of the Management Board and their alternates shall be appointed on the basis of their knowledge in the field of cybersecurity, taking into account their relevant managerial, administrative and budgetary skills. The Commission and the Member States shall make efforts to limit the turnover of their representatives on the Management Board, in order to ensure continuity of the Management Board’s work. The Commission and the Member States shall aim to achieve gender balance on the Management Board.

4.

The term of office of the members of the Management Board and their alternates shall be four years. That term shall be renewable. Article 15 Functions of the Management Board

1.

The Management Board shall: (a) establish the general direction of the operation of ENISA and ensure that ENISA operates in accordance with the rules and principles laid down in this Regulation; it shall also ensure the consistency of ENISA’s work with activities conducted by the Member States as well as at Union level;



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adopt ENISA’s draft single programming document referred to in Article 24, before its submission to the Commission for an opinion;

(c) adopt ENISA’s single programming document, taking into account the Commission opinion; (d) supervise the implementation of the multiannual and annual programming included in the single programming document; (e)

adopt the annual budget of ENISA and exercise other functions in respect of ENISA’s budget in accordance with Chapter IV;

(f) assess and adopt the consolidated annual report on ENISA’s activities, including the accounts and a description of how ENISA has met its performance indicators, submit both the annual report and the assessment thereof by 1 July of the following year, to the European Parliament, to the Council, to the Commission and to the Court of Auditors, and make the annual report public; (g)

adopt the financial rules applicable to ENISA in accordance with Article 32;

(h) adopt an anti-fraud strategy that is proportionate to the fraud risks, having regard to a cost-benefit analysis of the measures to be implemented; (i)

adopt rules for the prevention and management of conflicts of interest in respect of its members;

(j)

ensure adequate follow-up to the findings and recommendations resulting from investigations of the European Anti-Fraud Office (OLAF) and the various internal or external audit reports and evaluations;

(k)

adopt its rules of procedure, including rules for provisional decisions on the delegation of specific tasks, pursuant to Article 19(7);

(l)

with respect to the staff of ENISA, exercise the powers conferred by the Staff Regulations of Officials (the ‘Staff Regulations of Officials’) and the Conditions of Employment of Other Servants of the European Union (the ‘Conditions of Employment of Other Servants’), laid down in Council Regulation (EEC, Euratom, ECSC) No  259/68 (130) on the appointing authority and on the Authority Empowered to Conclude a Contract of Employment (‘appointing authority powers’) in accordance with paragraph 2 of this Article;

(m) adopt rules implementing the Staff Regulations of Officials and the Conditions of Employment of Other Servants in accordance with the procedure provided for in Article 110 of the Staff Regulations of Officials; (n) appoint the Executive Director and where relevant extend his or her term of office or remove him or her from office in accordance with Article 36; (o) appoint an accounting officer, who may be the Commission’s accounting officer, who shall be wholly independent in the performance of his or her duties; (p) take all decisions concerning the establishment of ENISA’s internal structures and, where necessary, the modification of those internal structures,

OJ L 56, 4.3.1968, p. 1.

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taking into consideration ENISA’s activity needs and having regard to sound budgetary management; (q) authorise the establishment of working arrangements with regard to Article 7; (r) authorise the establishment or conclusion of working arrangements in accordance with Article 42. 2.

In accordance with Article  110 of the Staff Regulations of Officials, the Management Board shall adopt a decision based on Article  2(1) of the Staff Regulations of Officials and Article 6 of the Conditions of Employment of Other Servants, delegating the relevant appointing authority powers to the Executive Director and determining the conditions under which that delegation of powers can be suspended. The Executive Director may sub-delegate those powers.

3.

Where exceptional circumstances so require, the Management Board may adopt a decision to temporarily suspend the delegation of appointing authority powers to the Executive Director and any appointing authority powers sub-delegated by the Executive Director and instead exercise them itself or delegate them to one of its members or to a staff member other than the Executive Director.

Article 16 Chairperson of the Management Board The Management Board shall elect a Chairperson and a Deputy Chairperson from among its members, by a majority of two thirds of the members. Their terms of office shall be four years, which shall be renewable once. If, however, their membership of the Management Board ends at any time during their term of office, their term of office shall automatically expire on that date. The Deputy Chair shall replace the Chairperson ex officio if the Chairperson is unable to attend to his or her duties. Article 17 Meetings of the Management Board 1.

Meetings of the Management Board shall be convened by its Chairperson.

2.

The Management Board shall hold at least two ordinary meetings a year. It shall also hold extraordinary meetings at the request of its Chairperson, at the request of the Commission, or at the request of at least one third of its members.

3.

The Executive Director shall take part in the meetings of the Management Board but shall not have the right to vote.

4.

Members of the ENISA Advisory Group may take part in the meetings of the Management Board at the invitation of the Chairperson, but shall not have the right to vote.

5.

The members of the Management Board and their alternates may be assisted at the meetings of the Management Board by advisers or experts, subject to the rules of procedure of the Management Board.

6.

ENISA shall provide the secretariat of the Management Board. Article 18 Voting rules of the Management Board

1.

The Management Board shall take its decisions by a majority of its members.

2.

A  majority of two-thirds of the members of the Management Board shall be required for the adoption of the single programming document and of the annual



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budget and for the appointment, extension of the term of office or removal of the Executive Director. 3.

Each member shall have one vote. In the absence of a member, their alternate shall be entitled to exercise the member’s right to vote.

4.

The Chairperson of the Management Board shall take part in the voting.

5.

The Executive Director shall not take part in the voting.

6.

The Management Board’s rules of procedure shall establish more detailed voting arrangements, in particular the circumstances in which a member may act on behalf of another member. SECTION 2 Executive Board Article 19 Executive Board

1.

The Management Board shall be assisted by an Executive Board.

2.

The Executive Board shall: (a)

prepare decisions to be adopted by the Management Board;

(b) together with the Management Board, ensure the adequate follow-up to the findings and recommendations stemming from investigations of OLAF and the various internal or external audit reports and evaluations; (c) without prejudice to the responsibilities of the Executive Director set out in Article  20, assist and advise the Executive Director in implementing the decisions of the Management Board on administrative and budgetary matters pursuant to Article 20. 3.

The Executive Board shall be composed of five members. The members of the Executive Board shall be appointed from among the members of the Management Board. One of the members shall be the Chairperson of the Management Board, who may also chair the Executive Board, and another shall be one of the representatives of the Commission. The appointments of the members of the Executive Board shall aim to ensure gender balance on the Executive Board. The Executive Director shall take part in the meetings of the Executive Board but shall not have the right to vote.

4.

The term of office of the members of the Executive Board shall be four years. That term shall be renewable.

5.

The Executive Board shall meet at least once every three months. The Chairperson of the Executive Board shall convene additional meetings at the request of its members.

6.

The Management Board shall lay down the rules of procedure of the Executive Board.

7.

When necessary because of urgency, the Executive Board may take certain provisional decisions on behalf of the Management Board, in particular on administrative management matters, including the suspension of the delegation of the appointing authority powers and budgetary matters. Any such provisional decisions shall be notified to the Management Board without undue delay. The Management Board shall then decide whether to approve or reject the provisional decision no later than three months after the decision was taken. The Executive

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Board shall not take decisions on behalf of the Management Board that require the approval of a majority of two-thirds of the members of the Management Board. SECTION 3 Executive Director Article 20c Duties of the Executive Director 1.

ENISA shall be managed by its Executive Director, who shall be independent in the performance of his or her duties. The Executive Director shall be accountable to the Management Board.

2.

The Executive Director shall report to the European Parliament on the performance of his or her duties when invited to do so. The Council may invite the Executive Director to report on the performance of his or her duties.

3.

The Executive Director shall be responsible for: (a)

the day-to-day administration of ENISA;

(b) implementing the decisions adopted by the Management Board; (c) preparing the draft single programming document and submitting it to the Management Board for approval before its submission to the Commission; (d) implementing the single programming document and reporting to the Management Board thereon; (e) preparing the consolidated annual report on ENISA’s activities, including the implementation of ENISA’s annual work programme, and presenting it to the Management Board for assessment and adoption; (f) preparing an action plan that follows up on the conclusions of the retrospective evaluations, and reporting on progress every two years to the Commission; (g) preparing an action plan that follows up on the conclusions of internal or external audit reports, as well as on investigations by OLAF and reporting on progress biannually to the Commission and regularly to the Management Board; (h) preparing the draft financial rules applicable to ENISA as referred to in Article 32; (i)

preparing ENISA’s draft statement of estimates of revenue and expenditure and implementing its budget;

(j)

protecting the financial interests of the Union by the application of preventive measures against fraud, corruption and any other illegal activities, by effective checks and, if irregularities are detected, by the recovery of the amounts wrongly paid and, where appropriate, by effective, proportionate and dissuasive administrative and financial penalties;

(k) preparing an anti-fraud strategy for ENISA and presenting it to the Management Board for approval; (l) developing and maintaining contact with the business community and consumers’ organisations to ensure regular dialogue with relevant stakeholders; (m) exchanging views and information regularly with Union institutions, bodies, offices and agencies regarding their activities relating to cybersecurity to



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ensure coherence in the development and the implementation of Union policy; (n)

carrying out other tasks assigned to the Executive Director by this Regulation.

4.

Where necessary and within ENISA’s objectives and tasks, the Executive Director may set up ad hoc working groups composed of experts, including experts from the Member States’ competent authorities. The Executive Director shall inform the Management Board in advance thereof. The procedures regarding in particular the composition of the working groups, the appointment of the experts of the working groups by the Executive Director and the operation of the working groups shall be specified in ENISA’s internal rules of operation.

5.

Where necessary, for the purpose of carrying out ENISA’s tasks in an efficient and effective manner and based on an appropriate cost-benefit analysis, the Executive Director may decide to establish one or more local offices in one or more Member States. Before deciding to establish a local office, the Executive Director shall seek the opinion of the Member States concerned, including the Member State in which the seat of ENISA is located, and shall obtain the prior consent of the Commission and the Management Board. In cases of disagreement during the consultation process between the Executive Director and the Member States concerned, the issue shall be brought to the Council for discussion. The aggregate number of staff in all local offices shall be kept to a minimum and shall not exceed 40 % of the total number of ENISA’s staff located in the Member State in which the seat of ENISA is located. The number of the staff in each local office shall not exceed 10 % of the total number of ENISA’s staff located in the Member State in which the seat of ENISA is located. The decision establishing a local office shall specify the scope of the activities to be carried out at the local office in a manner that avoids unnecessary costs and duplication of administrative functions of ENISA. SECTION 4 ENISA Advisory Group, Stakeholder Cybersecurity Certification Group and National Liaison Officers Network Article 21 ENISA Advisory Group

1.

The Management Board, acting on a proposal from the Executive Director, shall establish in a transparent manner the ENISA Advisory Group composed of recognised experts representing the relevant stakeholders, such as the ICT industry, providers of electronic communications networks or services available to the public, SMEs, operators of essential services, consumer groups, academic experts in the field of cybersecurity, and representatives of competent authorities notified in accordance with Directive (EU) 2018/1972, of European standardisation organisations, as well as of law enforcement and data protection supervisory authorities. The Management Board shall aim to ensure an appropriate gender and geographical balance as well as a balance between the different stakeholder groups.

2.

Procedures for the ENISA Advisory Group, in particular regarding its composition, the proposal by the Executive Director referred to in paragraph 1, the number and appointment of its members and the operation of the ENISA Advisory Group, shall be specified in ENISA’s internal rules of operation and shall be made public.

3.

The ENISA Advisory Group shall be chaired by the Executive Director or by any person whom the Executive Director appoints on a case-by-case basis.

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4.

The term of office of the members of the ENISA Advisory Group shall be twoand-a-half years. Members of the Management Board shall not be members of the ENISA Advisory Group. Experts from the Commission and the Member States shall be entitled to be present at the meetings of the ENISA Advisory Group and to participate in its work. Representatives of other bodies deemed to be relevant by the Executive Director, who are not members of the ENISA Advisory Group, may be invited to attend the meetings of the ENISA Advisory Group and to participate in its work.

5.

The ENISA Advisory Group shall advise ENISA in respect of the performance of ENISA’s tasks, except of the application of the provisions of Title III of this Regulation. It shall in particular advise the Executive Director on the drawing up of a proposal for ENISA’s annual work programme, and on ensuring communication with the relevant stakeholders on issues related to the annual work programme.

6.

The ENISA Advisory Group shall inform the Management Board of its activities on a regular basis. Article 22 Stakeholder Cybersecurity Certification Group

1.

The Stakeholder Cybersecurity Certification Group shall be established.

2.

The Stakeholder Cybersecurity Certification Group shall be composed of members selected from among recognised experts representing the relevant stakeholders. The Commission, following a transparent and open call, shall select, on the basis of a proposal from ENISA, members of the Stakeholder Cybersecurity Certification Group ensuring a balance between the different stakeholder groups as well as an appropriate gender and geographical balance.

3.

The Stakeholder Cybersecurity Certification Group shall: (a) advise the Commission on strategic issues regarding the European cybersecurity certification framework; (b) upon request, advise ENISA on general and strategic matters concerning ENISA’s tasks relating to market, cybersecurity certification, and standardisation; (c) assist the Commission in the preparation of the Union rolling work programme referred to in Article 47; (d) issue an opinion on the Union rolling work programme pursuant to Article 47(4); and (e) in urgent cases, provide advice to the Commission and the ECCG on the need for additional certification schemes not included in the Union rolling work programme, as outlined in Articles 47 and 48.

4.

The Stakeholder Certification Group shall be co-chaired by the representatives of the Commission and of ENISA, and its secretariat shall be provided by ENISA. Article 23 National Liaison Officers Network

1.

The Management Board, acting on a proposal from the Executive Director, shall set up a National Liaison Officers Network composed of representatives of all Member States (National Liaison Officers). Each Member State shall appoint



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one representative to the National Liaison Officers Network. The meetings of the National Liaison Officers Network may be held in different expert formations. 2.

The National Liaison Officers Network shall in particular facilitate the exchange of information between ENISA and the Member States, and shall support ENISA in disseminating its activities, findings and recommendations to the relevant stakeholders across the Union.

3.

National Liaison Officers shall act as a point of contact at national level to facilitate cooperation between ENISA and national experts in the context of the implementation of ENISA’s annual work programme.

4.

While National Liaison Officers shall cooperate closely with the Management Board representatives of their respective Member States, the National Liaisons Officers Network itself shall not duplicate the work of the Management Board or of other Union forums.

5.

The functions and procedures of the National Liaisons Officers Network shall be specified in ENISA’s internal rules of operation and shall be made public. SECTION 5 Operation Article 24 Single programming document

1.

ENISA shall operate in accordance with a single programming document containing its annual and multiannual programming, which shall include all of its planned activities.

2.

Each year, the Executive Director shall draw up a draft single programming document containing its annual and multiannual programming with the corresponding financial and human resources planning in accordance with Article  32 of Commission Delegated Regulation (EU) No  1271/2013 (131) and taking into account the guidelines set by the Commission.

3.

By 30  November each year, the Management Board shall adopt the single programming document referred to in paragraph  1 and shall transmit it to the European Parliament, to the Council and to the Commission by 31 January of the following year, as well as any subsequently updated versions of that document.

4.

The single programming document shall become final after the definitive adoption of the general budget of the Union and shall be adjusted as necessary.

5.

The annual work programme shall comprise detailed objectives and expected results including performance indicators. It shall also contain a description of the actions to be financed and an indication of the financial and human resources allocated to each action, in accordance with the principles of activity-based budgeting and management. The annual work programme shall be coherent with the multiannual work programme referred to in paragraph 7. It shall clearly indicate tasks that have been added, changed or deleted in comparison with the previous financial year.

Commission Delegated Regulation (EU) No 1271/2013 of 30 September 2013 on the framework financial regulation for the bodies referred to in Article  208 of Regulation (EU, Euratom) No  966/2012 of the European Parliament and of the Council (OJ L 328, 7.12.2013, p. 42).

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6.

The Management Board shall amend the adopted annual work programme when a new task is assigned to ENISA. Any substantial amendments to the annual work programme shall be adopted by the same procedure as for the initial annual work programme. The Management Board may delegate the power to make nonsubstantial amendments to the annual work programme to the Executive Director.

7.

The multiannual work programme shall set out the overall strategic programming including objectives, expected results and performance indicators. It shall also set out the resource programming including multi-annual budget and staff.

8.

The resource programming shall be updated annually. The strategic programming shall be updated where appropriate and in particular where necessary to address the outcome of the evaluation referred to in Article 67. Article 25 Declaration of interests

1.

Members of the Management Board, the Executive Director, and officials seconded by Member States on a temporary basis, shall each make a declaration of commitments and a declaration indicating the absence or presence of any direct or indirect interest which might be considered to be prejudicial to their independence. The declarations shall be accurate and complete, shall be made annually in writing, and shall be updated whenever necessary.

2.

Members of the Management Board, the Executive Director, and external experts participating in ad hoc working groups, shall each accurately and completely declare, at the latest at the start of each meeting, any interest which might be considered to be prejudicial to their independence in relation to the items on the agenda, and shall abstain from participating in the discussion of and voting on such items.

3.

ENISA shall lay down, in its internal rules of operation, the practical arrangements for the rules on declarations of interest referred to in paragraphs 1 and 2. Article 26 Transparency

1.

ENISA shall carry out its activities with a high level of transparency and in accordance with Article 28.

2.

ENISA shall ensure that the public and any interested parties are provided with appropriate, objective, reliable and easily accessible information, in particular with regard to the results of its work. It shall also make public the declarations of interest made in accordance with Article 25.

3.

The Management Board, acting on a proposal from the Executive Director, may authorise interested parties to observe the proceedings of some of ENISA’s activities.

4.

ENISA shall lay down, in its internal rules of operation, the practical arrangements for implementing the transparency rules referred to in paragraphs 1 and 2. Article 27 Confidentiality

1.

Without prejudice to Article  28, ENISA shall not divulge to third parties information that it processes or receives in relation to which a reasoned request for confidential treatment has been made.



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2.

Members of the Management Board, the Executive Director, the members of the ENISA Advisory Group, external experts participating in ad hoc working groups, and members of the staff of ENISA, including officials seconded by Member States on a temporary basis, shall comply with the confidentiality requirements of Article 339 TFEU, even after their duties have ceased.

3.

ENISA shall lay down, in its internal rules of operation, the practical arrangements for implementing the confidentiality rules referred to in paragraphs 1 and 2.

4.

If required for the performance of ENISA’s tasks, the Management Board shall decide to allow ENISA to handle classified information. In that case ENISA, in agreement with the Commission services, shall adopt security rules applying the security principles set out in Commission Decisions (EU, Euratom) 2015/443 (132) and 2015/444 (133). Those security rules shall include provisions for the exchange, processing and storage of classified information. Article 28 Access to documents

1.

Regulation (EC) No 1049/2001 shall apply to documents held by ENISA.

2.

The Management Board shall adopt arrangements for implementing Regulation (EC) No 1049/2001 by 28 December 2019.

3.

Decisions taken by ENISA pursuant to Article 8 of Regulation (EC) No 1049/2001 may be the subject of a complaint to the European Ombudsman under Article  228 TFEU or of an action before the Court of Justice of the European Union under Article 263 TFEU. CHAPTER IV Establishment and structure of ENISA’s budget Article 29 Establishment of ENISA’s budget

1.

Each year, the Executive Director shall draw up a draft statement of estimates of ENISA’s revenue and expenditure for the following financial year, and shall transmit it to the Management Board, together with a draft establishment plan. Revenue and expenditure shall be in balance.

2.

Each year the Management Board, on the basis of the draft statement of estimates, shall produce a statement of estimates of ENISA’s revenue and expenditure for the following financial year.

3.

The Management Board, by 31  January each year, shall send the statement of estimates, which shall be part of the draft single programming document, to the Commission and the third countries with which the Union has concluded agreements as referred to in Article 42(2).

4.

On the basis of the statement of estimates, the Commission shall enter in the draft general budget of the Union the estimates it deems to be necessary for the establishment plan and the amount of the contribution to be charged to the general budget of the Union, which it shall submit to the European Parliament and to the Council in accordance with Article 314 TFEU.

Commission Decision (EU, Euratom) 2015/443 of 13  March 2015 on Security in the Commission (OJ L 72, 17.3.2015, p. 41). 133 Commission Decision (EU, Euratom) 2015/444 of 13 March 2015 on the security rules for protecting EU classified information (OJ L 72, 17.3.2015, p. 53). 132

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5.

The European Parliament and the Council shall authorise the appropriations for the contribution from the Union to ENISA.

6.

The European Parliament and the Council shall adopt ENISA’s establishment plan.

7.

The Management Board shall adopt ENISA’s budget together with the single programming document. ENISA’s budget shall become final following the definitive adoption of the general budget of the Union. Where necessary, the Management Board shall adjust ENISA’s budget and single programming document in accordance with the general budget of the Union. Article 30 Structure of ENISA’s budget

1.

Without prejudice to other resources, ENISA’s revenue shall be composed of: (a)

a contribution from the general budget of the Union;

(b) revenue assigned to specific items of expenditure in accordance with its financial rules referred to in Article 32; (c) Union funding in the form of delegation agreements or ad hoc grants in accordance with its financial rules referred to in Article  32 and with the provisions of the relevant instruments supporting the policies of the Union; (d) contributions from third countries participating in the work of ENISA as referred to in Article 42; (e)

any voluntary contributions from Member States in money or in kind.

Member States that provide voluntary contributions under point (e) of the first subparagraph shall not claim any specific right or service as a result thereof. 2.

The expenditure of ENISA shall include staff, administrative and technical support, infrastructure and operational expenses, and expenses resulting from contracts with third parties. Article 31 Implementation of ENISA’s budget

1.

The Executive Director shall be responsible for the implementation of ENISA’s budget.

2.

The Commission’s internal auditor shall exercise the same powers over ENISA as over Commission departments.

3.

ENISA’s accounting officer shall send the provisional accounts for the financial year (year N) to the Commission’s accounting officer and to the Court of Auditors by 1 March of the following financial year (year N + 1).

4.

Upon the receipt of the Court of Auditors’ observations on ENISA’s provisional accounts pursuant to Article 246 of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council (134), ENISA’s accounting officer shall

Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No  283/2014, and Decision No  541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ L 193, 30.7.2018, p. 1).

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draw up ENISA’s final accounts under his or her responsibility and shall submit them to the Management Board for an opinion. 5.

The Management Board shall deliver an opinion on ENISA’s final accounts.

6.

By 31 March of year N + 1, the Executive Director shall transmit the report on the budgetary and financial management to the European Parliament, to the Council, to the Commission and to the Court of Auditors.

7.

By 1  July of year N  + 1, ENISA’s accounting officer shall transmit ENISA’s final accounts to the European Parliament, to the Council, to the Commission’s accounting officer and to the Court of Auditors, together with the Management Board’s opinion.

8.

At the same date as the transmission of ENISA’s final accounts, ENISA’s accounting officer shall also send to the Court of Auditors a representation letter covering those final accounts, with a copy to the Commission’s accounting officer.

9.

By 15 November of year N + 1, the Executive Director shall publish ENISA’s final accounts in the Official Journal of the European Union.

10. By 30 September of year N + 1, the Executive Director shall send the Court of Auditors a reply to its observations and shall also send a copy of that reply to the Management Board and to the Commission. 11. The Executive Director shall submit to the European Parliament, at the latter’s request, any information required for the smooth application of the discharge procedure for the financial year concerned in accordance with Article 261(3) of Regulation (EU, Euratom) 2018/1046. 12. On a recommendation from the Council, the European Parliament shall, before 15 May of year N + 2, give a discharge to the Executive Director in respect of the implementation of the budget for the year N. Article 32 Financial rules The financial rules applicable to ENISA shall be adopted by the Management Board after consulting the Commission. They shall not depart from Delegated Regulation (EU) No 1271/2013 unless such a departure is specifically required for the operation of ENISA and the Commission has given its prior consent. Article 33 Combating fraud 1.

In order to facilitate the combating of fraud, corruption and other unlawful activities under Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council (135), ENISA shall by 28 December 2019, accede to the Interinstitutional 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) (136). ENISA shall adopt appropriate provisions applicable to all employees of ENISA, using the template set out in the Annex to that Agreement.

Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 (OJ L 248, 18.9.2013, p. 1). 136 OJ L 136, 31.5.1999, p. 15. 135

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2.

The Court of Auditors shall have the power of audit, on the basis of documents and of on-the-spot inspections, over all grant beneficiaries, contractors and subcontractors who have received Union funds from ENISA.

3.

OLAF may carry out investigations, including on-the-spot checks and inspections, in accordance with the provisions and procedures laid down in Regulation (EU, Euratom) No 883/2013 and Council Regulation (Euratom, EC) No 2185/96 (137), with a view to establishing whether there has been fraud, corruption or any other illegal activity affecting the financial interests of the Union in connection with a grant or a contract funded by ENISA.

4.

Without prejudice to paragraphs 1, 2 and 3, cooperation agreements with third countries or international organisations, contracts, grant agreements and grant decisions of ENISA shall contain provisions expressly empowering the Court of Auditors and OLAF to conduct such audits and investigations, according to their respective competences.

CHAPTER V Staff Article 34 General provisions The Staff Regulations of Officials and the Conditions of Employment of Other Servants, as well as the rules adopted by agreement between the Union institutions for giving effect to the Staff Regulations of Officials and the Conditions of Employment of Other Servants shall apply to the staff of ENISA. Article 35 Privileges and immunity Protocol No 7 on the privileges and immunities of the European Union, annexed to the TEU and to the TFEU, shall apply to ENISA and its staff. Article 36 Executive Director 1.

The Executive Director shall be engaged as a temporary agent of ENISA under point (a) of Article 2 of the Conditions of Employment of Other Servants.

2.

The Executive Director shall be appointed by the Management Board from a list of candidates proposed by the Commission, following an open and transparent selection procedure.

3.

For the purpose of concluding the employment contract with the Executive Director, ENISA shall be represented by the Chairperson of the Management Board.

4.

Before appointment, the candidate selected by the Management Board shall be invited to make a statement before the relevant committee of the European Parliament and to answer Members’ questions.

5.

The term of office of the Executive Director shall be five years. By the end of that period, the Commission shall carry out an assessment of the performance of the Executive Director and ENISA’s future tasks and challenges.

Council Regulation (Euratom, EC) No  2185/96 of 11  November 1996 concerning on-the-spot checks and inspections carried out by the Commission in order to protect the European Communities’ financial interests against fraud and other irregularities (OJ L 292, 15.11.1996, p. 2).

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6.

The Management Board shall reach decisions on appointment, extension of the term of office or removal from office of the Executive Director in accordance with Article 18(2).

7.

The Management Board, acting on a proposal from the Commission which takes into account the assessment referred to in paragraph 5, may extend the term of office of the Executive Director once by five years.

8.

The Management Board shall inform the European Parliament about its intention to extend the Executive Director’s term of office. Within three months before any such extension, the Executive Director, if invited, shall make a statement before the relevant committee of the European Parliament and answer Members’ questions.

9.

An Executive Director whose term of office has been extended shall not participate in another selection procedure for the same post.

10. The Executive Director may be removed from office only by decision of the Management Board acting on a proposal from the Commission. Article 37 Seconded national experts and other staff 1.

ENISA may make use of seconded national experts or other staff not employed by ENISA. The Staff Regulations of Officials and the Conditions of Employment of Other Servants shall not apply to such staff.

2.

The Management Board shall adopt a decision laying down rules on the secondment of national experts to ENISA. CHAPTER VI General provisions concerning ENISA Article 38 Legal status of ENISA

1.

ENISA shall be a body of the Union and shall have legal personality.

2.

In each Member State ENISA shall enjoy the most extensive legal capacity accorded to legal persons under national law. It may, in particular, acquire or dispose of movable and immovable property and be a party to legal proceedings.

3.

ENISA shall be represented by the Executive Director. Article 39 Liability of ENISA

1.

The contractual liability of ENISA shall be governed by the law applicable to the contract in question.

2.

The Court of Justice of the European Union shall have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by ENISA.

3.

In the case of non-contractual liability, ENISA shall make good any damage caused by it or its staff in the performance of their duties, in accordance with the general principles common to the laws of the Member States.

4.

The Court of Justice of the European Union shall have jurisdiction in any dispute over compensation for damage as referred to in paragraph 3.

5.

The personal liability of ENISA’s staff towards ENISA shall be governed by the relevant conditions applying to ENISA’s staff.

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Article 40 Language arrangements 1.

Council Regulation No 1 (138) shall apply to ENISA. The Member States and the other bodies appointed by the Member States may address ENISA and receive a reply in the official language of the institutions of the Union that they choose.

2.

The translation services required for the functioning of ENISA shall be provided by the Translation Centre for the Bodies of the European Union. Article 41 Protection of personal data

1.

The processing of personal data by ENISA shall be subject to Regulation (EU) 2018/1725.

2.

The Management Board shall adopt implementing rules as referred to in Article 45(3) of Regulation (EU) 2018/1725. The Management Board may adopt additional measures necessary for the application of Regulation (EU) 2018/1725 by ENISA. Article 42 Cooperation with third countries and international organisations

1.

To the extent necessary in order to achieve the objectives set out in this Regulation, ENISA may cooperate with the competent authorities of third countries or with international organisations or both. To that end, ENISA may establish working arrangements with the authorities of third countries and international organisations, subject to the prior approval of the Commission. Those working arrangements shall not create legal obligations incumbent on the Union and its Member States.

2.

ENISA shall be open to the participation of third countries that have concluded agreements with the Union to that effect. Under the relevant provisions of such agreements, working arrangements shall be established specifying in particular the nature, extent and manner in which those third countries are to participate in ENISA’s work, and shall include provisions relating to participation in the initiatives undertaken by ENISA, to financial contributions and to staff. As regards staff matters, those working arrangements shall comply with the Staff Regulations of Officials and Conditions of Employment of Other Servants in any event.

3.

The Management Board shall adopt a strategy for relations with third countries and international organisations concerning matters for which ENISA is competent. The Commission shall ensure that ENISA operates within its mandate and the existing institutional framework by concluding appropriate working arrangements with the Executive Director.

Article 43 Security rules on the protection of sensitive non-classified information and classified information After consulting the Commission, ENISA shall adopt security rules applying the security principles contained in the Commission’s security rules for protecting sensitive nonclassified information and EUCI, as set out in Decisions (EU, Euratom) 2015/443 and 2015/444. ENISA’s security rules shall include provisions for the exchange, processing and storage of such information. Council Regulation No 1 determining the languages to be used by the European Economic Community (OJ 17, 6.10.1958, p. 385/58).

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Article 44 Headquarters Agreement and operating conditions 1.

The necessary arrangements concerning the accommodation to be provided for ENISA in the host Member State and the facilities to be made available by that Member State together with the specific rules applicable in the host Member State to the Executive Director, members of the Management Board, ENISA’s staff and members of their families shall be laid down in a headquarters agreement between ENISA and the host Member State, concluded after obtaining the approval of the Management Board.

2.

ENISA’s host Member State shall provide the best possible conditions for ensuring the proper functioning of ENISA, taking into account the accessibility of the location, the existence of adequate education facilities for the children of staff members, appropriate access to the labour market, social security and medical care for both children and spouses of staff members.

Article 45 Administrative control The operations of ENISA shall be supervised by the European Ombudsman in accordance with Article 228 TFEU. TITLE III CYBERSECURITY CERTIFICATION FRAMEWORK Article 46 European cybersecurity certification framework 1.

The European cybersecurity certification framework shall be established in order to improve the conditions for the functioning of the internal market by increasing the level of cybersecurity within the Union and enabling a harmonised approach at Union level to European cybersecurity certification schemes, with a view to creating a digital single market for ICT products, ICT services and ICT processes.

2.

The European cybersecurity certification framework shall provide for a mechanism to establish European cybersecurity certification schemes and to attest that the ICT products, ICT services and ICT processes that have been evaluated in accordance with such schemes comply with specified security requirements for the purpose of protecting the availability, authenticity, integrity or confidentiality of stored or transmitted or processed data or the functions or services offered by, or accessible via, those products, services and processes throughout their life cycle. Article 47 The Union rolling work programme for European cybersecurity certification

1.

The Commission shall publish a Union rolling work programme for European cybersecurity certification (the ‘Union rolling work programme’) that shall identify strategic priorities for future European cybersecurity certification schemes.

2.

The Union rolling work programme shall in particular include a list of ICT products, ICT services and ICT processes or categories thereof that are capable of benefiting from being included in the scope of a European cybersecurity certification scheme.

3.

Inclusion of specific ICT products, ICT services and ICT processes or categories thereof in the Union rolling work programme shall be justified on the basis of one or more of the following grounds:

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(a) the availability and the development of national cybersecurity certification schemes covering a specific category of ICT products, ICT services or ICT processes and, in particular, as regards the risk of fragmentation; (b) relevant Union or Member State law or policy; (c)

market demand;

(d) developments in the cyber threat landscape; (e)

request for the preparation of a specific candidate scheme by the ECCG.

4.

The Commission shall take due account of the opinions issued by the ECCG and the Stakeholder Certification Group on the draft Union rolling work programme.

5.

The first Union rolling work programme shall be published by 28 June 2020. The Union rolling work programme shall be updated at least once every three years and more often if necessary. Article 48 Request for a European cybersecurity certification scheme

1.

The Commission may request ENISA to prepare a candidate scheme or to review an existing European cybersecurity certification scheme on the basis of the Union rolling work programme.

2.

In duly justified cases, the Commission or the ECCG may request ENISA to prepare a candidate scheme or to review an existing European cybersecurity certification scheme which is not included in the Union rolling work programme. The Union rolling work programme shall be updated accordingly. Article 49 Preparation, adoption and review of a European cybersecurity certification scheme

1.

Following a request from the Commission pursuant to Article 48, ENISA shall prepare a candidate scheme which meets the requirements set out in Articles 51, 52 and 54.

2.

Following a request from the ECCG pursuant to Article  48(2), ENISA may prepare a candidate scheme which meets the requirements set out in Articles 51, 52 and 54. If ENISA refuses such a request, it shall give reasons for its refusal. Any decision to refuse such a request shall be taken by the Management Board.

3.

When preparing a candidate scheme, ENISA shall consult all relevant stakeholders by means of a formal, open, transparent and inclusive consultation process.

4.

For each candidate scheme, ENISA shall establish an ad hoc working group in accordance with Article 20(4) for the purpose of providing ENISA with specific advice and expertise.

5.

ENISA shall closely cooperate with the ECCG. The ECCG shall provide ENISA with assistance and expert advice in relation to the preparation of the candidate scheme and shall adopt an opinion on the candidate scheme.

6.

ENISA shall take utmost account of the opinion of the ECCG before transmitting the candidate scheme prepared in accordance with paragraphs 3, 4 and 5 to the Commission. The opinion of the ECCG shall not bind ENISA, nor shall the absence of such an opinion prevent ENISA from transmitting the candidate scheme to the Commission.



7.

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The Commission, based on the candidate scheme prepared by ENISA, may adopt implementing acts providing for a European cybersecurity certification scheme for ICT products, ICT services and ICT processes which meets the requirements set out in Articles  51, 52 and 54. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 66(2).

8. At least every five years, ENISA shall evaluate each adopted European cybersecurity certification scheme, taking into account the feedback received from interested parties. If necessary, the Commission or the ECCG may request ENISA to start the process of developing a revised candidate scheme in accordance with Article 48 and this Article. Article 50 Website on European cybersecurity certification schemes 1.

ENISA shall maintain a dedicated website providing information on, and publicising, European cybersecurity certification schemes, European cybersecurity certificates and EU statements of conformity, including information with regard to European cybersecurity certification schemes which are no longer valid, to withdrawn and expired European cybersecurity certificates and EU statements of conformity, and to the repository of links to cybersecurity information provided in accordance with Article 55.

2.

Where applicable, the website referred to in paragraph 1 shall also indicate the national cybersecurity certification schemes that have been replaced by a European cybersecurity certification scheme. Article 51 Security objectives of European cybersecurity certification schemes A  European cybersecurity certification scheme shall be designed to achieve, as applicable, at least the following security objectives: (a)

to protect stored, transmitted or otherwise processed data against accidental or unauthorised storage, processing, access or disclosure during the entire life cycle of the ICT product, ICT service or ICT process;

(b)

to protect stored, transmitted or otherwise processed data against accidental or unauthorised destruction, loss or alteration or lack of availability during the entire life cycle of the ICT product, ICT service or ICT process;

(c) that authorised persons, programs or machines are able only to access the data, services or functions to which their access rights refer; (d) to identify and document known dependencies and vulnerabilities; (e) to record which data, services or functions have been accessed, used or otherwise processed, at what times and by whom; (f)

to make it possible to check which data, services or functions have been accessed, used or otherwise processed, at what times and by whom;

(g) to verify that ICT products, ICT services and ICT processes do not contain known vulnerabilities; (h) to restore the availability and access to data, services and functions in a timely manner in the event of a physical or technical incident; (i)

that ICT products, ICT services and ICT processes are secure by default and by design;

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(j) that ICT products, ICT services and ICT processes are provided with up-to-date software and hardware that do not contain publicly known vulnerabilities, and are provided with mechanisms for secure updates. Article 52 Assurance levels of European cybersecurity certification schemes 1.

A European cybersecurity certification scheme may specify one or more of the following assurance levels for ICT products, ICT services and ICT processes: ‘basic’, ‘substantial’ or ‘high’. The assurance level shall be commensurate with the level of the risk associated with the intended use of the ICT product, ICT service or ICT process, in terms of the probability and impact of an incident.

2.

European cybersecurity certificates and EU statements of conformity shall refer to any assurance level specified in the European cybersecurity certification scheme under which the European cybersecurity certificate or EU statement of conformity is issued.

3.

The security requirements corresponding to each assurance level shall be provided in the relevant European cybersecurity certification scheme, including the corresponding security functionalities and the corresponding rigour and depth of the evaluation that the ICT product, ICT service or ICT process is to undergo.

4.

The certificate or the EU statement of conformity shall refer to technical specifications, standards and procedures related thereto, including technical controls, the purpose of which is to decrease the risk of, or to prevent cybersecurity incidents.

5.

A European cybersecurity certificate or EU statement of conformity that refers to assurance level ‘basic’ shall provide assurance that the ICT products, ICT services and ICT processes for which that certificate or that EU statement of conformity is issued meet the corresponding security requirements, including security functionalities, and that they have been evaluated at a level intended to minimise the known basic risks of incidents and cyberattacks. The evaluation activities to be undertaken shall include at least a review of technical documentation. Where such a review is not appropriate, substitute evaluation activities with equivalent effect shall be undertaken.

6.

A European cybersecurity certificate that refers to assurance level ‘substantial’ shall provide assurance that the ICT products, ICT services and ICT processes for which that certificate is issued meet the corresponding security requirements, including security functionalities, and that they have been evaluated at a level intended to minimise the known cybersecurity risks, and the risk of incidents and cyberattacks carried out by actors with limited skills and resources. The evaluation activities to be undertaken shall include at least the following: a review to demonstrate the absence of publicly known vulnerabilities and testing to demonstrate that the ICT products, ICT services or ICT processes correctly implement the necessary security functionalities. Where any such evaluation activities are not appropriate, substitute evaluation activities with equivalent effect shall be undertaken.

7.

A  European cybersecurity certificate that refers to assurance level ‘high’ shall provide assurance that the ICT products, ICT services and ICT processes for which that certificate is issued meet the corresponding security requirements, including security functionalities, and that they have been evaluated at a level intended to minimise the risk of state-of-the-art cyberattacks carried out by actors with significant skills and resources. The evaluation activities to be undertaken shall



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include at least the following: a review to demonstrate the absence of publicly known vulnerabilities; testing to demonstrate that the ICT products, ICT services or ICT processes correctly implement the necessary security functionalities at the state of the art; and an assessment of their resistance to skilled attackers, using penetration testing. Where any such evaluation activities are not appropriate, substitute activities with equivalent effect shall be undertaken. 8.

A  European cybersecurity certification scheme may specify several evaluation levels depending on the rigour and depth of the evaluation methodology used. Each of the evaluation levels shall correspond to one of the assurance levels and shall be defined by an appropriate combination of assurance components. Article 53c Conformity self-assessment

1.

A European cybersecurity certification scheme may allow for the conformity selfassessment under the sole responsibility of the manufacturer or provider of ICT products, ICT services or ICT processes. Conformity self-assessment shall be permitted only in relation to ICT products, ICT services and ICT processes that present a low risk corresponding to assurance level ‘basic’.

2.

The manufacturer or provider of ICT products, ICT services or ICT processes may issue an EU statement of conformity stating that the fulfilment of the requirements set out in the scheme has been demonstrated. By issuing such a statement, the manufacturer or provider of ICT products, ICT services or ICT processes shall assume responsibility for the compliance of the ICT product, ICT service or ICT process with the requirements set out in that scheme.

3.

The manufacturer or provider of ICT products, ICT services or ICT processes shall make the EU statement of conformity, technical documentation, and all other relevant information relating to the conformity of the ICT products or ICT services with the scheme available to the national cybersecurity certification authority referred to in Article 58 for the period provided for in the corresponding European cybersecurity certification scheme. A  copy of the EU statement of conformity shall be submitted to the national cybersecurity certification authority and to ENISA.

4.

The issuing of an EU statement of conformity is voluntary, unless otherwise specified in Union law or Member State law.

5.

EU statements of conformity shall be recognised in all Member States. Article 54 Elements of European cybersecurity certification schemes

1.

A European cybersecurity certification scheme shall include at least the following elements: (a)

the subject matter and scope of the certification scheme, including the type or categories of ICT products, ICT services and ICT processes covered;

(b) a clear description of the purpose of the scheme and of how the selected standards, evaluation methods and assurance levels correspond to the needs of the intended users of the scheme; (c) references to the international, European or national standards applied in the evaluation or, where such standards are not available or appropriate, to technical specifications that meet the requirements set out in Annex II to

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(d) (e) (f)

(g)

(h)

(i) (j)

(k)

(l)

(m)

(n) (o)

(p) (q)

(r) (s)

Regulation (EU) No 1025/2012 or, if such specifications are not available, to technical specifications or other cybersecurity requirements defined in the European cybersecurity certification scheme; where applicable, one or more assurance levels; an indication of whether conformity self-assessment is permitted under the scheme; where applicable, specific or additional requirements to which conformity assessment bodies are subject in order to guarantee their technical competence to evaluate the cybersecurity requirements; the specific evaluation criteria and methods to be used, including types of evaluation, in order to demonstrate that the security objectives referred to in Article 51 are achieved; where applicable, the information which is necessary for certification and which is to be supplied or otherwise be made available to the conformity assessment bodies by an applicant; where the scheme provides for marks or labels, the conditions under which such marks or labels may be used; rules for monitoring compliance of ICT products, ICT services and ICT processes with the requirements of the European cybersecurity certificates or the EU statements of conformity, including mechanisms to demonstrate continued compliance with the specified cybersecurity requirements; where applicable, the conditions for issuing, maintaining, continuing and renewing the European cybersecurity certificates, as well as the conditions for extending or reducing the scope of certification; rules concerning the consequences for ICT products, ICT services and ICT processes that have been certified or for which an EU statement of conformity has been issued, but which do not comply with the requirements of the scheme; rules concerning how previously undetected cybersecurity vulnerabilities in ICT products, ICT services and ICT processes are to be reported and dealt with; where applicable, rules concerning the retention of records by conformity assessment bodies; the identification of national or international cybersecurity certification schemes covering the same type or categories of ICT products, ICT services and ICT processes, security requirements, evaluation criteria and methods, and assurance levels; the content and the format of the European cybersecurity certificates and the EU statements of conformity to be issued; the period of the availability of the EU statement of conformity, technical documentation, and all other relevant information to be made available by the manufacturer or provider of ICT products, ICT services or ICT processes; maximum period of validity of European cybersecurity certificates issued under the scheme; disclosure policy for European cybersecurity certificates issued, amended or withdrawn under the scheme;



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conditions for the mutual recognition of certification schemes with third countries;

(u) where applicable, rules concerning any peer assessment mechanism established by the scheme for the authorities or bodies issuing European cybersecurity certificates for assurance level ‘high’ pursuant to Article 56(6). Such mechanism shall be without prejudice to the peer review provided for in Article 59; (v) format and procedures to be followed by manufacturers or providers of ICT products, ICT services or ICT processes in supplying and updating the supplementary cybersecurity information in accordance with Article 55. 2.

The specified requirements of the European cybersecurity certification scheme shall be consistent with any applicable legal requirements, in particular requirements emanating from harmonised Union law.

3.

Where a specific Union legal act so provides, a certificate or an EU statement of conformity issued under a European cybersecurity certification scheme may be used to demonstrate the presumption of conformity with requirements of that legal act.

4.

In the absence of harmonised Union law, Member State law may also provide that a European cybersecurity certification scheme may be used for establishing the presumption of conformity with legal requirements. Article 55 Supplementary cybersecurity information for certified ICT products, ICT services and ICT processes

1.

The manufacturer or provider of certified ICT products, ICT services or ICT processes or of ICT products, ICT services and ICT processes for which an EU statement of conformity has been issued shall make publicly available the following supplementary cybersecurity information: (a) guidance and recommendations to assist end users with the secure configuration, installation, deployment, operation and maintenance of the ICT products or ICT services; (b) the period during which security support will be offered to end users, in particular as regards the availability of cybersecurity related updates; (c)

contact information of the manufacturer or provider and accepted methods for receiving vulnerability information from end users and security researchers;

(d) a reference to online repositories listing publicly disclosed vulnerabilities related to the ICT product, ICT service or ICT process and to any relevant cybersecurity advisories. 2.

The information referred to in paragraph 1 shall be available in electronic form and shall remain available and be updated as necessary at least until the expiry of the corresponding European cybersecurity certificate or EU statement of conformity. Article 56 Cybersecurity certification

1.

ICT products, ICT services and ICT processes that have been certified under a European cybersecurity certification scheme adopted pursuant to Article 49 shall be presumed to comply with the requirements of such scheme.

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2.

The cybersecurity certification shall be voluntary, unless otherwise specified by Union law or Member State law.

3.

The Commission shall regularly assess the efficiency and use of the adopted European cybersecurity certification schemes and whether a specific European cybersecurity certification scheme is to be made mandatory through relevant Union law to ensure an adequate level of cybersecurity of ICT products, ICT services and ICT processes in the Union and improve the functioning of the internal market. The first such assessment shall be carried out by 31 December 2023, and subsequent assessments shall be carried out at least every two years thereafter. Based on the outcome of those assessments, the Commission shall identify the ICT products, ICT services and ICT processes covered by an existing certification scheme which are to be covered by a mandatory certification scheme. As a priority, the Commission shall focus on the sectors listed in Annex II to Directive (EU) 2016/1148, which shall be assessed at the latest two years after the adoption of the first European cybersecurity certification scheme. When preparing the assessment the Commission shall: (a) take into account the impact of the measures on the manufacturers or providers of such ICT products, ICT services or ICT processes and on the users in terms of the cost of those measures and the societal or economic benefits stemming from the anticipated enhanced level of security for the targeted ICT products, ICT services or ICT processes; (b) take into account the existence and implementation of relevant Member State and third country law; (c) carry out an open, transparent and inclusive consultation process with all relevant stakeholders and Member States; (d) take into account any implementation deadlines, transitional measures and periods, in particular with regard to the possible impact of the measure on the manufacturers or providers of ICT products, ICT services or ICT processes, including SMEs; (e) propose the most speedy and efficient way in which the transition from a voluntary to mandatory certification schemes is to be implemented.

4.

The conformity assessment bodies referred to in Article 60 shall issue European cybersecurity certificates pursuant to this Article referring to assurance level ‘basic’ or ‘substantial’ on the basis of criteria included in the European cybersecurity certification scheme adopted by the Commission pursuant to Article 49.

5.

By way of derogation from paragraph  4, in duly justified cases a European cybersecurity certification scheme may provide that European cybersecurity certificates resulting from that scheme are to be issued only by a public body. Such body shall be one of the following: (a)

a national cybersecurity certification authority as referred to in Article 58(1); or

(b) a public body that is accredited as a conformity assessment body pursuant to Article 60(1). 6.

Where a European cybersecurity certification scheme adopted pursuant to Article 49 requires an assurance level ‘high’, the European cybersecurity certificate under that scheme is to be issued only by a national cybersecurity certification authority or, in the following cases, by a conformity assessment body:



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upon prior approval by the national cybersecurity certification authority for each individual European cybersecurity certificate issued by a conformity assessment body; or

(b) on the basis of a general delegation of the task of issuing such European cybersecurity certificates to a conformity assessment body by the national cybersecurity certification authority. 7.

The natural or legal person who submits ICT products, ICT services or ICT processes for certification shall make available to the national cybersecurity certification authority referred to in Article 58, where that authority is the body issuing the European cybersecurity certificate, or to the conformity assessment body referred to in Article 60 all information necessary to conduct the certification.

8.

The holder of a European cybersecurity certificate shall inform the authority or body referred to in paragraph  7 of any subsequently detected vulnerabilities or irregularities concerning the security of the certified ICT product, ICT service or ICT process that may have an impact on its compliance with the requirements related to the certification. That authority or body shall forward that information without undue delay to the national cybersecurity certification authority concerned.

9.

A European cybersecurity certificate shall be issued for the period provided for in the European cybersecurity certification scheme and may be renewed, provided that the relevant requirements continue to be met.

10. A  European cybersecurity certificate issued pursuant to this Article shall be recognised in all Member States. Article 57 National cybersecurity certification schemes and certificates 1.

Without prejudice to paragraph 3 of this Article, national cybersecurity certification schemes, and the related procedures for the ICT products, ICT services and ICT processes that are covered by a European cybersecurity certification scheme shall cease to produce effects from the date established in the implementing act adopted pursuant to Article  49(7). National cybersecurity certification schemes and the related procedures for the ICT products, ICT services and ICT processes that are not covered by a European cybersecurity certification scheme shall continue to exist.

2.

Member States shall not introduce new national cybersecurity certification schemes for ICT products, ICT services and ICT processes already covered by a European cybersecurity certification scheme that is in force.

3.

Existing certificates that were issued under national cybersecurity certification schemes and are covered by a European cybersecurity certification scheme shall remain valid until their expiry date.

4.

With a view to avoiding the fragmentation of the internal market, Member States shall inform the Commission and the ECCG of any intention to draw up new national cybersecurity certification schemes. Article 58 National cybersecurity certification authorities

1.

Each Member State shall designate one or more national cybersecurity certification authorities in its territory or, with the agreement of another Member State, shall designate one or more national cybersecurity certification authorities established

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in that other Member State to be responsible for the supervisory tasks in the designating Member State. 2.

Each Member State shall inform the Commission of the identity of the designated national cybersecurity certification authorities. Where a Member State designates more than one authority, it shall also inform the Commission about the tasks assigned to each of those authorities.

3.

Without prejudice to point (a) of Article  56(5) and Article  56(6), each national cybersecurity certification authority shall be independent of the entities it supervises in its organisation, funding decisions, legal structure and decisionmaking.

4.

Member States shall ensure that the activities of the national cybersecurity certification authorities that relate to the issuance of European cybersecurity certificates referred to in point (a) of Article 56(5) and in Article 56(6) are strictly separated from their supervisory activities set out in this Article and that those activities are carried out independently from each other.

5.

Member States shall ensure that national cybersecurity certification authorities have adequate resources to exercise their powers and to carry out their tasks in an effective and efficient manner.

6.

For the effective implementation of this Regulation, it is appropriate that national cybersecurity certification authorities participate in the ECCG in an active, effective, efficient and secure manner.

7.

National cybersecurity certification authorities shall: (a)

supervise and enforce rules included in European cybersecurity certification schemes pursuant to point (j) of Article  54(1) for the monitoring of the compliance of ICT products, ICT services and ICT processes with the requirements of the European cybersecurity certificates that have been issued in their respective territories, in cooperation with other relevant market surveillance authorities;

(b)

monitor compliance with and enforce the obligations of the manufacturers or providers of ICT products, ICT services or ICT processes that are established in their respective territories and that carry out conformity self-assessment, and shall, in particular, monitor compliance with and enforce the obligations of such manufacturers or providers set out in Article 53(2) and (3) and in the corresponding European cybersecurity certification scheme;

(c) without prejudice to Article 60(3), actively assist and support the national accreditation bodies in the monitoring and supervision of the activities of conformity assessment bodies, for the purposes of this Regulation; (d) monitor and supervise the activities of the public bodies referred to in Article 56(5); (e) where applicable, authorise conformity assessment bodies in accordance with Article 60(3) and restrict, suspend or withdraw existing authorisation where conformity assessment bodies infringe the requirements of this Regulation; (f) handle complaints by natural or legal persons in relation to European cybersecurity certificates issued by national cybersecurity certification authorities or to European cybersecurity certificates issued by conformity assessment bodies in accordance with Article  56(6) or in relation to EU



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statements of conformity issued under Article 53, and shall investigate the subject matter of such complaints to the extent appropriate, and shall inform the complainant of the progress and the outcome of the investigation within a reasonable period; (g) provide an annual summary report on the activities conducted under points (b), (c) and (d) of this paragraph or under paragraph  8 to ENISA and the ECCG; (h) cooperate with other national cybersecurity certification authorities or other public authorities, including by sharing information on the possible non-compliance of ICT products, ICT services and ICT processes with the requirements of this Regulation or with the requirements of specific European cybersecurity certification schemes; and (i) 8.

monitor relevant developments in the field of cybersecurity certification.

Each national cybersecurity certification authority shall have at least the following powers: (a) to request conformity assessment bodies, European cybersecurity certificates’ holders and issuers of EU statements of conformity to provide any information it requires for the performance of its tasks; (b) to carry out investigations, in the form of audits, of conformity assessment bodies, European cybersecurity certificates’ holders and issuers of EU statements of conformity, for the purpose of verifying their compliance with this Title; (c)

to take appropriate measures, in accordance with national law, to ensure that conformity assessment bodies, European cybersecurity certificates’ holders and issuers of EU statements of conformity comply with this Regulation or with a European cybersecurity certification scheme;

(d) to obtain access to the premises of any conformity assessment bodies or holders of European cybersecurity certificates, for the purpose of carrying out investigations in accordance with Union or Member State procedural law; (e) to withdraw, in accordance with national law, European cybersecurity certificates issued by the national cybersecurity certification authorities or European cybersecurity certificates issued by conformity assessment bodies in accordance with Article 56(6), where such certificates do not comply with this Regulation or with a European cybersecurity certification scheme; (f) to impose penalties in accordance with national law, as provided for in Article 65, and to require the immediate cessation of infringements of the obligations set out in this Regulation. 9.

National cybersecurity certification authorities shall cooperate with each other and with the Commission, in particular, by exchanging information, experience and good practices as regards cybersecurity certification and technical issues concerning the cybersecurity of ICT products, ICT services and ICT processes. Article 59 Peer review

1.

With a view to achieving equivalent standards throughout the Union in respect of European cybersecurity certificates and EU statements of conformity, national cybersecurity certification authorities shall be subject to peer review.

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2.

Peer review shall be carried out on the basis of sound and transparent evaluation criteria and procedures, in particular concerning structural, human resource and process requirements, confidentiality and complaints.

3.

Peer review shall assess: (a) where applicable, whether the activities of the national cybersecurity certification authorities that relate to the issuance of European cybersecurity certificates referred to in point (a) of Article 56(5) and in Article 56(6) are strictly separated from their supervisory activities set out in Article 58 and whether those activities are carried out independently from each other; (b) the procedures for supervising and enforcing the rules for monitoring the compliance of ICT products, ICT services and ICT processes with European cybersecurity certificates pursuant to point (a) of Article 58(7); (c)

the procedures for monitoring and enforcing the obligations of manufacturers or providers of ICT products, ICT services or ICT processes pursuant to point (b) of Article 58(7);

(d) the procedures for monitoring, authorising and supervising the activities of the conformity assessment bodies; (e) where applicable, whether the staff of authorities or bodies that issue certificates for assurance level ‘high’ pursuant to Article  56(6) have the appropriate expertise. 4.

Peer review shall be carried out by at least two national cybersecurity certification authorities of other Member States and the Commission and shall be carried out at least once every five years. ENISA may participate in the peer review.

5.

The Commission may adopt implementing acts establishing a plan for peer review which covers a period of at least five years, laying down the criteria concerning the composition of the peer review team, the methodology to be used in peer review, and the schedule, the frequency and other tasks related to it. In adopting those implementing acts, the Commission shall take due account of the views of the ECCG. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 66(2).

6.

The outcomes of peer reviews shall be examined by the ECCG, which shall draw up summaries that may be made publicly available and which shall, where necessary, issue guidelines or recommendations on actions or measures to be taken by the entities concerned. Article 60 Conformity assessment bodies

1.

The conformity assessment bodies shall be accredited by national accreditation bodies appointed pursuant to Regulation (EC) No 765/2008. Such accreditation shall be issued only where the conformity assessment body meets the requirements set out in the Annex to this Regulation.

2.

Where a European cybersecurity certificate is issued by a national cybersecurity certification authority pursuant to point (a) of Article  56(5) and Article  56(6), the certification body of the national cybersecurity certification authority shall be accredited as a conformity assessment body pursuant to paragraph  1 of this Article.



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3.

Where European cybersecurity certification schemes set out specific or additional requirements pursuant to point (f) of Article 54(1), only conformity assessment bodies that meet those requirements shall be authorised by the national cybersecurity certification authority to carry out tasks under such schemes.

4.

The accreditation referred to in paragraph  1 shall be issued to the conformity assessment bodies for a maximum of five years and may be renewed on the same conditions, provided that the conformity assessment body still meets the requirements set out in this Article. National accreditation bodies shall take all appropriate measures within a reasonable timeframe to restrict, suspend or revoke the accreditation of a conformity assessment body issued pursuant to paragraph 1 where the conditions for the accreditation have not been met or are no longer met, or where the conformity assessment body infringes this Regulation. Article 61 Notification

1.

For each European cybersecurity certification scheme, the national cybersecurity certification authorities shall notify the Commission of the conformity assessment bodies that have been accredited and, where applicable, authorised pursuant to Article 60(3) to issue European cybersecurity certificates at specified assurance levels as referred to in Article  52. The national cybersecurity certification authorities shall notify the Commission of any subsequent changes thereto without undue delay.

2.

One year after the entry into force of a European cybersecurity certification scheme, the Commission shall publish a list of the conformity assessment bodies notified under that scheme in the Official Journal of the European Union.

3.

If the Commission receives a notification after the expiry of the period referred to in paragraph 2, it shall publish the amendments to the list of notified conformity assessment bodies in the Official Journal of the European Union within two months of the date of receipt of that notification.

4.

A national cybersecurity certification authority may submit to the Commission a request to remove a conformity assessment body notified by that authority from the list referred to in paragraph 2. The Commission shall publish the corresponding amendments to that list in the Official Journal of the European Union within one month of the date of receipt of the national cybersecurity certification authority’s request.

5.

The Commission may adopt implementing acts to establish the circumstances, formats and procedures for notifications referred to in paragraph 1 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 66(2). Article 62 European Cybersecurity Certification Group

1. The European Cybersecurity Certification Group (the ‘ECCG’) shall be established. 2.

The ECCG shall be composed of representatives of national cybersecurity certification authorities or representatives of other relevant national authorities. A member of the ECCG shall not represent more than two Member States.

3.

Stakeholders and relevant third parties may be invited to attend meetings of the ECCG and to participate in its work.

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4.

5.

1.

2.

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The ECCG shall have the following tasks: (a) to advise and assist the Commission in its work to ensure the consistent implementation and application of this Title, in particular regarding the Union rolling work programme, cybersecurity certification policy issues, the coordination of policy approaches, and the preparation of European cybersecurity certification schemes; (b) to assist, advise and cooperate with ENISA in relation to the preparation of a candidate scheme pursuant to Article 49; (c) to adopt an opinion on candidate schemes prepared by ENISA pursuant to Article 49; (d) to request ENISA to prepare candidate schemes pursuant to Article 48(2); (e) to adopt opinions addressed to the Commission relating to the maintenance and review of existing European cybersecurity certifications schemes; (f) to examine relevant developments in the field of cybersecurity certification and to exchange information and good practices on cybersecurity certification schemes; (g) to facilitate the cooperation between national cybersecurity certification authorities under this Title through capacity-building and the exchange of information, in particular by establishing methods for the efficient exchange of information relating to issues concerning cybersecurity certification; (h) to support the implementation of peer assessment mechanisms in accordance with the rules established in a European cybersecurity certification scheme pursuant to point (u) of Article 54(1); (i) to facilitate the alignment of European cybersecurity certification schemes with internationally recognised standards, including by reviewing existing European cybersecurity certification schemes and, where appropriate, making recommendations to ENISA to engage with relevant international standardisation organisations to address insufficiencies or gaps in available internationally recognised standards. With the assistance of ENISA, the Commission shall chair the ECCG, and the Commission shall provide the ECCG with a secretariat in accordance with point (e) of Article 8(1). Article 63 Right to lodge a complaint Natural and legal persons shall have the right to lodge a complaint with the issuer of a European cybersecurity certificate or, where the complaint relates to a European cybersecurity certificate issued by a conformity assessment body when acting in accordance with Article 56(6), with the relevant national cybersecurity certification authority. The authority or body with which the complaint has been lodged shall inform the complainant of the progress of the proceedings and of the decision taken, and shall inform the complainant of the right to an effective judicial remedy referred to in Article 64. Article 64 Right to an effective judicial remedy Notwithstanding any administrative or other non-judicial remedies, natural and legal persons shall have the right to an effective judicial remedy with regard to:



2.

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(a) decisions taken by the authority or body referred to in Article  63(1) including, where applicable, in relation to the improper issuing, failure to issue or recognition of a European cybersecurity certificate held by those natural and legal persons; (b) a failure to act on a complaint lodged with the authority or body referred to in Article 63(1). Proceedings pursuant to this Article shall be brought before the courts of the Member State in which the authority or body against which the judicial remedy is sought is located.

Article 65 Penalties Member States shall lay down the rules on penalties applicable to infringements of this Title and to infringements of European cybersecurity certification schemes, and shall take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive. Member States shall without delay notify the Commission of those rules and of those measures and shall notify it of any subsequent amendment affecting them.

1. 2.

1.

2.

3.

4.

TITLE IV FINAL PROVISIONS Article 66 Committee procedure The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011. Where reference is made to this paragraph, point (b) of Article 5(4) of Regulation (EU) No 182/2011 shall apply. Article 67 Evaluation and review By 28 June 2024, and every five years thereafter, the Commission shall evaluate the impact, effectiveness and efficiency of ENISA and of its working practices, the possible need to modify ENISA’s mandate and the financial implications of any such modification. The evaluation shall take into account any feedback provided to ENISA in response to its activities. Where the Commission considers that the continued operation of ENISA is no longer justified in light of the objectives, mandate and tasks assigned to it, the Commission may propose that this Regulation be amended with regard to the provisions related to ENISA. The evaluation shall also assess the impact, effectiveness and efficiency of the provisions of Title III of this Regulation with regard to the objectives of ensuring an adequate level of cybersecurity of ICT products, ICT services and ICT processes in the Union and improving the functioning of the internal market. The evaluation shall assess whether essential cybersecurity requirements for access to the internal market are necessary in order to prevent ICT products, ICT services and ICT processes which do not meet basic cybersecurity requirements from entering the Union market. By 28 June 2024, and every five years thereafter, the Commission shall transmit a report on the evaluation together with its conclusions to the European Parliament, to the Council and to the Management Board. The findings of that report shall be made public.

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Article 68 Repeal and succession 1.

Regulation (EU) No 526/2013 is repealed with effect from 27 June 2019.

2.

References to Regulation (EU) No 526/2013 and to the ENISA as established by that Regulation shall be construed as references to this Regulation and to ENISA as established by this Regulation.

3.

ENISA as established by this Regulation shall succeed ENISA as established by Regulation (EU) No 526/2013 as regards all ownership, agreements, legal obligations, employment contracts, financial commitments and liabilities. All decisions of the Management Board and the Executive Board adopted in accordance with Regulation (EU) No 526/2013 shall remain valid, provided that they comply with this Regulation.

4.

ENISA shall be established for an indefinite period as of 27 June 2019.

5.

The Executive Director appointed pursuant to Article 24(4) of Regulation (EU) No  526/2013 shall remain in office and exercise the duties of the Executive Director as referred to in Article 20 of this Regulation for the remaining part of the Executive Director’s term of office. The other conditions of his or her contract shall remain unchanged.

6.

The members of the Management Board and their alternates appointed pursuant to Article 6 of Regulation (EU) No 526/2013 shall remain in office and exercise the functions of the Management Board as referred to in Article 15 of this Regulation for the remaining part of their term of office. Article 69 Entry into force

1.

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

2.

Articles 58, 60, 61, 63, 64 and 65 shall apply from 28 June 2021.

This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Strasbourg, 17 April 2019. For the European Parliament The President A TAJANI

For the Council The President G CIAMBA

ANNEX REQUIREMENTS TO BE MET BY CONFORMITY ASSESSMENT BODIES Conformity assessment bodies that wish to be accredited shall meet the following requirements: 1.

A conformity assessment body shall be established under national law and shall have legal personality.

2.

A  conformity assessment body shall be a third-party body that is independent of the organisation or the ICT products, ICT services or ICT processes that it assesses.

3.

A  body that belongs to a business association or professional federation representing undertakings involved in the design, manufacturing, provision,



4.

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assembly, use or maintenance of ICT products, ICT services or ICT processes which it assesses may be considered to be a conformity assessment body, provided that its independence and the absence of any conflict of interest are demonstrated. The conformity assessment bodies, their top-level management and the persons responsible for carrying out the conformity assessment tasks shall not be the designer, manufacturer, supplier, installer, purchaser, owner, user or maintainer of the ICT product, ICT service or ICT process which is assessed, or the authorised representative of any of those parties. That prohibition shall not preclude the use of the ICT products assessed that are necessary for the operations of the conformity assessment body or the use of such ICT products for personal purposes.

5.

The conformity assessment bodies, their top-level management and the persons responsible for carrying out the conformity assessment tasks shall not be directly involved in the design, manufacture or construction, the marketing, installation, use or maintenance of the ICT products, ICT services or ICT processes which are assessed, or represent parties engaged in those activities. The conformity assessment bodies, their top-level management and the persons responsible for carrying out the conformity assessment tasks shall not engage in any activity that may conflict with their independence of judgement or integrity in relation to their conformity assessment activities. That prohibition shall apply, in particular, to consultancy services.

6.

If a conformity assessment body is owned or operated by a public entity or institution, the independence and absence of any conflict of interest shall be ensured between the national cybersecurity certification authority and the conformity assessment body, and shall be documented.

7.

Conformity assessment bodies shall ensure that the activities of their subsidiaries and subcontractors do not affect the confidentiality, objectivity or impartiality of their conformity assessment activities.

8. Conformity assessment bodies and their staff shall carry out conformity assessment activities with the highest degree of professional integrity and the requisite technical competence in the specific field, and shall be free from all pressures and inducements which might influence their judgement or the results of their conformity assessment activities, including pressures and inducements of a financial nature, especially as regards persons or groups of persons with an interest in the results of those activities. 9.

A conformity assessment body shall be capable of carrying out all the conformity assessment tasks assigned to it under this Regulation, regardless of whether those tasks are carried out by the conformity assessment body itself or on its behalf and under its responsibility. Any subcontracting to, or consultation of, external staff shall be properly documented, shall not involve any intermediaries and shall be subject to a written agreement covering, among other things, confidentiality and conflicts of interest. The conformity assessment body in question shall take full responsibility for the tasks performed.

10. At all times and for each conformity assessment procedure and each type, category or sub-category of ICT products, ICT services or ICT processes, a conformity assessment body shall have at its disposal the necessary: (a)

staff with technical knowledge and sufficient and appropriate experience to perform the conformity assessment tasks;

(b)

descriptions of procedures in accordance with which conformity assessment is to be carried out, to ensure the transparency of those procedures and the

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possibility of reproducing them. It shall have in place appropriate policies and procedures that distinguish between tasks that it carries out as a body notified pursuant to Article 61 and its other activities; (c)

procedures for the performance of activities which take due account of the size of an undertaking, the sector in which it operates, its structure, the degree of complexity of the technology of the ICT product, ICT service or ICT process in question and the mass or serial nature of the production process.

11. A  conformity assessment body shall have the means necessary to perform the technical and administrative tasks connected with the conformity assessment activities in an appropriate manner, and shall have access to all necessary equipment and facilities. 12. The persons responsible for carrying out conformity assessment activities shall have the following: (a)

sound technical and vocational training covering all conformity assessment activities;

(b) satisfactory knowledge of the requirements of the conformity assessments they carry out and adequate authority to carry out those assessments; (c) appropriate knowledge and understanding of the applicable requirements and testing standards; (d) the ability to draw up certificates, records and reports demonstrating that conformity assessments have been carried out. 13. The impartiality of the conformity assessment bodies, of their top-level management, of the persons responsible for carrying out conformity assessment activities, and of any subcontractors shall be guaranteed. 14. The remuneration of the top-level management and of the persons responsible for carrying out conformity assessment activities shall not depend on the number of conformity assessments carried out or on the results of those assessments. 15. Conformity assessment bodies shall take out liability insurance unless liability is assumed by the Member State in accordance with its national law, or the Member State itself is directly responsible for the conformity assessment. 16. The conformity assessment body and its staff, its committees, its subsidiaries, its subcontractors, and any associated body or the staff of external bodies of a conformity assessment body shall maintain confidentiality and observe professional secrecy with regard to all information obtained in carrying out their conformity assessment tasks under this Regulation or pursuant to any provision of national law giving effect to this Regulation, except where disclosure is required by Union or Member State law to which such persons are subject, and except in relation to the competent authorities of the Member States in which its activities are carried out. Intellectual property rights shall be protected. The conformity assessment body shall have documented procedures in place in respect of the requirements of this point. 17. With the exception of point 16, the requirements of this Annex shall not preclude exchanges of technical information and regulatory guidance between a conformity assessment body and a person who applies for certification or who is considering whether to apply for certification.



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18. Conformity assessment bodies shall operate in accordance with a set of consistent, fair and reasonable terms and conditions, taking into account the interests of SMEs in relation to fees. 19. Conformity assessment bodies shall meet the requirements of the relevant standard that is harmonised under Regulation (EC) No 765/2008 for the accreditation of conformity assessment bodies performing certification of ICT products, ICT services or ICT processes. 20. Conformity assessment bodies shall ensure that testing laboratories used for conformity assessment purposes meet the requirements of the relevant standard that is harmonised under Regulation (EC) No 765/2008 for the accreditation of laboratories performing testing.

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COMMISSION IMPLEMENTING REGULATION (EU) 2019/2243 of 17 Decemb[er] 2019 establishing a template for the contract summary to be used by providers of publicly available electronic communications services pursuant to Directive (EU) 2018/1972 of the European Parliament and of the Council[139] (Text with EEA relevance) THE EUROPEAN COMMISSION, Having regard to the Treaty on the Functioning of the European Union, Having regard to Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (140), and in particular Article 102(3) thereof, Whereas: (1) In order to identify the main elements of the contract summary that the providers of publicly available electronic communications services are to provide the consumers, microenterprises, small enterprises and not-for-profit organisations pursuant to Article  102(1) and (2) of Directive (EU) 2018/1972, a template laying down the main elements of the contract summary should be established. The contract summary should be easy to read, understand and compare, with a common structure and format. (2) The contract summary information, whether printed or available electronically, is to comply with the relevant accessibility requirements of Union law harmonising accessibility requirements for products and services provided for by Directive (EU) 2019/882 of the European Parliament and the Council (141). (3)

The contract summary is to comply with the obligations stemming from consumer protection legislation such as Council Directive 93/13/EEC (142), Directive 2005/29/ EC of the European Parliament and of the Council (143) and Directive 2011/83/EU of the European Parliament and of the Council (144). It is also to comply with the rights and obligations stemming from the legislation on the protection of personal data, such as Regulation (EU) 2016/679 of the European Parliament and of the Council (145).

(4)

In order to facilitate easy readability, the contract summary should not, unless duly justified, exceed the equivalent of one single-sided A4 page when printed with an easily readable font. For bundled services it should not exceed three single-sided A4

OJ L 336, 30.12.2019, p. 274. Incorporating amendments as per the consolidated version of 30 December 2019 (corrected by Corrigendum, OJ L 016, 21.1.2020, p. 40 (2019/2243)). 140 OJ L 312, 17.12.2018, p. 36. 141 Directive (EU) 2019/882 of the European Parliament and of the Council of 17  April 2019 on the accessibility requirements for products and services (OJ L 151, 7.6.2019, p. 70). 142 Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ L 95, 21.4.1993, p. 29). 143 Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/ EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (OJ L 149, 11.6.2005, p. 22). 144 Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ L 304, 22.11.2011, p. 64). 145 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27  April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (OJ L 119, 04.05.2016, p.1) 139



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pages when printed with an easily readable font. A longer length could be justified, for example, for reasons of accessibility for consumers with disabilities. In order to ensure comparability between electronic communications service offers, the layout of the contract summary should include clearly distinguishable headings under which the different elements should be grouped. To facilitate understanding and a swift identification of important information by the consumers, the relevant elements under each heading should be described in short sentences. For reasons of readability and printability, sufficient margins should be left between the edges and the text of the contract summary. (5)

The easy readability of a font depends on various factors, and includes the relation between viewing distance, the character height and whether the font size is easily enlarged when provided electronically. Where read from a close distance, a font size of at least 10 points is considered easily readable for many consumers. Headings should be clearly distinguishable from the text, for example by increased font size. Commonly used sans-serif fonts could be used to improve readability. Easy readability should also be ensured by using sufficient contrast, following state of the art practices, between the font and the background, especially when using colours.

(6) Where the contract summary should normally be presented using a font size of at least 10 points, electronic devices or channels used for the sale of electronic communications services, such as prepaid services primarily sold at retailers, could require scaling down of the contract summary where justified, for example in order to fit the packaging or the device. Prepaid services are sometimes sold in packaging with dimensions that would render the provision of the 10 points font size impracticable. (7) The required information should be provided directly in the summary and not by reference to other sources of information, unless specifically provided in the instructions for completing the summary. The use of visuals, such as symbols, icons and graphics or the use of hyperlinks or pop-ups should not adversely affect easy readability and should not be intrusive so that it could distract the consumer’s attention from the content of the summary. The content of the contract summary should focus on key information that the consumer needs to compare offers and to make an informed decision. (8) Specialised language, technical jargon and acronyms should be avoided. (9) Describing the services in a standardised manner is of high importance to consumers. The services included in the contract summary and the volumes included per billing period, where applicable, should be specified. The volumes should refer to the quantity of calls, messages and data included in the service, including the roaming fair use policy applied by the provider, where applicable. Calls should be measured by minutes or seconds in accordance with the provider’s pre-contractual information, messages should be measured by their number and data by megabytes or gigabytes, where relevant. (10) The contract summary should provide information enabling consumers to contact their provider, especially in case of complaints. Relevant contact information may include, in addition to an e-mail address or telephone number, the possibility to use web forms or other types of direct contact. (11) The electronic communications services should be clearly described and their main service features should be indicated. Where applicable, the type of equipment should be described..

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(12) Point (d) of Article  4(1) of Regulation (EU) 2015/2120 of the European Parliament and of the Council (146) requires a contract which includes internet access services to provide also a clear and comprehensible explanation of the minimum, normally available, maximum and advertised download and upload speed in the case of fixed networks, or of the estimated maximum and advertised download and upload speed in the case of mobile networks. Point (f) of Article 102(3) of Directive (EU) 2018/1972 requires a summary of that information to be included in the contract summary. The contract summary should include the minimum, normally available and maximum download and upload speed of the internet access services in the case of fixed networks and of the estimated maximum download and upload speed of the internet access services in the case of mobile networks. (13) Point (e) of Article  4(1) of Regulation (EU) 2015/2120 requires a contract which includes internet access services to provide a clear and comprehensible explanation of the remedies available to the consumer in accordance with national law in the event of discrepancy between the actual performance of the internet access and the performance indicated in the contract. Point (f) of Article 102(3) of Directive (EU) 2018/1972 requires a summary of that explanation to be included in the contract summary. The contract summary should include a summary of the remedies available to the consumer under national law if there is a discrepancy between the actual performance of the internet access regarding speed or other quality of service parameters and the performance indicated in the contract. (14) Information on the price should include the applicable activation price, recurring and consumption-related charges such as the price per billing period and per month to allow for comparability, any discounts and, where applicable, the price of equipment. Where a promotional price applies, this should be clearly indicated, including the period that the discount is valid and the full price without the promotion. Information on tariffs not included in the recurring price can be extensive and it should be sufficient to indicate in the summary that this information is available separately as part of complete pre-contractual information, for example, by electronic means. (15) The information on conditions for termination under the heading “Duration, renewal and termination” should refer to termination of the contract, including bundled offers, due to the end of the contract duration and to early termination, where applicable under Union and national law, including fees due on early termination and information on unlocking the terminal equipment. (16) Where information on different products and services for end-users with disabilities is extensive and variable the contract summary may indicate that this detailed information is available separately, for example, by electronic means. (17) Providers may include additional information required by Union or national law before a consumer is bound by a contract or any corresponding offer in the optional section on other relevant information. This could include for example, information on switching, security, handling of personal data, energy consumption or carbon generation. Where Member States exercise their freedom to maintain or introduce Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 laying down measures concerning open internet access and retail charges for regulated intra-EU communications and amending Directive 2002/22/EC on universal service and users’ rights relating to electronic communications networks and services and Regulation (EU) No 531/2012 on roaming on public mobile communications networks within the Union (OJ L 310, 26.11.2015, p. 1).

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in their national law provisions related to aspects not covered by Article 102 of Directive (EU) 2018/1972, the relevant information could be included in this optional section by the providers. (18) Pursuant to Article  123 of Directive (EU) 2018/1972 the Commission is to periodically review the application of this implementing Regulation, as part of the report on the application of Title III of Part III of that Directive. (19) The Body of European Regulators for Electronic Communications was consulted. (20) The measures provided for in this Regulation are in accordance with the opinion of the Communications Committee, HAS ADOPTED THIS REGULATION: Article 1 Template for the contract summary Providers of publicly available electronic communications services other than transmission services used for the provision of machine-to-machine services shall use the template set out in Part A of the Annex, in accordance with the instructions set out in Part B of the Annex, when providing the contract summary. Article 2 Presentation of content 1.

The contract summary shall not, unless duly justified, exceed the equivalent of one single-sided A4 page when printed. Where services or services and terminal equipment, comprising at least an internet access service or a publicly available number-based interpersonal communications service, are bundled into a single contract, the contract summary shall not, unless duly justified, exceed the equivalent of three single-sided A4 pages when printed.

2.

The information in the contract summary shall be presented in accordance with the order of headings set out in the Annex in portrait format. The font type used shall be such that the text is easily readable. The font size shall be at least 10 points. In duly justified circumstances the font size may be reduced; in such cases a possibility to enlarge the contract summary by electronic means or to receive the contract summary upon request with a font size of at least 10 points shall be provided.

3.

The content of the contract summary shall be easily readable with sufficient contrast between font and background, especially when using colours. Visuals shall not overlay text.

4.

The contract summary shall be drafted in language that is easily readable and understandable for consumers. The contract summary shall focus on key information that the consumer needs to compare offers and to make an informed decision.

5.

Headings shall be clearly distinguishable from the text.

Article 3 Entry into force and application This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. It shall apply from 21 December 2020. This Regulation shall be binding in its entirety and directly applicable in all Member States.

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ANNEX CONTRACT SUMMARY TEMPLATE PART A Template [Service name]

[Provider/provider logo] [Contact] Contract summary

•

This contract summary provides the main elements of this service offer as required by EU law ([147]).

•

It helps to make a comparison between service offers.

•

Complete information about the service is provided in other documents.

Services and equipment […] Speeds of the internet service and remedies […] Price […] Duration, renewal and termination […] Features for end-users with disabilities […] Other relevant information […] PART B Instructions for completing the contract summary template The service or brand name of the electronic communications service(s) offered shall be immediately above the title “Contract summary”. The name of the provider shall immediately follow the name of the electronic communications service(s). The provider may insert its logo to the right of the title “Contract summary”. The three introductory sentences form an integral part of the contract summary and shall not be altered. The name, address and direct contact information of the provider and, if different, the direct contact information for any complaint, shall be included below the name of the provider. The contract summary shall be dated. In cases where the contract does not include the provision of terminal equipment, the reference to equipment under the heading “Service(s) and equipment” shall be deleted or indicated as not applicable. In cases where the contract does not include an internet access service, the section on the “Speed of the internet access service and remedies” shall be deleted or indicated as not applicable. In cases where no other information is provided, the section “Other relevant information” shall be deleted or indicated as not applicable. Italic type font is used in Part A  to illustrate that the abovementioned headings and related information are not mandatory in all circumstances. The square brackets used in Part A shall be replaced with the required information.

Article 102(3) of Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (OJ L 321, 17.12.2018, p. 36).

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Section “Services and equipment” Description of the main characteristics of the electronic communications service(s), for example, fixed voice telephony, mobile voice telephony, mobile internet access, fixed internet access, transmission service for TV-broadcasting or number-independent interpersonal communications services shall be included. For bundles pursuant to Article 107 of Directive (EU) 2018/1972, also the type of terminal equipment, and services, such as for example TV packages, videoon-demand or other media services shall be described, where applicable. For transmission services for TV-broadcasting and for bundles including such services, the types of TV packages offered may be described where it is not possible to list all the channels included in the package. For bundles, the services shall be listed in the order mentioned in this paragraph. The description shall include, where applicable, the volume or quantity for calls, messages and data and the roaming fair use policy applied by the provider. Section “Speeds of the internet service and remedies” Where the service includes internet access, a summary of the information required pursuant to points (d) and (e) of Article  4(1) of Regulation (EU) 2015/2120 shall be included. For fixed internet access service the minimum, normally available and maximum download and upload speed and for mobile internet access service the estimated maximum download and upload speed shall be included. A summary of the remedies available to the consumer in accordance with national law in the event of continuous or regularly recurring discrepancy between the actual performance of the internet access service regarding speed or other quality of service parameters and the performance indicated in the contract shall be described. Section “Price” For electronic communications services provided for direct monetary payment, this section shall include the prices for activating the service and recurring or consumption-related charges. For subscription contracts, the recurring price, inclusive of taxes, per billing period and, if the billing period is other than monthly, also per month shall be included. Any additional fixed prices such as for activating the service, and, where applicable, the price of equipment shall be indicated, as well as any time-limited discounts, where applicable. Where applicable, consumption-related charges, which will apply after the volumes included in the recurring price have been exceeded, shall be indicated in the contract summary. Where applicable, information about tariffs for additional services not included in the recurring prices shall be indicated to be available separately. Where the service is provided without a direct monetary payment but subject to certain obligations on users as a condition of service, that shall be indicated. Section “Duration, renewal and termination” The information on the duration of the contract in months and the main conditions for its renewal and termination due to the end of the contract duration and to early termination, where applicable, shall be included in the contract summary. Fees due on early termination, including information on unlocking the terminal equipment shall be included. This information will be without prejudice to other grounds for termination provided by Union or national law such as in the event of a lack of conformity with the contract.

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Section “Features for end-users with disabilities” Information on the main products and services for end-users with disabilities shall be included. This may include, where available, at least real-time text, total conversation, relay services, accessible emergency communications, specialised equipment, special tariffs and accessible information. Where applicable, details can be indicated to be available separately. Section “Other relevant information” Any additional information required by Union or national law before a consumer is bound by a contract or any corresponding offer can be included by the providers.



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COMMISSION IMPLEMENTING REGULATION (EU) 2020/1070 of 20 July 2020 on specifying the characteristics of small-area wireless access points pursuant to Article 57 paragraph 2 of Directive (EU) 2018/1972 of the European Parliament and the Council establishing the European Electronic Communications Code[148] (Text with EEA relevance) THE EUROPEAN COMMISSION, Having regard to the Treaty on the Functioning of the European Union, Having regard to Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (149), and in particular Article 57(2) thereof, Whereas: (1) As recognised by Directive (EU) 2018/1972, since low power small-area wireless access points are likely to have a positive impact on the use of radio spectrum and on the development of wireless communications in the Union, the deployment of small-area wireless access points should be facilitated through a permit-exempt deployment regime. (2) A  small-area wireless access point comprises different operational elements, such as a signal processing unit, a radiofrequency unit, an antenna system, cable connections and casing. In some cases, the antenna system or portions thereof could be installed separately from the other elements of a small-area wireless access point and connected by one or more dedicated cables. This concept is used for distributed antenna systems or a distributed radio system used by one or multiple operators. A small-area wireless access point may be designed to serve two or more radio spectrum users. (3) In order to ensure public acceptance and sustainable deployment, small-area wireless access points subject to the second subparagraph of Article  57(1) of Directive (EU) 2018/1972 should have minimal visual impact. To achieve this, they should be either invisible to the general public or mounted in a visually nonobtrusive way onto their supporting structure. Their operation should also ensure a high level of protection of public health, as laid down in Council Recommendation 1999/519/EC (150). (4) Directive 2014/53/EU of the European Parliament and of the Council (151) provides that radio equipment, including a small-area wireless access point, is to be constructed so as to ensure the protection of people’s health and safety. (5) The physical and technical characteristics of small-area wireless access points subject to the second subparagraph of Article 57(1) of Directive (EU) 2018/1972 should therefore be defined in terms of maximum volume, restrictions on weight and maximum emission power. The choice of maximum volume to delimit the visual impact of a small-area wireless access point should allow design flexibility and adaptability to the physical and technical characteristics of the supporting structure. OJ L 234, 21.7.2020, p. 11. OJ L 321, 17.12.2018, p. 36. 150 Council Recommendation 1999/519/EC of 12 July 1999 on the limitation of exposure of the general public to electromagnetic fields (0 Hz to 300 GHz) (OJ L 199, 30.7.1999, p. 59). 151 Directive 2014/53/EU of the European Parliament and of the Council of 16 April 2014 on the harmonisation of the laws of the Member States relating to the making available on the market of radio equipment and repealing Directive 1999/5/EC (OJ L 153, 22.5.2014, p. 62). 148 149

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The study for the Commission ‘Light Deployment Regime for Small-Area Wireless Access Points (SAWAPs) (152)’ demonstrates that a volume limit of 30 litres should be sufficient to contain the main elements of a small-area wireless access point, while ensuring its unobtrusive character. That maximum volume should apply to any deployment of a small-area wireless access point serving one or more radio spectrum users, as well as of multiple small-area wireless access points sharing an infrastructure site of small surface, such as a light pole, a traffic light, a billboard or a bus stop, which due to its physical dimensions or dense replication in a given area, or both, is likely to generate visual clutter.

(7) Small-area wireless access points should comply with the European standard EN 62232:2017 (153) ‘Determination of RF field strength, power density and specific absorption rate (SAR) in the vicinity of radiocommunication base stations for the purpose of evaluating human exposure’. That standard provides a methodology for the installation of base stations taking into account their emission power for the purpose of evaluating human exposure to the electro-magnetic fields (‘EMF’) and is in compliance with the limits set in Recommendation 1999/519/EC. That standard is also referenced in Section 6.1 of the European harmonised standard EN 50401:2017 ‘Product standard to demonstrate the compliance of base station equipment with radiofrequency electromagnetic field exposure limits (110 MHz– 100 GHz), when put into service’, in relation to the assessment of the compliance of wireless access point put into service in its operational environment with the EMF exposure limits set in Recommendation 1999/519/EC. (8) Standard EN  62232:2017 applies to all type of base stations divided into five installation classes corresponding to different limits of their equivalent isotropical radiated power (EIRP) of a few milliwatt (Class E0), 2 Watt (Class E2), 10 Watt (Class E10), 100 Watt (Class E100) and above 100 Watt (Class E+) respectively. Out of those classes, considering the installation safety distances to be respected under that standard and since Directive (EU) 2018/1972 provides that small-area wireless access points should be low power equipment, this Regulation should only apply to the installation classes E0, E2 and E10. Table 2 of clause 6.2.4 of EN 62232:2017 requires that the lowest radiating part of the antenna of a Class E10 has a height of at least 2,2 metres above the general public walkway to ensure a distance of at least 20 cm between the main antenna lobe and the human body of a 2 m tall person (154). (9) For aesthetic reasons, the indoor installation of small-area wireless access points of Class E10, which are likely to utilise the maximum volume limit of 30 litres, should be allowed only in large indoor spaces with a ceiling height of at least 4 metres, such as museums, stadiums, convention centres, airports, metro-transport stations, railway stations, or shopping centres. (10) A small-area wireless access point should not endanger the stability of the whole support structure it is installed on, and therefore not impose, due to its weight or shape, any structural reinforcement of the support structure used. (11) In order to allow supervision and monitoring by the competent authorities, in particular in cases of multiple adjacent or co-located small-area wireless access points, any operator which deploys small-area wireless access points of Classes E2 Smart 2018/0017, https://op.europa.eu/en/publication-detail/-/publication/463e2d3d-1d8f-11ea-95ab01aa75ed71a1/language-en/format-PDF/source-112125706 153 Applicable to the frequency range 110 MHz–100 GHz. 154 Annex C.3 to EN 62232:2017. 152



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or E10 in compliance with the characteristics laid down in this Regulation, should inform the competent authority about the installation in a timely manner. To this end, the operator should submit, no later than two weeks after the installation, a notification to the competent authority about the installation, which includes the location and the technical characteristics of those access points as well as a statement of compliance of the installation with the provisions of this Regulation. In order to ensure an easy process in all Member States, this notification should be submitted to a single information point, such as the one established pursuant to Directive 2014/61/EU of the European Parliament and of the Council (155). (12) This Regulation should be without prejudice to the powers of the Member States to determine the aggregate levels of EMF resulting from the colocation or the aggregation in a local area of small-area wireless access points covered by the second subparagraph of Article  57(1) of Directive (EU) 2018/1972, as well as other types of base stations, in order to ensure their compliance with applicable aggregate exposure limits in accordance with Union law by means other than individual permits related to the deployment of small-area wireless access points. (13) As further development of the relevant standards is foreseen, if they are to cover small-area wireless access points employing active antenna systems, such access points should not fall in the scope of the permit-exempt deployment regime at this stage. (14) The application of this Regulation should be regularly monitored in order to facilitate its review taking into account any update of the European standard EN  62232 or other relevant developments in standardisation, in particular with regard to the use of active antenna systems, the technological evolution with regard to the state-of-the-art technology of the small-area wireless access points, the needs to support multiple bands and shared (multi-operator) solutions, as well as any update of Recommendation 1999/519/EC. (15) This Regulation should be without prejudice to national measures regarding safety, utility supply, respect of private property including the right of owners to determine the use of their property, as well as regarding the rights of way related to the connection of the small-area wireless access point with wide-area network in compliance with Union law. (16) This Regulation should be without prejudice to the application of any less restrictive regimes at national level for the deployment of small-area wireless access points. (17) As Directive (EU) 2018/1972 becomes applicable from 21 December 2020, this Regulation should apply from the same date. (18) The measures provided for in this Regulation are in accordance with the opinion of the Communications Committee, HAS ADOPTED THIS REGULATION: Article 1 This Regulation lays down the physical and technical characteristics of small-area wireless access points referred to in the second subparagraph of Article  57(1) of Directive (EU) 2018/1972. Directive 2014/61/EU of the European Parliament and of the Council of 15 May 2014 on measures to reduce the cost of deploying high-speed electronic communications networks (OJ L 155, 23.5.2014, p. 1).

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This Regulation shall not apply to small-area wireless access points with an active antenna system. Article 2 For the purposes of this Regulation, the following definitions shall apply: (1)

‘equivalent isotropicalally radiated power (EIRP)’ means the product of the power supplied to the antenna and the antenna gain in a given direction relative to an isotropic antenna (absolute or isotropic gain);

(2) ‘antenna system’ means a hardware part of a small-area wireless access point that radiates radio frequency energy for the purpose of providing wireless connectivity to end users; (3) ‘active antenna system (AAS)’ means an antenna system where the amplitude or phase, or both, between antenna elements is continually adjusted resulting in an antenna pattern that varies in response to short term changes in the radio environment; this excludes long-term beam shaping such as fixed electrical down tilt; in a small-area wireless access point equipped with an AAS, the latter is integrated as part of the small-area wireless access point; (4) ‘indoor’ means any space, including transportation vehicles, that has a ceiling or roof or any fixed or moveable structure or device which is capable of covering all that space, and except for doors, windows and passageways, is wholly enclosed by walls or sides, either permanently or temporarily, regardless of the type of material used for the roof, wall or sides, and regardless of whether the structure is permanent or temporary; (5) ‘outdoor’ means any space which is not indoor. Article 3 1.

Small-area wireless access points referred to in the second subparagraph of Article 57(1) of Directive (EU) 2018/1972 shall comply with the requirements of the European standard laid down in point B of the Annex to this Regulation and shall either: (a) be fully and safely integrated in their supporting structure and therefore invisible to the general public; or (b) meet the conditions set out in point A of the Annex to this Regulation.

2.

Paragraph  1 is without prejudice to powers of the Member States to determine the aggregate levels of electro-magnetic fields resulting from the colocation or the aggregation in a local area of small-area wireless access points, and to ensure compliance with applicable aggregate electro-magnetic fields exposure limits in accordance with Union law by means other than individual permits related to the deployment of small-area wireless access points.

3.

Operators which have deployed small-area wireless access points of Classes E2 or E10 complying with the conditions laid down in paragraph 1, shall notify the national competent authority within two weeks from the deployment of each such point about the installation and location of those access points as well as the requirements they meet in accordance with that paragraph.

Article 4 Member States shall regularly monitor and report to the Commission, the first time by 31 December 2021, and each year thereafter, on the application of this Regulation, in



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particular on the application of Article 3(1), including on the technologies used by the small-area wireless access points deployed. Article 5 This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. It shall apply from 21 December 2020. This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 20 July 2020. For the Commission The President Ursula VON DER LEYEN ANNEX A. Conditions referred to in point (b) of Article 3(1) 1.

The total volume of the part visible to the general public of a small-area wireless access point serving one or more radio spectrum users shall not exceed 30 litres.

2.

The total volume of the parts visible to the general public of multiple separate small-area wireless access points sharing the same infrastructure site of an individual delimited surface such as a light pole, a traffic light, a billboard or a bus stop, shall not exceed 30 litres.

3.

In the cases where the antenna system and other elements, such as a radiofrequency unit, a digital processor, a storage unit, a cooling system, power supply, cabling connections, backhaul elements or elements for earthing and fixation, of the smallarea wireless access point are installed separately, any portion thereof in excess of 30 litres shall be invisible to the general public.

4.

The small-area wireless access point shall have visual consistency with the supporting structure and have a proportionate size relative to the overall size of the supporting structure, coherent shape, neutral colours to match or to blend with the supporting structure, and concealed cables, and shall not, together with other small-area wireless access points that are already installed in the same site or in adjacent sites, create aggregate visual clutter.

5.

The weight of a small-area wireless access point and its shape shall not impose a structural reinforcement of the supporting structure.

6.

A  small-area wireless access point of the installation class E10 shall be only deployed in outdoor or in large indoor spaces, which have a ceiling height of at least 4 m. B. Requirements of European standard referred to in Article 3(1)

1.

Deployment of small-area wireless access points shall be in accordance with the installation classes E0, E2 and E10 of Table 2 of clause 6.2.4 of the European standard EN 62232:2017 ‘Determination of RF field strength, power density and specific absorption rate (SAR) in the vicinity of radiocommunication base stations for the purpose of evaluating human exposure’.

2.

In the case of multiple co-located antenna systems (or portions thereof) of one or more small-area wireless access points subject to this Regulation, the criteria for the EIRP contained in the standard referred to in point 1 shall apply to the sum of EIRP of all co-located antenna systems (or portions thereof).

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COMMISSION DELEGATED REGULATION (EU) 2021/654 of 18 December 2020 supplementing Directive (EU) 2018/1972 of the European Parliament and of the Council by setting a single maximum Union-wide mobile voice termination rate and a single maximum Union-wide fixed voice termination rate (Text with EEA relevance) C/2020/8703 final EXPLANATORY MEMORANDUM 1. CONTEXT OF THE DELEGATED ACT Legal basis and objective of the proposed action This Delegated Regulation sets a single maximum Union-wide mobile voice termination rate and a single maximum Union-wide fixed voice termination rate, which will be applicable to any provider of fixed and mobile termination services across the Union. Voice termination rates are the wholesale rates that electronic communications operators charge each other to terminate voice calls on their respective networks. Article  75 of the European Electronic Communications Code156 (EECC or the Code) requires the Commission to adopt a Delegated Act setting a single maximum Unionwide mobile voice termination rate and a single maximum Union-wide fixed voice termination rate by 31  December 2020. Article  75 provides that in setting the single maximum Union-wide voice termination rates the Commission must comply with the principles, technical criteria and parameters provided in Annex III. Articles 75(2) and 75(3) EECC require the Commission to review the Delegated Act every five years and on each such occasion to consider whether the imposition of single maximum Unionwide voice termination rates remains necessary. The objective of this Delegated Act is to achieve the full harmonisation of fixed termination rates (FTRs) and mobile termination rates (MTRs) which will enhance the development of the internal market and significantly reduce intra-Union trade barriers among Member States. Moreover, given that the National Regulatory Authorities (NRAs) will not be competent anymore to regulate termination rates for these services, in the presence of regulation of these rates at Union level, and will, therefore, not be required anymore to build cost models to calculate efficient rates and regularly update them, the Delegated Act will significantly reduce the administrative burden for them. General context of the Delegated Act MTRs and FTRs have been regulated in the Union for around 20 years. The markets for mobile and fixed termination were included by the Commission in the 2003 Recommendation providing a list of markets susceptible to ex ante regulation157(“Recommendation on relevant markets”). The Commission recommended NRAs to continue regulating these markets in the subsequent Recommendations on relevant markets adopted in 2007158 and

Directive (EU) 2018/1972 of the European Parliament and of the Council establishing the European Electronic Communications Code, OJ L 321, 17.12.2018, p. 36. 157 Commission Recommendation of 11 February 2003 on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive 2002/21/ EC of the European Parliament and of the Council on a common regulatory framework for electronic communication networks and services, (2003/311/EC), OJ L 114/45, 08.05.2003. 158 Commission Recommendation of 17 December 2007 on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive 2002/21/ EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services, (2007/879/EC), OJ L 344/65, 28.12.2007. 156



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2014159. It is however to note that termination markets will not be included in the list of markets susceptible to ex ante regulation in the new Recommendation on relevant markets that is adopted in parallel with this Regulation by December 2020 as the application of the Union-wide voice termination rates as set out in this Regulation will limit the ability of mobile and fixed operators to set excessive termination rates. As a result, the termination markets would no longer meet the three-criteria test at Union level. In 2009, the Commission adopted a Recommendation on the regulatory treatment of fixed and mobile termination rates in the Union (Termination Rates Recommendation)160. The Termination Rates Recommendation aimed at ensuring the harmonised application of the price-control obligation set in Article 13 of the Access Directive161. The Termination Rates Recommendation provided a common methodology for the calculation of cost oriented termination rates which only allowed the recovery of costs as would be incurred by an efficient operator (the so called ‘pure Bottom-Up Long Run Incremental Costs’ model, ‘pure BU-LRIC’162). An Evaluation Report163 on the Termination Rates Recommendation published in 2018 concluded that divergences in the level of termination rates persist in the Union, and that they are detrimental to the fostering of the internal market, distort competition and undermine the predictability of regulation and legal certainty within the Union. 2. CONSULTATIONS PRIOR TO THE ADOPTION OF THE ACT Public open consultation164 Article  75 of the Code establishes that the single maximum Union-wide termination rates shall be imposed on ‘any provider of mobile voice termination or fixed voice termination services’ in the Union and defines in the relevant Annex the principles, criteria and parameters that the Commission should follow for their setting. It however leaves certain aspects of the implementation of the single maximum Union-wide voice termination rates to the Delegated Act, such as for example the exact definitions of the services to which it shall apply or the use of a transitional period to allow adjustments in Member States where this is necessary based on rates previously imposed. The consultation has solicited the views of providers of electronic communication networks and services, NRAs, the Body of European Regulators for Electronic Communications (BEREC) and other stakeholders, such as government authorities and industry associations, consumer associations, think tanks, academics, law firms, consultancies and citizens.

Commission Recommendation of 9  October 2014, on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive 2002/21/ EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services, (2014/710/EU), OJ L 295/79, 11.10.2014. 160 Commission Recommendation 2009/396/EC of 7 May 2009 on the Regulatory Treatment of Fixed and Mobile Termination Rates in the EU (Termination Rates Recommendation), OJ L 124, 20.5.2009, p.67. 161 Directive 2002/19/EC of the European Parliament and of the Council of 7  March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive), OJ L 108, 24.04.2002, p. 7, as amended by Directive 2009/140/EC, OJ L 337, 18.12.2009, p. 37. 162 The pure BU-LRIC approach provides that cost accounting for wholesale call termination services in fixed and mobile markets should only allow the recovery of the costs that would be avoided if a wholesale call termination service was no longer provided to third parties. 163 Commission Staff Working Document, Evaluation Report on the Commission’s 2009 Recommendation on Termination Rates (Recommendation 2009/396/EC) {SWD(2018) 464 final}. https://ec.europa.eu/ newsroom/dae/document.cfm?doc_id=57662 164 A  summary report and the full responses to the public consultation were published on 11  December 2019. They are available here: https://ec.europa.eu/digital-single-market/en/news/summary-report-publicconsultation-voice-call-termination-rates A synopsis report was published on 13 June 2020. It is available here: https://ec.europa.eu/digital-single-market/en/news/synopsis-report-open-consultation-settingmaximum-union-wide-voice-termination-rates 159

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The consultation ran for 12 weeks, from 26 July to 8 November 2019, via a questionnaire available on the European Commission’s public consultation portal. The goal of the consultation was to collect feedback and views on the implementation aspects of the single maximum Union-wide voice termination rate, in order to ensure a consistent, predictable, efficient and transparent implementation. The consultation included technical questions mainly addressed to stakeholders with significant experience in the market, such as NRAs, BEREC, industry and consumer associations and operators. It also included further implementation questions, such as the need for a transitional period in the different Member States, the need for non-price related obligations or how to best achieve cost-efficient single maximum Union-wide voice termination rates over time. There were 68 respondents, including 32 companies (mostly operators), six business associations, 19 EU citizens, one non-EU citizen, nine public authorities (NRAs, Ministries and BEREC) and one non-governmental organisation. The replies came from 22 Member States. Three companies from outside the European Economic Area (EEA) replied to the questionnaire. Some respondents registered in the EU are currently controlled by shareholders from non-EU countries. Some replies came from subsidiaries of the same economic group. Consultation with Member States (Expert Group) The Informal Expert Group on EU Voice Call Termination Rates was established on 6 November 2019 in order to assist the Commission with the preparation of the Delegated Act setting the single maximum Union-wide voice termination rates. The first meeting of the Expert Group, formed by representatives of NRAs, took place in Brussels on 10 February 2020.165 The following Member States were represented: Austria, Belgium, Bulgaria, Croatia, Cyprus, Czechia, Finland, France, Hungary, Ireland, Italy, Lithuania, Malta, Netherlands, Poland, Portugal, Romania, Slovenia and Sweden. At the meeting, the following topics were discussed: definition of termination services, hybrid services, glide path and transitional period, calls originated from third country-numbers, and nonprice obligations. Following the meeting, 18 members submitted a written response to the list of questions sent to them after the meeting. The second meeting of the Expert Group took place by video conference on 11 September 2020.166 The following Member States were represented: Austria, Belgium, Bulgaria, Croatia, Cyprus, Czechia, Denmark, France, Finland, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden. The Group discussed the draft Delegated Act and accompanying Staff Working Document, made available by the Commission services, in particular the following aspects: inclusion of associated facilities in the definition of termination services, treatment of calls to non-geographic numbers other than mobile, the criteria for the inclusion of calls originated from third country-numbers in the scope of the Delegated Act and the implementation of the single maximum Union-wide fixed and mobile voice termination rates. Following the meeting,167 Members submitted a written contribution summarising or expanding the feedback provided at the meeting. Revised drafts of the Delegated Act and Staff Working Document were shared with the Expert Group on 11  November 2020. Several members provided comments by 18 November and the final drafts were shared with the Expert Group on 7 December 2020. BEREC opinion BEREC delivered its opinion on the draft Delegated Act (submitted on 29 July 2020 together with the accompanying Staff Working Document) on 15 October 2020. Minutes of the 1st meeting of the Expert Group are available here. Minutes of the 2nd meeting of the Expert Group are available here. 167 Please see https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/1958-Voice-calltermination-rates-in-the-EU-Eurorates 165 166



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BEREC agreed with the proposed definition of termination services based on the number called and suggested that the Delegated Act should clarify that “calls originating and terminating in the Union” should refer to calls from and to numbers in national numbering plans of Member States, not to the physical location of the calling or called party. BEREC considered that if the Commission were to maintain associated facilities in the definition of termination services, and as they were not explicitly included in the cost model, it should ensure that their costs are covered by the safety margin added to the results of the cost model, in order to ensure cost recovery. In relation to the inclusion of non-geographic numbers other than mobile in the scope of the Delegated Act, BEREC found that such inclusion was not justified given that calls to most of these numbering ranges, in particular for value added services (VAS) do not have “termination monopoly” characteristics and therefore rate regulation would not be warranted. For certain other non-geographic numbers, such as those for fixed nomadic or to access emergency services, BEREC agreed that price regulation may still be justified. BEREC agreed with the level of the single maximum Union-wide termination rates and with the proposed implementation mechanism (glide path for mobile, transitional period for fixed). BEREC also supported the provision including all incoming calls from third countries with rates equivalent to Union-wide termination rates in the scope of the Delegated Act, although it pointed out that there are implementation issues that could seriously impair the widespread applicability of this article, such as the provision of verifiable information about termination rates applied in third countries. Finally, BEREC highlighted that non-price remedies are still necessary to ensure effective competition in markets downstream of termination markets and that it is indispensable that the Commission consider the latest known rates for all Member States before the Delegated Act enters into force. Article 75 of the Code establishes that the Commission must take utmost account of the BEREC opinion. ‘Have Your Say!’ feedback From 25 August until 22 September 2020, stakeholders were invited to provide feedback on the draft Delegated Act published on the Commission’s portal ‘Have Your Say!’. 49 submissions were received: 29 from operators, 12 from industry associations, 2 from NRAs (UKE, NMHH), 1 from the German Federal Ministry for the Economy and Energy and 5 from citizens (anonymous). Some undertakings submitted more than one reply (e.g. O2 CZ and O2 SK). All replies are public. 12 Large operators generally ask for higher rates and longer glide paths, some criticising the underlining cost model and pointing towards unfavourable investment climate and economic consequences of COVID-19 pandemic. Alternative operators and MVNOs strongly support the proposed rates. Fixed operators, especially in Member States with high fixed termination rates, requested higher fixed termination rates. The Hungarian NRA is generally supportive of the draft DA but asks for some clarifications, while the Polish NRA mostly stresses the need for a longer adjustment period. The German Federal Ministry of the Economy and Energy asks, in light of the COVID-19 situation, for a review of the cost model and for a longer implementation period. Cost model consultation Taking account of the particular characteristics of voice termination markets, the Code requires that the costs of termination services are calculated on the basis of forwardlooking long-run incremental costs (LRIC) methodology. LRIC models include only those costs which are caused by the provision of a defined increment. An incremental cost approach allocates only efficiently incurred costs that would not be sustained if

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the service included in the increment was no longer produced (i.e. avoidable costs) and in that way promotes efficient production and consumption and minimises potential competitive distortions. In order to assess the costs of providing wholesale termination services in the Union for the purposes of the Delegated Act and in accordance with the requirements set out specifically in Annex III of the Code, the Commission services commissioned two independent cost studies to an external consultant: one for mobile168 and one for fixed169 networks. The aim was to construct two separate cost models, estimating the wholesale costs of providing mobile and fixed termination services respectively. The mobile cost model was developed from mid-March 2018 to mid-July 2019 and the fixed cost model from September 2018 to November 2019. The studies built 28 models with a similar structure, based on country-specific input where relevant, facilitating as much as possible the estimation of the relevant mobile/fixed wholesale costs in each of the countries, for which they were developed.170 The models rely on country-specific input where relevant and, where not, on averages/common values across the EU/EEA. The mobile cost model was published on 24 July 2019 and the fixed cost model on 26 November 2019. The cost models had been extensively consulted with NRAs, operators and other stakeholders. These included workshops and consultations organised over the whole period of the process. Stakeholders were also consulted on the structure and content of the data gathering exercise itself and a steering committee composed by experts from NRAs was established for both projects, which met regularly with the Commission services and the consultant.171 3. LEGAL ELEMENTS OF THE DELEGATED ACT Appropriate instrument Given the aim of the Delegated Act of setting a single maximum Union-wide mobile voice termination rate and a single maximum Union-wide fixed voice termination rate on any provider of mobile voice termination or fixed voice termination services, the most appropriate instrument is a delegated regulation that would apply directly to providers of mobile and fixed voice termination services. Such an instrument would also avoid unnecessary delays in implementation, which may arise in case of delays in the adoption of transposition measures. Summary The Delegated Regulation consists of the following main elements. It provides definitions of mobile and fixed voice termination service whereby the central element of the termination service is the number called, namely a number in national numbering plans corresponding to E.164 country codes for geographic areas belonging to the territory of the Union. The number called is also the element for classifying a given termination service as fixed (for calls terminated on geographic numbers or non-geographic numbers other than numbers for mobile services that behave as “traditional” termination services where there is a termination monopoly, i.e. fixed

Study SMART 2017/0091: “Assessment of the cost of providing mobile telecom services in the EU/EEA countries”, Axon Partners Group Consulting, published on 24 July 2019, available here. 169 Study (SMART  2018/0014): “Assessment of the cost of providing wholesale voice call termination services on fixed networks in the EU/EEA countries”, published on 26 November 2019, available here. 170 Out of 31 EU/EEA countries that were initially included, due to data availability, only 28 cost models were constructed. Iceland, Liechtenstein and Luxembourg decided not to participate in the data collection process for the mobile cost model. Finland, Iceland and Liechtenstein did not participate in the data collection process for the fixed cost model. 171 For the mobile cost model, members of the Steering Committee also comprised experts from the BEREC Roaming Expert Working Group, since the mobile cost model also estimated roaming wholesale costs. 168



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nomadic and emergency access numbers) or mobile (for calls terminated on mobile numbers). Termination services include services provided through any technology used to terminate calls by the termination provider and requires that this provider has legal and technical control of the number and interconnects with at least one network other than its own. These services do not include associated facilities, except interconnection ports. Machine to Machine (M2M) communication is not included in the definition, as the services provided over M2M-specific numbering ranges are not used for interpersonal communications –a condition that should be met to fall within the scope of this Regulation- but for communications between machines. The rates set out in this Regulation apply to calls originated from and terminated to a Union-number, that is to say a number included in national numbering plans corresponding to E.164 country codes for geographic areas belonging to the territory of the Union. The rates do not apply to calls originated from third country-numbers (numbers other than Union-numbers) unless those calls are originated (i) by a thirdcountry provider of termination services which applies for calls originated from Unionnumbers and terminated in its network termination rates equal or below the maximum (mobile and/or fixed) termination rates set out in the Delegated Act, or (ii) from a number from the national numbering plan of a third country, listed in the Annex to this Regulation, where the termination rates are set based on cost model principles that are equivalent to those set out in Article 75 and Annex III of the Code. The final cost-efficient voice termination rate is based on the result of the cost models developed by the consultant following the principles, criteria and parameters defined in Article 75 and Annex III of the Code, taking as a reference the highest-cost country, as resulted from the cost model, plus a safety margin, which allows for cost recovery in all Member States. The final cost-efficient rates are EUR 0.2 cent/min for the single maximum Union-wide mobile voice termination rate and EUR  0.07 cent/min for the single maximum Union-wide fixed voice termination rate. Given that current mobile voice termination rates are on average significantly higher than the cost-efficient rate, this Regulation includes a three-year glide path that will facilitate a smooth application of the cost-efficient rate, during which the providers from the Member States subject to the glide path may apply different rates than the single maximum Union-wide mobile termination rate. During the glide path period, the maximum mobile voice termination rates shall be EUR 0.7 cent in 2021, EUR 0.55 cent in 2022, EUR 0.4 cent in 2023 and reaching the single maximum Union-wide mobile voice termination rate of EUR 0.2 cent from 2024 onwards. In some Member States current regulated maximum mobile voice termination rates are below the mobile voice termination rates set for 2021, 2022 and 2023 as a result of the glide path, and close to the single maximum Union-wide mobile termination rate. In order to avoid potential increases in retail prices in those Member States, resulting from a temporary increase of regulated mobile termination rates, it should be possible to continue applying the current regulated mobile voice termination rates in those Member States until the year where the maximum mobile termination rate set by this Regulation for that year is at a level equal or below those Member States’ current termination rates for that year, with the exception of Cyprus, which currently applies EUR  0.17 cent. The mobile voice termination rate in Cyprus may increase from current EUR 0.17 cent to the final efficient rate of EUR 0.2 cent already from the start of application of this Regulation in 2021. This means that in 2021, the maximum mobile voice call termination rates shall remain at their current level (expressed in euro for comparison) in: Sweden (EUR 0.207 cent), Portugal (EUR 0.36 cent), Malta (EUR 0.4045 cent), Ireland (EUR 0.43 cent), Hungary (EUR 0.474 cent), Denmark (EUR 0.517 cent), Netherlands (EUR 0.581 cent), Croatia (EUR 0.596 cent), Greece (EUR 0.622 cent), Spain (EUR 0.64 cent) and Italy (EUR 0.67

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cent). In the following years (2022-2023), the glide path rate will start to apply in these Member States when it reaches a level at or below the current mobile termination rates in these Member States From 2024 onwards, the single maximum Union-wide mobile termination rate of EUR 0.2 cent shall apply in all Member States. As regards fixed voice termination rates, given that the current average of regulated fixed termination rates (excluding the two outliers Poland and Finland) is close to the final cost-efficient rate, this Regulation does not provide for a glide path. Instead, due to the considerable differences between the current fixed termination rates and the final cost efficient rate, the Regulation includes a transitional period during 2021. The transitional period allows a gradual adjustment to the single maximum Union-wide fixed voice termination rate. Granting a transitional period is justified where the current fixed voice termination rates are significantly higher than the single maximum Union-wide fixed voice termination rate. In all Member States but two where the current fixed voice termination rates are above EUR 0.0875 cent (the single maximum Union-wide fixed voice termination rate plus 25%), the maximum fixed voice termination rate in 2021 should be equal to their current rates decreased by 20%. In Poland and Finland, which have not so far followed the principles set out in Commission Recommendation 2009/396/EC172 and currently have very high fixed termination rates, a decrease of 20% would be an insufficient step towards the single maximum Union-wide fixed voice termination rate. Therefore, their rate for the transitional period should be that of the Member State with the highest rate during the transitional period, excluding those two Member States. The resulting transitional rates (expressed in euro for comparison) are: Austria (EUR  0.089 cent), Belgium (EUR  0.093 cent), Croatia (EUR  0.075 cent), Czechia (EUR  0.099 cent), Finland (EUR  0.111 cent), Latvia (EUR  0.076 cent), Lithuania (EUR  0.072 cent), Luxembourg (EUR  0.110 cent), Netherlands (EUR  0.111 cent), Poland (EUR  0.111 cent), Romania (EUR 0.078 cent) and Slovakia (EUR 0.078 cent). In Member States where a 20% reduction results in a rate at or below the cost-efficient final rate of EUR 0.07 cent, no transitional rate is necessary. Therefore, the rates in those Member States in 2021 shall be at the level of the single maximum Union-wide fixed voice termination rate.173 This Regulation refers only to a price obligation imposed on the providers of voice termination services. Non-price obligations imposed by NRAs when regulating markets in their territory, are outside the scope of this Regulation.

Commission Recommendation 2009/396/EC of 7 May 2009 on the Regulatory Treatment of Fixed and Mobile Termination Rates in the EU (OJ L 124, 20.5.2009, p. 67). 173 This applies to Bulgaria, Slovenia, Hungary, France and Estonia where a 20% reduction will bring them at or below EUR 0.07 cent. 172



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COMMISSION DELEGATED REGULATION (EU) 2021/654 of 18 December 2020 supplementing Directive (EU) 2018/1972 of the European Parliament and of the Council by setting a single maximum Union-wide mobile voice termination rate and a single maximum Union-wide fixed voice termination rate (Text with EEA relevance) THE EUROPEAN COMMISSION, Having regard to the Treaty on the Functioning of the European Union, Having regard to Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (1), and in particular Article 75174 thereof, Whereas: (1) Pursuant to Article  75(1) of Directive (EU) 2018/1972, the Commission is to establish, by means of a delegated act, a single maximum Union-wide voice termination rate for mobile services and a single maximum Union-wide voice termination rate for fixed services in order to reduce the regulatory burden in addressing the competition problems relating to wholesale voice termination consistently across the Union. The principles, criteria and parameters that the Commission should comply with when adopting the delegated act are set out in Annex III of that Directive. (2) This Regulation is without prejudice to the powers of National Regulatory Authorities (NRAs) to define relevant markets appropriate to national circumstances, conduct the three criteria test and impose remedies other than price control in accordance with Article 64(3), 67 and 68 of the Code. Consequently, the non-price obligations that are currently imposed by NRAs to operators with significant market power in relation to fixed or mobile termination services are not to be affected by the entry into force of this Regulation, and will therefore remain valid until they are reviewed, in accordance with Union and national rules. (3) Regulatory practice shows that the number on which mobile or fixed calls are terminated plays a crucial role in demand substitutability and competitive dynamics in voice termination, thus it is the main element giving rise to the termination monopoly that justifies the need for regulation. Therefore, the main criterion used for the definition of termination services should be the numbering range, that is to say whether the call is delivered to a mobile number, in case of mobile voice termination service, or to other types of numbers such as geographic numbers and certain non-geographic numbers, in case of fixed voice termination services. (4)

The termination services should include services provided through any technology used to terminate voice calls by the termination provider such as on a 2G, 3G, 4G or 5G network and/or via WiFi, or any type of fixed network, regardless of the origin of the call.

(5) Any termination service, mobile or fixed, entails the terminating operator’s network interconnecting with at least one network other than its own. Providers of voice termination services should therefore be considered those that have technical control and the legal right to use the called number and of the routing of the call to the recipient. (6)

The termination service should exclude the associated facilities that may be required by certain operators or in certain Member States for the provision of termination

OJ L 321, 17.12.2018, p. 36.

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services. However, interconnection ports, which are currently regulated in many Member States, are essential elements of termination services for any operator as increased capacity for interconnection is needed with increasing traffic, and therefore should be included in the definition of the termination service. A provider of voice termination services should not levy any cost other than the relevant rates set by this Regulation for the full service of terminating a call to a user on its network. (7) Voice termination services for calls to certain non-geographic numbers, such as those used for premium-rate services, toll-free services and shared-cost services (also known as ‘value added services’), do not behave as ‘traditional’ termination services where there is a monopoly of the operators which terminate the call. Providers of such services have some bargaining power, and are able to negotiate the termination rate as part of the revenue sharing agreement. Therefore, termination providers face certain constraints when setting the charges for terminating calls to these non-geographic numbers, unlike in termination of calls to geographic or mobile numbers. Therefore, termination of calls to such numbers should be excluded from the scope of this Regulation. Numbering ranges specific for machine-to-machine (M2M) communications are not, in the majority of cases, used for providing interpersonal communications, being data traffic and not voice traffic, and thus they should not be included in the scope of this Regulation which is limited to voice communications. (8) Voice termination services for calls to other types of non-geographic numbers, such as those used for fixed nomadic services and to access emergency services, exhibit the characteristics of the termination monopoly, and are provided over a fixed infrastructure. Therefore, they should fall within the scope of this Regulation and be treated as fixed voice termination services. (9) Some voice services provided by operators cannot be classified as purely mobile or purely fixed services but are hybrid services. ‘Home zone’ services are an example of such hybrid services, whereby calls are typically delivered to a fixed number over a mobile network. In line with the definition of voice termination services whereby the called number is the determinant criterion, such hybrid services should be treated as mobile or fixed termination services depending on the number called. (10) The regulated rates for voice termination services should apply to calls originated from and terminated to a number included in national numbering plans corresponding to E.164 country codes for geographic areas belonging to the territory of the Union (Union-numbers). Third country-numbers are all numbers other than Union-numbers. The inclusion of calls originating from third country-numbers and terminating to a Union-number, in the case where third country operators charge termination rates higher than the single maximum Union-wide voice termination rates or where such termination rates are not regulated according to cost-efficient principles that are equivalent to those set out in Article 75 and Annex III of the Code, would risk undermining the objectives of this Regulation, in particular those of ensuring internal market integration. (11) The combination of low regulated termination rates for calls originated from third country-numbers and terminated to Union-numbers and high and non-costefficient termination rates for calls to third country-numbers would likely result in higher termination rates for calls originating from Union-numbers and terminating to third country-numbers, which would have a negative impact on retail tariffs in



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the Union and on the cost structure of Union operators. The different degrees of exposure of Union operators to calls terminated by such third-country operators charging high and non-cost-efficient termination rates would lead to imbalances in the cost structures of Union operators due to factors out of the control of the operators themselves. This would likely prevent the emergence of pan-European retail offerings that include calls to certain third country-numbers, due to higher termination rates for calls to those countries, which could have a negative impact on consumers and especially businesses in the Union. Furthermore, it would distort competition as the asymmetrical impact of the exposure to high termination rates for calls terminated to third country-numbers would result in different competitive conditions faced by different Union operators, which would also ultimately distort investment ability and incentives across the Union (both investment in operators and by operators). All these effects would clearly run counter to the objectives of this Regulation, which are to promote the integration of the single market by removing distortions between operators due to termination rates charged well above cost. (12) With the aim of applying the single maximum Union-wide voice termination rates in an open, transparent and non-discriminatory way, and to limit the exclusion of calls originated from third country-numbers to what is strictly necessary to ensure the achievement of the internal market objectives and to ensure proportionality, the rates set by this Regulation should apply to calls originated from third countrynumbers and terminated to Union-numbers where the termination rates applied by third country providers of voice termination services to calls originated from Union-numbers are at a level equal or below the level of the maximum voice termination rates set by this Regulation. During the transitional period for fixed voice termination rates in  2021 and during the glide path for mobile voice termination rates (from 2021 to 2023), the relevant maximum mobile termination rates that will trigger this mechanism will be those set out by paragraphs 2 to 5 of Article 4 of the Regulation. The relevant maximum fixed termination rates that will trigger this mechanism in 2021 will be those set out by Article 5(2) of the Delegated Regulation. Providers of voice termination services in the Union should apply such rates on the basis of rates applied or proposed by providers of voice termination services in third countries. (13) Given that Union providers of voice termination services may not always be in the position to know the level of the termination rate applied by third-country operators, it should normally be for the latter to provide verifiable information proving the level of the termination rate offered. Where transit providers (or other intermediaries) resell termination services to Union operators, the termination rate applied or offered by those transit providers would be the relevant one for determining if it is equal or lower than the maximum voice termination rates set by this Regulation. (14) When third countries’ operators charge termination rates for calls originated from Union-numbers and terminated to third country-numbers which are higher than the Union-wide termination rates, the rates set by this Regulation should also apply for calls originated from third country-numbers and terminated to Unionnumbers, where the Commission determines, based on information provided to the Commission by such third countries, that the regulation of termination rates in these countries is based on principles equivalent to those set out in Article 75 of Directive (EU) 2018/1972 and Annex III thereto. The list of third countries which meet such requirements should be subsequently included in this Regulation and duly updated.

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(15) As the origin of the call would define whether the Union-wide termination rates apply or not, it is essential for Union operators to be able to identify the country of origin of the caller. For this purpose, operators may rely on the country code within the calling line identification (CLI). In order to ensure a correct application of this Regulation, Union operators should receive a valid CLI assigned to every incoming call. Consequently, Union operators would not be bound to apply Union-wide termination rates to termination of calls if the CLI is missing, invalid or fraudulent. (16) In order to estimate the efficient cost of terminating a voice call on a hypothetical mobile or fixed network in the Union in compliance with the principles set out in Article 75(1) of Directive (EU) 2018/1972 and Annex III thereto, two cost models, respectively for mobile and fixed termination, were developed taking into account costs in each Member State. (17) Based on the feedback on costs in each Member State received through the consultation process, the cost models were finalised for both the mobile and fixed networks. Pursuant to Annex III to Directive (EU) 2018/1972, the cost models delivered rates on the basis of the recovery of costs incurred by an efficient operator. Therefore, the rates are based only on the incremental costs for providing the wholesale voice termination service, that is to say only those traffic-related costs which would be avoided in the absence of a wholesale voice termination service. (18) The single maximum Union-wide mobile and fixed voice termination rates were established in reference to the efficient cost in the highest-cost country according to the cost models commissioned, thus ensuring the principle of cost recovery across the Union, and subsequently adding a minor safety margin to account for possible inaccuracies in the cost models. (19) The single maximum Union-wide voice termination rates established by this Regulation should start applying two months after its entry into force, in order to ensure that operators have the necessary time to adjust their information, invoicing and accounting systems, and make the necessary changes to the interconnection agreements. (20) Where current average voice termination rates in the Union are significantly higher than rates to be imposed in the future, that is to say the cost-efficient single maximum Union-wide voice termination rates set out in this Regulation, a glide path, which is a common regulatory practice, should be applied. In such cases, the glide path should provide an effective tool to smoothen the application of lower rates in compliance with the principle of proportionality. (21) Considering the current average of mobile voice termination rates across Member States, a glide path should be devised to reach the single maximum Unionwide mobile voice termination rate. In order to strike a balance between a swift implementation and the need to avoid significant disruptions for operators, the glide path should start at a level close to the current average of mobile termination rates and decline yearly over a period of three years before reaching the single maximum Union-wide mobile voice termination rate in 2024. (22) Therefore, this Regulation establishes a three-year glide path, reaching the costefficient single maximum Union-wide mobile voice termination rate in  2024. No transitional period should be necessary in case of providers in Member States which apply rates above the single maximum Union-wide mobile voice termination rates for 2021, as the glide path fulfils the objective of smoothening



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the impact of the implementation of the single maximum Union-wide mobile voice termination rate. (23) In some Member States current regulated maximum mobile voice termination rates are below the mobile voice termination rates set for 2021, 2022 and 2023 as a result of the glide path, and close to the single maximum Union-wide mobile termination rate. In order to avoid potential increases in retail prices in those Member States, resulting from a temporary increase of regulated mobile termination rates, it should be possible to continue applying the current regulated mobile voice termination rates in those Member States until the year where the maximum mobile termination rate set by this Regulation for that year is at a level equal or below those Member States’ current termination rates for that year. (24) Since the difference between the average of current fixed termination rates and the single maximum Union-wide fixed voice termination rate set in this Regulation is smaller than that of mobile termination rates, a glide path in the case of fixed voice termination should not be necessary. However, granting a transitional period to certain Member States should be appropriate for ensuring a smooth transition to the single maximum Union-wide fixed voice termination rate and avoiding any unnecessary delays for its application. (25) Based on the current levels of fixed termination rates in certain Member States and the level of the single maximum Union-wide fixed voice termination rate set in this Regulation, it is justified to grant a transitional period to some Member States. The transitional period should start from the date of application of this Regulation and should end on 31  December 2021. During the transitional period, specific rates, different from the single maximum Union-wide fixed voice termination rate, may apply in the Member States concerned. (26) In those Member States where the current fixed voice termination rates are significantly higher than the single maximum Union-wide fixed voice termination rate, it is justified to grant a transitional period to allow for a gradual adjustment of those rates. In all Member States but two where the current fixed voice termination rates are above EUR 0,0875 cent (the single maximum Union-wide fixed voice termination rate plus 25 %), the maximum fixed voice termination rate in 2021 should be equal to their current rates decreased by 20 %. In Poland and Finland, which have not so far followed the principles set out in Commission Recommendation 2009/396/EC175 and currently have very high fixed termination rates, a decrease of 20 % would be an insufficient step towards the single maximum Union-wide fixed voice termination rate. Therefore, their rate for the transitional period should be that of the Member State with the highest rate during the transitional period, excluding those two Member States. For the remaining Member States where current fixed termination rates are below the single maximum Union-wide fixed voice termination rate, or where a 20 % decrease would bring them at or below the single maximum Union-wide fixed voice termination rate, no transitional period should be established. (27) The Body of European Regulators for Electronic Communications was consulted in accordance with Article 75(1) of Directive (EU) 2018/1972 and delivered an opinion on 15 October 2020, HAS ADOPTED THIS REGULATION: Commission Recommendation 2009/396/EC of 7 May 2009 on the Regulatory Treatment of Fixed and Mobile Termination Rates in the EU (OJ L 124, 20.5.2009, p. 67).

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Article 1 1.

This Regulation sets a single maximum Union-wide mobile voice termination rate and a single maximum Union-wide fixed voice termination rate to be charged by providers of wholesale voice termination services for the provision of mobile and fixed voice termination services.

2.

This Regulation is without prejudice to the powers of national regulatory authorities under Article 64(3) and Articles 67 and 68 of Directive (EU) 2018/1972.

3.

Articles  4 and  5 shall apply to calls originated from and terminated to Unionnumbers.

4.

Articles 4 and 5 shall also apply to calls originated from third country-numbers and terminated to Union-numbers where one of the two following conditions is met: (a) where a provider of voice termination services in a third country applies to calls originated from Union-numbers, mobile or fixed voice termination rates equal or lower than the maximum termination rates set out in Articles 4 or 5 respectively for mobile or fixed termination, for each year and each Member State, on the basis of rates applied or proposed by providers of voice termination services in third countries to providers of voice termination services in the Union; or (b) when: (i) the Commission determines that, on the basis of information provided by a third country, voice termination rates for calls originated from Union-numbers and terminated to numbers of that third country are regulated in accordance with principles equivalent to those set out in Article  75 of Directive (EU) 2018/1972 and Annex III thereto; and (ii) that third country is listed in the Annex to this Regulation.

5.

Articles 4 and 5 shall be understood as per minute charges (without VAT) and shall be charged on a per second basis. Article 2

1.

For the purposes of this Regulation, the following definitions apply: (a) ‘mobile voice termination service’ means the wholesale service required to terminate calls to mobile numbers that are publicly assigned numbering resources, namely numbers from national numbering plans, provided by operators with the ability to control termination and set the termination rates for calls to such numbers, where there is interconnection with at least one network, irrespective of the technology used, including interconnection ports; (b) ‘fixed voice termination service’ means the wholesale service required to terminate calls to geographic numbers and non-geographic numbers used for fixed nomadic services and to access emergency services, that are publicly assigned numbering resources, namely numbers from national numbering plans, provided by operators with the ability to control termination and set the termination rates for calls to such numbers, where there is interconnection with at least one network, irrespective of the technology used, including interconnection ports;



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(c) ‘Union-number’ means a number from national numbering plans corresponding to E.164 country codes for geographic areas belonging to the territory of the Union. Article 3 1.

A  provider of mobile or fixed voice termination services shall not charge any rate higher than the relevant maximum voice termination rate for the service of terminating a call to an end user on its network as provided in Articles 4 and 5.

2.

Where voice termination rates are currently set in a currency other than the euro, the maximum mobile and fixed voice termination rates under Articles 4(1), 4(2), 4(4), 4(5) and  5(1) shall be converted into the national currency by applying the average of the reference exchange rates published on 1 January, 1 February and 1 March 2021 by the European Central Bank in the Official Journal of the European Union.

3.

The maximum mobile and fixed voice termination rates denominated in currencies other than the euro shall be revised annually and updated by 1  January each year, using the most recent average of the reference exchange rates published on 1  September, 1  October and  1  November by the European Central Bank in the Official Journal of the European Union. Article 4

1.

The single maximum Union-wide mobile voice termination rate shall be EUR 0,2 cent per minute.

2.

By derogation from paragraph 1, providers of mobile voice termination services may apply the following maximum mobile voice termination rates: (a)

from 1 July 2021 to 31 December 2021, in Member States other than those mentioned in paragraph 3: EUR 0,7 cent per minute;

(b) from 1 January 2022 to 31 December 2022, in Member States other than those mentioned in paragraph 4: EUR 0,55 cent per minute; (c) from 1 January 2023 to 31 December 2023, in Member States other than those mentioned in paragraph 5: EUR 0,4 cent per minute. 3.

By derogation from paragraph 1, from 1 July 2021 to 31 December 2021, providers of mobile voice termination services may apply the following maximum mobile voice termination rates in the following Member States: (a)

HRK 0,045 per minute in Croatia;

(b) EUR 0,20 cent per minute in Cyprus; (c)

DKK 0,0385 per minute in Denmark;

(d) EUR 0,622 cent per minute in Greece; (e)

HUF 1,71 per minute in Hungary;

(f)

EUR 0,43 cent per minute in Ireland;

(g) EUR 0,67 cent per minute in Italy; (h) EUR 0,4045 cent per minute in Malta; (i)

EUR 0,581 cent per minute in the Netherlands;

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(j)

EUR 0,36 cent per minute in Portugal;

(k) EUR 0,64 cent per minute in Spain; (l) 4.

SEK 0,0216 per minute in Sweden.

By derogation from paragraph 1, from 1 January 2022 until 31 December 2022, providers of mobile voice termination services may apply the following maximum mobile voice termination rates in the following Member States: (a)

EUR 0,20 cent per minute in Cyprus;

(b) EUR 0,52 cent per minute in Denmark; (c)

EUR 0,47 cent per minute in Hungary;

(d) EUR 0,43 cent per minute in Ireland; (e)

EUR 0,40 cent per minute in Malta;

(f)

EUR 0,36 cent per minute in Portugal;

(g) EUR 0,21 cent per minute in Sweden. 5.

By derogation from paragraph 1, from 1 January 2023 until 31 December 2023, providers of mobile voice termination services may apply the following maximum mobile voice termination rates in the following Member States: (a)

EUR 0,20 cent per minute in Cyprus;

(b) EUR 0,36 cent per minute in Portugal; (c)

EUR 0,21 cent per minute in Sweden. Article 5

1.

The single maximum Union-wide fixed voice termination rate shall be EUR 0,07 cent per minute.

2.

By derogation from paragraph 1, from 1 July 2021 to 31 December 2021, providers of fixed voice termination services may apply the following maximum rates for fixed voice termination services in the following Member States: (a)

EUR 0,089 cent per minute in Austria;

(b) EUR 0,093 cent per minute in Belgium; (c)

HRK 0,0057 per minute in Croatia;

(d) CZK 0,0264 per minute in Czechia; (e)

EUR 0,111 cent per minute in Finland;

(f)

EUR 0,076 cent per minute in Latvia;

(g) EUR 0,072 cent per minute in Lithuania; (h) EUR 0,110 cent per minute in Luxembourg; (i)

EUR 0,111 cent per minute in the Netherlands;

(j)

PLN 0,005 per minute in Poland;

(k) EUR 0,078 cent per minute in Romania; (l)

EUR 0,078 cent per minute in Slovakia



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Article 6 1.

This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.

2.

It shall apply from 1 July 2021.

This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 18 December 2020. For the Commission The President Ursula VON DER LEYEN ANNEX List of third countries pursuant to Article 1(4)(b) of this Regulation:  1.

Chapter 3

Related Directives

Contents Directive 2000/31/EC (Directive on electronic commerce)

691

Directive 2002/58/EC (ePrivacy Directive)

714

Commission Directive 2002/77/EC (Competition in the markets for electronic communications networks and services)

734

Commission Directive 2008/63/EC (Fair market conditions for telephone handsets and other communication equipment)

742

Directive 2010/13/EU (Audiovisual Media Services Directive)

749

Directive 2012/19/EU (WEEE)

792

Directive 2014/30/EU (EMC Directive)

827

Directive 2014/35/EU (Low Voltage Directive)

859

Directive 2014/53/EU (Radio Equipment Directive)

879

Directive 2014/61/EU (Broadband Cost Reduction Directive)

922

Directive (EU) 2015/1535 (Single Market Transparency Directive)

941

Directive (EU) 2016/1148 (NIS Directive)

956

Directive (EU) 2019/770 (Digital Contents and Services Directive)

989

Directive (EU) 2019/882 (European Accessibility Act)

1022

DIRECTIVE 2000/31/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce)[1] THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Articles 47(2), 55 and 95 thereof, Having regard to the proposal from the Commission (2), Having regard to the opinion of the Economic and Social Committee (3),

OJ L 178, 17.7.2000, p. 1. OJ C 30, 5.2.1999, p. 4. 3 OJ C 169, 16.6.1999, p. 36. 1 2

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Acting in accordance with the procedure laid down in Article 251 of the Treaty (4), Whereas: (1) The European Union is seeking to forge ever closer links between the States and peoples of Europe, to ensure economic and social progress; in accordance with Article 14(2) of the Treaty, the internal market comprises an area without internal frontiers in which the free movements of goods, services and the freedom of establishment are ensured; the development of information society services within the area without internal frontiers is vital to eliminating the barriers which divide the European peoples. (2) The development of electronic commerce within the information society offers significant employment opportunities in the Community, particularly in small and medium-sized enterprises, and will stimulate economic growth and investment in innovation by European companies, and can also enhance the competitiveness of European industry, provided that everyone has access to the Internet. (3) Community law and the characteristics of the Community legal order are a vital asset to enable European citizens and operators to take full advantage, without consideration of borders, of the opportunities afforded by electronic commerce; this Directive therefore has the purpose of ensuring a high level of Community legal integration in order to establish a real area without internal borders for information society services. (4) It is important to ensure that electronic commerce could fully benefit from the internal market and therefore that, as with Council Directive 89/552/EEC of 3  October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (5), a high level of Community integration is achieved. (5) The development of information society services within the Community is hampered by a number of legal obstacles to the proper functioning of the internal market which make less attractive the exercise of the freedom of establishment and the freedom to provide services; these obstacles arise from divergences in legislation and from the legal uncertainty as to which national rules apply to such services; in the absence of coordination and adjustment of legislation in the relevant areas, obstacles might be justified in the light of the case-law of the Court of Justice of the European Communities; legal uncertainty exists with regard to the extent to which Member States may control services originating from another Member State. (6) In the light of Community objectives, of Articles 43 and 49 of the Treaty and of secondary Community law, these obstacles should be eliminated by coordinating certain national laws and by clarifying certain legal concepts at Community level to the extent necessary for the proper functioning of the internal market; by dealing only with certain specific matters which give rise to problems for the internal market, this Directive is fully consistent with the need to respect the principle of subsidiarity as set out in Article 5 of the Treaty.

Opinion of the European Parliament of 6  May 1999 (OJ  C  279, 1.10.1999, p. 389), Council common position of 28 February 2000 (OJ C 128, 8.5.2000, p. 32) and Decision of the European Parliament of 4 May 2000 (not yet published in the Official Journal). 5 OJ L 298, 17.10.1989, p. 23. Directive as amended by Directive 97/36/EC of the European Parliament and of the Council (OJ L 202, 30.7.1997, p. 60). 4



(7)

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In order to ensure legal certainty and consumer confidence, this Directive must lay down a clear and general framework to cover certain legal aspects of electronic commerce in the internal market.

(8) The objective of this Directive is to create a legal framework to ensure the free movement of information society services between Member States and not to harmonise the field of criminal law as such. (9)

The free movement of information society services can in many cases be a specific reflection in Community law of a more general principle, namely freedom of expression as enshrined in Article 10(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, which has been ratified by all the Member States; for this reason, directives covering the supply of information society services must ensure that this activity may be engaged in freely in the light of that Article, subject only to the restrictions laid down in paragraph 2 of that Article and in Article 46(1) of the Treaty; this Directive is not intended to affect national fundamental rules and principles relating to freedom of expression.

(10) In accordance with the principle of proportionality, the measures provided for in this Directive are strictly limited to the minimum needed to achieve the objective of the proper functioning of the internal market; where action at Community level is necessary, and in order to guarantee an area which is truly without internal frontiers as far as electronic commerce is concerned, the Directive must ensure a high level of protection of objectives of general interest, in particular the protection of minors and human dignity, consumer protection and the protection of public health; according to Article 152 of the Treaty, the protection of public health is an essential component of other Community policies. (11) This Directive is without prejudice to the level of protection for, in particular, public health and consumer interests, as established by Community acts; amongst others, Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (6) and Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (7) form a vital element for protecting consumers in contractual matters; those Directives also apply in their entirety to information society services; that same Community acquis, which is fully applicable to information society services, also embraces in particular Council Directive 84/450/EEC of 10  September 1984 concerning misleading and comparative advertising (8), Council Directive 87/102/EEC of 22 December 1986 for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit (9), Council Directive 93/22/EEC of 10 May 1993 on investment services in the securities field (10), Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (11), Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer production in

OJ L 95, 21.4.1993, p. 29. OJ L 144, 4.6.1999, p. 19. 8 OJ L 250, 19.9.1984, p. 17. Directive as amended by Directive 97/55/EC of the European Parliament and of the Council (OJ L 290, 23.10.1997, p. 18). 9 OJ L 42, 12.2.1987, p. 48. Directive as last amended by Directive 98/7/EC of the European Parliament and of the Council (OJ L 101, 1.4.1998, p. 17). 10 OJ L 141, 11.6.1993, p. 27. Directive as last amended by Directive 97/9/EC of the European Parliament and of the Council (OJ L 84, 26.3.1997, p. 22). 11 OJ L 158, 23.6.1990, p. 59. 6 7

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the indication of prices of products offered to consumers (12), Council Directive 92/59/EEC of 29 June 1992 on general product safety (13), Directive 94/47/EC of the European Parliament and of the Council of 26 October 1994 on the protection of purchasers in respect of certain aspects on contracts relating to the purchase of the right to use immovable properties on a timeshare basis (14), Directive 98/27/ EC of the European Parliament and of the Council of 19 May 1998 on injunctions for the protection of consumers’ interests (15), Council Directive 85/374/EEC of 25  July 1985 on the approximation of the laws, regulations and administrative provisions concerning liability for defective products (16), Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (17), the future Directive of the European Parliament and of the Council concerning the distance marketing of consumer financial services and Council Directive 92/28/EEC of 31 March 1992 on the advertising of medicinal products (18); this Directive should be without prejudice to Directive 98/43/EC of the European Parliament and of the Council of 6 July 1998 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products (19) adopted within the framework of the internal market, or to directives on the protection of public health; this Directive complements information requirements established by the abovementioned Directives and in particular Directive 97/7/EC. (12) It is necessary to exclude certain activities from the scope of this Directive, on the grounds that the freedom to provide services in these fields cannot, at this stage, be guaranteed under the Treaty or existing secondary legislation; excluding these activities does not preclude any instruments which might prove necessary for the proper functioning of the internal market; taxation, particularly value added tax imposed on a large number of the services covered by this Directive, must be excluded form the scope of this Directive. (13) This Directive does not aim to establish rules on fiscal obligations nor does it pre-empt the drawing up of Community instruments concerning fiscal aspects of electronic commerce. (14) The protection of individuals with regard to the processing of personal data is solely governed by Directive 95/46/EC of the European Parliament and of the Council of 24  October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (20) and Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector (21) which are fully applicable to information society services; these Directives already establish a Community legal framework in the field of personal data and therefore it is not necessary to cover this issue in this Directive in order to ensure the smooth functioning of the 14 15 16 17 18 19 20 21 12 13

OJ L 80, 18.3.1998, p. 27. OJ L 228, 11.8.1992, p. 24. OJ L 280, 29.10.1994, p. 83. OJ L 166, 11.6.1998, p. 51. Directive as amended by Directive 1999/44/EC (OJ L 171, 7.7.1999, p. 12). OJ L 210, 7.8.1985, p. 29. Directive as amended by Directive 1999/34/EC (OJ L 141, 4.6.1999, p. 20). OJ L 171, 7.7.1999, p. 12. OJ L 113, 30.4.1992, p. 13. OJ L 213, 30.7.1998, p. 9. OJ L 281, 23.11.1995, p. 31. OJ L 24, 30.1.1998, p. 1.



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internal market, in particular the free movement of personal data between Member States; the implementation and application of this Directive should be made in full compliance with the principles relating to the protection of personal data, in particular as regards unsolicited commercial communication and the liability of intermediaries; this Directive cannot prevent the anonymous use of open networks such as the Internet. (15) The confidentiality of communications is guaranteed by Article 5 Directive 97/66/ EC; in accordance with that Directive, Member States must prohibit any kind of interception or surveillance of such communications by others than the senders and receivers, except when legally authorised. (16) The exclusion of gambling activities from the scope of application of this Directive covers only games of chance, lotteries and betting transactions, which involve wagering a stake with monetary value; this does not cover promotional competitions or games where the purpose is to encourage the sale of goods or services and where payments, if they arise, serve only to acquire the promoted goods or services. (17) The definition of information society services already exists in Community law in Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on information society services (22) and in Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access (23); this definition covers any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service; those services referred to in the indicative list in Annex V to Directive 98/34/EC which do not imply data processing and storage are not covered by this definition. (18) Information society services span a wide range of economic activities which take place on-line; these activities can, in particular, consist of selling goods on-line; activities such as the delivery of goods as such or the provision of services off-line are not covered; information society services are not solely restricted to services giving rise to on-line contracting but also, in so far as they represent an economic activity, extend to services which are not remunerated by those who receive them, such as those offering on-line information or commercial communications, or those providing tools allowing for search, access and retrieval of data; information society services also include services consisting of the transmission of information via a communication network, in providing access to a communication network or in hosting information provided by a recipient of the service; television broadcasting within the meaning of Directive EEC/89/552 and radio broadcasting are not information society services because they are not provided at individual request; by contrast, services which are transmitted point to point, such as videoon-demand or the provision of commercial communications by electronic mail are information society services; the use of electronic mail or equivalent individual communications for instance by natural persons acting outside their trade, business or profession including their use for the conclusion of contracts between such persons is not an information society service; the contractual relationship OJ L 204, 21.7.1998, p. 37. Directive as amended by Directive 98/48/EC (OJ L 217, 5.8.1998, p. 18). OJ L 320, 28.11.1998, p. 54.

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between an employee and his employer is not an information society service; activities which by their very nature cannot be carried out at a distance and by electronic means, such as the statutory auditing of company accounts or medical advice requiring the physical examination of a patient are not information society services. (19) The place at which a service provider is established should be determined in conformity with the case-law of the Court of Justice according to which the concept of establishment involves the actual pursuit of an economic activity through a fixed establishment for an indefinite period; this requirement is also fulfilled where a company is constituted for a given period; the place of establishment of a company providing services via an Internet website is not the place at which the technology supporting its website is located or the place at which its website is accessible but the place where it pursues its economic activity; in cases where a provider has several places of establishment it is important to determine from which place of establishment the service concerned is provided; in cases where it is difficult to determine from which of several places of establishment a given service is provided, this is the place where the provider has the centre of his activities relating to this particular service. (20) The definition of “recipient of a service” covers all types of usage of information society services, both by persons who provide information on open networks such as the Internet and by persons who seek information on the Internet for private or professional reasons. (21) The scope of the coordinated field is without prejudice to future Community harmonisation relating to information society services and to future legislation adopted at national level in accordance with Community law; the coordinated field covers only requirements relating to on-line activities such as on-line information, on-line advertising, on-line shopping, on-line contracting and does not concern Member States’ legal requirements relating to goods such as safety standards, labelling obligations, or liability for goods, or Member States’ requirements relating to the delivery or the transport of goods, including the distribution of medicinal products; the coordinated field does not cover the exercise of rights of pre-emption by public authorities concerning certain goods such as works of art. (22) Information society services should be supervised at the source of the activity, in order to ensure an effective protection of public interest objectives; to that end, it is necessary to ensure that the competent authority provides such protection not only for the citizens of its own country but for all Community citizens; in order to improve mutual trust between Member States, it is essential to state clearly this responsibility on the part of the Member State where the services originate; moreover, in order to effectively guarantee freedom to provide services and legal certainty for suppliers and recipients of services, such information society services should in principle be subject to the law of the Member State in which the service provider is established. (23) This Directive neither aims to establish additional rules on private international law relating to conflicts of law nor does it deal with the jurisdiction of Courts; provisions of the applicable law designated by rules of private international law must not restrict the freedom to provide information society services as established in this Directive. (24) In the context of this Directive, notwithstanding the rule on the control at source of information society services, it is legitimate under the conditions established in



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this Directive for Member States to take measures to restrict the free movement of information society services. (25) National courts, including civil courts, dealing with private law disputes can take measures to derogate from the freedom to provide information society services in conformity with conditions established in this Directive. (26) Member States, in conformity with conditions established in this Directive, may apply their national rules on criminal law and criminal proceedings with a view to taking all investigative and other measures necessary for the detection and prosecution of criminal offences, without there being a need to notify such measures to the Commission. (27) This Directive, together with the future Directive of the European Parliament and of the Council concerning the distance marketing of consumer financial services, contributes to the creating of a legal framework for the on-line provision of financial services; this Directive does not pre-empt future initiatives in the area of financial services in particular with regard to the harmonisation of rules of conduct in this field; the possibility for Member States, established in this Directive, under certain circumstances of restricting the freedom to provide information society services in order to protect consumers also covers measures in the area of financial services in particular measures aiming at protecting investors. (28) The Member States’ obligation not to subject access to the activity of an information society service provider to prior authorisation does not concern postal services covered by Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service (24) consisting of the physical delivery of a printed electronic mail message and does not affect voluntary accreditation systems, in particular for providers of electronic signature certification service. (29) Commercial communications are essential for the financing of information society services and for developing a wide variety of new, charge-free services; in the interests of consumer protection and fair trading, commercial communications, including discounts, promotional offers and promotional competitions or games, must meet a number of transparency requirements; these requirements are without prejudice to Directive 97/7/EC; this Directive should not affect existing Directives on commercial communications, in particular Directive 98/43/EC. (30) The sending of unsolicited commercial communications by electronic mail may be undesirable for consumers and information society service providers and may disrupt the smooth functioning of interactive networks; the question of consent by recipient of certain forms of unsolicited commercial communications is not addressed by this Directive, but has already been addressed, in particular, by Directive 97/7/EC and by Directive 97/66/EC; in Member States which authorise unsolicited commercial communications by electronic mail, the setting up of appropriate industry filtering initiatives should be encouraged and facilitated; in addition it is necessary that in any event unsolicited commercial communities are clearly identifiable as such in order to improve transparency and to facilitate the functioning of such industry initiatives; unsolicited commercial communications by electronic mail should not result in additional communication costs for the recipient. OJ L 15, 21.1.1998, p. 14.

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(31) Member States which allow the sending of unsolicited commercial communications by electronic mail without prior consent of the recipient by service providers established in their territory have to ensure that the service providers consult regularly and respect the opt-out registers in which natural persons not wishing to receive such commercial communications can register themselves. (32) In order to remove barriers to the development of cross-border services within the Community which members of the regulated professions might offer on the Internet, it is necessary that compliance be guaranteed at Community level with professional rules aiming, in particular, to protect consumers or public health; codes of conduct at Community level would be the best means of determining the rules on professional ethics applicable to commercial communication; the drawing-up or, where appropriate, the adaptation of such rules should be encouraged without prejudice to the autonomy of professional bodies and associations. (33) This Directive complements Community law and national law relating to regulated professions maintaining a coherent set of applicable rules in this field. (34) Each Member State is to amend its legislation containing requirements, and in particular requirements as to form, which are likely to curb the use of contracts by electronic means; the examination of the legislation requiring such adjustment should be systematic and should cover all the necessary stages and acts of the contractual process, including the filing of the contract; the result of this amendment should be to make contracts concluded electronically workable; the legal effect of electronic signatures is dealt with by Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures (25); the acknowledgement of receipt by a service provider may take the form of the on-line provision of the service paid for. (35) This Directive does not affect Member States’ possibility of maintaining or establishing general or specific legal requirements for contracts which can be fulfilled by electronic means, in particular requirements concerning secure electronic signatures. (36) Member States may maintain restrictions for the use of electronic contracts with regard to contracts requiring by law the involvement of courts, public authorities, or professions exercising public authority; this possibility also covers contracts which require the involvement of courts, public authorities, or professions exercising public authority in order to have an effect with regard to third parties as well as contracts requiring by law certification or attestation by a notary. (37) Member States’ obligation to remove obstacles to the use of electronic contracts concerns only obstacles resulting from legal requirements and not practical obstacles resulting from the impossibility of using electronic means in certain cases. (38) Member States’ obligation to remove obstacles to the use of electronic contracts is to be implemented in conformity with legal requirements for contracts enshrined in Community law. (39) The exceptions to the provisions concerning the contracts concluded exclusively by electronic mail or by equivalent individual communications provided for by this Directive, in relation to information to be provided and the placing of orders,

OJ L 13, 19.1.2000, p. 12.

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should not enable, as a result, the by-passing of those provisions by providers of information society services. (40) Both existing and emerging disparities in Member States’ legislation and caselaw concerning liability of service providers acting as intermediaries prevent the smooth functioning of the internal market, in particular by impairing the development of cross-border services and producing distortions of competition; service providers have a duty to act, under certain circumstances, with a view to preventing or stopping illegal activities; this Directive should constitute the appropriate basis for the development of rapid and reliable procedures for removing and disabling access to illegal information; such mechanisms could be developed on the basis of voluntary agreements between all parties concerned and should be encouraged by Member States; it is in the interest of all parties involved in the provision of information society services to adopt and implement such procedures; the provisions of this Directive relating to liability should not preclude the development and effective operation, by the different interested parties, of technical systems of protection and identification and of technical surveillance instruments made possible by digital technology within the limits laid down by Directives 95/46/EC and 97/66/EC. (41) This Directive strikes a balance between the different interests at stake and establishes principles upon which industry agreements and standards can be based. (42) The exemptions from liability established in this Directive cover only cases where the activity of the information society service provider is limited to the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored. (43) A service provider can benefit from the exemptions for “mere conduit” and for “caching” when he is in no way involved with the information transmitted; this requires among other things that he does not modify the information that he transmits; this requirement does not cover manipulations of a technical nature which take place in the course of the transmission as they do not alter the integrity of the information contained in the transmission. (44) A  service provider who deliberately collaborates with one of the recipients of his service in order to undertake illegal acts goes beyond the activities of “mere conduit” or “caching” and as a result cannot benefit from the liability exemptions established for these activities. (45) The limitations of the liability of intermediary service providers established in this Directive do not affect the possibility of injunctions of different kinds; such injunctions can in particular consist of orders by courts or administrative authorities requiring the termination or prevention of any infringement, including the removal of illegal information or the disabling of access to it. (46) In order to benefit from a limitation of liability, the provider of an information society service, consisting of the storage of information, upon obtaining actual knowledge or awareness of illegal activities has to act expeditiously to remove or to disable access to the information concerned; the removal or disabling of access

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has to be undertaken in the observance of the principle of freedom of expression and of procedures established for this purpose at national level; this Directive does not affect Member States’ possibility of establishing specific requirements which must be fulfilled expeditiously prior to the removal or disabling of information. (47) Member States are prevented from imposing a monitoring obligation on service providers only with respect to obligations of a general nature; this does not concern monitoring obligations in a specific case and, in particular, does not affect orders by national authorities in accordance with national legislation. (48) This Directive does not affect the possibility for Member States of requiring service providers, who host information provided by recipients of their service, to apply duties of care, which can reasonably be expected from them and which are specified by national law, in order to detect and prevent certain types of illegal activities. (49) Member States and the Commission are to encourage the drawing-up of codes of conduct; this is not to impair the voluntary nature of such codes and the possibility for interested parties of deciding freely whether to adhere to such codes. (50) It is important that the proposed directive on the harmonisation of certain aspects of copyright and related rights in the information society and this Directive come into force within a similar time scale with a view to establishing a clear framework of rules relevant to the issue of liability of intermediaries for copyright and relating rights infringements at Community level. (51) Each Member State should be required, where necessary, to amend any legislation which is liable to hamper the use of schemes for the out-of-court settlement of disputes through electronic channels; the result of this amendment must be to make the functioning of such schemes genuinely and effectively possible in law and in practice, even across borders. (52) The effective exercise of the freedoms of the internal market makes it necessary to guarantee victims effective access to means of settling disputes; damage which may arise in connection with information society services is characterised both by its rapidity and by its geographical extent; in view of this specific character and the need to ensure that national authorities do not endanger the mutual confidence which they should have in one another, this Directive requests Member States to ensure that appropriate court actions are available; Member States should examine the need to provide access to judicial procedures by appropriate electronic means. (53) Directive 98/27/EC, which is applicable to information society services, provides a mechanism relating to actions for an injunction aimed at the protection of the collective interests of consumers; this mechanism will contribute to the free movement of information society services by ensuring a high level of consumer protection. (54) The sanctions provided for under this Directive are without prejudice to any other sanction or remedy provided under national law; Member States are not obliged to provide criminal sanctions for infringement of national provisions adopted pursuant to this Directive. (55) This Directive does not affect the law applicable to contractual obligations relating to consumer contracts; accordingly, this Directive cannot have the result of depriving the consumer of the protection afforded to him by the mandatory rules relating to contractual obligations of the law of the Member State in which he has his habitual residence.



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(56) As regards the derogation contained in this Directive regarding contractual obligations concerning contracts concluded by consumers, those obligations should be interpreted as including information on the essential elements of the content of the contract, including consumer rights, which have a determining influence on the decision to contract. (57) The Court of Justice has consistently held that a Member State retains the right to take measures against a service provider that is established in another Member State but directs all or most of his activity to the territory of the first Member State if the choice of establishment was made with a view to evading the legislation that would have applied to the provider had he been established on the territory of the first Member State. (58) This Directive should not apply to services supplied by service providers established in a third country; in view of the global dimension of electronic commerce, it is, however, appropriate to ensure that the Community rules are consistent with international rules; this Directive is without prejudice to the results of discussions within international organisations (amongst others WTO, OECD, Uncitral) on legal issues. (59) Despite the global nature of electronic communications, coordination of national regulatory measures at European Union level is necessary in order to avoid fragmentation of the internal market, and for the establishment of an appropriate European regulatory framework; such coordination should also contribute to the establishment of a common and strong negotiating position in international forums. (60) In order to allow the unhampered development of electronic commerce, the legal framework must be clear and simple, predictable and consistent with the rules applicable at international level so that it does not adversely affect the competitiveness of European industry or impede innovation in that sector. (61) If the market is actually to operate by electronic means in the context of globalisation, the European Union and the major non-European areas need to consult each other with a view to making laws and procedures compatible. (62) Cooperation with third countries should be strengthened in the area of electronic commerce, in particular with applicant countries, the developing countries and the European Union’s other trading partners. (63) The adoption of this Directive will not prevent the Member States from taking into account the various social, societal and cultural implications which are inherent in the advent of the information society; in particular it should not hinder measures which Member States might adopt in conformity with Community law to achieve social, cultural and democratic goals taking into account their linguistic diversity, national and regional specificities as well as their cultural heritage, and to ensure and maintain public access to the widest possible range of information society services; in any case, the development of the information society is to ensure that Community citizens can have access to the cultural European heritage provided in the digital environment. (64) Electronic communication offers the Member States an excellent means of providing public services in the cultural, educational and linguistic fields. (65) The Council, in its resolution of 19 January 1999 on the consumer dimension of the information society (26), stressed that the protection of consumers deserved OJ C 23, 28.1.1999, p. 1.

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special attention in this field; the Commission will examine the degree to which existing consumer protection rules provide insufficient protection in the context of the information society and will identify, where necessary, the deficiencies of this legislation and those issues which could require additional measures; if need be, the Commission should make specific additional proposals to resolve such deficiencies that will thereby have been identified, HAVE ADOPTED THIS DIRECTIVE: CHAPTER I GENERAL PROVISIONS Article 1 Objective and scope 1.

2.

3.

4. 5.

6.

This Directive seeks to contribute to the proper functioning of the internal market by ensuring the free movement of information society services between the Member States. This Directive approximates, to the extent necessary for the achievement of the objective set out in paragraph 1, certain national provisions on information society services relating to the internal market, the establishment of service providers, commercial communications, electronic contracts, the liability of intermediaries, codes of conduct, out-of-court dispute settlements, court actions and cooperation between Member States. This Directive complements Community law applicable to information society services without prejudice to the level of protection for, in particular, public health and consumer interests, as established by Community acts and national legislation implementing them in so far as this does not restrict the freedom to provide information society services. This Directive does not establish additional rules on private international law nor does it deal with the jurisdiction of Courts. This Directive shall not apply to: (a) the field of taxation; (b) questions relating to information society services covered by Directives 95/46/EC and 97/66/EC; (c) questions relating to agreements or practices governed by cartel law; (d) the following activities of information society services: — the activities of notaries or equivalent professions to the extent that they involve a direct and specific connection with the exercise of public authority, — the representation of a client and defence of his interests before the courts, — gambling activities which involve wagering a stake with monetary value in games of chance, including lotteries and betting transactions. This Directive does not affect measures taken at Community or national level, in the respect of Community law, in order to promote cultural and linguistic diversity and to ensure the defence of pluralism.

Article 2 Definitions For the purpose of this Directive, the following terms shall bear the following meanings:



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(a) “information society services”: services within the meaning of Article  1(2) of Directive 98/34/EC as amended by Directive 98/48/EC; (b) “service provider”: any natural or legal person providing an information society service; (c) “established service provider”: a service provider who effectively pursues an economic activity using a fixed establishment for an indefinite period. The presence and use of the technical means and technologies required to provide the service do not, in themselves, constitute an establishment of the provider; (d) “recipient of the service”: any natural or legal person who, for professional ends or otherwise, uses an information society service, in particular for the purposes of seeking information or making it accessible; (e)

“consumer”: any natural person who is acting for purposes which are outside his or her trade, business or profession;

(f)

“commercial communication”: any form of communication designed to promote, directly or indirectly, the goods, services or image of a company, organisation or person pursuing a commercial, industrial or craft activity or exercising a regulated profession. The following do not in themselves constitute commercial communications: — information allowing direct access to the activity of the company, organisation or person, in particular a domain name or an electronic-mail address, —

communications relating to the goods, services or image of the company, organisation or person compiled in an independent manner, particularly when this is without financial consideration;

(g) “regulated profession”: any profession within the meaning of either Article 1(d) of Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three-years’ duration (27) or of Article  1(f) of Council Directive 92/51/EEC of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48/ EEC (28); (h) “coordinated field”: requirements laid down in Member States’ legal systems applicable to information society service providers or information society services, regardless of whether they are of a general nature or specifically designed for them. (i)

The coordinated field concerns requirements with which the service provider has to comply in respect of: —

the taking up of the activity of an information society service, such as requirements concerning qualifications, authorisation or notification,

— the pursuit of the activity of an information society service, such as requirements concerning the behaviour of the service provider, requirements regarding the quality or content of the service including

OJ L 19, 24.1.1989, p. 16. OJ L 209, 24.7.1992, p. 25. Directive as last amended by Commission Directive 97/38/EC (OJ L 184, 12.7.1997, p. 31).

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those applicable to advertising and contracts, or requirements concerning the liability of the service provider; (ii) The coordinated field does not cover requirements such as: —

requirements applicable to goods as such,

—

requirements applicable to the delivery of goods,

—

requirements applicable to services not provided by electronic means. Article 3 Internal market

1.

Each Member State shall ensure that the information society services provided by a service provider established on its territory comply with the national provisions applicable in the Member State in question which fall within the coordinated field.

2.

Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State.

3.

Paragraphs 1 and 2 shall not apply to the fields referred to in the Annex.

4.

Member States may take measures to derogate from paragraph 2 in respect of a given information society service if the following conditions are fulfilled: (a)

the measures shall be: (i)

necessary for one of the following reasons: — public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons, —

the protection of public health,

—

public security, including the safeguarding of national security and defence,

—

the protection of consumers, including investors;

(ii) taken against a given information society service which prejudices the objectives referred to in point (i) or which presents a serious and grave risk of prejudice to those objectives; (iii) proportionate to those objectives; (b) before taking the measures in question and without prejudice to court proceedings, including preliminary proceedings and acts carried out in the framework of a criminal investigation, the Member State has: —

asked the Member State referred to in paragraph 1 to take measures and the latter did not take such measures, or they were inadequate,

— notified the Commission and the Member State referred to in paragraph 1 of its intention to take such measures. 5.

Member States may, in the case of urgency, derogate from the conditions stipulated in paragraph  4(b). Where this is the case, the measures shall be notified in the shortest possible time to the Commission and to the Member State referred to in paragraph  1, indicating the reasons for which the Member State considers that there is urgency.



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Without prejudice to the Member State’s possibility of proceeding with the measures in question, the Commission shall examine the compatibility of the notified measures with Community law in the shortest possible time; where it comes to the conclusion that the measure is incompatible with Community law, the Commission shall ask the Member State in question to refrain from taking any proposed measures or urgently to put an end to the measures in question. CHAPTER II PRINCIPLES Section 1: Establishment and information requirements Article 4 Principle excluding prior authorisation

1.

Member States shall ensure that the taking up and pursuit of the activity of an information society service provider may not be made subject to prior authorisation or any other requirement having equivalent effect.

2.

Paragraph  1 shall be without prejudice to authorisation schemes which are not specifically and exclusively targeted at information society services, or which are covered by Directive 97/13/EC of the European Parliament and of the Council of 10 April 1997 on a common framework for general authorisations and individual licences in the field of telecommunications services (29). Article 5 General information to be provided

1.

In addition to other information requirements established by Community law, Member States shall ensure that the service provider shall render easily, directly and permanently accessible to the recipients of the service and competent authorities, at least the following information: (a)

the name of the service provider;

(b) the geographic address at which the service provider is established; (c) the details of the service provider, including his electronic mail address, which allow him to be contacted rapidly and communicated with in a direct and effective manner; (d) where the service provider is registered in a trade or similar public register, the trade register in which the service provider is entered and his registration number, or equivalent means of identification in that register; (e) where the activity is subject to an authorisation scheme, the particulars of the relevant supervisory authority; (f)

as concerns the regulated professions: —

any professional body or similar institution with which the service provider is registered,

—

the professional title and the Member State where it has been granted,

—

a reference to the applicable professional rules in the Member State of establishment and the means to access them;

OJ L 117, 7.5.1997, p. 15.

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(g) where the service provider undertakes an activity that is subject to VAT, the identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment (30). 2.

In addition to other information requirements established by Community law, Member States shall at least ensure that, where information society services refer to prices, these are to be indicated clearly and unambiguously and, in particular, must indicate whether they are inclusive of tax and delivery costs.

Section 2: Commercial communications Article 6 Information to be provided In addition to other information requirements established by Community law, Member States shall ensure that commercial communications which are part of, or constitute, an information society service comply at least with the following conditions: (a)

the commercial communication shall be clearly identifiable as such;

(b) the natural or legal person on whose behalf the commercial communication is made shall be clearly identifiable; (c) promotional offers, such as discounts, premiums and gifts, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions which are to be met to qualify for them shall be easily accessible and be presented clearly and unambiguously; (d) promotional competitions or games, where permitted in the Member State where the service provider is established, shall be clearly identifiable as such, and the conditions for participation shall be easily accessible and be presented clearly and unambiguously. Article 7 Unsolicited commercial communication 1.

In addition to other requirements established by Community law, Member States which permit unsolicited commercial communication by electronic mail shall ensure that such commercial communication by a service provider established in their territory shall be identifiable clearly and unambiguously as such as soon as it is received by the recipient.

2.

Without prejudice to Directive 97/7/EC and Directive 97/66/EC, Member States shall take measures to ensure that service providers undertaking unsolicited commercial communications by electronic mail consult regularly and respect the opt-out registers in which natural persons not wishing to receive such commercial communications can register themselves. Article 8 Regulated professions

1.

Member States shall ensure that the use of commercial communications which are part of, or constitute, an information society service provided by a member of a regulated profession is permitted subject to compliance with the professional rules

OJ L 145, 13.6.1977, p. 1. Directive as last amended by Directive 1999/85/EC (OJ L 277, 28.10.1999, p. 34).

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regarding, in particular, the independence, dignity and honour of the profession, professional secrecy and fairness towards clients and other members of the profession. 2.

Without prejudice to the autonomy of professional bodies and associations, Member States and the Commission shall encourage professional associations and bodies to establish codes of conduct at Community level in order to determine the types of information that can be given for the purposes of commercial communication in conformity with the rules referred to in paragraph 1

3.

When drawing up proposals for Community initiatives which may become necessary to ensure the proper functioning of the Internal Market with regard to the information referred to in paragraph  2, the Commission shall take due account of codes of conduct applicable at Community level and shall act in close cooperation with the relevant professional associations and bodies.

4.

This Directive shall apply in addition to Community Directives concerning access to, and the exercise of, activities of the regulated professions. Section 3: Contracts concluded by electronic means Article 9 Treatment of contracts

1.

Member States shall ensure that their legal system allows contracts to be concluded by electronic means. Member States shall in particular ensure that the legal requirements applicable to the contractual process neither create obstacles for the use of electronic contracts nor result in such contracts being deprived of legal effectiveness and validity on account of their having been made by electronic means.

2.

Member States may lay down that paragraph 1 shall not apply to all or certain contracts falling into one of the following categories: (a)

contracts that create or transfer rights in real estate, except for rental rights;

(b) contracts requiring by law the involvement of courts, public authorities or professions exercising public authority; (c) contracts of suretyship granted and on collateral securities furnished by persons acting for purposes outside their trade, business or profession; (d) contracts governed by family law or by the law of succession. 3.

Member States shall indicate to the Commission the categories referred to in paragraph 2 to which they do not apply paragraph 1. Member States shall submit to the Commission every five years a report on the application of paragraph  2 explaining the reasons why they consider it necessary to maintain the category referred to in paragraph 2(b) to which they do not apply paragraph 1. Article 10 Information to be provided

1.

In addition to other information requirements established by Community law, Member States shall ensure, except when otherwise agreed by parties who are not consumers, that at least the following information is given by the service provider clearly, comprehensibly and unambiguously and prior to the order being placed by the recipient of the service: (a)

the different technical steps to follow to conclude the contract;

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(b) whether or not the concluded contract will be filed by the service provider and whether it will be accessible; (c) the technical means for identifying and correcting input errors prior to the placing of the order; (d) the languages offered for the conclusion of the contract. 2.

Member States shall ensure that, except when otherwise agreed by parties who are not consumers, the service provider indicates any relevant codes of conduct to which he subscribes and information on how those codes can be consulted electronically.

3.

Contract terms and general conditions provided to the recipient must be made available in a way that allows him to store and reproduce them.

4.

Paragraphs 1 and 2 shall not apply to contracts concluded exclusively by exchange of electronic mail or by equivalent individual communications. Article 11 Placing of the order

1.

Member States shall ensure, except when otherwise agreed by parties who are not consumers, that in cases where the recipient of the service places his order through technological means, the following principles apply: —

the service provider has to acknowledge the receipt of the recipient’s order without undue delay and by electronic means,

—

the order and the acknowledgement of receipt are deemed to be received when the parties to whom they are addressed are able to access them.

2.

Member States shall ensure that, except when otherwise agreed by parties who are not consumers, the service provider makes available to the recipient of the service appropriate, effective and accessible technical means allowing him to identify and correct input errors, prior to the placing of the order.

3.

Paragraph 1, first indent, and paragraph 2 shall not apply to contracts concluded exclusively by exchange of electronic mail or by equivalent individual communications. Section 4: Liability of intermediary service providers Article 12 “Mere conduit”

1.

Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, Member States shall ensure that the service provider is not liable for the information transmitted, on condition that the provider: (a)

does not initiate the transmission;

(b) does not select the receiver of the transmission; and (c) 2.

does not select or modify the information contained in the transmission.

The acts of transmission and of provision of access referred to in paragraph  1 include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the



Related Directives

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transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission. 3.

This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States’ legal systems, of requiring the service provider to terminate or prevent an infringement. Article 13 “Caching”

1.

Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more efficient the information’s onward transmission to other recipients of the service upon their request, on condition that: (a)

the provider does not modify the information;

(b) the provider complies with conditions on access to the information; (c)

the provider complies with rules regarding the updating of the information, specified in a manner widely recognised and used by industry;

(d) the provider does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information; and (e) the provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court or an administrative authority has ordered such removal or disablement. 2.

This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States’ legal systems, of requiring the service provider to terminate or prevent an infringement. Article 14 Hosting

1.

Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that: (a)

the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or

(b)

the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.

2.

Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider.

3.

This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States’ legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility

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for Member States of establishing procedures governing the removal or disabling of access to information. Article 15 No general obligation to monitor 1.

Member States shall not impose a general obligation on providers, when providing the services covered by Articles  12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.

2.

Member States may establish obligations for information society service providers promptly to inform the competent public authorities of alleged illegal activities undertaken or information provided by recipients of their service or obligations to communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreements. CHAPTER III IMPLEMENTATION Article 16 Codes of conduct

1.

Member States and the Commission shall encourage: (a)

the drawing up of codes of conduct at Community level, by trade, professional and consumer associations or organisations, designed to contribute to the proper implementation of Articles 5 to 15;

(b) the voluntary transmission of draft codes of conduct at national or Community level to the Commission; (c)

the accessibility of these codes of conduct in the Community languages by electronic means;

(d) the communication to the Member States and the Commission, by trade, professional and consumer associations or organisations, of their assessment of the application of their codes of conduct and their impact upon practices, habits or customs relating to electronic commerce; (e) 2.

the drawing up of codes of conduct regarding the protection of minors and human dignity.

Member States and the Commission shall encourage the involvement of associations or organisations representing consumers in the drafting and implementation of codes of conduct affecting their interests and drawn up in accordance with paragraph  1(a). Where appropriate, to take account of their specific needs, associations representing the visually impaired and disabled should be consulted. Article 17 Out-of-court dispute settlement

1.

Member States shall ensure that, in the event of disagreement between an information society service provider and the recipient of the service, their legislation does not hamper the use of out-of-court schemes, available under national law, for dispute settlement, including appropriate electronic means.

2.

Member States shall encourage bodies responsible for the out-of-court settlement of, in particular, consumer disputes to operate in a way which provides adequate procedural guarantees for the parties concerned.



3.

Related Directives

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Member States shall encourage bodies responsible for out-of-court dispute settlement to inform the Commission of the significant decisions they take regarding information society services and to transmit any other information on the practices, usages or customs relating to electronic commerce. Article 18 Court actions

1.

Member States shall ensure that court actions available under national law concerning information society services’ activities allow for the rapid adoption of measures, including interim measures, designed to terminate any alleged infringement and to prevent any further impairment of the interests involved.

2.

The Annex to Directive 98/27/EC shall be supplemented as follows: “11. Directive 2000/31/EC of the European Parliament and of the Council of 8  June 2000 on certain legal aspects on information society services, in particular electronic commerce, in the internal market (Directive on electronic commerce) (OJ L 178, 17.7.2000, p. 1).” Article 19 Cooperation

1.

Member States shall have adequate means of supervision and investigation necessary to implement this Directive effectively and shall ensure that service providers supply them with the requisite information.

2.

Member States shall cooperate with other Member States; they shall, to that end, appoint one or several contact points, whose details they shall communicate to the other Member States and to the Commission.

3.

Member States shall, as quickly as possible, and in conformity with national law, provide the assistance and information requested by other Member States or by the Commission, including by appropriate electronic means.

4.

Member States shall establish contact points which shall be accessible at least by electronic means and from which recipients and service providers may: (a) obtain general information on contractual rights and obligations as well as on the complaint and redress mechanisms available in the event of disputes, including practical aspects involved in the use of such mechanisms; (b) obtain the details of authorities, associations or organisations from which they may obtain further information or practical assistance.

5.

Member States shall encourage the communication to the Commission of any significant administrative or judicial decisions taken in their territory regarding disputes relating to information society services and practices, usages and customs relating to electronic commerce. The Commission shall communicate these decisions to the other Member States.

Article 20 Sanctions Member States shall determine the sanctions applicable to infringements of national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are enforced. The sanctions they provide for shall be effective, proportionate and dissuasive.

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CHAPTER IV FINAL PROVISIONS Article 21 Re-examination 1. Before 17 July 2003, and thereafter every two years, the Commission shall submit to the European Parliament, the Council and the Economic and Social Committee a report on the application of this Directive, accompanied, where necessary, by proposals for adapting it to legal, technical and economic developments in the field of information society services, in particular with respect to crime prevention, the protection of minors, consumer protection and to the proper functioning of the internal market. 2. In examining the need for an adaptation of this Directive, the report shall in particular analyse the need for proposals concerning the liability of providers of hyperlinks and location tool services, “notice and take down” procedures and the attribution of liability following the taking down of content. The report shall also analyse the need for additional conditions for the exemption from liability, provided for in Articles 12 and 13, in the light of technical developments, and the possibility of applying the internal market principles to unsolicited commercial communications by electronic mail. Article 22 Transposition 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before 17 January 2002. They shall forthwith inform the Commission thereof. 2. When Member States adopt the measures referred to in paragraph 1, these shall contain a reference to this Directive or shall be accompanied by such reference at the time of their official publication. The methods of making such reference shall be laid down by Member States. Article 23 Entry into force This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities. Article 24 Addressees This Directive is addressed to the Member States. Done at Luxemburg, 8 June 2000. For the European Parliament The President N FONTAINE

For the Council The President G D’OLIVEIRA MARTINS

ANNEX DEROGATIONS FROM ARTICLE 3 As provided for in Article 3(3), Article 3(1) and (2) do not apply to: —

copyright, neighbouring rights, rights referred to in Directive 87/54/EEC (31) and Directive 96/9/EC (32) as well as industrial property rights,

OJ L 24, 27.1.1987, p. 36. OJ L 77, 27.3.1996, p. 20.

31 32



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— the emission of electronic money by institutions in respect of which Member States have applied one of the derogations provided for in Article 8(1) of Directive 2000/46/EC (33), —

Article 44(2) of Directive 85/611/EEC (34),

—

Article 30 and Title IV of Directive 92/49/EEC (35), Title IV of Directive 92/96/ EEC (36), Articles 7 and 8 of Directive 88/357/EEC (37) and Article 4 of Directive 90/619/EEC (38),

—

the freedom of the parties to choose the law applicable to their contract,

—

contractual obligations concerning consumer contacts,

—

formal validity of contracts creating or transferring rights in real estate where such contracts are subject to mandatory formal requirements of the law of the Member State where the real estate is situated,

—

the permissibility of unsolicited commercial communications by electronic mail.

35 36 37 38 33 34

[OJ L 275, 27.10.2000, p. 39]. OJ L 375, 31.12.1985, p. 3. Directive as last amended by Directive 95/26/EC (OJ L 168, 18.7.1995, p. 7). OJ L 228, 11.8.1992, p. 1. Directive as last amended by Directive 95/26/EC. OJ L 360, 9.12.1992, p. 2. Directive as last amended by Directive 95/26/EC. OJ L 172, 4.7.1988, p. 1. Directive as last amended by Directive 92/49/EC. OJ L 330, 29.11.1990, p. 50. Directive as last amended by Directive 92/96/EC.

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DIRECTIVE 2002/58/EC 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 (Directive on privacy and electronic communications)[39] 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 (40), Having regard to the opinion of the Economic and Social Committee (41), Having consulted the Committee of the Regions, Acting in accordance with the procedure laid down in Article 251 of the Treaty (42), Whereas: (1) Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data43 requires Member States to ensure the rights and freedoms of natural persons with regard to the processing of personal data, and in particular their right to privacy, in order to ensure the free flow of personal data in the Community. (2) This Directive seeks to respect the fundamental rights and observes the principles recognised in particular by the Charter of fundamental rights of the European Union. In particular, this Directive seeks to ensure full respect for the rights set out in Articles 7 and 8 of that Charter. (3) Confidentiality of communications is guaranteed in accordance with the international instruments relating to human rights, in particular the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the constitutions of the Member States. (4)

Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector (44) translated the principles set out in Directive 95/46/EC into specific rules for the telecommunications sector. Directive 97/66/EC has to be adapted to developments in the markets and technologies for electronic communications services in order to provide an equal level of protection of personal data and privacy for users of publicly available electronic communications services, regardless of the technologies used. That Directive should therefore be repealed and replaced by this Directive.

OJ L 201, 31.7.2002, p. 37. Incorporating amendments as per the consolidated version of 19 December 2009 (amended by Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 and Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009, and corrected by Corrigendum, OJ L 241, 10.9.2013, p. 9 (2009/136)). 40 OJ C 365 E, 19.12.2000, p. 223. 41 OJ C 123, 25.4.2001, p. 53. 42 Opinion of the European Parliament of 13  November 2001 (not yet published in the Official Journal), Council Common Position of 28  January 2002 (OJ  C  113  E, 14.5.2002, p. 39) and Decision of the European Parliament of 30  May 2002 (not yet published in the Official Journal). Council Decision of 25 June 2002. 43 OJ L 281, 23.11.1995, p. 31. 44 OJ L 24, 30.1.1998, p. 1. 39



Related Directives

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(5) New advanced digital technologies are currently being introduced in public communications networks in the Community, which give rise to specific requirements concerning the protection of personal data and privacy of the user. The development of the information society is characterised by the introduction of new electronic communications services. Access to digital mobile networks has become available and affordable for a large public. These digital networks have large capacities and possibilities for processing personal data. The successful cross-border development of these services is partly dependent on the confidence of users that their privacy will not be at risk. (6) The Internet is overturning traditional market structures by providing a common, global infrastructure for the delivery of a wide range of electronic communications services. Publicly available electronic communications services over the Internet open new possibilities for users but also new risks for their personal data and privacy. (7) In the case of public communications networks, specific legal, regulatory and technical provisions should be made in order to protect fundamental rights and freedoms of natural persons and legitimate interests of legal persons, in particular with regard to the increasing capacity for automated storage and processing of data relating to subscribers and users. (8) Legal, regulatory and technical provisions adopted by the Member States concerning the protection of personal data, privacy and the legitimate interest of legal persons, in the electronic communication sector, should be harmonised in order to avoid obstacles to the internal market for electronic communication in accordance with Article 14 of the Treaty. Harmonisation should be limited to requirements necessary to guarantee that the promotion and development of new electronic communications services and networks between Member States are not hindered. (9) The Member States, providers and users concerned, together with the competent Community bodies, should cooperate in introducing and developing the relevant technologies where this is necessary to apply the guarantees provided for by this Directive and taking particular account of the objectives of minimising the processing of personal data and of using anonymous or pseudonymous data where possible. (10) In the electronic communications sector, Directive 95/46/EC applies in particular to all matters concerning protection of fundamental rights and freedoms, which are not specifically covered by the provisions of this Directive, including the obligations on the controller and the rights of individuals. Directive 95/46/EC applies to non-public communications services. (11) Like Directive 95/46/EC, this Directive does not address issues of protection of fundamental rights and freedoms related to activities which are not governed by Community law. Therefore it does not alter the existing balance between the individual’s right to privacy and the possibility for Member States to take the measures referred to in Article 15(1) of this Directive, necessary for the protection of public security, defence, State security (including the economic well-being of the State when the activities relate to State security matters) and the enforcement of criminal law. Consequently, this Directive does not affect the ability of Member States to carry out lawful interception of electronic communications, or take other measures, if necessary for any of these purposes and in accordance with the European Convention for the Protection of Human Rights and Fundamental

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Freedoms, as interpreted by the rulings of the European Court of Human Rights. Such measures must be appropriate, strictly proportionate to the intended purpose and necessary within a democratic society and should be subject to adequate safeguards in accordance with the European Convention for the Protection of Human Rights and Fundamental Freedoms. (12) Subscribers to a publicly available electronic communications service may be natural or legal persons. By supplementing Directive 95/46/EC, this Directive is aimed at protecting the fundamental rights of natural persons and particularly their right to privacy, as well as the legitimate interests of legal persons. This Directive does not entail an obligation for Member States to extend the application of Directive 95/46/EC to the protection of the legitimate interests of legal persons, which is ensured within the framework of the applicable Community and national legislation. (13) The contractual relation between a subscriber and a service provider may entail a periodic or a one-off payment for the service provided or to be provided. Prepaid cards are also considered as a contract. (14) Location data may refer to the latitude, longitude and altitude of the user’s terminal equipment, to the direction of travel, to the level of accuracy of the location information, to the identification of the network cell in which the terminal equipment is located at a certain point in time and to the time the location information was recorded. (15) A communication may include any naming, numbering or addressing information provided by the sender of a communication or the user of a connection to carry out the communication. Traffic data may include any translation of this information by the network over which the communication is transmitted for the purpose of carrying out the transmission. Traffic data may, inter alia, consist of data referring to the routing, duration, time or volume of a communication, to the protocol used, to the location of the terminal equipment of the sender or recipient, to the network on which the communication originates or terminates, to the beginning, end or duration of a connection. They may also consist of the format in which the communication is conveyed by the network. (16) Information that is part of a broadcasting service provided over a public communications network is intended for a potentially unlimited audience and does not constitute a communication in the sense of this Directive. However, in cases where the individual subscriber or user receiving such information can be identified, for example with video-on-demand services, the information conveyed is covered within the meaning of a communication for the purposes of this Directive. (17) For the purposes of this Directive, consent of a user or subscriber, regardless of whether the latter is a natural or a legal person, should have the same meaning as the data subject’s consent as defined and further specified in Directive 95/46/EC. Consent may be given by any appropriate method enabling a freely given specific and informed indication of the user’s wishes, including by ticking a box when visiting an Internet website. (18) Value added services may, for example, consist of advice on least expensive tariff packages, route guidance, traffic information, weather forecasts and tourist information. (19) The application of certain requirements relating to presentation and restriction of calling and connected line identification and to automatic call forwarding to



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subscriber lines connected to analogue exchanges should not be made mandatory in specific cases where such application would prove to be technically impossible or would require a disproportionate economic effort. It is important for interested parties to be informed of such cases and the Member States should therefore notify them to the Commission. (20) Service providers should take appropriate measures to safeguard the security of their services, if necessary in conjunction with the provider of the network, and inform subscribers of any special risks of a breach of the security of the network. Such risks may especially occur for electronic communications services over an open network such as the Internet or analogue mobile telephony. It is particularly important for subscribers and users of such services to be fully informed by their service provider of the existing security risks which lie outside the scope of possible remedies by the service provider. Service providers who offer publicly available electronic communications services over the Internet should inform users and subscribers of measures they can take to protect the security of their communications for instance by using specific types of software or encryption technologies. The requirement to inform subscribers of particular security risks does not discharge a service provider from the obligation to take, at its own costs, appropriate and immediate measures to remedy any new, unforeseen security risks and restore the normal security level of the service. The provision of information about security risks to the subscriber should be free of charge except for any nominal costs which the subscriber may incur while receiving or collecting the information, for instance by downloading an electronic mail message. Security is appraised in the light of Article 17 of Directive 95/46/EC. (21) Measures should be taken to prevent unauthorised access to communications in order to protect the confidentiality of communications, including both the contents and any data related to such communications, by means of public communications networks and publicly available electronic communications services. National legislation in some Member States only prohibits intentional unauthorised access to communications. (22) The prohibition of storage of communications and the related traffic data by persons other than the users or without their consent is not intended to prohibit any automatic, intermediate and transient storage of this information in so far as this takes place for the sole purpose of carrying out the transmission in the electronic communications network and provided that the information is not stored for any period longer than is necessary for the transmission and for traffic management purposes, and that during the period of storage the confidentiality remains guaranteed. Where this is necessary for making more efficient the onward transmission of any publicly accessible information to other recipients of the service upon their request, this Directive should not prevent such information from being further stored, provided that this information would in any case be accessible to the public without restriction and that any data referring to the individual subscribers or users requesting such information are erased. (23) Confidentiality of communications should also be ensured in the course of lawful business practice. Where necessary and legally authorised, communications can be recorded for the purpose of providing evidence of a commercial transaction. Directive 95/46/EC applies to such processing. Parties to the communications should be informed prior to the recording about the recording, its purpose and the duration of its storage. The recorded communication should be erased as soon as possible and in any case at the latest by the end of the period during which the transaction can be lawfully challenged.

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(24) Terminal equipment of users of electronic communications networks and any information stored on such equipment are part of the private sphere of the users requiring protection under the European Convention for the Protection of Human Rights and Fundamental Freedoms. So-called spyware, web bugs, hidden identifiers and other similar devices can enter the user’s terminal without their knowledge in order to gain access to information, to store hidden information or to trace the activities of the user and may seriously intrude upon the privacy of these users. The use of such devices should be allowed only for legitimate purposes, with the knowledge of the users concerned. (25) However, such devices, for instance so-called ‘cookies’, can be a legitimate and useful tool, for example, in analysing the effectiveness of website design and advertising, and in verifying the identity of users engaged in on-line transactions. Where such devices, for instance cookies, are intended for a legitimate purpose, such as to facilitate the provision of information society services, their use should be allowed on condition that users are provided with clear and precise information in accordance with Directive 95/46/EC about the purposes of cookies or similar devices so as to ensure that users are made aware of information being placed on the terminal equipment they are using. Users should have the opportunity to refuse to have a cookie or similar device stored on their terminal equipment. This is particularly important where users other than the original user have access to the terminal equipment and thereby to any data containing privacy-sensitive information stored on such equipment. Information and the right to refuse may be offered once for the use of various devices to be installed on the user’s terminal equipment during the same connection and also covering any further use that may be made of those devices during subsequent connections. The methods for giving information, offering a right to refuse or requesting consent should be made as user-friendly as possible. Access to specific website content may still be made conditional on the well-informed acceptance of a cookie or similar device, if it is used for a legitimate purpose. (26) The data relating to subscribers processed within electronic communications networks to establish connections and to transmit information contain information on the private life of natural persons and concern the right to respect for their correspondence or concern the legitimate interests of legal persons. Such data may only be stored to the extent that is necessary for the provision of the service for the purpose of billing and for interconnection payments, and for a limited time. Any further processing of such data which the provider of the publicly available electronic communications services may want to perform, for the marketing of electronic communications services or for the provision of value added services, may only be allowed if the subscriber has agreed to this on the basis of accurate and full information given by the provider of the publicly available electronic communications services about the types of further processing it intends to perform and about the subscriber’s right not to give or to withdraw his/her consent to such processing. Traffic data used for marketing communications services or for the provision of value added services should also be erased or made anonymous after the provision of the service. Service providers should always keep subscribers informed of the types of data they are processing and the purposes and duration for which this is done. (27) The exact moment of the completion of the transmission of a communication, after which traffic data should be erased except for billing purposes, may depend on the type of electronic communications service that is provided. For instance for a voice telephony call the transmission will be completed as soon as either of the



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users terminates the connection. For electronic mail the transmission is completed as soon as the addressee collects the message, typically from the server of his service provider. (28) The obligation to erase traffic data or to make such data anonymous when it is no longer needed for the purpose of the transmission of a communication does not conflict with such procedures on the Internet as the caching in the domain name system of IP addresses or the caching of IP addresses to physical address bindings or the use of log-in information to control the right of access to networks or services. (29) The service provider may process traffic data relating to subscribers and users where necessary in individual cases in order to detect technical failure or errors in the transmission of communications. Traffic data necessary for billing purposes may also be processed by the provider in order to detect and stop fraud consisting of unpaid use of the electronic communications service. (30) Systems for the provision of electronic communications networks and services should be designed to limit the amount of personal data necessary to a strict minimum. Any activities related to the provision of the electronic communications service that go beyond the transmission of a communication and the billing thereof should be based on aggregated, traffic data that cannot be related to subscribers or users. Where such activities cannot be based on aggregated data, they should be considered as value added services for which the consent of the subscriber is required. (31) Whether the consent to be obtained for the processing of personal data with a view to providing a particular value added service should be that of the user or of the subscriber, will depend on the data to be processed and on the type of service to be provided and on whether it is technically, procedurally and contractually possible to distinguish the individual using an electronic communications service from the legal or natural person having subscribed to it. (32) Where the provider of an electronic communications service or of a value added service subcontracts the processing of personal data necessary for the provision of these services to another entity, such subcontracting and subsequent data processing should be in full compliance with the requirements regarding controllers and processors of personal data as set out in Directive 95/46/EC. Where the provision of a value added service requires that traffic or location data are forwarded from an electronic communications service provider to a provider of value added services, the subscribers or users to whom the data are related should also be fully informed of this forwarding before giving their consent for the processing of the data. (33) The introduction of itemised bills has improved the possibilities for the subscriber to check the accuracy of the fees charged by the service provider but, at the same time, it may jeopardise the privacy of the users of publicly available electronic communications services. Therefore, in order to preserve the privacy of the user, Member States should encourage the development of electronic communication service options such as alternative payment facilities which allow anonymous or strictly private access to publicly available electronic communications services, for example calling cards and facilities for payment by credit card. To the same end, Member States may ask the operators to offer their subscribers a different type of detailed bill in which a certain number of digits of the called number have been deleted. (34) It is necessary, as regards calling line identification, to protect the right of the calling party to withhold the presentation of the identification of the line from

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which the call is being made and the right of the called party to reject calls from unidentified lines. There is justification for overriding the elimination of calling line identification presentation in specific cases. Certain subscribers, in particular help lines and similar organisations, have an interest in guaranteeing the anonymity of their callers. It is necessary, as regards connected line identification, to protect the right and the legitimate interest of the called party to withhold the presentation of the identification of the line to which the calling party is actually connected, in particular in the case of forwarded calls. The providers of publicly available electronic communications services should inform their subscribers of the existence of calling and connected line identification in the network and of all services which are offered on the basis of calling and connected line identification as well as the privacy options which are available. This will allow the subscribers to make an informed choice about the privacy facilities they may want to use. The privacy options which are offered on a per-line basis do not necessarily have to be available as an automatic network service but may be obtainable through a simple request to the provider of the publicly available electronic communications service. (35) In digital mobile networks, location data giving the geographic position of the terminal equipment of the mobile user are processed to enable the transmission of communications. Such data are traffic data covered by Article 6 of this Directive. However, in addition, digital mobile networks may have the capacity to process location data which are more precise than is necessary for the transmission of communications and which are used for the provision of value added services such as services providing individualised traffic information and guidance to drivers. The processing of such data for value added services should only be allowed where subscribers have given their consent. Even in cases where subscribers have given their consent, they should have a simple means to temporarily deny the processing of location data, free of charge. (36) Member States may restrict the users’ and subscribers’ rights to privacy with regard to calling line identification where this is necessary to trace nuisance calls and with regard to calling line identification and location data where this is necessary to allow emergency services to carry out their tasks as effectively as possible. For these purposes, Member States may adopt specific provisions to entitle providers of electronic communications services to provide access to calling line identification and location data without the prior consent of the users or subscribers concerned. (37) Safeguards should be provided for subscribers against the nuisance which may be caused by automatic call forwarding by others. Moreover, in such cases, it must be possible for subscribers to stop the forwarded calls being passed on to their terminals by simple request to the provider of the publicly available electronic communications service. (38) Directories of subscribers to electronic communications services are widely distributed and public. The right to privacy of natural persons and the legitimate interest of legal persons require that subscribers are able to determine whether their personal data are published in a directory and if so, which. Providers of public directories should inform the subscribers to be included in such directories of the purposes of the directory and of any particular usage which may be made of electronic versions of public directories especially through search functions embedded in the software, such as reverse search functions enabling users of the directory to discover the name and address of the subscriber on the basis of a telephone number only.



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(39) The obligation to inform subscribers of the purpose(s) of public directories in which their personal data are to be included should be imposed on the party collecting the data for such inclusion. Where the data may be transmitted to one or more third parties, the subscriber should be informed of this possibility and of the recipient or the categories of possible recipients. Any transmission should be subject to the condition that the data may not be used for other purposes than those for which they were collected. If the party collecting the data from the subscriber or any third party to whom the data have been transmitted wishes to use the data for an additional purpose, the renewed consent of the subscriber is to be obtained either by the initial party collecting the data or by the third party to whom the data have been transmitted. (40) Safeguards should be provided for subscribers against intrusion of their privacy by unsolicited communications for direct marketing purposes in particular by means of automated calling machines, telefaxes, and e-mails, including SMS messages. These forms of unsolicited commercial communications may on the one hand be relatively easy and cheap to send and on the other may impose a burden and/or cost on the recipient. Moreover, in some cases their volume may also cause difficulties for electronic communications networks and terminal equipment. For such forms of unsolicited communications for direct marketing, it is justified to require that prior explicit consent of the recipients is obtained before such communications are addressed to them. The single market requires a harmonised approach to ensure simple, Community-wide rules for businesses and users. (41) Within the context of an existing customer relationship, it is reasonable to allow the use of electronic contact details for the offering of similar products or services, but only by the same company that has obtained the electronic contact details in accordance with Directive 95/46/EC. When electronic contact details are obtained, the customer should be informed about their further use for direct marketing in a clear and distinct manner, and be given the opportunity to refuse such usage. This opportunity should continue to be offered with each subsequent direct marketing message, free of charge, except for any costs for the transmission of this refusal. (42) Other forms of direct marketing that are more costly for the sender and impose no financial costs on subscribers and users, such as person-to-person voice telephony calls, may justify the maintenance of a system giving subscribers or users the possibility to indicate that they do not want to receive such calls. Nevertheless, in order not to decrease existing levels of privacy protection, Member States should be entitled to uphold national systems, only allowing such calls to subscribers and users who have given their prior consent. (43) To facilitate effective enforcement of Community rules on unsolicited messages for direct marketing, it is necessary to prohibit the use of false identities or false return addresses or numbers while sending unsolicited messages for direct marketing purposes. (44) Certain electronic mail systems allow subscribers to view the sender and subject line of an electronic mail, and also to delete the message, without having to download the rest of the electronic mail’s content or any attachments, thereby reducing costs which could arise from downloading unsolicited electronic mails or attachments. These arrangements may continue to be useful in certain cases as an additional tool to the general obligations established in this Directive. (45) This Directive is without prejudice to the arrangements which Member States make to protect the legitimate interests of legal persons with regard to unsolicited

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communications for direct marketing purposes. Where Member States establish an opt-out register for such communications to legal persons, mostly business users, the provisions of Article 7 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (Directive on electronic commerce) (45) are fully applicable. (46) The functionalities for the provision of electronic communications services may be integrated in the network or in any part of the terminal equipment of the user, including the software. The protection of the personal data and the privacy of the user of publicly available electronic communications services should be independent of the configuration of the various components necessary to provide the service and of the distribution of the necessary functionalities between these components. Directive 95/46/EC covers any form of processing of personal data regardless of the technology used. The existence of specific rules for electronic communications services alongside general rules for other components necessary for the provision of such services may not facilitate the protection of personal data and privacy in a technologically neutral way. It may therefore be necessary to adopt measures requiring manufacturers of certain types of equipment used for electronic communications services to construct their product in such a way as to incorporate safeguards to ensure that the personal data and privacy of the user and subscriber are protected. The adoption of such measures in accordance with Directive 1999/5/EC of the European Parliament and of the Council of 9 March 1999 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity (46) will ensure that the introduction of technical features of electronic communication equipment including software for data protection purposes is harmonised in order to be compatible with the implementation of the internal market. (47) Where the rights of the users and subscribers are not respected, national legislation should provide for judicial remedies. Penalties should be imposed on any person, whether governed by private or public law, who fails to comply with the national measures taken under this Directive. (48) It is useful, in the field of application of this Directive, to draw on the experience of the Working Party on the Protection of Individuals with regard to the Processing of Personal Data composed of representatives of the supervisory authorities of the Member States, set up by Article 29 of Directive 95/46/EC. (49) To facilitate compliance with the provisions of this Directive, certain specific arrangements are needed for processing of data already under way on the date that national implementing legislation pursuant to this Directive enters into force, HAVE ADOPTED THIS DIRECTIVE: Article 1 Scope and aim 1.

This Directive provides for the harmonisation of the national provisions required to ensure an equivalent level of protection of fundamental rights and freedoms, and in particular the right to privacy and confidentiality, with respect to the processing of personal data in the electronic communication sector and to ensure the free

OJ L 178, 17.7.2000, p. 1. OJ L 91, 7.4.1999, p. 10.

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movement of such data and of electronic communication equipment and services in the Community. 2.

The provisions of this Directive particularise and complement Directive 95/46/EC for the purposes mentioned in paragraph 1. Moreover, they provide for protection of the legitimate interests of subscribers who are legal persons.

3.

This Directive shall not apply to activities which fall outside the scope of the Treaty establishing the European Community, such as those covered by Titles V and VI of the Treaty on European Union, and in any case to activities concerning public security, defence, State security (including the economic well-being of the State when the activities relate to State security matters) and the activities of the State in areas of criminal law.

Article 2 Definitions Save as otherwise provided, the definitions in Directive 95/46/EC and in 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) (47) shall apply. The following definitions shall also apply: (a) ‘user’ means any natural person using a publicly available electronic communications service, for private or business purposes, without necessarily having subscribed to this service; (b) ‘traffic data’ means any data processed for the purpose of the conveyance of a communication on an electronic communications network or for the billing thereof; (c) ‘location data’ means any data processed in an electronic communications network or by an electronic communications service, indicating the geographic position of the terminal equipment of a user of a publicly available electronic communications service; (d) ‘communication’ means any information exchanged or conveyed between a finite number of parties by means of a publicly available electronic communications service. This does not include any information conveyed as part of a broadcasting service to the public over an electronic communications network except to the extent that the information can be related to the identifiable subscriber or user receiving the information; (e) ————— (f) ‘consent’ by a user or subscriber corresponds to the data subject’s consent in Directive 95/46/EC; (g) ‘value added service’ means any service which requires the processing of traffic data or location data other than traffic data beyond what is necessary for the transmission of a communication or the billing thereof; (h)

‘electronic mail’ means any text, voice, sound or image message sent over a public communications network which can be stored in the network or in the recipient’s terminal equipment until it is collected by the recipient;

OJ L 108, 24.4.2002, p. 33.

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(i)

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‘personal data breach’ means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed in connection with the provision of a publicly available electronic communications service in the Community.

Article 3 Services concerned This Directive shall apply to the processing of personal data in connection with the provision of publicly available electronic communications services in public communications networks in the Community, including public communications networks supporting data collection and identification devices. Article 4 Security of processing 1.

The provider of a publicly available electronic communications 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.

1a. Without prejudice to Directive 95/46/EC, the measures referred to in paragraph 1 shall at least: —

ensure that personal data can be accessed only by authorised personnel for legally authorised purposes,

—

protect personal data stored or transmitted against accidental or unlawful destruction, accidental loss or alteration, and unauthorised or unlawful storage, processing, access or disclosure, and,

—

ensure the implementation of a security policy with respect to the processing of personal data,

Relevant national authorities shall be able to audit the measures taken by providers of publicly available electronic communication services and to issue recommendations about best practices concerning the level of security which those measures should achieve. 2.

In case of a particular risk of a breach of the security of the network, the provider of a publicly available electronic communications service must inform the subscribers concerning such risk and, where the risk lies outside the scope of the measures to be taken by the service provider, of any possible remedies, including an indication of the likely costs involved.

3.

In the case of a personal data breach, the provider of publicly available electronic communications services shall, without undue delay, notify the personal data breach to the competent national authority. When the personal data breach is likely to adversely affect the personal data or privacy of a subscriber or individual, the provider shall also notify the subscriber or individual of the breach without undue delay. Notification of a personal data breach to a subscriber or individual concerned shall not be required if the provider has demonstrated to the satisfaction of the competent authority that it has implemented appropriate technological protection measures, and that those measures were applied to the data concerned by the security breach.



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Such technological protection measures shall render the data unintelligible to any person who is not authorised to access it. Without prejudice to the provider’s obligation to notify subscribers and individuals concerned, if the provider has not already notified the subscriber or individual of the personal data breach, the competent national authority, having considered the likely adverse effects of the breach, may require it to do so. The notification to the subscriber or individual shall at least describe the nature of the personal data breach and the contact points where more information can be obtained, and shall recommend measures to mitigate the possible adverse effects of the personal data breach. The notification to the competent national authority shall, in addition, describe the consequences of, and the measures proposed or taken by the provider to address, the personal data breach. 4.

Subject to any technical implementing measures adopted under paragraph  5, the competent national authorities may adopt guidelines and, where necessary, issue instructions concerning the circumstances in which providers are required to notify personal data breaches, the format of such notification and the manner in which the notification is to be made. They shall also be able to audit whether providers have complied with their notification obligations under this paragraph, and shall 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 the breach, its effects and the remedial action taken which shall be sufficient to enable the competent national authorities to verify compliance with the provisions of paragraph 3. The inventory shall only include the information necessary for this purpose.

5.

In order to ensure consistency in implementation of the measures referred to in paragraphs 2, 3 and 4, the Commission may, following consultation with the European Network and Information Security Agency (ENISA), the Working Party on the Protection of Individuals with regard to the Processing of Personal Data established by Article 29 of Directive 95/46/EC and the European Data Protection Supervisor, adopt technical implementing measures concerning the circumstances, format and procedures applicable to the information and notification requirements referred to in this Article. When adopting such measures, the Commission shall involve all relevant stakeholders particularly in order to be informed of the best available technical and economic means of implementation of this Article. 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). Article 5 Confidentiality of the communications

1.

Member States shall ensure the confidentiality of communications and the related traffic data by means of a public communications network and publicly available electronic communications services, through national legislation. In particular, they shall prohibit listening, tapping, storage or other kinds of interception or surveillance of communications and the related traffic data by persons other than users, without the consent of the users concerned, except when legally authorised to do so in accordance with Article  15(1). This paragraph shall not prevent technical storage which is necessary for the conveyance of a communication without prejudice to the principle of confidentiality.

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2.

Paragraph 1 shall not affect any legally authorised recording of communications and the related traffic data when carried out in the course of lawful business practice for the purpose of providing evidence of a commercial transaction or of any other business communication.

3.

Member States shall ensure that the storing of information, or the gaining of access to information already stored, in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned has given his or her consent, having been provided with clear and comprehensive information, in accordance with Directive 95/46/EC, inter alia, about the purposes of the processing. This shall not prevent any technical storage or access for the sole purpose of carrying out the transmission of a communication over an electronic communications network, or as strictly necessary in order for the provider of an information society service explicitly requested by the subscriber or user to provide the service. Article 6 Traffic data

1.

Traffic data relating to subscribers and users processed and stored by the provider of a public communications network or publicly available electronic communications service must be erased or made anonymous when it is no longer needed for the purpose of the transmission of a communication without prejudice to paragraphs 2, 3 and 5 of this Article and Article 15(1).

2.

Traffic data necessary for the purposes of subscriber billing and interconnection payments may be processed. Such processing is permissible only up to the end of the period during which the bill may lawfully be challenged or payment pursued.

3.

For the purpose of marketing electronic 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.

4.

The service provider must inform the 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, prior to obtaining consent, for the purposes mentioned in paragraph 3.

5.

Processing of traffic data, in accordance with paragraphs 1, 2, 3 and 4, must be restricted to persons acting under the authority of providers of the public communications networks and publicly available electronic communications services handling billing or traffic management, customer enquiries, fraud detection, marketing electronic communications services or providing a value added service, and must be restricted to what is necessary for the purposes of such activities.

6.

Paragraphs 1, 2, 3 and 5 shall apply without prejudice to the possibility for competent bodies to be informed of traffic data in conformity with applicable legislation with a view to settling disputes, in particular interconnection or billing disputes. Article 7 Itemised billing

1.

Subscribers shall have the right to receive non-itemised bills.



2.

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Member States shall apply national provisions in order to reconcile the rights of subscribers receiving itemised bills with the right to privacy of calling users and called subscribers, for example by ensuring that sufficient alternative privacy enhancing methods of communications or payments are available to such users and subscribers. Article 8 Presentation and restriction of calling and connected line identification

1.

Where presentation of calling line identification is offered, the service provider must offer the calling user the possibility, using a simple means and free of charge, of preventing the presentation of the calling line identification on a per-call basis. The calling subscriber must have this possibility on a per-line basis.

2.

Where presentation of calling line identification is offered, the service provider must offer the called subscriber the possibility, using a simple means and free of charge for reasonable use of this function, of preventing the presentation of the calling line identification of incoming calls.

3.

Where presentation of calling line identification is offered and where the calling line identification is presented prior to the call being established, the service provider must offer the called subscriber the possibility, using a simple means, of rejecting incoming calls where the presentation of the calling line identification has been prevented by the calling user or subscriber.

4.

Where presentation of connected line identification is offered, the service provider must offer the called subscriber the possibility, using a simple means and free of charge, of preventing the presentation of the connected line identification to the calling user.

5.

Paragraph 1 shall also apply with regard to calls to third countries originating in the Community. Paragraphs 2, 3 and 4 shall also apply to incoming calls originating in third countries.

6.

Member States shall ensure that where presentation of calling and/or connected line identification is offered, the providers of publicly available electronic communications services inform the public thereof and of the possibilities set out in paragraphs 1, 2, 3 and 4. Article 9 Location data other than traffic data

1.

Where location data other than traffic data, relating to users or subscribers of public communications networks or publicly available electronic communications services, can be processed, such data may only be processed when they are made anonymous, or with the consent of the users or subscribers to the extent and for the duration necessary for the provision of a value added service. The service provider must inform the users or subscribers, prior to obtaining their consent, of the type of location data other than traffic data which will be processed, of the purposes and duration of the processing and whether the data will be transmitted to a third party for the purpose of providing the value added service. Users or subscribers shall be given the possibility to withdraw their consent for the processing of location data other than traffic data at any time.

2.

Where consent of the users or subscribers has been obtained for the processing of location data other than traffic data, the user or subscriber must continue to have the possibility, using a simple means and free of charge, of temporarily

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refusing the processing of such data for each connection to the network or for each transmission of a communication. 3.

Processing of location data other than traffic data in accordance with paragraphs 1 and 2 must be restricted to persons acting under the authority of the provider of the public communications network or publicly available communications service or of the third party providing the value added service, and must be restricted to what is necessary for the purposes of providing the value added service.

Article 10 Exceptions Member States shall ensure that there are transparent procedures governing the way in which a provider of a public communications network and/or a publicly available electronic communications service may override: (a) the elimination of the presentation of calling line identification, on a temporary basis, upon application of a subscriber requesting the tracing of malicious or nuisance calls. In this case, in accordance with national law, the data containing the identification of the calling subscriber will be stored and be made available by the provider of a public communications network and/or publicly available electronic communications service; (b) the elimination of the presentation of calling line identification and the temporary denial or absence of consent of a subscriber or user for the processing of location data, on a per-line basis for organisations dealing with emergency calls and recognised as such by a Member State, including law enforcement agencies, ambulance services and fire brigades, for the purpose of responding to such calls. Article 11 Automatic call forwarding Member States shall ensure that any subscriber has the possibility, using a simple means and free of charge, of stopping automatic call forwarding by a third party to the subscriber’s terminal. Article 12 Directories of subscribers 1.

Member States shall ensure that subscribers are informed, free of charge and before they are included in the directory, about the purpose(s) of a printed or electronic directory of subscribers available to the public or obtainable through directory enquiry services, in which their personal data can be included and of any further usage possibilities based on search functions embedded in electronic versions of the directory.

2.

Member States shall ensure that subscribers are given the opportunity to determine whether their personal data are included in a public directory, and if so, which, to the extent that such data are relevant for the purpose of the directory as determined by the provider of the directory, and to verify, correct or withdraw such data. Not being included in a public subscriber directory, verifying, correcting or withdrawing personal data from it shall be free of charge.

3.

Member States may require that for any purpose of a public directory other than the search of contact details of persons on the basis of their name and, where necessary, a minimum of other identifiers, additional consent be asked of the subscribers.

4.

Paragraphs 1 and 2 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable



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national legislation, that the legitimate interests of subscribers other than natural persons with regard to their entry in public directories are sufficiently protected. Article 13 Unsolicited communications 1.

The use of automated calling and communication systems without human intervention (automatic calling machines), facsimile machines (fax) or electronic mail for the purposes of direct marketing may be allowed only in respect of subscribers or users who have given their prior consent.

2.

Notwithstanding paragraph  1, where a natural or legal person obtains from its customers their electronic contact details for electronic mail, in the context of the sale of a product or a service, in accordance with Directive 95/46/EC, the same natural or legal person may use these electronic contact details for direct marketing of its own similar products or services provided that customers clearly and distinctly are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details at the time of their collection and on the occasion of each message in case the customer has not initially refused such use.

3.

Member States shall take appropriate measures to ensure that unsolicited communications for the purposes of direct marketing, in cases other than those referred to in paragraphs 1 and 2, are not allowed either without the consent of the subscribers or users concerned or in respect of subscribers or users who do not wish to receive these communications, the choice between these options to be determined by national legislation, taking into account that both options must be free of charge for the subscriber or user.

4.

In any event, the practice of sending electronic mail for the purposes of direct marketing which disguise or conceal the identity of the sender on whose behalf the communication is made, which contravene Article 6 of Directive 2000/31/EC, which do not have a valid address to which the recipient may send a request that such communications cease or which encourage recipients to visit websites that contravene that Article shall be prohibited.

5.

Paragraphs 1 and 3 shall apply to subscribers who are natural persons. Member States shall also ensure, in the framework of Community law and applicable national legislation, that the legitimate interests of subscribers other than natural persons with regard to unsolicited communications are sufficiently protected.

6.

Without prejudice to any administrative remedy for which provision may be made, inter alia, under Article 15a(2), Member States shall ensure that any natural or legal person adversely affected by infringements of national provisions adopted pursuant to this Article and therefore having a legitimate interest in the cessation or prohibition of such infringements, including an electronic communications service provider protecting its legitimate business interests, may bring legal proceedings in respect of such infringements. Member States may also lay down specific rules on penalties applicable to providers of electronic communications services which by their negligence contribute to infringements of national provisions adopted pursuant to this Article. Article 14 Technical features and standardisation

1.

In implementing the provisions of this Directive, Member States shall ensure, subject to paragraphs 2 and 3, that no mandatory requirements for specific

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technical features are imposed on terminal or other electronic communication equipment which could impede the placing of equipment on the market and the free circulation of such equipment in and between Member States. 2.

Where provisions of this Directive can be implemented only by requiring specific technical features in electronic communications networks, Member States shall inform the Commission in accordance with the procedure provided for by Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on information society services(48).

3.

Where required, measures may be adopted to ensure that terminal equipment is constructed in a way that is compatible with the right of users to protect and control the use of their personal data, in accordance with Directive 1999/5/EC and Council Decision 87/95/EEC of 22 December 1986 on standardisation in the field of information technology and communications (49). Article 14a Committee procedure

1.

The Commission shall be assisted by the Communications Committee established by Article 22 of Directive 2002/21/EC (Framework Directive).

2.

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

3.

Where reference is made to this paragraph, Article  5a(1), (2), (4) and (6) and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof. Article 15 Application of certain provisions of Directive 95/46/EC

1.

Member States may adopt legislative measures to restrict the scope of the rights and obligations provided for in Article  5, Article  6, Article  8(1), (2), (3) and (4), and Article 9 of this Directive when such restriction constitutes a necessary, appropriate and proportionate measure within a democratic society to safeguard national security (i.e. State security), defence, public security, and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system, as referred to in Article 13(1) of Directive 95/46/EC. To this end, Member States may, inter alia, adopt legislative measures providing for the retention of data for a limited period justified on the grounds laid down in this paragraph. All the measures referred to in this paragraph shall be in accordance with the general principles of Community law, including those referred to in Article 6(1) and (2) of the Treaty on European Union.

1a. Paragraph 1 shall not apply to data specifically required by Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available

OJ L 204, 21.7.1998, p. 37. Directive as amended by Directive 98/48/EC (OJ L 217, 5.8.1998, p. 18). OJ L 36, 7.2.1987, p. 31. Decision as last amended by the 1994 Act of Accession.

48 49



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electronic communications services or of public communications networks (50) to be retained for the purposes referred to in Article 1(1) of that Directive. 1b. Providers shall establish internal procedures for responding to requests for access to users’ personal data based on national provisions adopted pursuant to paragraph  1. They shall provide the competent national authority, on demand, with information about those procedures, the number of requests received, the legal justification invoked and their response. 2.

The provisions of Chapter III on judicial remedies, liability and sanctions of Directive 95/46/EC shall apply with regard to national provisions adopted pursuant to this Directive and with regard to the individual rights derived from this Directive.

3.

The Working Party on the Protection of Individuals with regard to the Processing of Personal Data instituted by Article 29 of Directive 95/46/EC shall also carry out the tasks laid down in Article 30 of that Directive with regard to matters covered by this Directive, namely the protection of fundamental rights and freedoms and of legitimate interests in the electronic communications sector. Article 15a Implementation and enforcement

1.

Member States shall lay down the rules on penalties, including criminal sanctions where appropriate, applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive and may be applied to cover the period of any breach, even where the breach has subsequently been rectified. The Member States shall notify those provisions to the Commission by 25 May 2011, and shall notify it without delay of any subsequent amendment affecting them.

2.

Without prejudice to any judicial remedy which might be available, Member States shall ensure that the competent national authority and, where relevant, other national bodies have the power to order the cessation of the infringements referred to in paragraph 1.

3.

Member States shall ensure that the competent national authority and, where relevant, other national bodies have the necessary investigative powers and resources, including the power to obtain any relevant information they might need to monitor and enforce national provisions adopted pursuant to this Directive.

4.

The relevant national regulatory authorities may adopt measures to ensure effective cross-border cooperation in the enforcement of the national laws adopted pursuant to this Directive and to create harmonised conditions for the provision of services involving cross-border data flows. The national regulatory authorities shall provide the Commission, in good time before adopting any such measures, with a summary of the grounds for action, the envisaged measures and the proposed course of action. The Commission may, having examined such information and consulted ENISA and the Working Party on the Protection of Individuals with regard to the Processing of Personal Data established by Article  29 of Directive 95/46/EC, make comments or

OJ L 105, 13.4.2006, p. 54.

50

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recommendations thereupon, in particular to ensure that the envisaged measures do not adversely affect the functioning of the internal market. National regulatory authorities shall take the utmost account of the Commission’s comments or recommendations when deciding on the measures. Article 16 Transitional arrangements 1.

Article  12 shall not apply to editions of directories already produced or placed on the market in printed or off-line electronic form before the national provisions adopted pursuant to this Directive enter into force.

2.

Where the personal data of subscribers to fixed or mobile public voice telephony services have been included in a public subscriber directory in conformity with the provisions of Directive 95/46/EC and of Article 11 of Directive 97/66/EC before the national provisions adopted in pursuance of this Directive enter into force, the personal data of such subscribers may remain included in this public directory in its printed or electronic versions, including versions with reverse search functions, unless subscribers indicate otherwise, after having received complete information about purposes and options in accordance with Article 12 of this Directive. Article 17 Transposition

1.

Before 31  October 2003 Member States shall bring into force the provisions necessary to comply with this Directive. They shall forthwith inform the Commission thereof. When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by the Member States.

2.

Member States shall communicate to the Commission the text of the provisions of national law which they adopt in the field governed by this Directive and of any subsequent amendments to those provisions.

Article 18 Review The Commission shall submit to the European Parliament and the Council, not later than three years after the date referred to in Article 17(1), a report on the application of this Directive and its impact on economic operators and consumers, in particular as regards the provisions on unsolicited communications, taking into account the international environment. For this purpose, the Commission may request information from the Member States, which shall be supplied without undue delay. Where appropriate, the Commission shall submit proposals to amend this Directive, taking account of the results of that report, any changes in the sector and any other proposal it may deem necessary in order to improve the effectiveness of this Directive. Article 19 Repeal Directive 97/66/EC is hereby repealed with effect from the date referred to in Article 17(1). References made to the repealed Directive shall be construed as being made to this Directive.



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Article 20 Entry into force This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities. Article 21 Addressees This Directive is addressed to the Member States.

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COMMISSION DIRECTIVE 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services[51] (Text with EEA relevance) THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, and in particular Article 86(3) thereof, Whereas: (1)

Commission Directive 90/388/EEC of 28 June 1990 on competition in the markets for telecommunications services (52), as last amended by Directive 1999/64/EC (53), has been substantially amended several times. Since further amendments are to be made, it should be recast in the interest of clarity.

(2) Article 86 of the Treaty entrusts the Commission with the task of ensuring that, in the case of public undertakings and undertakings enjoying special or exclusive rights, Member States comply with their obligations under Community law. Pursuant to Article 86(3), the Commission can specify and clarify the obligations arising from that Article and, in that framework, set out the conditions which are necessary to allow the Commission to perform effectively the duty of surveillance imposed upon it by that paragraph. (3) Directive 90/388/EEC required Member States to abolish special and exclusive rights for the provision of telecommunications services, initially for other services than voice telephony, satellite services and mobile radio communications, and then it gradually established full competition in the telecommunications market. (4)

A number of other Directives in this field have also been adopted under Article 95 of the Treaty by the European Parliament and the Council aiming, principally, at the establishment of an internal market for telecommunications services through the implementation of open network provision and the provision of a universal service in an environment of open and competitive markets. Those Directives should be repealed with effect from 25 July 2003 when the new regulatory framework for electronic communications networks and services is applied.

(5)

The new electronic communications regulatory framework consists of one general Directive, 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) (54) and four specific Directives: Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (55), Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) (56), Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications

53 54 55 56 51 52

OJ L 249, 17.9.2002, p. 21. OJ L 192, 24.7.1990, p. 10. OJ L 175, 10.7.1999, p. 39. OJ L 108, 24.4.2002, p. 33. OJ L 108, 24.4.2002, p. 21. OJ L 108, 24.4.2002, p. 7.



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networks and services (Universal Service Directive) (57), and Directive 2002/58/ EC 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 (Directive on privacy and electronic communications) sector (58). (6)

In the light of the developments which have marked the liberalisation process and the gradual opening of the telecommunications markets in Europe since 1990, certain definitions used in Directive 90/388/EEC and its amending acts should be adjusted in order to reflect the latest technological developments in the telecommunications field, or replaced in order to take account of the convergence phenomenon which has shaped the information technology, media and telecommunications industries over recent years. The wording of certain provisions should, where possible, be clarified in order to facilitate their application, taking into account, where appropriate, the relevant Directives adopted under Article 95 of the Treaty, and the experience acquired through the implementation of Directive 90/388/EEC as amended.

(7) This Directive makes reference to “electronic communications services” and “electronic communications networks” rather than the previously used terms “telecommunications services” and “telecommunications networks”. These new definitions are indispensable in order to take account of the convergence phenomenon by bringing together under one single definition all electronic communications services and/or networks which are concerned with the conveyance of signals by wire, radio, optical or other electromagnetic means (i.e. fixed, wireless, cable television, satellite networks). Thus, the transmission and broadcasting of radio and television programmes should be recognised as an electronic communication service and networks used for such transmission and broadcasting should likewise be recognised as electronic communications networks. Furthermore, it should be made clear that the new definition of electronic communications networks also covers fibre networks which enable third parties, using their own switching or routing equipment, to convey signals. (8) In this context, it should be made clear that Member States must remove (if they have not already done so) exclusive and special rights for the provision of all electronic communications networks, not just those for the provision of electronic communications services and should ensure that undertakings are entitled to provide such services without prejudice to the provisions of Directives 2002/19/ EC, 2002/20/EC, 2002/21/EC and 2002/22/EC. The definition of electronic communications networks should also mean that Member States are not permitted to restrict the right of an operator to establish, extend and/or provide a cable network on the ground that such network could also be used for the transmission of radio and television programming. In particular, special or exclusive rights which amount to restricting the use of electronic communications networks for the transmission and distribution of television signals are contrary to Article 86(1), read in conjunction with Article 43 (right of establishment) and/or Article 82(b) of the EC Treaty insofar as they have the effect of permitting a dominant undertaking to limit “production, markets or technical development to the prejudice of consumers”. This is, however, without prejudice to the specific rules adopted by the Member States in accordance with Community law, and, in particular, in

OJ L 108, 24.4.2002, p. 51. OJ L 201, 31.7.2002, p. 37.

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accordance with Council Directive 89/552/EEC of 3  October 1989 (59), on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, as amended by Directive 97/36/EC of the European Parliament and of the Council (60), governing the distribution of audiovisual programmes intended for the general public. (9) Pursuant to the principle of proportionality, Member States should no longer make the provision of electronic communications services and the establishment and provision of electronic communications networks subject to a licensing regime but to a general authorisation regime. This is also required by Directive 2002/20/EC, according to which electronic communications services or networks should be provided on the basis of a general authorisation and not on the basis of a license. An aggrieved party should have the right to challenge a decision preventing him from providing electronic communications services or networks before an independent body and, ultimately, before a court or a tribunal. It is a fundamental principle of Community law that an individual is entitled to effective judicial protection whenever a State measure violates rights conferred upon him by the provisions of a Directive. (10) Public authorities may exercise a dominant influence on the behaviour of public undertakings, as a result either of the rules governing the undertaking or of the manner in which the shareholdings are distributed. Therefore, where Member States control vertically integrated network operators which operate networks which have been established under special or exclusive rights, those Member States should ensure that, in order to avoid potential breaches of the Treaty competition rules, such operators, when they enjoy a dominant position in the relevant market, do not discriminate in favour of their own activities. It follows that Member States should take all measures necessary to prevent any discrimination between such vertically integrated operators and their competitors. (11) This Directive should also clarify the principle derived from Commission Directive 96/2/EC of 16 January 1996 amending Directive 90/388/EC with regard to mobile and personal communications (61), by providing that Member States should not grant exclusive or special rights of use of radio frequencies and that the rights of use of those frequencies should be assigned according to objective, nondiscriminatory and transparent procedures. This should be without prejudice to specific criteria and procedures adopted by Member States to grant such rights to providers of radio or television broadcast content services with a view to pursuing general interest objectives in conformity with Community law. (12) Any national scheme pursuant to Directive 2002/22/EC, serving to share the net cost of the provision of universal service obligations shall be based on objective, transparent and non-discriminatory criteria and shall be consistent with the principles of proportionality and of least market distortion. Least market distortion means that contributions should be recovered in a way that as far as possible minimises the impact of the financial burden falling on end-users, for example by spreading contributions as widely as possible.

OJ L 298, 17.10.1989, p. 23. OJ L 202, 30.7.1997, p. 60. 61 OJ L 20, 26.1.1996, p. 59. 59 60



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(13) Where rights and obligations arising from international conventions setting up international satellite organisations are not compatible with the competition rules of the Treaty, Member States should take, in accordance with Article 307 of the EC Treaty, all appropriate steps to eliminate such incompatibilities. This Directive should clarify this obligation because Article 3 of Directive 94/46/EC (62), merely required Member States to “communicate to the Commission” the information they possessed on such incompatibilities. Article  11 of this Directive should clarify the obligation on Member States to remove any restrictions which could still be in force because of those international conventions. (14) This Directive should maintain the obligation imposed on Member States by Directive 1999/64/EC, so as to ensure that dominant providers of electronic communications networks and publicly available telephone services operate their public electronic communication network and cable television network as separate legal entities. (15) This Directive should be without prejudice to obligations of the Member States concerning the time limits set out in Annex I, Part B, within which the Member States are to comply with the preceding Directives. (16) Member States should supply to the Commission any information which is necessary to demonstrate that existing national implementing legislation reflects the clarifications provided for in this Directive as compared with Directives 90/388/EC, 94/46/EC, 95/51/EC (63), 96/2/EC, 96/19/EC (64) and 1999/64/EC. (17) In the light of the above, Directive 90/388/EC should be repealed, HAS ADOPTED THIS DIRECTIVE: Article 1 Definitions For the purposes of this Directive the following definitions shall apply: 1.

“electronic communications network” shall mean transmission systems and, where applicable, switching or routing equipment and other resources which permit the conveyance of signals by wire, by radio, by optical or by other electromagnetic means, including satellite networks, fixed (circuit – and packet – switched, including Internet) and mobile terrestrial networks, and electricity cable systems, to the extent that they are used for the purpose of transmitting signals, networks used for radio and television broadcasting, and cable television networks, irrespective of the type of information conveyed;

2.

“public communications network” shall mean an electronic communications network used wholly or mainly for the provision of public electronic communications services;

3.

“electronic communications services” shall mean a service normally provided for remuneration which consists wholly or mainly in the conveyance of signals on electronic communications networks, including telecommunications services and transmission services in networks used for broadcasting but exclude services providing or exercising editorial control over, content transmitted using electronic communications networks and services; it does not include information society

OJ L 268, 19.10.1994, p. 15. OJ L 256, 26.10.1995, p. 49. 64 OJ L 74, 22.3.1996, p. 13. 62 63

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services as defined in Article 1 of Directive 98/34/EC which do not consist wholly or mainly in the conveyance of signals on electronic communications networks; 4.

“publicly available electronic communications services” shall mean electronic communications services available to the public;

5.

“exclusive rights” shall mean the rights that are granted by a Member State to one undertaking through any legislative, regulatory or administrative instrument, reserving it the right to provide an electronic communications service or to undertake an electronic communications activity within a given geographical area;

6.

“special rights” shall mean the rights that are granted by a Member State to a limited number of undertakings through any legislative, regulatory or administrative instrument which, within a given geographical area: (a) designates or limits to two or more the number of such undertakings authorised to provide an electronic communications service or undertake an electronic communications activity, otherwise than according to objective, proportional and non-discriminatory criteria, or (b) confers on undertakings, otherwise than according to such criteria, legal or regulatory advantages which substantially affect the ability of any other undertaking to provide the same electronic communications service or to undertake the same electronic communications activity in the same geographical area under substantially equivalent conditions;

7.

“satellite earth station network” shall mean a configuration of two or more earth stations which interwork by means of a satellite;

8.

“cable television networks” shall mean any mainly wire-based infrastructure established primarily for the delivery or distribution of radio or television broadcast to the public. Article 2 Exclusive and special rights for electronic communications networks and electronic communications services

1.

Member States shall not grant or maintain in force exclusive or special rights for the establishment and/or the provision of electronic communications networks, or for the provision of publicly available electronic communications services.

2.

Member States shall take all measures necessary to ensure that any undertaking is entitled to provide electronic communications services or to establish, extend or provide electronic communications networks.

3.

Member States shall ensure that no restrictions are imposed or maintained on the provision of electronic communications services over electronic communications networks established by the providers of electronic communications services, over infrastructures provided by third parties, or by means of sharing networks, other facilities or sites without prejudice to the provisions of Directives 2002/19/EC, 2002/20/EC, 2002/21/EC and 2002/22/EC.

4.

Member States shall ensure that a general authorisation granted to an undertaking to provide electronic communications services or to establish and/or provide electronic communications networks, as well as the conditions attached thereto, shall be based on objective, non-discriminatory, proportionate and transparent criteria.



5.

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Reasons shall be given for any decision taken on the grounds set out in Article 3(1) of Directive 2002/20/EC preventing an undertaking from providing electronic communications services or networks.

Any aggrieved party should have the possibility to challenge such a decision before a body that is independent of the parties involved and ultimately before a court or a tribunal. Article 3 Vertically integrated public undertakings In addition to the requirements set out in Article 2(2), and without prejudice to Article 14 of Directive 2002/21/EC, Member States, shall ensure that vertically integrated public undertakings which provide electronic communications networks and which are in a dominant position do not discriminate in favour of their own activities. Article 4 Rights of use of frequencies Without prejudice to specific criteria and procedures adopted by Member States to grant rights of use of radio frequencies to providers of radio or television broadcast content services with a view to pursuing general interest objectives in conformity with Community law: 1.

Member States shall not grant exclusive or special rights of use of radio frequencies for the provision of electronic communications services.

2.

The assignment of radio frequencies for electronic communication services shall be based on objective, transparent, non-discriminatory and proportionate criteria.

Article 5 Directory services Member States shall ensure that all exclusive and/or special rights with regard to the establishment and provision of directory services on their territory, including both the publication of directories and directory enquiry services, are abolished. Article 6 Universal service obligations 1.

Any national scheme pursuant to Directive 2002/22/EC, serving to share the net cost of the provision of universal service obligations shall be based on objective, transparent and non-discriminatory criteria and shall be consistent with the principle of proportionality and of least market distortion. In particular, where universal service obligations are imposed in whole or in part on public undertakings providing electronic communications services, this shall be taken into consideration in calculating any contribution to the net cost of universal service obligations.

2.

Member States shall communicate any scheme of the kind referred to in paragraph 1 to the Commission. Article 7 Satellites

1.

Member States shall ensure that any regulatory prohibition or restriction on the offer of space segment capacity to any authorised satellite earth station network operator are abolished, and shall authorise within their territory any space-segment supplier to verify that the satellite earth station network for use in connection with the space segment of the supplier in question is in conformity with the published conditions for access to such person’s space segment capacity.

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Member States which are party to international conventions setting up international satellite organisations shall, where such conventions are not compatible with the competition rules of the EC Treaty, take all appropriate steps to eliminate such incompatibilities. Article 8 Cable television networks

1.

Each Member State shall ensure that no undertaking providing public electronic communications networks operates its cable television network using the same legal entity as it uses for its other public electronic communications network, when such undertaking: (a)

is controlled by that Member State or benefits from special rights; and

(b) is dominant in a substantial part of the common market in the provision of public electronic communications networks and publicly available telephone services; and (c)

operates a cable television network which has been established under special or exclusive right in the same geographic area.

2.

The term “publicly available telephone services” shall be considered synonymous with the term “public voice telephony services” referred to in Article 1 of Directive 1999/64/EC.

3.

Member States which consider that there is sufficient competition in the provision of local loop infrastructure and services in their territory shall inform the Commission accordingly. Such information shall include a detailed description of the market structure. The information provided shall be made available to any interested party on demand, regard being had to the legitimate interest of undertakings in the protection of their business secrets.

4.

The Commission shall decide within a reasonable period, after having heard the comments of these parties, whether the obligation of legal separation may be ended in the Member State concerned.

5.

The Commission shall review the application of this Article not later than 31 December 2004.

Article 9 Member States shall supply to the Commission not later than 24  July 2003 such information as will allow the Commission to confirm that the provisions of this Directive have been complied with. Article 10 Repeal Directive 90/388/EC, as amended by the Directives listed in Annex I, Part A, is repealed with effect from 25 July 2003, without prejudice to the obligations of the Member States in respect of the time limits for transposition laid down in Annex I, Part B. References to the repealed Directives shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex II. Article 11 This Directive shall enter into force on the 20th day following that of its publication in the Official Journal of the European Communities.



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Article 12 This Directive is addressed to the Member States. Done at Brussels, 16 September 2002. For the Commission Mario MONTI Member of the Commission ANNEX I PART A List of Directives to be repealed Directive 90/388/EEC (OJ L 192, 24.7.1990, p. 10) Articles 2 and 3 of Directive 94/46/EC (OJ L 268, 19.1.1994, p. 15) Directive 95/51/EC (OJ L 256, 26.10.1995, p. 49) Directive 96/2/EC (OJ L 20, 26.1.1996, p. 59) Directive 96/19/EC (OJ L 74, 22.3.1996, p. 13) Directive 1999/64/EC (OJ L 175, 10.7.1999, p. 39) PART B Transposition dates for the above Directives Directive 90/388/EEC: transposition date: Directive 94/46/EC: transposition date: Directive 95/51/EC: transposition date: Directive 96/2/EC: transposition date: Directive 96/19/EC: transposition date: Directive 1999/64/EC: transposition date:

31 December 1990 8 August 1995 1 October 1996 15 November 1996 11 January 1997 30 April 2000

ANNEX II Correlation table This Directive Article 1 (Definitions) Article 2 (withdrawal of exclusive/special rights) Article 3 (vertically integrated public undertakings) Article 4 (rights of use of radio frequencies) Article 5 (directory services) Article 6 (universal service obligations) Article 7 (satellites) Article 8 (cable networks)

Directive 90/388/EEC Article 1 Article 2 Article 3(a)(ii) Article 3(b) Article 4(b) Article 4(c) Article 3 of Directive 94/46/EC Article 9

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COMMISSION DIRECTIVE 2008/63/EC of 20 June 2008 on competition in the markets in telecommunications terminal equipment[65] (Text with EEA relevance) (Codified version) THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, and in particular Article 86(3) thereof, Whereas: (1)

Commission Directive 88/301/EEC of 16 May 1988 on competition in the markets in telecommunications terminal equipment (66) has been substantially amended (67). In the interests of clarity and rationality the said Directive should be codified.

(2) In all the Member States, telecommunications were, either wholly or partly, a State monopoly generally granted in the form of special or exclusive rights to one or more bodies responsible for providing and operating the network infrastructure and related services. Those rights, however, often used to go beyond the provision of network utilisation services and used to extend to the supply of user terminal equipment for connection to the network. The last decades have seen considerable technical developments in networks, and the pace of development has been especially striking in the area of terminal equipment. (3) Member States have, in response to technical and economic developments, reviewed their grant of special or exclusive rights in the telecommunications sector. The proliferation of types of terminal equipment and the possibility of the multiple use of terminals means that users must be allowed a free choice between the various types of equipment available if they are to benefit fully from the technological advances made in the sector. (4) The existence of exclusive rights has the effect of restricting the free movement of telecommunications terminal equipment either as regards the importation and marketing of terminal equipment (including satellite equipment), because certain products are not marketed, or as regards the connection, bringing into service or maintenance because, taking into account the characteristics of the market and in particular the diversity and technical nature of the products, a monopoly has no incentive to provide these services in relation to products which it has not marketed or imported, nor to align its prices on costs, since there is no threat of competition from new entrants on the market. Taking into account the fact that in most equipment markets there is typically a large range of telecommunication equipment, any special right which directly or indirectly limits the number of the undertakings authorised to import, market, connect, bring into service and maintain such equipment, is liable to have the same kind of effect as the grant of exclusive rights. Such exclusive or special rights constitute measures having equivalent effect to quantitative restrictions incompatible with Article 28 of the Treaty. Thus it is necessary to abolish all existing exclusive rights in the importation, marketing, connection, bringing into service and maintenance of terminal and telecommunications equipment, as well as those rights having comparable effects — that is to say, all special rights except those consisting in legal or regulatory advantages conferred on one or more undertakings and affecting only the ability of OJ L 162, 21.6.2008, p. 20. OJ L 131, 27.5.1988, p. 73. Directive as amended by Directive 94/46/EC (OJ L 268, 19.10.1994, p. 15). 67 See Annex II, Part A. 65 66



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other undertakings to engage in any of the abovementioned activities in the same geographical area under substantially equivalent conditions. (5) The special or exclusive rights relating to terminal equipment are exercised in such a way as, in practice, to disadvantage equipment from other Member States, notably by preventing users from freely choosing the equipment that best suits their needs in terms of price and quality, regardless of its origin. The exercise of these rights is therefore not compatible with Article  31 of the Treaty in all the Member States. (6) The provision of installation and maintenance services is a key factor in the purchasing or rental of terminal equipment. The retention of exclusive rights in this field would be tantamount to retention of exclusive marketing rights. Such rights must therefore also be abolished if the abolition of exclusive importing and marketing rights is to have any practical effect. (7) The maintenance of terminal equipment is a service within the meaning of Article 50 of the Treaty. The service in question, which cannot from a commercial point of view be dissociated from the marketing of the equipment terminals, must be provided freely in accordance with Article 49 of the Treaty and in particular when provided by qualified operators. (8)

The situation in the market continues to produce infringements of the competition rules laid down by the Treaty and to affect adversely the development of trade to such an extent as would be contrary to the interests of the Community. Stronger competition in the terminal equipment market requires the introduction of transparent technical specifications which meet the essential requirements mentioned in Directive 1999/5/EC of the European Parliament and of the Council of 9 March 1999 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity (68) and allow the free movement of terminal equipment. In turn, such transparency necessarily entails the publication of technical specifications.

(9) Special or exclusive rights to import and market terminal equipment give rise to a situation which is contrary to the objective of Article  3(g) of the Treaty, which provides for the institution of a system ensuring that competition in the internal market is not distorted, and requires a fortiori that competition must not be eliminated. Member States have an obligation under Article 10 of the Treaty to abstain from any measure which could jeopardise the attainment of the objectives of the Treaty, including Article 3(g). The exclusive rights must therefore be regarded as incompatible with Article 82 of the Treaty in conjunction with Article 3 thereof, and the grant or maintenance of such rights by a Member State is prohibited under Article 86(1) of the Treaty. (10) To enable users to have access to the terminal equipment of their choice, it is necessary to know and make transparent the characteristics of the interface points of the public network to which the terminal equipment is to be connected. Member States must therefore ensure that the characteristics are published and that users have access to interface points of the public network. (11) To be able to market their products, manufacturers of terminal equipment must know what technical specifications they must satisfy. Member States should

OJ L 91, 7.4.1999, p. 10. Directive as amended by Regulation (EC) No 1882/2003 (OJ L 284, 31.10.2003, p. 1).

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therefore formalise and publish the specifications, which they must notify to the Commission in draft form, in accordance with Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (69). The specifications may be extended to products imported from other Member States only in so far as they are necessary to ensure conformity with the essential requirements specified in Article 3 of Directive 1999/5/EC that can legitimately be required under Community law. Member States must, in any event, comply with Articles 28 and 30 of the Treaty, under which an importing Member State must allow terminal equipment legally manufactured and marketed in another Member State. (12) To ensure that type-approval specifications are applied transparently, objectively and without discrimination monitoring applications cannot be entrusted to a competitor in the terminal equipment market in view of the obvious conflict of interest. Member States should therefore ensure that the responsibility for monitoring is assigned to a body independent of the operator of the network and of any other competitor in the market in question. (13) This Directive should be without prejudice to the obligations of the Member States relating to the time limits for transposition into national law of the Directives set out in Annex II, Part B, HAS ADOPTED THIS DIRECTIVE: Article 1 For the purposes of this Directive, the following definitions shall apply: 1.

‘terminal equipment’ means: (a) equipment directly or indirectly connected to the interface of a public telecommunications network to send, process or receive information; in either case (direct or indirect), the connection may be made by wire, optical fibre or electromagnetically; a connection is indirect if equipment is placed between the terminal and the interface of the network; (b) satellite earth station equipment;

2.

‘satellite earth station equipment’ means equipment which is capable of being used for the transmission only (‘transmit-only’), or for the transmission and reception (‘transmit/receive’), or for the reception only (‘receive-only’) of radio communication signals by means of satellites or other space-based systems;

3.

‘undertaking’ means a public or private body, to which a Member State grants special or exclusive rights for the importation, marketing, connection, bringing into service of telecommunications terminal equipment and/or maintenance of such equipment;

4.

‘special rights’ means rights that are granted by a Member State to a limited number of undertakings, through any legislative, regulatory or administrative instrument, which, within a given geographical area: (a) limits to two or more the number of such undertakings, otherwise than according to objective, proportional and non-discriminatory criteria; or

OJ  L  204, 21.7.1998, p. 37. Directive as last amended by Council Directive 2006/96/EC (OJ  L  363, 20.12.2006, p. 81).

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(b) designates, otherwise than according to the criteria referred to in point (a), several competing undertakings; or (c)

confers on any undertaking or undertakings, otherwise than according to the criteria referred to in points (a) and (b), any legal or regulatory advantages which substantially affect the ability of any other undertaking to import, market, connect, bring into service and/or maintain telecommunication terminal equipment in the same geographical area under substantially equivalent conditions.

Article 2 Member States which have granted special or exclusive rights to undertakings shall ensure that all exclusive rights are withdrawn, as well as those special rights which: (a) limit to two or more the number of undertakings, otherwise than according to objective, proportional and non-discriminatory criteria; or (b) designate, otherwise than according to the criteria referred to in point (a), several competing undertakings. They shall inform the Commission of the measures taken or draft legislation introduced to that end. Article 3 Member States shall ensure that economic operators have the right to import, market, connect, bring into service and maintain terminal equipment. However, Member States may: (a) in the case of satellite earth station equipment, refuse to allow such equipment to be connected to the public telecommunications network or to be brought into service where it does not satisfy the relevant common technical regulations adopted in pursuance of Directive 1999/5/EC or, in the absence thereof, the essential requirements laid down in Article  3 of that Directive; in the absence of common technical rules of harmonised regulatory conditions, national rules shall be proportionate to those essential requirements and shall be notified to the Commission in accordance with Directive 98/34/EC where that Directive so requires; (b) in the case of other terminal equipment, refuse to allow such equipment to be connected to the public telecommunications network where it does not satisfy the relevant common technical regulations adopted in pursuance of Directive 1999/5/ EC or, in the absence thereof, the essential requirements laid down in Article 3 of that Directive; (c) require economic operators to possess the technical qualifications needed to connect, bring into service and maintain terminal equipment on the basis of objective, non-discriminatory and publicly available criteria. Article 4 Member States shall ensure that users have access to new public network interface points and that the physical characteristics of these points are published by users of the telecommunications public network. Article 5 Member States shall ensure that all specifications for terminal equipment are formalised and published. Member States shall notify those technical specifications in draft form to the Commission in accordance with Directive 98/34/EC.

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Article 6 Member States shall ensure that in monitoring the specifications referred to in Article 5, the application is entrusted to a body independent of public or private undertakings offering goods and/or services in the telecommunications sector. Article 7 Member States shall provide the Commission at the end of each year with a report allowing it to monitor compliance with the provisions of Articles 2, 3, 4, and 6. An outline of the report is set out in Annex I. Article 8 Directive 88/301/EEC, as amended by the Directive listed in Annex II, Part A, is repealed, without prejudice to the obligations of the Member States relating to the time limits for transposition into national law of the Directives set out in Annex II, Part B. References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex III. Article 9 This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union. Article 10 This Directive is addressed to the Member States. Done at Brussels, 20 June 2008. For the Commission The President José Manuel BARROSO ANNEX I Outline of the report referred to in Article 7 Implementation of Article 2 Terminal equipment for which legislation is being or has been modified. By category of terminal equipment: •

date of adoption of the measure, or

•

date of introduction of the bill, or

•

date of entry into force of the measure.

Implementation of Article 3 •

terminal equipment, the connection and/or commissioning of which has been restricted,

•

technical qualifications required, giving reference of their publication.

Implementation of Article 4 •

references of publications in which the physical characteristics are specified,

•

number of existing public network interface points,

•

number of public network interface points now accessible.

Implementation of Article 6 •

independent body or bodies appointed.



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ANNEX II PART A Repealed Directive with its successive amendment (referred to in Article 8) Commission Directive 88/301/EEC Commission Directive 94/46/EC

(OJ L 131, 27.5.1988, p. 73) (OJ L 268, 19.10.1994, p. 15)

PART B List of time limits for transposition into national law (referred to in Article 8) Directive 88/301/EEC 94/46/EC

Time limit for transposition — 8 August 1995 ANNEX III Correlation table

Directive 88/301/EEC Article 1, introductory words Article 1, first indent, first and second sentences Article 1, first indent, last sentence Article 1, second indent Article 1, third indent, introductory words Article 1, third indent, first sub-indent Article 1, third indent, second sub-indent Article 1, third indent, third sub-indent Article 1, fourth indent Article 2 Article 3, first sentence Article 3, second sentence Article 3, first indent Article 3, second indent Article 3, third indent Article 4, first paragraph Article 4, second paragraph Article 5(1) Article 5(2), first sentence

This Directive Article 1, introductory words Article 1, point (1)(a) Article 1, point (1)(b) Article 1, point (3) Article 1, point (4), introductory words Article 1, point (4)(a) Article 1, point (4)(b) Article 1, point (4)(c) Article 1, point (2) Article 2 Article 3, first paragraph Article 3, second paragraph, introductory sentence Article 3, second paragraph, point (a) Article 3, second paragraph, point (b) Article 3, second paragraph, point (c) Article 4 — — Article 5, first paragraph

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Article 5(2), second sentence Article 6 Article 8 Article 9 Article 10 — — Article 11 Annex I Annex II — —

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Article 5, second paragraph Article 6 — Article 7 — Article 8 Article 9 Article 10 — Annex I Annex II Annexe III



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DIRECTIVE 2010/13/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive)[70] (codified version) (Text with EEA relevance) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 53(1) and 62 thereof, Having regard to the proposal from the European Commission, Acting in accordance with the ordinary legislative procedure (71), Whereas: (1)

Directive 89/552/EEC of the European Parliament and of the Council of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (72) has been substantially amended several times (73). In the interests of clarity and rationality the said Directive should be codified.

(2) Audiovisual media services provided across frontiers by means of various technologies are one of the ways of pursuing the objectives of the Union. Certain measures are necessary to permit and ensure the transition from national markets to a common programme production and distribution market, and to guarantee conditions of fair competition without prejudice to the public interest role to be discharged by the audiovisual media services. (3) The Council of Europe has adopted the European Convention on Transfrontier Television. (4)

In the light of new technologies in the transmission of audiovisual media services, a regulatory framework concerning the pursuit of broadcasting activities should take account of the impact of structural change, the spread of information and communication technologies (ICT) and technological developments on business models, especially the financing of commercial broadcasting, and should ensure optimal conditions of competitiveness and legal certainty for Europe’s information technologies and its media industries and services, as well as respect for cultural and linguistic diversity.

(5) Audiovisual media services are as much cultural services as they are economic services. Their growing importance for societies, democracy — in particular by

OJ L 095 15.4.2010, p. 1. Incorporating amendments as per the consolidated version of 18 December 2018 (amended by Directive (EU) 2018/1808 of the European Parliament and of the Council of 14 November 2018 and corrected by Corrigendum, OJ L 263, 6.10.2010, p. 15 (2010/13/EU)). 71 Position of the European Parliament of 20 October 2009 (not yet published in the Official Journal) and Council Decision of 15 February 2010. 72 OJ L 298, 17.10.1989, p. 23. The original title of the act was ‘Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities’. 73 See Annex I, Part A. 70

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ensuring freedom of information, diversity of opinion and media pluralism — education and culture justifies the application of specific rules to these services. (6) Article 167(4) of the Treaty on the Functioning of the European Union requires the Union to take cultural aspects into account in its action under other provisions of that Treaty, in particular in order to respect and to promote the diversity of its cultures. (7)

In its resolutions of 1 December 2005 (74) and 4 April 2006 (75) on the Doha Round and on the WTO Ministerial Conferences, the European Parliament called for basic public services, such as audiovisual services, to be excluded from liberalisation under the General Agreement on Trade in Services (GATS) negotiations. In its resolution of 27 April 2006 (76), the European Parliament supported the Unesco Convention on the Protection and Promotion of the Diversity of Cultural Expressions, which states in particular that ‘cultural activities, goods and services have both an economic and a cultural nature, because they convey identities, values and meanings, and must therefore not be treated as solely having commercial value’. Council Decision 2006/515/EC of 18  May 2006 on the conclusion of the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (77) approved the Unesco Convention on behalf of the Community. The Convention entered into force on 18 March 2007. This Directive respects the principles of that Convention.

(8) It is essential for the Member States to ensure the prevention of any acts which may prove detrimental to freedom of movement and trade in television programmes or which may promote the creation of dominant positions which would lead to restrictions on pluralism and freedom of televised information and of the information sector as a whole. (9)

This Directive is without prejudice to existing or future Union acts of harmonisation, in particular to satisfy mandatory requirements concerning the protection of consumers and the fairness of commercial transactions and competition.

(10) Traditional audiovisual media services — such as television — and emerging ondemand audiovisual media services offer significant employment opportunities in the Union, particularly in small and medium-sized enterprises, and stimulate economic growth and investment. Bearing in mind the importance of a level playing-field and a true European market for audiovisual media services, the basic principles of the internal market, such as free competition and equal treatment, should be respected in order to ensure transparency and predictability in markets for audiovisual media services and to achieve low barriers to entry. (11) It is necessary, in order to avoid distortions of competition, improve legal certainty, help complete the internal market and facilitate the emergence of a single information area, that at least a basic tier of coordinated rules apply to all audiovisual media services, both television broadcasting (i.e. linear audiovisual media services) and on-demand audiovisual media services (i.e. non-linear audiovisual media services). (12) On 15 December 2003 the Commission adopted a Communication on the future of European regulatory audiovisual policy, in which it stressed that regulatory policy 76 77 74 75

OJ C 285 E, 22.11.2006, p. 126. OJ C 293 E, 2.12.2006, p. 155. OJ C 296 E, 6.12.2006, p. 104. OJ L 201, 25.7.2006, p. 15.



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in that sector has to safeguard certain public interests, such as cultural diversity, the right to information, media pluralism, the protection of minors and consumer protection, and to enhance public awareness and media literacy, now and in the future. (13) The resolution of the Council and of the Representatives of the Governments of the Member States, meeting within the Council of 25 January 1999 concerning public service broadcasting (78), reaffirmed that the fulfilment of the mission of public service broadcasting requires that it continue to benefit from technological progress. The co-existence of private and public audiovisual media service providers is a feature which distinguishes the European audiovisual media market. (14) The Commission has adopted the initiative ‘i2010: European Information Society’ to foster growth and jobs in the information society and media industries. This is a comprehensive strategy designed to encourage the production of European content, the development of the digital economy and the uptake of ICT, against the background of the convergence of information society services and media services, networks and devices, by modernising and deploying all EU policy instruments: regulatory instruments, research and partnerships with industry. The Commission has committed itself to creating a consistent internal market framework for information society services and media services by modernising the legal framework for audiovisual services. The goal of the i2010 initiative will in principle be achieved by allowing industries to grow with only the necessary regulation, as well as allowing small start-up businesses, which are the wealth and job creators of the future, to flourish, innovate and create employment in a free market. (15) The European Parliament adopted on 4 September 2003 (79), 22 April 2004 (80) and 6 September 2005 (81) resolutions which in principle supported the general approach of basic rules for all audiovisual media services and additional rules for television broadcasting. (16) This Directive enhances compliance with fundamental rights and is fully in line with the principles recognised by the Charter of Fundamental Rights of the European Union (82), in particular Article 11 thereof. In this regard, this Directive should not in any way prevent Member States from applying their constitutional rules relating to freedom of the press and freedom of expression in the media. (17) This Directive should not affect the obligations on Member States arising from the application of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services (83). Accordingly, draft national measures applicable to ondemand audiovisual media services of a stricter or more detailed nature than those which are required to simply transpose Directive 2007/65/EC of the European OJ C 30, 5.2.1999, p. 1. European Parliament resolution on Television without Frontiers (OJ C 76 E, 25.3.2004, p. 453). 80 European Parliament resolution on the risks of violation, in the EU and especially in Italy, of freedom of expression and information (Article 11(2) of the Charter of Fundamental Rights) (OJ C 104 E, 30.4.2004, p. 1026). 81 European Parliament resolution on the application of Articles 4 and 5 of Directive 89/552/EEC (Television without Frontiers), as amended by Directive 97/36/EC, for the period 2001-2002 (OJ C 193 E, 17.8.2006, p. 117). 82 OJ C 364, 18.12.2000, p. 1. 83 OJ L 204, 21.7.1998, p. 37. 78 79

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Parliament and of the Council of 11 December 2007 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (84) should be subject to the procedural obligations established pursuant to Article 8 of Directive 98/34/EC. (18) 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) (85) according to its Article  1(3) is without prejudice to measures taken at Union or national level to pursue general interest objectives, in particular relating to content regulation and audiovisual policy. (19) This Directive does not affect the responsibility of the Member States and their authorities with regard to the organisation — including the systems of licensing, administrative authorisation or taxation — the financing and the content of programmes. The independence of cultural developments in the Member States and the preservation of cultural diversity in the Union therefore remain unaffected. (20) No provision of this Directive should require or encourage Member States to impose new systems of licensing or administrative authorisation on any type of audiovisual media service. (21) For the purposes of this Directive, the definition of an audiovisual media service should cover only audiovisual media services, whether television broadcasting or on-demand, which are mass media, that is, which are intended for reception by, and which could have a clear impact on, a significant proportion of the general public. Its scope should be limited to services as defined by the Treaty on the Functioning of the European Union and therefore should cover any form of economic activity, including that of public service enterprises, but should not cover activities which are primarily non-economic and which are not in competition with television broadcasting, such as private websites and services consisting of the provision or distribution of audiovisual content generated by private users for the purposes of sharing and exchange within communities of interest. (22) For the purposes of this Directive, the definition of an audiovisual media service should cover mass media in their function to inform, entertain and educate the general public, and should include audiovisual commercial communication but should exclude any form of private correspondence, such as e-mails sent to a limited number of recipients. That definition should exclude all services the principal purpose of which is not the provision of programmes, i.e. where any audiovisual content is merely incidental to the service and not its principal purpose. Examples include websites that contain audiovisual elements only in an ancillary manner, such as animated graphical elements, short advertising spots or information related to a product or non-audiovisual service. For these reasons, games of chance involving a stake representing a sum of money, including lotteries, betting and other forms of gambling services, as well as on-line games and search engines, but not broadcasts devoted to gambling or games of chance, should also be excluded from the scope of this Directive. (23) For the purposes of this Directive, the term ‘audiovisual’ should refer to moving images with or without sound, thus including silent films but not covering audio transmission or radio services. While the principal purpose of an audiovisual OJ L 332, 18.12.2007, p. 27. OJ L 108, 24.4.2002, p. 33.

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media service is the provision of programmes, the definition of such a service should also cover text-based content which accompanies programmes, such as subtitling services and electronic programme guides. Stand-alone text-based services should not fall within the scope of this Directive, which should not affect the freedom of the Member States to regulate such services at national level in accordance with the Treaty on the Functioning of the European Union. (24) It is characteristic of on-demand audiovisual media services that they are ‘television-like’, i.e. that they compete for the same audience as television broadcasts, and the nature and the means of access to the service would lead the user reasonably to expect regulatory protection within the scope of this Directive. In the light of this and in order to prevent disparities as regards free movement and competition, the concept of ‘programme’ should be interpreted in a dynamic way taking into account developments in television broadcasting. (25) The concept of editorial responsibility is essential for defining the role of the media service provider and therefore for the definition of audiovisual media services. Member States may further specify aspects of the definition of editorial responsibility, notably the concept of ‘effective control’, when adopting measures to implement this Directive. This Directive should be without prejudice to the exemptions from liability established in Directive 2000/31/EC of the European Parliament and of the Council of 8  June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) (86). (26) For the purposes of this Directive, the definition of media service provider should exclude natural or legal persons who merely transmit programmes for which the editorial responsibility lies with third parties. (27) Television broadcasting currently includes, in particular, analogue and digital television, live streaming, webcasting and near-video-on-demand, whereas videoon-demand, for example, is an on-demand audiovisual media service. In general, for television broadcasting or television programmes which are also offered as on-demand audiovisual media services by the same media service provider, the requirements of this Directive should be deemed to be met by the fulfilment of the requirements applicable to the television broadcast, i.e. linear transmission. However, where different kinds of services are offered in parallel, but are clearly separate services, this Directive should apply to each of the services concerned. (28) The scope of this Directive should not cover electronic versions of newspapers and magazines. (29) All the characteristics of an audiovisual media service set out in its definition and explained in recitals 21 to 28 should be present at the same time. (30) In the context of television broadcasting, the concept of simultaneous viewing should also cover quasi-simultaneous viewing because of the variations in the short time lag which occurs between the transmission and the reception of the broadcast due to technical reasons inherent in the transmission process. (31) A wide definition of audiovisual commercial communication should be laid down in this Directive, which should not however include public service announcements and charity appeals broadcast free of charge.

OJ L 178, 17.7.2000, p. 1.

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(32) For the purposes of this Directive, ‘European works’ should be defined without prejudice to the possibility of Member States laying down a more detailed definition as regards media service providers under their jurisdiction, in compliance with Union law and account being taken of the objectives of this Directive. (33) The country of origin principle should be regarded as the core of this Directive, as it is essential for the creation of an internal market. This principle should be applied to all audiovisual media services in order to ensure legal certainty for media service providers as the necessary basis for new business models and the deployment of such services. It is also essential in order to ensure the free flow of information and audiovisual programmes in the internal market. (34) In order to promote a strong, competitive and integrated European audiovisual industry and enhance media pluralism throughout the Union, only one Member State should have jurisdiction over an audiovisual media service provider and pluralism of information should be a fundamental principle of the Union. (35) The fixing of a series of practical criteria is designed to determine by an exhaustive procedure that only one Member State has jurisdiction over a media service provider in connection with the provision of the services which this Directive addresses. Nevertheless, taking into account the case-law of the Court of Justice of the European Union and so as to avoid cases where there is a vacuum of jurisdiction, it is appropriate to refer to the criterion of establishment within the meaning of Articles 49 to 55 of the Treaty on the Functioning of the European Union as the final criterion determining the jurisdiction of a Member State. (36) The requirement that the originating Member State should verify that broadcasts comply with national law as coordinated by this Directive is sufficient under Union law to ensure free movement of broadcasts without secondary control on the same grounds in the receiving Member States. However, the receiving Member State may, exceptionally and under specific conditions, provisionally suspend the retransmission of televised broadcasts. (37) Restrictions on the free provision of on-demand audiovisual media services should only be possible in accordance with conditions and procedures replicating those already established by Article 3(4), (5) and (6) of Directive 2000/31/EC. (38) Technological developments, especially with regard to digital satellite programmes, mean that subsidiary criteria should be adapted in order to ensure suitable regulation and its effective implementation and to give players genuine power over the content of an audiovisual media service. (39) As this Directive concerns services offered to the general public in the Union, it should apply only to audiovisual media services that can be received directly or indirectly by the public in one or more Member States with standard consumer equipment. The definition of ‘standard consumer equipment’ should be left to the competent national authorities. (40) Articles  49 to 55 of the Treaty on the Functioning of the European Union lay down the fundamental right to freedom of establishment. Therefore, media service providers should in general be free to choose the Member States in which they establish themselves. The Court of Justice has also emphasised that ‘the Treaty does not prohibit an undertaking from exercising the freedom to provide services if it does not offer services in the Member State in which it is established’ (87). Case C-56/96 VT4 Ltd v Vlaamse Gemeenschap [1997] ECR I-3143, paragraph 22; Case C-212/97 Centros v Erhvervs-og Selskabsstyrelsen [1999]  ECR  I-1459; see also: Case C-11/95 Commission v Belgium [1996] ECR I-4115; and Case C-14/96 Paul Denuit [1997] ECR I-2785.

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(41) Member States should be able to apply more detailed or stricter rules in the fields coordinated by this Directive to media service providers under their jurisdiction, while ensuring that those rules are consistent with general principles of Union law. In order to deal with situations where a broadcaster under the jurisdiction of one Member State provides a television broadcast which is wholly or mostly directed towards the territory of another Member State, a requirement for Member States to cooperate with one another and, in cases of circumvention, the codification of the case-law of the Court of Justice (88), combined with a more efficient procedure, would be an appropriate solution that takes account of Member State concerns without calling into question the proper application of the country of origin principle. The concept of rules of general public interest has been developed by the Court of Justice in its case-law in relation to Articles 43 and 49 of the EC Treaty (now Articles 49 and 56 of the Treaty on the Functioning of the European Union) and includes, inter alia, rules on the protection of consumers, the protection of minors and cultural policy. The Member State requesting cooperation should ensure that the specific national rules in question are objectively necessary, applied in a non-discriminatory manner and proportionate. (42) A  Member State, when assessing on a case-by-case basis whether a broadcast by a media service provider established in another Member State is wholly or mostly directed towards its territory, may refer to indicators such as the origin of the television advertising and/or subscription revenues, the main language of the service or the existence of programmes or commercial communications targeted specifically at the public in the Member State where they are received. (43) Under this Directive, notwithstanding the application of the country of origin principle, Member States may still take measures that restrict freedom of movement of television broadcasting, but only under the conditions and following the procedure laid down in this Directive. However, the Court of Justice has consistently held that any restriction on the freedom to provide services, such as any derogation from a fundamental principle of the Treaty, must be interpreted restrictively (89). (44) In its Communication to the European Parliament and to the Council on Better Regulation for Growth and Jobs in the European Union, the Commission stressed that a careful analysis of the appropriate regulatory approach is necessary, in particular, in order to establish whether legislation is preferable for the relevant sector and problem, or whether alternatives such as co-regulation or self-regulation should be considered. Furthermore, experience has shown that both co-regulation and self-regulation instruments, implemented in accordance with the different legal traditions of the Member States, can play an important role in delivering a high level of consumer protection. Measures aimed at achieving public interest objectives in the emerging audiovisual media services sector are more effective if they are taken with the active support of the service providers themselves. Thus self-regulation constitutes a type of voluntary initiative which enables economic operators, social partners, non-governmental organisations or associations to adopt common guidelines amongst themselves and for themselves.

Case C-212/97 Centros v Erhvervs-og Selskabsstyrelsen, cited above; Case 33/74 Van Binsbergen v Bestuur van de Bedrijfsvereniging [1974] ECR 1299; Case C-23/93 TV 10 SA v Commissariaat voor de Media [1994] ECR I-4795, paragraph 21. 89 Case C-355/98 Commission v Belgium [2000]  ECR  I-1221, paragraph  28; Case C-348/96 Calfa [1999] ECR I-11, paragraph 23. 88

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Member States should, in accordance with their different legal traditions, recognise the role which effective self-regulation can play as a complement to the legislative and judicial and/or administrative mechanisms in place and its useful contribution to the achievement of the objectives of this Directive. However, while self-regulation might be a complementary method of implementing certain provisions of this Directive, it should not constitute a substitute for the obligations of the national legislator. Co-regulation gives, in its minimal form, a legal link between self-regulation and the national legislator in accordance with the legal traditions of the Member States. Co-regulation should allow for the possibility of State intervention in the event of its objectives not being met. Without prejudice to formal obligations of the Member States regarding transposition, this Directive encourages the use of co-regulation and self-regulation. This should neither oblige Member States to set up co-regulation and/or self-regulatory regimes nor disrupt or jeopardise current co-regulation or self-regulatory initiatives which are already in place within Member States and which are working effectively. (45) Because of the specific nature of audiovisual media services, especially the impact of these services on the way people form their opinions, it is essential for users to know exactly who is responsible for the content of these services. It is therefore important for Member States to ensure that users have easy and direct access at any time to information about the media service provider. It is for each Member State to decide the practical details as to how this objective can be achieved without prejudice to any other relevant provisions of Union law. (46) The right of persons with a disability and of the elderly to participate and be integrated in the social and cultural life of the Union is inextricably linked to the provision of accessible audiovisual media services. The means to achieve accessibility should include, but need not be limited to, sign language, subtitling, audio-description and easily understandable menu navigation. (47) ‘Media literacy’ refers to skills, knowledge and understanding that allow consumers to use media effectively and safely. Media-literate people are able to exercise informed choices, understand the nature of content and services and take advantage of the full range of opportunities offered by new communications technologies. They are better able to protect themselves and their families from harmful or offensive material. Therefore the development of media literacy in all sections of society should be promoted and its progress followed closely. The Recommendation of the European Parliament and of the Council of 20 December 2006 on the protection of minors and human dignity and on the right of reply in relation to the competitiveness of the European audiovisual and on-line information services industry (90) already contains a series of possible measures for promoting media literacy such as, for example, continuing education of teachers and trainers, specific Internet training aimed at children from a very early age, including sessions open to parents, or organisation of national campaigns aimed at citizens, involving all communications media, to provide information on using the Internet responsibly. (48) Television broadcasting rights for events of high interest to the public may be acquired by broadcasters on an exclusive basis. However, it is essential to promote pluralism through the diversity of news production and programming across the Union and to respect the principles recognised by Article  11 of the Charter of Fundamental Rights of the European Union. OJ L 378, 27.12.2006, p. 72.

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(49) It is essential that Member States should be able to take measures to protect the right to information and to ensure wide access by the public to television coverage of national or non-national events of major importance for society, such as the Olympic Games, the football World Cup and the European football championship. To this end, Member States retain the right to take measures compatible with Union law aimed at regulating the exercise by broadcasters under their jurisdiction of exclusive broadcasting rights to such events. (50) It is necessary to make arrangements within a Union framework, in order to avoid potential legal uncertainty and market distortions and to reconcile the free circulation of television services with the need to prevent the possibility of circumvention of national measures protecting a legitimate general interest. (51) In particular, it is appropriate to lay down provisions concerning the exercise by broadcasters of exclusive broadcasting rights that they may have purchased to events considered to be of major importance for society in a Member State other than that having jurisdiction over the broadcasters. In order to avoid speculative rights purchases with a view to circumvention of national measures, it is necessary to apply those provisions to contracts entered into after the publication of Directive 97/36/EC of the European Parliament and of the Council (91) and concerning events which take place after the date of implementation. When contracts that predate the publication of that Directive are renewed, they are considered to be new contracts. (52) Events of major importance for society should, for the purposes of this Directive, meet certain criteria, that is to say be outstanding events which are of interest to the general public in the Union or in a given Member State or in an important component part of a given Member State and are organised in advance by an event organiser who is legally entitled to sell the rights pertaining to those events. (53) For the purposes of this Directive, ‘free television’ means broadcasting on a channel, either public or commercial, of programmes which are accessible to the public without payment in addition to the modes of funding of broadcasting that are widely prevailing in each Member State (such as licence fee and/or the basic tier subscription fee to a cable network). (54) Member States are free to take whatever measures they deem appropriate with regard to audiovisual media services which come from third countries and which do not satisfy the conditions laid down in Article 2, provided they comply with Union law and the international obligations of the Union. (55) In order to safeguard the fundamental freedom to receive information and to ensure that the interests of viewers in the Union are fully and properly protected, those exercising exclusive television broadcasting rights to an event of high interest to the public should grant other broadcasters the right to use short extracts for the purposes of general news programmes on fair, reasonable and non-discriminatory terms taking due account of exclusive rights. Such terms should be communicated in a timely manner before the event of high interest to the public takes place to give others sufficient time to exercise such a right. A broadcaster should be able to exercise this right through an intermediary acting specifically on its behalf on a case-by-case basis. Such short extracts may be used for EU-wide broadcasts by any channel including dedicated sports channels and should not exceed 90 seconds. The right of access to short extracts should apply on a trans-frontier basis OJ L 202, 30.7.1997, p. 60.

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only where it is necessary. Therefore a broadcaster should first seek access from a broadcaster established in the same Member State having exclusive rights to the event of high interest to the public. The concept of general news programmes should not cover the compilation of short extracts into programmes serving entertainment purposes. The country of origin principle should apply to both the access to, and the transmission of, the short extracts. In a trans-frontier case, this means that the different laws should be applied sequentially. Firstly, for access to the short extracts the law of the Member State where the broadcaster supplying the initial signal (i.e. giving access) is established should apply. This is usually the Member State in which the event concerned takes place. Where a Member State has established an equivalent system of access to the event concerned, the law of that Member State should apply in any case. Secondly, for transmission of the short extracts, the law of the Member State where the broadcaster transmitting the short extracts is established should apply. (56) The requirements of this Directive regarding access to events of high interest to the public for the purpose of short news reports should be without prejudice to Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (92) and the relevant international conventions in the field of copyright and neighbouring rights. Member States should facilitate access to events of high interest to the public by granting access to the broadcaster’s signal within the meaning of this Directive. However, they may choose other equivalent means within the meaning of this Directive. Such means include, inter alia, granting access to the venue of these events prior to granting access to the signal. Broadcasters should not be prevented from concluding more detailed contracts. (57) It should be ensured that the practice of media service providers of providing their live television broadcast news programmes in the on-demand mode after live transmission is possible without having to tailor the individual programme by omitting the short extracts. This possibility should be restricted to the on-demand supply of the identical television broadcast programme by the same media service provider, so it may not be used to create new on-demand business models based on short extracts. (58) On-demand audiovisual media services are different from television broadcasting with regard to the choice and control the user can exercise, and with regard to the impact they have on society (93). This justifies imposing lighter regulation on on-demand audiovisual media services, which should comply only with the basic rules provided for in this Directive. (59) The availability of harmful content in audiovisual media services is a concern for legislators, the media industry and parents. There will also be new challenges, especially in connection with new platforms and new products. Rules protecting the physical, mental and moral development of minors as well as human dignity in all audiovisual media services, including audiovisual commercial communications, are therefore necessary. (60) Measures taken to protect the physical, mental and moral development of minors and human dignity should be carefully balanced with the fundamental right to OJ L 167, 22.6.2001, p. 10. Case C-89/04 Mediakabel BV v Commissariaat voor de Media [2005] ECR I-4891.

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freedom of expression as laid down in the Charter on Fundamental Rights of the European Union. The aim of those measures, such as the use of personal identification numbers (PIN codes), filtering systems or labelling, should thus be to ensure an adequate level of protection of the physical, mental and moral development of minors and human dignity, especially with regard to on-demand audiovisual media services. The Recommendation on the protection of minors and human dignity and on the right of reply already recognised the importance of filtering systems and labelling and included a number of possible measures for the benefit of minors, such as systematically supplying users with an effective, updatable and easy-to-use filtering system when they subscribe to an access provider or equipping the access to services specifically intended for children with automatic filtering systems. (61) Media service providers under the jurisdiction of the Member States should in any case be subject to a ban on the dissemination of child pornography in accordance with the provisions of Council Framework Decision 2004/68/JHA of 22 December 2003 on combating the sexual exploitation of children and child pornography (94). (62) None of the provisions of this Directive that concern the protection of the physical, mental and moral development of minors and human dignity necessarily requires that the measures taken to protect those interests should be implemented through the prior verification of audiovisual media services by public bodies. (63) Coordination is needed to make it easier for persons and industries producing programmes having a cultural objective to take up and pursue their activities. (64) Minimum requirements in respect of all public or private Union television broadcasts for European audiovisual productions have been a means of promoting production, independent production and distribution in the abovementioned industries and are complementary to other instruments which are already or will be proposed to favour the same objective. (65) It is therefore necessary to promote markets of sufficient size for television productions in the Member States to recover necessary investments not only by establishing common rules opening up national markets but also by envisaging for European productions, where practicable and by appropriate means, a majority proportion in television broadcasts of all Member States. In order to allow the monitoring of the application of those rules and the pursuit of the objectives, Member States should provide the Commission with a report on the application of the proportions reserved for European works and independent productions in this Directive. For the calculation of such proportions, account should be taken of the specific situation of Greece and Portugal. The Commission should inform the other Member States of these reports accompanied, where appropriate, by an opinion taking account of, in particular, progress achieved in relation to previous years, the share of first broadcasts in the programming, the particular circumstances of new television broadcasters and the specific situation of countries with a low audiovisual production capacity or restricted language area. (66) It is important to seek appropriate instruments and procedures in accordance with Union law in order to promote the implementation of the objectives of this Directive with a view to adopting suitable measures to encourage the activity and development of European audiovisual production and distribution, particularly in countries with a low production capacity or a restricted language area. OJ L 13, 20.1.2004, p. 44.

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(67) The proportions of European works must be achieved taking economic realities into account. Therefore, a progressive system for achieving this objective is required. (68) A  commitment, where practicable, to a certain proportion of broadcasts for independent productions, created by producers who are independent of broadcasters, will stimulate new sources of television production, especially the creation of small and medium-sized enterprises. It will offer new opportunities and marketing outlets to creative talents, to cultural professions and to employees in the cultural field. (69) On-demand audiovisual media services have the potential to partially replace television broadcasting. Accordingly, they should, where practicable, promote the production and distribution of European works and thus contribute actively to the promotion of cultural diversity. Such support for European works might, for example, take the form of financial contributions by such services to the production of and acquisition of rights in European works, a minimum share of European works in video-on-demand catalogues, or the attractive presentation of European works in electronic programme guides. It is important to re-examine regularly the application of the provisions relating to the promotion of European works by audiovisual media services. Within the framework of the reports provided for under this Directive, Member States should also take into account, in particular, the financial contribution by such services to the production and rights acquisition of European works, the share of European works in the catalogue of audiovisual media services, and the actual consumption of European works offered by such services. (70) When implementing Article 16, Member States should encourage broadcasters to include an adequate share of co-produced European works or of European works of non-domestic origin. (71) When defining ‘producers who are independent of broadcasters’ as referred to in Article 17, Member States should take appropriate account notably of criteria such as the ownership of the production company, the amount of programmes supplied to the same broadcaster and the ownership of secondary rights. (72) Channels broadcasting entirely in a language other than those of the Member States should not be covered by Articles 16 and 17 of this Directive. Nevertheless, where such a language or languages represent a substantial part but not all of the channel’s transmission time, Articles 16 and 17 should not apply to that part of transmission time. (73) National support schemes for the development of European production may be applied in so far as they comply with Union law. (74) The objective of supporting audiovisual production in Europe can be pursued within the Member States in the framework of the organisation of their audiovisual media services, inter alia, through the definition of a public interest mission for certain media service providers, including the obligation to contribute substantially to investment in European production. (75) Media service providers, programme makers, producers, authors and other experts should be encouraged to develop more detailed concepts and strategies aimed at developing European audiovisual fiction films that are addressed to an international audience. (76) It is important to ensure that cinematographic works are transmitted within periods agreed between right holders and media service providers.



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(77) The question of specific time scales for each type of showing of cinematographic works is primarily a matter to be settled by means of agreements between the interested parties or professionals concerned. (78) In order to allow for an active policy in favour of a specific language, Member States remain free to lay down more detailed or stricter rules in particular on the basis of language criteria, as long as those rules are in conformity with Union law, and in particular are not applicable to the retransmission of broadcasts originating in other Member States. (79) The availability of on-demand audiovisual media services increases consumer choice. Detailed rules governing audiovisual commercial communication for ondemand audiovisual media services thus appear neither to be justified nor to make sense from a technical point of view. Nevertheless, all audiovisual commercial communication should respect not only the identification rules but also a basic tier of qualitative rules in order to meet clear public policy objectives. (80) As has been recognised by the Commission in its interpretative communication on certain aspects of the provisions on televised advertising in the ‘Television without frontiers’ Directive (95), the development of new advertising techniques and marketing innovations has created new effective opportunities for audiovisual commercial communications in traditional broadcasting services, potentially enabling them to compete better on a level playing-field with on-demand innovations. (81) Commercial and technological developments give users increased choice and responsibility in their use of audiovisual media services. In order to remain proportionate with the goals of general interest, regulation should allow a certain degree of flexibility with regard to television broadcasting. The principle of separation should be limited to television advertising and teleshopping, and product placement should be allowed under certain circumstances, unless a Member State decides otherwise. However, where product placement is surreptitious, it should be prohibited. The principle of separation should not prevent the use of new advertising techniques. (82) Apart from the practices that are covered by this Directive, Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market (96) applies to unfair commercial practices, such as misleading and aggressive practices occurring in audiovisual media services. In addition, Directive 2003/33/EC of the European Parliament and of the Council of 26 May 2003 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products (97), which prohibits advertising and sponsorship for cigarettes and other tobacco products in printed media, information society services and radio broadcasting, should be without prejudice to this Directive, in view of the special characteristics of audiovisual media services. Article 88(1) of Directive 2001/83/EC of the European Parliament and of the Council of 6  November 2001 on the Community code relating to medicinal products for human use (98), which prohibits advertising to the general public of certain medicinal products, applies, as provided in paragraph 5 of that 97 98 95 96

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Article and without prejudice to Article  21 of this Directive. Furthermore, this Directive should be without prejudice to Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods (99). (83) In order to ensure that the interests of consumers as television viewers are fully and properly protected, it is essential for television advertising to be subject to a certain number of minimum rules and standards and that the Member States must maintain the right to set more detailed or stricter rules and in certain circumstances to lay down different conditions for television broadcasters under their jurisdiction. (84) Member States, with due regard to Union law and in relation to broadcasts intended solely for the national territory which may not be received, directly or indirectly, in one or more Member States, should be able to lay down different conditions for the insertion of advertising and different limits for the volume of advertising in order to facilitate these particular broadcasts. (85) Given the increased possibilities for viewers to avoid advertising through the use of new technologies such as digital personal video recorders and increased choice of channels, detailed regulation with regard to the insertion of spot advertising with the aim of protecting viewers is not justified. While the hourly amount of admissible advertising should not be increased, this Directive should give flexibility to broadcasters with regard to its insertion where this does not unduly impair the integrity of programmes. (86) This Directive is intended to safeguard the specific character of European television, where advertising is preferably inserted between programmes, and therefore limits possible interruptions to cinematographic works and films made for television as well as interruptions to some categories of programmes that need specific protection. (87) A limit of 20 % of television advertising spots and teleshopping spots per clock hour, also applying during ‘prime time’, should be laid down. The concept of a television advertising spot should be understood as television advertising in the sense of point (i) of Article 1(1) having a duration of not more than 12 minutes. (88) It is necessary to prohibit all audiovisual commercial communication promoting cigarettes and other tobacco products including indirect forms of audiovisual commercial communication which, whilst not directly mentioning the tobacco product, seek to circumvent the ban on audiovisual commercial communication for cigarettes and other tobacco products by using brand names, symbols or other distinctive features of tobacco products or of undertakings whose known or main activities include the production or sale of such products. (89) It is also necessary to prohibit all audiovisual commercial communication for medicinal products and medical treatment available only on prescription in the Member State within whose jurisdiction the media service provider falls and to lay down strict criteria relating to the television advertising of alcoholic products. (90) Surreptitious audiovisual commercial communication is a practice prohibited by this Directive because of its negative effect on consumers. The prohibition of surreptitious audiovisual commercial communication should not cover legitimate product placement within the framework of this Directive, where the viewer is OJ L 404, 30.12.2006, p. 9.

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adequately informed of the existence of product placement. This can be done by signalling the fact that product placement is taking place in a given programme, for example by means of a neutral logo. (91) Product placement is a reality in cinematographic works and in audiovisual works made for television. In order to ensure a level playing-field, and thus enhance the competitiveness of the European media industry, rules for product placement are necessary. The definition of product placement laid down in this Directive should cover any form of audiovisual commercial communication consisting of the inclusion of or reference to a product, a service or the trade mark thereof so that it is featured within a programme, in return for payment or for similar consideration. The provision of goods or services free of charge, such as production props or prizes, should only be considered to be product placement if the goods or services involved are of significant value. Product placement should be subject to the same qualitative rules and restrictions applying to audiovisual commercial communication. The decisive criterion distinguishing sponsorship from product placement is the fact that in product placement the reference to a product is built into the action of a programme, which is why the definition in point (m) of Article 1(1) contains the word ‘within’. In contrast, sponsor references may be shown during a programme but are not part of the plot. (92) Product placement should, in principle, be prohibited. However, derogations are appropriate for some kinds of programme, on the basis of a positive list. A Member State should be able to opt out of these derogations, totally or partially, for example by permitting product placement only in programmes which have not been produced exclusively in that Member State. (93) Furthermore, sponsorship and product placement should be prohibited where they influence the content of programmes in such a way as to affect the responsibility and the editorial independence of the media service provider. This is the case with regard to thematic placement. (94) In accordance with the duties imposed on Member States by the Treaty on the Functioning of the European Union, they are responsible for the effective implementation of this Directive. They are free to choose the appropriate instruments according to their legal traditions and established structures, and, in particular, the form of their competent independent regulatory bodies, in order to be able to carry out their work in implementing this Directive impartially and transparently. More specifically, the instruments chosen by Member States should contribute to the promotion of media pluralism. (95) Close cooperation between competent regulatory bodies of the Member States and the Commission is necessary to ensure the correct application of this Directive. Similarly close cooperation between Member States and between their regulatory bodies is particularly important with regard to the impact which broadcasters established in one Member State might have on another Member State. Where licensing procedures are provided for in national law and if more than one Member State is concerned, it is desirable that contacts between the respective bodies take place before such licences are granted. This cooperation should cover all fields coordinated by this Directive. (96) It is necessary to make clear that self-promotional activities are a particular form of advertising in which the broadcaster promotes its own products, services, programmes or channels. In particular, trailers consisting of extracts from programmes should be treated as programmes.

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(97) Daily transmission time allotted to announcements made by the broadcaster in connection with its own programmes and ancillary products directly derived from these, or to public service announcements and charity appeals broadcast free of charge, should not be included in the maximum amounts of daily or hourly transmission time that may be allotted to advertising and teleshopping. (98) In order to avoid distortions of competition, this derogation should be limited to announcements concerning products that fulfil the dual condition of being both ancillary to and directly derived from the programmes concerned. The term ‘ancillary’ refers to products intended specifically to allow the viewing public to benefit fully from, or to interact with, these programmes. (99) In view of the development of teleshopping, an economically important activity for operators as a whole and a genuine outlet for goods and services within the Union, it is essential to ensure a high level of consumer protection by putting in place appropriate standards regulating the form and content of such broadcasts. (100) It is important for the competent national authorities, in monitoring the implementation of the relevant provisions, to be able to distinguish, as regards channels not exclusively devoted to teleshopping, between transmission time devoted to teleshopping spots, advertising spots and other forms of advertising on the one hand and, on the other, transmission time devoted to teleshopping windows. It is therefore necessary and sufficient that each window be clearly identified by optical and acoustic means at least at the beginning and the end of the window. (101) This Directive should apply to channels exclusively devoted to teleshopping or self-promotion, without conventional programme elements such as news, sports, films, documentaries and drama, solely for the purposes of this Directive and without prejudice to the inclusion of such channels in the scope of other Union instruments. (102) Although television broadcasters are normally bound to ensure that programmes present facts and events fairly, it is nevertheless important that they should be subject to specific obligations with respect to the right of reply or equivalent remedies so that any person whose legitimate interests have been damaged by an assertion made in the course of a broadcast television programme may effectively exercise such right or remedy. (103) The right of reply is an appropriate legal remedy for television broadcasting and could also be applied in the on-line environment. The Recommendation on the protection of minors and human dignity and on the right of reply already includes appropriate guidelines for the implementation of measures in national law or practice so as to ensure sufficiently the right of reply or equivalent remedies in relation to on-line media. (104) Since the objectives of this Directive, namely the creation of an area without internal frontiers for audiovisual media services whilst ensuring at the same time a high level of protection of objectives of general interest, in particular the protection of minors and human dignity as well as promoting the rights of persons with disabilities, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of this Directive, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.



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(105) This Directive is without prejudice to the obligations of the Member States relating to the time limits for transposition into national law of the Directives set out in Annex I, Part B, HAVE ADOPTED THIS DIRECTIVE: CHAPTER I DEFINITIONS Article 1 1.

For the purposes of this Directive, the following definitions shall apply: (a)

‘audiovisual media service’ means: (i) a service as defined by Articles  56 and 57 of the Treaty on the Functioning of the European Union, where the principal purpose of the service or a dissociable section thereof is devoted to providing programmes, under the editorial responsibility of a media service provider, to the general public, in order to inform, entertain or educate, by means of electronic communications networks within the meaning of point (a) of Article 2 of Directive 2002/21/EC; such an audiovisual media service is either a television broadcast as defined in point (e) of this paragraph or an on-demand audiovisual media service as defined in point (g) of this paragraph; (ii) audiovisual commercial communication;

(aa) ‘video-sharing platform service’ means a service as defined by Articles 56 and 57 of the Treaty on the Functioning of the European Union, where the principal purpose of the service or of a dissociable section thereof or an essential functionality of the service is devoted to providing programmes, user-generated videos, or both, to the general public, for which the videosharing platform provider does not have editorial responsibility, in order to inform, entertain or educate, by means of electronic communications networks within the meaning of point (a) of Article 2 of Directive 2002/21/ EC and the organisation of which is determined by the video-sharing platform provider, including by automatic means or algorithms in particular by displaying, tagging and sequencing; (b) ‘programme’ means a set of moving images with or without sound constituting an individual item, irrespective of its length, within a schedule or a catalogue established by a media service provider, including featurelength films, video clips, sports events, situation comedies, documentaries, children’s programmes and original drama; (ba) ‘user-generated video’ means a set of moving images with or without sound constituting an individual item, irrespective of its length, that is created by a user and uploaded to a video-sharing platform by that user or any other user; (bb) ‘editorial decision’ means a decision which is taken on a regular basis for the purpose of exercising editorial responsibility and linked to the day-today operation of the audiovisual media service; (c) ‘editorial responsibility’ means the exercise of effective control both over the selection of the programmes and over their organisation either in a chronological schedule, in the case of television broadcasts, or in a

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catalogue, in the case of on-demand audiovisual media services. Editorial responsibility does not necessarily imply any legal liability under national law for the content or the services provided; (d)

‘media service provider’ means the natural or legal person who has editorial responsibility for the choice of the audiovisual content of the audiovisual media service and determines the manner in which it is organised;

(da) ‘video-sharing platform provider’ means the natural or legal person who provides a video-sharing platform service; (e) ‘television broadcasting’ or ‘television broadcast’ (i.e. a linear audiovisual media service) means an audiovisual media service provided by a media service provider for simultaneous viewing of programmes on the basis of a programme schedule; (f)

‘broadcaster’ means a media service provider of television broadcasts;

(g) ‘on-demand audiovisual media service’ (i.e. a non-linear audiovisual media service) means an audiovisual media service provided by a media service provider for the viewing of programmes at the moment chosen by the user and at his individual request on the basis of a catalogue of programmes selected by the media service provider; (h) ‘audiovisual commercial communication’ means images with or without sound which are designed to promote, directly or indirectly, the goods, services or image of a natural or legal person pursuing an economic activity; such images accompany, or are included in, a programme or usergenerated video in return for payment or for similar consideration or for selfpromotional purposes. Forms of audiovisual commercial communication include, inter alia, television advertising, sponsorship, teleshopping and product placement; (i)

‘television advertising’ means any form of announcement broadcast whether in return for payment or for similar consideration or broadcast for selfpromotional purposes by a public or private undertaking or natural person in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovable property, rights and obligations, in return for payment;

(j) ‘surreptitious audiovisual commercial communication’ means the representation in words or pictures of goods, services, the name, the trade mark or the activities of a producer of goods or a provider of services in programmes when such representation is intended by the media service provider to serve as advertising and might mislead the public as to its nature. Such representation shall, in particular, be considered as intentional if it is done in return for payment or for similar consideration; (k)

‘sponsorship’ means any contribution made by public or private undertakings or natural persons not engaged in providing audiovisual media services or video-sharing platform services or in producing audiovisual works to the financing of audiovisual media services, video-sharing platform services, user-generated videos or programmes with a view to promoting their name, trade mark, image, activities or products;

(l)

‘teleshopping’ means direct offers broadcast to the public with a view to the supply of goods or services, including immovable property, rights and obligations, in return for payment;



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(m) ‘product placement’ means any form of audiovisual commercial communication consisting of the inclusion of, or reference to, a product, a service or the trade mark thereof so that it is featured within a programme or a user-generated video in return for payment or for similar consideration; (n) ‘European works’ means the following: (i)

works originating in Member States;

(ii) works originating in European third States party to the European Convention on Transfrontier Television of the Council of Europe and fulfilling the conditions of paragraph 3; (iii) works co-produced within the framework of agreements related to the audiovisual sector concluded between the Union and third countries and fulfilling the conditions defined in each of those agreements. 2.

The application of the provisions of points (n)(ii) and (iii) of paragraph 1 shall be conditional on works originating in Member States not being the subject of discriminatory measures in the third country concerned.

3.

The works referred to in points (n)(i) and (ii) of paragraph 1 are works mainly made with authors and workers residing in one or more of the States referred to in those provisions provided that they comply with one of the following three conditions: (i)

they are made by one or more producers established in one or more of those States;

(ii) the production of the works is supervised and actually controlled by one or more producers established in one or more of those States; (iii) the contribution of co-producers of those States to the total co-production costs is preponderant and the co-production is not controlled by one or more producers established outside those States. 4.

Works that are not European works within the meaning of point (n) of paragraph  1 but that are produced within the framework of bilateral coproduction agreements concluded between Member States and third countries shall be deemed to be European works provided that the co-producers from the Union supply a majority share of the total cost of production and that the production is not controlled by one or more producers established outside the territory of the Member States. CHAPTER II GENERAL PROVISIONS FOR AUDIOVISUAL MEDIA SERVICES Article 2

1.

Each Member State shall ensure that all audiovisual media services transmitted by media service providers under its jurisdiction comply with the rules of the system of law applicable to audiovisual media services intended for the public in that Member State.

2.

For the purposes of this Directive, the media service providers under the jurisdiction of a Member State are any of the following: (a)

those established in that Member State in accordance with paragraph 3;

(b) those to whom paragraph 4 applies.

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For the purposes of this Directive, a media service provider shall be deemed to be established in a Member State in the following cases: (a) the media service provider has its head office in that Member State and the editorial decisions about the audiovisual media service are taken in that Member State; (b) if a media service provider has its head office in one Member State but editorial decisions on the audiovisual media service are taken in another Member State, the media service provider shall be deemed to be established in the Member State where a significant part of the workforce involved in the pursuit of the programme-related audiovisual media service activity operates. If a significant part of the workforce involved in the pursuit of the programme-related audiovisual media service activity operates in each of those Member States, the media service provider shall be deemed to be established in the Member State where it has its head office. If a significant part of the workforce involved in the pursuit of the programme-related audiovisual media service activity operates in neither of those Member States, the media service provider shall be deemed to be established in the Member State where it first began its activity in accordance with the law of that Member State, provided that it maintains a stable and effective link with the economy of that Member State; (c) if a media service provider has its head office in a Member State but decisions on the audiovisual media service are taken in a third country, or vice versa, it shall be deemed to be established in the Member State concerned, provided that a significant part of the workforce involved in the pursuit of the audiovisual media service activity operates in that Member State.

4.

Media service providers to whom the provisions of paragraph 3 are not applicable shall be deemed to be under the jurisdiction of a Member State in the following cases: (a)

they use a satellite up-link situated in that Member State;

(b) although they do not use a satellite up-link situated in that Member State, they use satellite capacity appertaining to that Member State. 5.

If the question as to which Member State has jurisdiction cannot be determined in accordance with paragraphs 3 and 4, the competent Member State shall be that in which the media service provider is established within the meaning of Articles 49 to 55 of the Treaty on the Functioning of the European Union.

5a. Member States shall ensure that media service providers inform the competent national regulatory authorities or bodies about any changes that may affect the determination of jurisdiction in accordance with paragraphs 2, 3 and 4. 5b. Member States shall establish and maintain an up-to-date list of the media service providers under their jurisdiction and indicate on which of the criteria set out in paragraphs 2 to 5 their jurisdiction is based. Member States shall communicate that list, including any updates thereto, to the Commission. The Commission shall ensure that such lists are made available in a centralised database. In the event of inconsistencies between the lists, the Commission shall contact the Member States concerned in order to find a solution. The Commission shall ensure that the national regulatory authorities or bodies have access to



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that database. The Commission shall make information in the database publicly available. 5c. Where, in applying Article  3 or 4, the Member States concerned do not agree on which Member State has jurisdiction, they shall bring the matter to the Commission’s attention without undue delay. The Commission may request the European Regulators Group for Audiovisual Media Services (ERGA) to provide an opinion on the matter in accordance with point (d) of Article 30b(3). ERGA shall provide such an opinion within 15 working days from the submission of the Commission’s request. The Commission shall keep the Contact Committee established by Article 29 duly informed. When the Commission adopts a decision pursuant to Article  3(2) or (3), or Article 4(5), it shall also decide which Member State has jurisdiction. 6.

This Directive does not apply to audiovisual media services intended exclusively for reception in third countries and which are not received with standard consumer equipment directly or indirectly by the public in one or more Member States. Article 3

1. Member States shall ensure freedom of reception and shall not restrict retransmissions on their territory of audiovisual media services from other Member States for reasons which fall within the fields coordinated by this Directive. 2.

A  Member State may provisionally derogate from paragraph  1 of this Article where an audiovisual media service provided by a media service provider under the jurisdiction of another Member State manifestly, seriously and gravely infringes point (a) of Article 6(1) or Article 6a(1) or prejudices or presents a serious and grave risk of prejudice to public health. The derogation referred to in the first subparagraph shall be subject to the following conditions: (a) during the previous 12 months, the media service provider has on at least two prior occasions already performed one or more instances of conduct described in the first subparagraph; (b) the Member State concerned has notified the media service provider, the Member State having jurisdiction over that provider and the Commission in writing of the alleged infringements and of the proportionate measures it intends to take should any such infringement occur again; (c)

the Member State concerned has respected the right of defence of the media service provider and, in particular, has given that provider the opportunity to express its views on the alleged infringements; and

(d) consultations with the Member State having jurisdiction over the media service provider and the Commission have not resulted in an amicable settlement within one month of the Commission’s receipt of the notification referred to in point (b). Within three months of the receipt of the notification of the measures taken by the Member State concerned and after having requested ERGA to provide an opinion in accordance with point (d) of Article 30b(3), the Commission shall take a decision on whether those measures are compatible with Union law. The Commission shall keep the Contact Committee duly informed. Where the Commission decides that those measures are not compatible with Union law, it shall require the Member State concerned to put an end to the measures in question as a matter of urgency.

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A  Member State may provisionally derogate from paragraph  1 of this Article where an audiovisual media service provided by a media service provider under the jurisdiction of another Member State manifestly, seriously and gravely infringes point (b) of Article 6(1) or prejudices or presents a serious and grave risk of prejudice to public security, including the safeguarding of national security and defence. The derogation referred to in the first subparagraph shall be subject to the following conditions: (a)

during the previous 12 months the conduct referred to in the first subparagraph occurred at least on one prior occasion; and

(b) the Member State concerned has notified the media service provider, the Member State having jurisdiction over that provider and the Commission in writing of the alleged infringement and of the proportionate measures it intends to take should any such infringement occur again. The Member State concerned shall respect the rights of defence of the media service provider concerned and, in particular, give that provider the opportunity to express its views on the alleged infringements. Within three months of the receipt of the notification of the measures taken by the Member State concerned and after having requested ERGA to provide an opinion in accordance with point (d) of Article 30b(3), the Commission shall take a decision on whether those measures are compatible with Union law. The Commission shall keep the Contact Committee duly informed. Where the Commission decides that those measures are not compatible with Union law, it shall require the Member State concerned to put an end to the measures in question as a matter of urgency. 4.

Paragraphs 2 and 3 shall be without prejudice to the application of any procedure, remedy or sanction to the infringements in question in the Member State which has jurisdiction over the media service provider concerned.

5.

Member States may, in urgent cases, no later than one month after the alleged infringement, derogate from the conditions laid down in points (a) and (b) of paragraph 3. Where this is the case, the measures taken shall be notified in the shortest possible time to the Commission and to the Member State under whose jurisdiction the media service provider falls, indicating the reasons for which the Member State considers that there is urgency. The Commission shall examine the compatibility of the notified measures with Union law in the shortest possible time. Where it comes to the conclusion that the measures are incompatible with Union law, the Commission shall require the Member State in question to urgently put an end to those measures.

6.

If the Commission lacks information necessary to take a decision pursuant to paragraph  2 or 3, it shall, within one month of the receipt of the notification, request from the Member State concerned all information necessary to reach that decision. The time limit within which the Commission is to take the decision shall be suspended until that Member State has provided such necessary information. In any case, the suspension of the time limit shall not last longer than one month.

7.

Member States and the Commission shall regularly exchange experiences and best practices regarding the procedure set out in this Article in the framework of the Contact Committee and ERGA.



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Article 4 1.

Member States shall remain free to require media service providers under their jurisdiction to comply with more detailed or stricter rules in the fields coordinated by this Directive, provided that such rules are in compliance with Union law.

2.

Where a Member State: (a) has exercised its freedom under paragraph  1 to adopt more detailed or stricter rules of general public interest; and (b) assesses that a media service provider under the jurisdiction of another Member State provides an audiovisual media service which is wholly or mostly directed towards its territory, it may request the Member State having jurisdiction to address any problems identified in relation to this paragraph. Both Member States shall cooperate sincerely and swiftly with a view to achieving a mutually satisfactory solution. Upon receiving a substantiated request under the first subparagraph, the Member State having jurisdiction shall request the media service provider to comply with the rules of general public interest in question. The Member State having jurisdiction shall regularly inform the requesting Member State of the steps taken to address the problems identified. Within two months of the receipt of the request, the Member State having jurisdiction shall inform the requesting Member State and the Commission of the results obtained and explain the reasons where a solution could not be found. Either Member State may invite the Contact Committee to examine the case at any time.

3.

The Member State concerned may adopt appropriate measures against the media service provider concerned where: (a) it assesses that the results achieved through the application of paragraph 2 are not satisfactory; and (b)

it has adduced evidence showing that the media service provider in question has established itself in the Member State having jurisdiction in order to circumvent the stricter rules, in the fields coordinated by this Directive, which would be applicable to it if it were established in the Member State concerned; such evidence shall allow for such circumvention to be reasonably established, without the need to prove the media service provider’s intention to circumvent those stricter rules.

Such measures shall be objectively necessary, applied in a non-discriminatory manner and proportionate to the objectives which they pursue. 4.

A  Member State may take measures pursuant to paragraph  3 only where the following conditions are met: (a) it has notified the Commission and the Member State in which the media service provider is established of its intention to take such measures while substantiating the grounds on which it bases its assessment; (b)

it has respected the rights of defence of the media service provider concerned and, in particular, has given that media service provider the opportunity to express its views on the alleged circumvention and the measures the notifying Member State intends to take; and

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(c) the Commission has decided, after having requested ERGA to provide an opinion in accordance with point (d) of Article 30b(3), that the measures are compatible with Union law, in particular that assessments made by the Member State taking the measures under paragraphs 2 and 3 of this Article are correctly founded; the Commission shall keep the Contact Committee duly informed. 5.

Within three months of the receipt of the notification provided for in point (a) of paragraph 4, the Commission shall take the decision on whether those measures are compatible with Union law. Where the Commission decides that those measures are not compatible with Union law, it shall require the Member State concerned to refrain from taking the intended measures. If the Commission lacks information necessary to take the decision pursuant to the first subparagraph, it shall, within one month of the receipt of the notification, request from the Member State concerned all information necessary to reach that decision. The time limit within which the Commission is to take the decision shall be suspended until that Member State has provided such necessary information. In any case, the suspension of the time limit shall not last longer than one month.

6.

Member States shall, by appropriate means, ensure, within the framework of their national law, that media service providers under their jurisdiction effectively comply with this Directive.

7.

Directive 2000/31/EC shall apply unless otherwise provided for in this Directive. In the event of a conflict between Directive 2000/31/EC and this Directive, this Directive shall prevail, unless otherwise provided for in this Directive. Article 4a

1.

Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct adopted at national level in the fields coordinated by this Directive to the extent permitted by their legal systems. Those codes shall: (a) be such that they are broadly accepted by the main stakeholders in the Member States concerned; (b) clearly and unambiguously set out their objectives; (c)

provide for regular, transparent and independent monitoring and evaluation of the achievement of the objectives aimed at; and

(d) provide for effective enforcement including effective and proportionate sanctions. 2.

Member States and the Commission may foster self-regulation through Union codes of conduct drawn up by media service providers, video-sharing platform service providers or organisations representing them, in cooperation, as necessary, with other sectors such as industry, trade, professional and consumer associations or organisations. Those codes shall be such that they are broadly accepted by the main stakeholders at Union level and shall comply with points (b) to (d) of paragraph 1. The Union codes of conduct shall be without prejudice to the national codes of conduct. In cooperation with the Member States, the Commission shall facilitate the development of Union codes of conduct, where appropriate, in accordance with the principles of subsidiarity and proportionality.



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The signatories of Union codes of conduct shall submit the drafts of those codes and amendments thereto to the Commission. The Commission shall consult the Contact Committee on those draft codes or amendments thereto. The Commission shall make the Union codes of conduct publicly available and may give them appropriate publicity. 3.

Member States shall remain free to require media service providers under their jurisdiction to comply with more detailed or stricter rules in compliance with this Directive and Union law, including where their national independent regulatory authorities or bodies conclude that any code of conduct or parts thereof have proven not to be sufficiently effective. Member States shall report such rules to the Commission without undue delay. CHAPTER III PROVISIONS APPLICABLE TO AUDIOVISUAL MEDIA SERVICES Article 5

1.

Each Member State shall ensure that a media service provider under its jurisdiction shall make easily, directly and permanently accessible to the recipients of a service at least the following information: (a) its name; (b) the geographical address at which it is established; (c) the details, including its email address or website, which allow it to be contacted rapidly in a direct and effective manner; (d) the Member State having jurisdiction over it and the competent regulatory authorities or bodies or supervisory bodies.

2.

Member States may adopt legislative measures providing that, in addition to the information listed in paragraph 1, media service providers under their jurisdiction make accessible information concerning their ownership structure, including the beneficial owners. Such measures shall respect the fundamental rights concerned, such as the private and family life of beneficial owners. Such measures shall be necessary and proportionate and shall aim to pursue an objective of general interest. Article 6

1.

Without prejudice to the obligation of Member States to respect and protect human dignity, Member States shall ensure by appropriate means that audiovisual media services provided by media service providers under their jurisdiction do not contain any: (a) incitement to violence or hatred directed against a group of persons or a member of a group based on any of the grounds referred to in Article 21 of the Charter; (b) public provocation to commit a terrorist offence as set out in Article 5 of Directive (EU) 2017/541.

2.

The measures taken for the purposes of this Article shall be necessary and proportionate and shall respect the rights and observe principles set out in the Charter. Article 6a

1.

Member States shall take appropriate measures to ensure that audiovisual media services provided by media service providers under their jurisdiction which may impair the physical, mental or moral development of minors are only made

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available in such a way as to ensure that minors will not normally hear or see them. Such measures may include selecting the time of the broadcast, age verification tools or other technical measures. They shall be proportionate to the potential harm of the programme. The most harmful content, such as gratuitous violence and pornography, shall be subject to the strictest measures. 2. Personal data of minors collected or otherwise generated by media service providers pursuant to paragraph 1 shall not be processed for commercial purposes, such as direct marketing, profiling and behaviourally targeted advertising. 3. Member States shall ensure that media service providers provide sufficient information to viewers about content which may impair the physical, mental or moral development of minors. For this purpose, media service providers shall use a system describing the potentially harmful nature of the content of an audiovisual media service. For the implementation of this paragraph, Member States shall encourage the use of co-regulation as provided for in Article 4a(1). 4. The Commission shall encourage media service providers to exchange best practices on co-regulatory codes of conduct. Member States and the Commission may foster self-regulation, for the purposes of this Article, through Union codes of conduct as referred to in Article 4a(2). Article 7 1. Member States shall ensure, without undue delay, that services provided by media service providers under their jurisdiction are made continuously and progressively more accessible to persons with disabilities through proportionate measures. 2. Member States shall ensure that media service providers report on a regular basis to the national regulatory authorities or bodies on the implementation of the measures referred to in paragraph 1. By 19 December 2022 and every three years thereafter, Member States shall report to the Commission on the implementation of paragraph 1. 3. Member States shall encourage media service providers to develop accessibility action plans in respect of continuously and progressively making their services more accessible to persons with disabilities. Any such action plan shall be communicated to national regulatory authorities or bodies. 4. Each Member State shall designate a single, easily accessible, including by persons with disabilities, and publicly available online point of contact for providing information and receiving complaints regarding any accessibility issues referred to in this Article. 5. Member States shall ensure that emergency information, including public communications and announcements in natural disaster situations, which is made available to the public through audiovisual media services, is provided in a manner which is accessible to persons with disabilities. Article 7a Member States may take measures to ensure the appropriate prominence of audiovisual media services of general interest. Article 7b Member States shall take appropriate and proportionate measures to ensure that audiovisual media services provided by media service providers are not, without the explicit consent of those providers, overlaid for commercial purposes or modified.



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For the purposes of this Article, Member States shall specify the regulatory details, including exceptions, notably in relation to safeguarding the legitimate interests of users while taking into account the legitimate interests of the media service providers that originally provided the audiovisual media services. Article 8 Member States shall ensure that media service providers under their jurisdiction do not transmit cinematographic works outside periods agreed with the rights holders. Article 9 1. Member States shall ensure that audiovisual commercial communications provided by media service providers under their jurisdiction comply with the following requirements: (a)

audiovisual commercial communications shall be readily recognisable as such; surreptitious audiovisual commercial communication shall be prohibited;

(b) audiovisual commercial communications shall not use subliminal techniques; (c)

audiovisual commercial communications shall not: (i)

prejudice respect for human dignity;

(ii) include or promote any discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation; (iii) encourage behaviour prejudicial to health or safety; (iv) encourage behaviour grossly prejudicial to the protection of the environment; (d)

all forms of audiovisual commercial communications for cigarettes and other tobacco products, as well as for electronic cigarettes and refill containers shall be prohibited;

(e) audiovisual commercial communications for alcoholic beverages shall not be aimed specifically at minors and shall not encourage immoderate consumption of such beverages; (f) audiovisual commercial communications for medicinal products and medical treatment available only on prescription in the Member State within whose jurisdiction the media service provider falls shall be prohibited; (g) audiovisual commercial communications shall not cause physical, mental or moral detriment to minors; therefore, they shall not directly exhort minors to buy or hire a product or service by exploiting their inexperience or credulity, directly encourage them to persuade their parents or others to purchase the goods or services being advertised, exploit the special trust minors place in parents, teachers or other persons, or unreasonably show minors in dangerous situations. 2.

Audiovisual commercial communications for alcoholic beverages in on-demand audiovisual media services, with the exception of sponsorship and product placement, shall comply with the criteria set out in Article 22.

3.

Member States shall encourage the use of co-regulation and the fostering of selfregulation through codes of conduct as provided for in Article  4a(1) regarding

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inappropriate audiovisual commercial communications for alcoholic beverages. Those codes shall aim to effectively reduce the exposure of minors to audiovisual commercial communications for alcoholic beverages. 4.

Member States shall encourage the use of co-regulation and the fostering of selfregulation through codes of conduct as provided for in Article  4a(1) regarding inappropriate audiovisual commercial communications, accompanying or included in children’s programmes, for foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular fat, transfatty acids, salt or sodium and sugars, of which excessive intakes in the overall diet are not recommended. Those codes shall aim to effectively reduce the exposure of children to audiovisual commercial communications for such foods and beverages. They shall aim to provide that such audiovisual commercial communications do not emphasise the positive quality of the nutritional aspects of such foods and beverages.

5.

Member States and the Commission may foster self-regulation, for the purposes of this Article, through Union codes of conduct as referred to in Article 4a(2). Article 10

1.

Audiovisual media services or programmes that are sponsored shall meet the following requirements: (a) their content and, in the case of television broadcasting, their scheduling shall in no circumstances be influenced in such a way as to affect the responsibility and editorial independence of the media service provider; (b)

they shall not directly encourage the purchase or rental of goods or services, in particular by making special promotional references to those goods or services;

(c) viewers shall be clearly informed of the existence of a sponsorship agreement. Sponsored programmes shall be clearly identified as such by the name, logo and/or any other symbol of the sponsor such as a reference to its product(s) or service(s) or a distinctive sign thereof in an appropriate way for programmes at the beginning, during and/or at the end of the programmes. 2.

Audiovisual media services or programmes shall not be sponsored by undertakings whose principal activity is the manufacture or sale of cigarettes and other tobacco products, as well as electronic cigarettes and refill containers.

3.

The sponsorship of audiovisual media services or programmes by undertakings whose activities include the manufacture or sale of medicinal products and medical treatment may promote the name or the image of the undertaking, but shall not promote specific medicinal products or medical treatments available only on prescription in the Member State within whose jurisdiction the media service provider falls.

4.

News and current affairs programmes shall not be sponsored. Member States may prohibit the sponsorship of children’s programmes. Member States may choose to prohibit the showing of a sponsorship logo during children’s programmes, documentaries and religious programmes. Article 11

1.

This Article shall apply only to programmes produced after 19 December 2009.



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2.

Product placement shall be allowed in all audiovisual media services, except in news and current affairs programmes, consumer affairs programmes, religious programmes and children’s programmes.

3.

Programmes that contain product placement shall meet the following requirements: (a) their content and organisation within a schedule, in the case of television broadcasting, or within a catalogue in the case of on-demand audiovisual media services, shall under no circumstances be influenced in such a way as to affect the responsibility and editorial independence of the media service provider; (b)

they shall not directly encourage the purchase or rental of goods or services, in particular by making special promotional references to those goods or services;

(c)

they shall not give undue prominence to the product in question;

(d) viewers shall be clearly informed of the existence of product placement by an appropriate identification at the start and at the end of the programme, and when a programme resumes after an advertising break, in order to avoid any confusion on the part of the viewer. Member States may waive the requirements set out in point (d) except for programmes produced or commissioned by a media service provider or by a company affiliated with that media service provider. 4.

In any event programmes shall not contain product placement of: (a) cigarettes and other tobacco products, as well as electronic cigarettes and refill containers, or product placement from undertakings whose principal activity is the manufacture or sale of those products; (b) specific medicinal products or medical treatments available only on prescription in the Member State under whose jurisdiction the media service provider falls. CHAPTER IV ____________ Article 13

1.

Member States shall ensure that media service providers of on-demand audiovisual media services under their jurisdiction secure at least a 30 % share of European works in their catalogues and ensure prominence of those works.

2.

Where Member States require media service providers under their jurisdiction to contribute financially to the production of European works, including via direct investment in content and contribution to national funds, they may also require media service providers targeting audiences in their territories, but established in other Member States to make such financial contributions, which shall be proportionate and non-discriminatory.

3.

In the case referred to in paragraph  2, the financial contribution shall be based only on the revenues earned in the targeted Member States. If the Member State where the provider is established imposes such a financial contribution, it shall take into account any financial contributions imposed by targeted Member States. Any financial contribution shall comply with Union law, in particular with State aid rules.

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4.

Member States shall report to the Commission by 19 December 2021 and every two years thereafter on the implementation of paragraphs 1 and 2.

5.

The Commission shall, on the basis of the information provided by Member States and of an independent study, report to the European Parliament and to the Council on the application of paragraphs 1 and 2, taking into account the market and technological developments and the objective of cultural diversity.

6.

The obligation imposed pursuant to paragraph 1 and the requirement on media service providers targeting audiences in other Member States set out in paragraph 2 shall not apply to media service providers with a low turnover or a low audience. Member States may also waive such obligations or requirements where they would be impracticable or unjustified by reason of the nature or theme of the audiovisual media services.

7.

The Commission shall issue guidelines regarding the calculation of the share of European works referred to in paragraph  1 and regarding the definition of low audience and low turnover referred to in paragraph 6, after consulting the Contact Committee.

CHAPTER V PROVISIONS CONCERNING EXCLUSIVE RIGHTS AND SHORT NEWS REPORTS IN TELEVISION BROADCASTING Article 14 1.

Each Member State may take measures in accordance with Union law to ensure that broadcasters under its jurisdiction do not broadcast on an exclusive basis events which are regarded by that Member State as being of major importance for society in such a way as to deprive a substantial proportion of the public in that Member State of the possibility of following such events by live coverage or deferred coverage on free television. If it does so, the Member State concerned shall draw up a list of designated events, national or non-national, which it considers to be of major importance for society. It shall do so in a clear and transparent manner in due time. In so doing the Member State concerned shall also determine whether these events should be available by whole or partial live coverage or, where necessary or appropriate for objective reasons in the public interest, whole or partial deferred coverage.

2.

Member States shall immediately notify to the Commission any measures taken or to be taken pursuant to paragraph  1. Within a period of 3 months from the notification, the Commission shall verify that such measures are compatible with Union law and communicate them to the other Member States. It shall seek the opinion of the contact committee established pursuant to Article 29. It shall forthwith publish the measures taken in the Official Journal of the European Union and at least once a year the consolidated list of the measures taken by Member States.

3.

Member States shall ensure, by appropriate means within the framework of their legislation, that broadcasters under their jurisdiction do not exercise the exclusive rights purchased by those broadcasters after 30 July 1997 in such a way that a substantial proportion of the public in another Member State is deprived of the possibility of following events which are designated by that other Member State in accordance with paragraphs 1 and 2 by whole or partial live coverage or, where necessary or appropriate for objective reasons in the public interest, whole or partial deferred coverage on free television as determined by that other Member State in accordance with paragraph 1.



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Article 15 1.

Member States shall ensure that for the purpose of short news reports, any broadcaster established in the Union has access on a fair, reasonable and nondiscriminatory basis to events of high interest to the public which are transmitted on an exclusive basis by a broadcaster under their jurisdiction.

2.

If another broadcaster established in the same Member State as the broadcaster seeking access has acquired exclusive rights to the event of high interest to the public, access shall be sought from that broadcaster.

3.

Member States shall ensure that such access is guaranteed by allowing broadcasters to freely choose short extracts from the transmitting broadcaster’s signal with, unless impossible for reasons of practicality, at least the identification of their source.

4.

As an alternative to paragraph  3, Member States may establish an equivalent system which achieves access on a fair, reasonable and non-discriminatory basis through other means.

5.

Short extracts shall be used solely for general news programmes and may be used in on-demand audiovisual media services only if the same programme is offered on a deferred basis by the same media service provider.

6.

Without prejudice to paragraphs 1 to 5, Member States shall ensure, in accordance with their legal systems and practices, that the modalities and conditions regarding the provision of such short extracts are defined, in particular, with respect to any compensation arrangements, the maximum length of short extracts and time limits regarding their transmission. Where compensation is provided for, it shall not exceed the additional costs directly incurred in providing access.

CHAPTER VI PROMOTION OF DISTRIBUTION AND PRODUCTION OF TELEVISION PROGRAMMES Article 16 1.

Member States shall ensure, where practicable and by appropriate means, that broadcasters reserve for European works a majority proportion of their transmission time, excluding the time allotted to news, sports events, games, advertising, teletext services and teleshopping. This proportion, having regard to the broadcaster’s informational, educational, cultural and entertainment responsibilities to its viewing public, should be achieved progressively, on the basis of suitable criteria.

2.

Where the proportion laid down in paragraph 1 cannot be attained, it must not be lower than the average for 1988 in the Member State concerned. However, in respect of Greece and Portugal, the year 1988 shall be replaced by the year 1990.

3.

Member States shall provide the Commission every 2 years, starting from 3 October 1991, with a report on the application of this Article and Article 17. That report shall in particular include a statistical statement on the achievement of the proportion referred to in this Article and Article 17 for each of the television programmes falling within the jurisdiction of the Member State concerned, the reasons, in each case, for the failure to attain that proportion and the measures adopted or envisaged in order to achieve it.

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The Commission shall inform the other Member States and the European Parliament of the reports, which shall be accompanied, where appropriate, by an opinion. The Commission shall ensure the application of this Article and Article 17 in accordance with the provisions of the Treaty on the Functioning of the European Union. The Commission may take account in its opinion, in particular, of progress achieved in relation to previous years, the share of first broadcast works in the programming, the particular circumstances of new television broadcasters and the specific situation of countries with a low audiovisual production capacity or restricted language area. Article 17 Member States shall ensure, where practicable and by appropriate means, that broadcasters reserve at least 10 % of their transmission time, excluding the time allotted to news, sports events, games, advertising, teletext services and teleshopping, or alternately, at the discretion of the Member State, at least 10 % of their programming budget, for European works created by producers who are independent of broadcasters. This proportion, having regard to the broadcaster’s informational, educational, cultural and entertainment responsibilities to its viewing public, should be achieved progressively, on the basis of suitable criteria. It must be achieved by earmarking an adequate proportion for recent works, that is to say works transmitted within 5 years of their production. Article 18 This Chapter shall not apply to television broadcasts that are intended for local audiences and do not form part of a national network. CHAPTER VII TELEVISION ADVERTISING AND TELESHOPPING Article 19 1. Television advertising and teleshopping shall be readily recognisable and distinguishable from editorial content. Without prejudice to the use of new advertising techniques, television advertising and teleshopping shall be kept quite distinct from other parts of the programme by optical and/or acoustic and/or spatial means. 2.

Isolated television advertising and teleshopping spots shall be admissible in sports events. Isolated television advertising and teleshopping spots, other than in transmissions of sports events, shall remain the exception. Article 20

1.

Member States shall ensure, where television advertising or teleshopping is inserted during programmes, that the integrity of the programmes, taking into account natural breaks in and the duration and the nature of the programme concerned, and the rights of the right holders are not prejudiced.

2.

The transmission of films made for television (excluding series, serials and documentaries), cinematographic works and news programmes may be interrupted by television advertising, teleshopping, or both, once for each scheduled period of at least 30 minutes. The transmission of children’s programmes may be interrupted by television advertising once for each scheduled period of at least 30 minutes, provided that the scheduled duration of the programme is greater than 30 minutes. The transmission of teleshopping shall be prohibited during children’s programmes. No television advertising or teleshopping shall be inserted during religious services.



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Article 21 Teleshopping for medicinal products which are subject to a marketing authorisation within the meaning of Directive 2001/83/EC, as well as teleshopping for medical treatment, shall be prohibited. Article 22 Television advertising and teleshopping for alcoholic beverages shall comply with the following criteria: (a) it may not be aimed specifically at minors or, in particular, depict minors consuming these beverages; (b) it shall not link the consumption of alcohol to enhanced physical performance or to driving; (c) it shall not create the impression that the consumption of alcohol contributes towards social or sexual success; (d) it shall not claim that alcohol has therapeutic qualities or that it is a stimulant, a sedative or a means of resolving personal conflicts; (e) it shall not encourage immoderate consumption of alcohol or present abstinence or moderation in a negative light; (f)

it shall not place emphasis on high alcoholic content as being a positive quality of the beverages. Article 23

1.

The proportion of television advertising spots and teleshopping spots within the period between 6.00 and 18.00 shall not exceed 20 % of that period. The proportion of television advertising spots and teleshopping spots within the period between 18.00 and 24.00 shall not exceed 20 % of that period.

2.

Paragraph 1 shall not apply to: (a) announcements made by the broadcaster in connection with its own programmes and ancillary products directly derived from those programmes or with programmes and audiovisual media services from other entities belonging to the same broadcasting group; (b) sponsorship announcements; (c)

product placements;

(d) neutral frames between editorial content and television advertising or teleshopping spots, and between individual spots. Article 24 Teleshopping windows shall be clearly identified as such by optical and acoustic means and shall be of a minimum uninterrupted duration of 15 minutes. Article 25 This Directive shall apply mutatis mutandis to television channels exclusively devoted to advertising and teleshopping as well as to television channels exclusively devoted to self-promotion. However, Chapter VI as well as Articles 20 and 23 shall not apply to these channels. Article 26 Without prejudice to Article 4, Member States may, with due regard for Union law, lay down conditions other than those laid down in Article 20(2) and Article 23 in respect of

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television broadcasts intended solely for the national territory which cannot be received directly or indirectly by the public in one or more other Member States. ____________ CHAPTER IX RIGHT OF REPLY IN TELEVISION BROADCASTING Article 28 1.

Without prejudice to other provisions adopted by the Member States under civil, administrative or criminal law, any natural or legal person, regardless of nationality, whose legitimate interests, in particular reputation and good name, have been damaged by an assertion of incorrect facts in a television programme must have a right of reply or equivalent remedies. Member States shall ensure that the actual exercise of the right of reply or equivalent remedies is not hindered by the imposition of unreasonable terms or conditions. The reply shall be transmitted within a reasonable time subsequent to the request being substantiated and at a time and in a manner appropriate to the broadcast to which the request refers.

2.

A right of reply or equivalent remedies shall exist in relation to all broadcasters under the jurisdiction of a Member State.

3.

Member States shall adopt the measures needed to establish the right of reply or the equivalent remedies and shall determine the procedure to be followed for the exercise thereof. In particular, they shall ensure that a sufficient time span is allowed and that the procedures are such that the right or equivalent remedies can be exercised appropriately by natural or legal persons resident or established in other Member States.

4.

An application for exercise of the right of reply or the equivalent remedies may be rejected if such a reply is not justified according to the conditions laid down in paragraph 1, would involve a punishable act, would render the broadcaster liable to civil-law proceedings or would transgress standards of public decency.

5.

Provision shall be made for procedures whereby disputes as to the exercise of the right of reply or the equivalent remedies can be subject to judicial review.

CHAPTER IXA PROVISIONS APPLICABLE TO VIDEO-SHARING PLATFORM SERVICES Article 28a 1.

For the purposes of this Directive, a video-sharing platform provider established on the territory of a Member State within the meaning of Article 3(1) of Directive 2000/31/EC shall be under the jurisdiction of that Member State.

2.

A video-sharing platform provider which is not established on the territory of a Member State pursuant to paragraph 1 shall be deemed to be established on the territory of a Member State for the purposes of this Directive if that video-sharing platform provider: (a) has a parent undertaking or a subsidiary undertaking that is established on the territory of that Member State; or (b)

is part of a group and another undertaking of that group is established on the territory of that Member State.

For the purposes of this Article: (a) ‘parent undertaking’ means an undertaking which controls one or more subsidiary undertakings;



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(b) ‘subsidiary undertaking’ means an undertaking controlled by a parent undertaking, including any subsidiary undertaking of an ultimate parent undertaking; (c) ‘group’ means a parent undertaking, all its subsidiary undertakings and all other undertakings having economic and legal organisational links to them. 3.

For the purposes of applying paragraph  2, where the parent undertaking, the subsidiary undertaking or the other undertakings of the group are each established in different Member States, the video-sharing platform provider shall be deemed to be established in the Member State where its parent undertaking is established or, in the absence of such an establishment, in the Member State where its subsidiary undertaking is established or, in the absence of such an establishment, in the Member State where the other undertaking of the group is established.

4.

For the purposes of applying paragraph  3, where there are several subsidiary undertakings and each of them is established in a different Member State, the video-sharing platform provider shall be deemed to be established in the Member State where one of the subsidiary undertakings first began its activity, provided that it maintains a stable and effective link with the economy of that Member State. Where there are several other undertakings which are part of the group and each of them is established in a different Member State, the video-sharing platform provider shall be deemed to be established in the Member State where one of these undertakings first began its activity, provided that it maintains a stable and effective link with the economy of that Member State.

5.

For the purposes of this Directive, Article  3 and Articles  12 to 15 of Directive 2000/31/EC shall apply to video-sharing platform providers deemed to be established in a Member State in accordance with paragraph 2 of this Article.

6.

Member States shall establish and maintain an up-to-date list of the video-sharing platform providers established or deemed to be established on their territory and indicate on which of the criteria set out in paragraphs 1 to 4 their jurisdiction is based. Member States shall communicate that list, including any updates thereto, to the Commission. The Commission shall ensure that such lists are made available in a centralised database. In the event of inconsistencies between the lists, the Commission shall contact the Member States concerned in order to find a solution. The Commission shall ensure that the national regulatory authorities or bodies have access to that database. The Commission shall make information in the database publicly available.

7.

Where, in applying this Article, the Member States concerned do not agree on which Member State has jurisdiction, they shall bring the matter to the Commission’s attention without undue delay. The Commission may request ERGA to provide an opinion on the matter in accordance with point (d) of Article 30b(3). ERGA shall provide such an opinion within 15 working days from the submission of the Commission’s request. The Commission shall keep the Contact Committee duly informed. Article 28b

1.

Without prejudice to Articles 12 to 15 of Directive 2000/31/EC, Member States shall ensure that video-sharing platform providers under their jurisdiction take appropriate measures to protect:

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(a) minors from programmes, user-generated videos and audiovisual commercial communications which may impair their physical, mental or moral development in accordance with Article 6a(1);

2.

(b)

the general public from programmes, user-generated videos and audiovisual commercial communications containing incitement to violence or hatred directed against a group of persons or a member of a group based on any of the grounds referred to in Article 21 of the Charter;

(c)

the general public from programmes, user-generated videos and audiovisual commercial communications containing content the dissemination of which constitutes an activity which is a criminal offence under Union law, namely public provocation to commit a terrorist offence as set out in Article 5 of Directive (EU) 2017/541, offences concerning child pornography as set out in Article 5(4) of Directive 2011/93/EU of the European Parliament and of the Council100 and offences concerning racism and xenophobia as set out in Article 1 of Framework Decision 2008/913/JHA.

Member States shall ensure that video-sharing platform providers under their jurisdiction comply with the requirements set out in Article 9(1) with respect to audiovisual commercial communications that are marketed, sold or arranged by those video-sharing platform providers. Member States shall ensure that the video-sharing platform providers under their jurisdiction take appropriate measures to comply with the requirements set out in Article 9(1) with respect to audiovisual commercial communications that are not marketed, sold or arranged by those video-sharing platform providers, taking into account the limited control exercised by those video-sharing platforms over those audiovisual commercial communications. Member States shall ensure that video-sharing platform providers clearly inform users where programmes and user-generated videos contain audiovisual commercial communications, provided that such communications are declared under point (c) of the third subparagraph of paragraph  3 or the provider has knowledge of that fact. Member States shall encourage the use of co-regulation and the fostering of self-regulation through codes of conduct as provided for in Article 4a(1) aiming at effectively reducing the exposure of children to audiovisual commercial communications for foods and beverages containing nutrients and substances with a nutritional or physiological effect, in particular fat, trans-fatty acids, salt or sodium and sugars, of which excessive intakes in the overall diet are not recommended. Those codes shall aim to provide that such audiovisual commercial communications do not emphasise the positive quality of the nutritional aspects of such foods and beverages.

3.

For the purposes of paragraphs 1 and 2, the appropriate measures shall be determined in light of the nature of the content in question, the harm it may cause, the characteristics of the category of persons to be protected as well as the rights and legitimate interests at stake, including those of the video-sharing platform

Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA (OJ L 335, 17.12.2011, p. 1).

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providers and the users having created or uploaded the content as well as the general public interest. Member States shall ensure that all video-sharing platform providers under their jurisdiction apply such measures. Those measures shall be practicable and proportionate, taking into account the size of the video-sharing platform service and the nature of the service that is provided. Those measures shall not lead to any ex-ante control measures or upload-filtering of content which do not comply with Article 15 of Directive 2000/31/EC. For the purposes of the protection of minors, provided for in point (a) of paragraph 1 of this Article, the most harmful content shall be subject to the strictest access control measures. Those measures shall consist of, as appropriate: (a) including and applying in the terms and conditions of the video-sharing platform services the requirements referred to in paragraph 1; (b) including and applying in the terms and conditions of the video-sharing platform services the requirements set out in Article  9(1) for audiovisual commercial communications that are not marketed, sold or arranged by the video-sharing platform providers; (c)

having a functionality for users who upload user-generated videos to declare whether such videos contain audiovisual commercial communications as far as they know or can be reasonably expected to know;

(d) establishing and operating transparent and user-friendly mechanisms for users of a video-sharing platform to report or flag to the video-sharing platform provider concerned the content referred to in paragraph 1 provided on its platform; (e) establishing and operating systems through which video-sharing platform providers explain to users of video-sharing platforms what effect has been given to the reporting and flagging referred to in point (d); (f) establishing and operating age verification systems for users of videosharing platforms with respect to content which may impair the physical, mental or moral development of minors; (g) establishing and operating easy-to-use systems allowing users of videosharing platforms to rate the content referred to in paragraph 1; (h) providing for parental control systems that are under the control of the enduser with respect to content which may impair the physical, mental or moral development of minors; (i)

establishing and operating transparent, easy-to-use and effective procedures for the handling and resolution of users’ complaints to the video-sharing platform provider in relation to the implementation of the measures referred to in points (d) to (h);

(j)

providing for effective media literacy measures and tools and raising users’ awareness of those measures and tools.

Personal data of minors collected or otherwise generated by video-sharing platform providers pursuant to points (f) and (h) of the third subparagraph shall not be processed for commercial purposes, such as direct marketing, profiling and behaviourally targeted advertising.

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For the purposes of the implementation of the measures referred to in paragraphs 1 and 3 of this Article, Member States shall encourage the use of co-regulation as provided for in Article 4a(1).

5. Member States shall establish the necessary mechanisms to assess the appropriateness of the measures referred to in paragraph 3 taken by video-sharing platform providers. Member States shall entrust the assessment of those measures to the national regulatory authorities or bodies. 6.

Member States may impose on video-sharing platform providers measures that are more detailed or stricter than the measures referred to in paragraph 3 of this Article. When adopting such measures, Member States shall comply with the requirements set out by applicable Union law, such as those set out in Articles 12 to 15 of Directive 2000/31/EC or Article 25 of Directive 2011/93/EU.

7.

Member States shall ensure that out-of-court redress mechanisms are available for the settlement of disputes between users and video-sharing platform providers relating to the application of paragraphs 1 and 3. Such mechanisms shall enable disputes to be settled impartially and shall not deprive the user of the legal protection afforded by national law.

8.

Member States shall ensure that users can assert their rights before a court in relation to video-sharing platform providers pursuant to paragraphs 1 and 3.

9.

The Commission shall encourage video-sharing platform providers to exchange best practices on co-regulatory codes of conduct referred to in paragraph 4.

10. Member States and the Commission may foster self-regulation through Union codes of conduct referred to in Article 4a(2). CHAPTER X CONTACT COMMITTEE Article 29 1.

A contact committee is established under the aegis of the Commission. It shall be composed of representatives of the competent authorities of the Member States. It shall be chaired by a representative of the Commission and meet either on his initiative or at the request of the delegation of a Member State.

2.

The tasks of the contact committee shall be: (a) to facilitate effective implementation of this Directive through regular consultation on any practical problems arising from its application, and particularly from the application of Article 2, as well as on any other matters on which exchanges of views are deemed useful; (b) to deliver own-initiative opinions or opinions requested by the Commission on the application by the Member States of this Directive; (c)

to be the forum for an exchange of views on what matters should be dealt with in the reports which Member States must submit pursuant to Article 16(3) and on their methodology;

(d) to discuss the outcome of regular consultations which the Commission holds with representatives of broadcasting organisations, producers, consumers, manufacturers, service providers and trade unions and the creative community; (e)

to facilitate the exchange of information between the Member States and the Commission on the situation and the development of regulatory activities



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regarding audiovisual media services, taking account of the Union’s audiovisual policy, as well as relevant developments in the technical field; (f)

to examine any development arising in the sector on which an exchange of views appears useful.

CHAPTER XI REGULATORY AUTHORITIES AND BODIES OF THE MEMBER STATES Article 30 1.

Each Member State shall designate one or more national regulatory authorities, bodies, or both. Member States shall ensure that they are legally distinct from the government and functionally independent of their respective governments and of any other public or private body. This shall be without prejudice to the possibility for Member States to set up regulators having oversight over different sectors.

2.

Member States shall ensure that national regulatory authorities or bodies exercise their powers impartially and transparently and in accordance with the objectives of this Directive, in particular media pluralism, cultural and linguistic diversity, consumer protection, accessibility, non-discrimination, the proper functioning of the internal market and the promotion of fair competition. National regulatory authorities or bodies shall not seek or take instructions from any other body in relation to the exercise of the tasks assigned to them under national law implementing Union law. This shall not prevent supervision in accordance with national constitutional law.

3.

Member States shall ensure that the competences and powers of the national regulatory authorities or bodies, as well as the ways of making them accountable are clearly defined in law.

4.

Member States shall ensure that national regulatory authorities or bodies have adequate financial and human resources and enforcement powers to carry out their functions effectively and to contribute to the work of ERGA. Member States shall ensure that national regulatory authorities or bodies are provided with their own annual budgets, which shall be made public.

5.

Member States shall lay down in their national law the conditions and the procedures for the appointment and dismissal of the heads of national regulatory authorities and bodies or the members of the collegiate body fulfilling that function, including the duration of the mandate. The procedures shall be transparent, nondiscriminatory and guarantee the requisite degree of independence. The head of a national regulatory authority or body or the members of the collegiate body fulfilling that function within a national regulatory authority or body may be dismissed if they no longer fulfil the conditions required for the performance of their duties which are laid down in advance at national level. A dismissal decision shall be duly justified, subject to prior notification and made available to the public.

6.

Member States shall ensure that effective appeal mechanisms exist at national level. The appeal body, which may be a court, shall be independent of the parties involved in the appeal. Pending the outcome of the appeal, the decision of the national regulatory authority or body shall stand, unless interim measures are granted in accordance with national law.

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2.

3.

1. 2.

3.

4.

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Article 30a Member States shall ensure that national regulatory authorities or bodies take appropriate measures to provide each other and the Commission with the information necessary for the application of this Directive, in particular Articles 2, 3 and 4. In the context of the information exchange under paragraph  1, when national regulatory authorities or bodies receive information from a media service provider under their jurisdiction that it will provide a service wholly or mostly directed at the audience of another Member State, the national regulatory authority or body in the Member State having jurisdiction shall inform the national regulatory authority or body of the targeted Member State. If the regulatory authority or body of a Member State whose territory is targeted by a media service provider under the jurisdiction of another Member State sends a request concerning the activities of that provider to the regulatory authority or body of the Member State having jurisdiction over it, the latter regulatory authority or body shall do its utmost to address the request within two months, without prejudice to stricter time limits applicable pursuant to this Directive. When requested, the regulatory authority or body of the targeted Member State shall provide any information to the regulatory authority or body of the Member State having jurisdiction that may assist it in addressing the request. Article 30b The European Regulators Group for Audiovisual Media Services (ERGA) is hereby established. It shall be composed of representatives of national regulatory authorities or bodies in the field of audiovisual media services with primary responsibility for overseeing audiovisual media services, or where there is no national regulatory authority or body, by other representatives as chosen through their procedures. A Commission representative shall participate in ERGA meetings. ERGA shall have the following tasks: (a) to provide technical expertise to the Commission: — in its task to ensure a consistent implementation of this Directive in all Member States, — on matters related to audiovisual media services within its competence; (b) to exchange experience and best practices on the application of the regulatory framework for audiovisual media services, including on accessibility and media literacy; (c) to cooperate and provide its members with the information necessary for the application of this Directive, in particular as regards Articles 3, 4 and 7; (d) to give opinions, when requested by the Commission, on the technical and factual aspects of the issues pursuant to Article 2(5c), Article 3(2) and (3), point (c) of Article 4(4) and Article 28a(7). ERGA shall adopt its rules of procedure.

CHAPTER XII FINAL PROVISIONS Article 31 In fields which this Directive does not coordinate, it shall not affect the rights and obligations of Member States resulting from existing conventions dealing with telecommunications or broadcasting.



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Article 32 Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive. Article 33 The Commission shall monitor Member States’ application of this Directive. By 19 December 2022 at the latest, and every three years thereafter, the Commission shall submit to the European Parliament, to the Council and to the European Economic and Social Committee a report on the application of this Directive. By 19  December 2026 at the latest, the Commission shall submit to the European Parliament and the Council an ex post evaluation, accompanied where appropriate by proposals for its review, of the impact of this Directive and its added value. The Commission shall keep the Contact Committee and ERGA duly informed of the others’ work and activities. The Commission shall ensure that information received from Member States on any measure that they have taken in the fields coordinated by this Directive is communicated to the Contact Committee and ERGA. Article 33a 1.

Member States shall promote and take measures for the development of media literacy skills.

2.

By 19 December 2022 and every three years thereafter, Member States shall report to the Commission on the implementation of paragraph 1.

3.

The Commission shall, after consulting the Contact Committee, issue guidelines regarding the scope of such reports.

Article 34 Directive 89/552/EEC, as amended by the Directives listed in Annex I, Part A, is repealed, without prejudice to the obligations of the Member States relating to the time limits for transposition into national law of the Directives set out in Annex I, Part B. References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex II. Article 35 This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union. Article 36 This Directive is addressed to the Member States. ANNEX I PART A Repealed Directive with list of its successive amendments (referred to in Article 34) Council Directive 89/552/EEC (OJ L 298, 17.10.1989, p. 23) Directive 97/36/EC of the European Parliament and of the Council (OJ L 202, 30.7.1997, p. 60) Directive 2007/65/EC of the European Parliament and of the Council only Article 1 (OJ L 332, 18.12.2007, p. 27)

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PART B List of time limits for transposition into national law (referred to in Article 34) Directive

Time limit for transposition 3 October 1991 31 December 1998 19 December 2009

89/552/EEC 97/36/EC 2007/65/EC

ANNEX II CORRELATION TABLE Directive 89/552/EEC Article 1, introductory wording Article 1(a), introductory wording Article 1(a), first indent Article 1(a), second indent Article 1(b) to (m) Article 1(n)(i), introductory wording Article 1(n)(i), first indent Article 1(n)(i), second indent Article 1(n)(i), third indent Article 1(n)(i), fourth indent Article 1(n)(ii), introductory wording Article 1(n)(ii), first indent Article 1(n)(ii), second indent Article 1(n)(ii), third indent Article 1(n)(iii) Article 2 Article 2a(1), (2) and (3) Article 2a(4), introductory wording Article 2a(4)(a) Article 2a(4)(b), introductory wording Article 2a(4)(b), first indent Article 2a(4)(b), second indent Article 2a(5) and (6) Article 3 Article 3a Article 3b Article 3c Article 3d Article 3e

This Directive Article 1(1), introductory wording Article 1(1)(a), introductory wording Article 1(1)(a)(i) Article 1(1)(a)(ii) Article 1(1)(b) to (m) Article 1(1)(n), introductory wording Article 1(1)(n)(i) Article 1(1)(n)(ii) Article 1(1)(n)(iii) Article 1(2) Article 1(3), introductory wording Article 1(3)(i) Article 1(3)(ii) Article 1(3)(iii) Article 1(4) Article 2 Article 3(1), (2) and (3) Article 3(4), introductory wording Article 3(4)(a) Article 3(4)(b), introductory wording Article 3(4)(b)(i) Article 3(4)(b)(ii) Article 3(5) and (6) Article 4 Article 5 Article 6 Article 7 Article 8 Article 9



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Article 3f Article 3g(1) Article 3g(2), first subparagraph, introductory wording Article 3g(2), first subparagraph, first indent Article 3g(2), first subparagraph, second indent Article 3g(2), second, third and fourth subparagraphs Article 3g(3) Article 3g(4) Article 3h Article 3i Article 3j Article 3k Article 4(1), (2) and (3) Article 4(4) Article 5 Article 9 Article 10 Article 11 Article 14 Article 15 Article 18 Article 18a Article 19 Article 20 Article 22 Article 23 Article 23a Article 23b Article 24 Article 26 Article 27 -

Article 10 Article 11(2) Article 11(3), first subparagraph, introductory wording Article 11(3), first subparagraph, point (a) Article 11(3), first subparagraph, point (b) Article 11(3), second, third and fourth subparagraphs Article 11(4) Article 11(1) Article 12 Article 13 Article 14 Article 15 Article 16(1), (2) and (3) Article 17 Article 18 Article 19 Article 20 Article 21 Article 22 Article 23 Article 24 Article 25 Article 26 Article 27 Article 28 Article 29 Article 30 Article 31 Article 32 Article 33 Article 34 Article 35 Article 36 Annex I Annex II

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DIRECTIVE 2012/19/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 4 July 2012 on waste electrical and electronic equipment (WEEE)[101] (recast) (Text with EEA relevance) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 192(1) thereof, Having regard to the proposal from the European Commission, Having regard to the opinion of the European Economic and Social Committee (102), Having regard to the opinion of the Committee of the Regions (103), Acting in accordance with the ordinary legislative procedure (104), Whereas: (1) A number of substantial changes are to be made to Directive 2002/96/EC of the European Parliament and of the Council of 27 January 2003 on waste electrical and electronic equipment (WEEE) (105). In the interests of clarity, that Directive should be recast. (2) The objectives of the Union’s environment policy are, in particular, to preserve, protect and improve the quality of the environment, to protect human health and to utilise natural resources prudently and rationally. That policy is based on the precautionary principle and the principles that preventive action should be taken, that environmental damage should, as a priority, be rectified at source and that the polluter should pay. (3) The Community programme of policy and action in relation to the environment and sustainable development (Fifth Environmental Action Programme) (106) stated that the achievement of sustainable development calls for significant changes in current patterns of development, production, consumption and behaviour and advocates, inter alia, the reduction of wasteful consumption of natural resources and the prevention of pollution. It mentioned waste electrical and electronic equipment (WEEE) as one of the target areas to be regulated, in view of the application of the principles of prevention, recovery and safe disposal of waste. (4)

This Directive supplements the general waste management legislation of the Union, such as Directive 2008/98/EC of the European Parliament and of the Council of 19  November 2008 on waste (107). It refers to the definitions in that Directive, including the definitions of waste and general waste management operations. The definition of collection in Directive 2008/98/EC includes the preliminary sorting and preliminary storage of waste for the purposes of transport to a waste treatment

OJ L 197, 24.7.2012, p. 38. Incorporating amendments as per the consolidated version of 4 July 2018 (amended by Directive (EU) 2018/849 of the European Parliament and of the Council of 30 May 2018). 102 OJ C 306, 16.12.2009, p. 39. 103 OJ C 141, 29.5.2010, p. 55. 104 Position of the European Parliament of 3 February 2011 (not yet published in the Official Journal) and position of the Council at first reading of 19 July 2011 (not yet published in the Official Journal). Position of the European Parliament of 19 January 2012 (not yet published in the Official Journal) and decision of the Council of 7 June 2012. 105 OJ L 37, 13.2.2003, p. 24. 106 OJ C 138, 17.5.1993, p. 5. 107 OJ L 312, 22.11.2008, p. 3. 101



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facility. Directive 2009/125/EC of the European Parliament and of the Council (108) establishes a framework for setting ecodesign requirements for energy-related products and enables the adoption of specific ecodesign requirements for energyrelated products which may also be covered by this Directive. Directive 2009/125/ EC and the implementing measures adopted pursuant thereto are without prejudice to the waste management legislation of the Union. Directive 2002/95/EC of the European Parliament and of the Council of 27 January 2003 on the restriction of the use of certain hazardous substances in electrical and electronic equipment (8) requires the substitution of banned substances in respect of all electrical and electronic equipment (EEE) within its scope. (5) As the market continues to expand and innovation cycles become even shorter, the replacement of equipment accelerates, making EEE a fast-growing source of waste. While Directive 2002/95/EC has contributed effectively to reducing hazardous substances contained in new EEE, hazardous substances such as mercury, cadmium, lead, hexavalent chromium and polychlorinated biphenyls (PCBs) and ozone-depleting substances will still be present in WEEE for many years. The content of hazardous components in EEE is a major concern during the waste management phase, and recycling of WEEE is not undertaken to a sufficient extent. A lack of recycling results in the loss of valuable resources. (6) The purpose of this Directive is to contribute to sustainable production and consumption by, as a first priority, the prevention of WEEE and, in addition, by the re-use, recycling and other forms of recovery of such wastes so as to reduce the disposal of waste and to contribute to the efficient use of resources and the retrieval of valuable secondary raw materials. It also seeks to improve the environmental performance of all operators involved in the life cycle of EEE, e.g. producers, distributors and consumers and, in particular, those operators directly involved in the collection and treatment of WEEE. In particular, different national applications of the ‘producer responsibility’ principle may lead to substantial disparities in the financial burden on economic operators. Having different national policies on the management of WEEE hampers the effectiveness of recycling policies. For that reason, the essential criteria should be laid down at the level of the Union and minimum standards for the treatment of WEEE should be developed. (7) The provisions of this Directive should apply to products and producers irrespective of selling technique, including distance and electronic selling. In this connection, the obligations of producers and distributors using distance and electronic selling channels should, as far as is practicable, take the same form, and should be enforced in the same way, as for other distribution channels, in order to avoid those other distribution channels having to bear the costs resulting from this Directive arising from WEEE for which the equipment was sold by distance or electronic selling. (8) In order to fulfil the obligations pursuant to this Directive in a given Member State, a producer should be established in that Member State. By exception, to reduce existing barriers to the proper functioning of the internal market and administrative burdens, Member States should allow producers that are not established on their territory, but that are established in another Member State, to appoint an authorised representative to be responsible for fulfilling the obligations of that producer under this Directive. In addition, administrative burdens should be reduced by simplifying registration and reporting procedures and by ensuring OJ L 285, 31.10.2009, p. 10.

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that duplicate charges are not levied for registrations within individual Member States. (9) This Directive should cover all EEE used by consumers and EEE intended for professional use. This Directive should apply without prejudice to Union legislation on safety and health requirements protecting all actors in contact with WEEE, as well as specific Union waste management legislation, in particular Directive 2006/66/EC of the European Parliament and of the Council of 6  September 2006 on batteries and accumulators and waste batteries and accumulators (109), and Union product design legislation, in particular Directive 2009/125/EC. The preparing for re-use, recovery and recycling of waste cooling equipment and the substances, mixtures or components thereof should be in accordance with the relevant legislation of the Union, in particular Regulation (EC) No 1005/2009 of the European Parliament and of the Council of 16 September 2009 on substances that deplete the ozone layer (110) and Regulation (EC) No  842/2006 of the European Parliament and of the Council of 17 May 2006 on certain fluorinated greenhouse gases (111). The objectives of this Directive can be achieved without including large-scale fixed installations such as oil platforms, airport luggage transport systems or elevators within its scope. However, any equipment which is not specifically designed and installed as part of those installations, and which can fulfil its function even if it is not part of those installations, should be included in the scope of this Directive. This refers for instance to equipment such as lighting equipment or photovoltaic panels. (10) A number of definitions should be included in this Directive in order to specify its scope. However, in the framework of a revision of the scope, the definition of EEE should be further clarified in order to bring Member States’ relevant national measures and current, applied and established practices closer together. (11) Ecodesign requirements facilitating the re-use, dismantling and recovery of WEEE should be laid down in the framework of measures implementing Directive 2009/125/EC. In order to optimise re-use and recovery through product design, the whole life cycle of the product should be taken into account. (12) The establishment, by this Directive, of producer responsibility is one of the means of encouraging design and production of EEE which take into full account and facilitate its repair, possible upgrading, re-use, disassembly and recycling. (13) In order to guarantee the safety and health of distributors’ personnel involved in the take-back and handling of WEEE, Member States should, in accordance with national and Union legislation on safety and health requirements, determine the conditions under which take-back may be refused by distributors. (14) Separate collection is a precondition for ensuring specific treatment and recycling of WEEE and is necessary to achieve the chosen level of protection of human health and the environment in the Union. Consumers have to actively contribute to the success of such collection and should be encouraged to return WEEE. For this purpose, convenient facilities should be set up for the return of WEEE, including public collection points, where private households should be able to return their waste at least free of charge. Distributors have an important role in contributing to the success of WEEE collection. Therefore, collection points set up at retail OJ L 37, 13.2.2003, p. 19. OJ L 266, 26.9.2006, p. 1. 111 OJ L 286, 31.10.2009, p. 1. 109 110



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shops for very small WEEE should not be subject to the registration or permit requirements of Directive 2008/98/EC. (15) In order to attain the chosen level of protection and the harmonised environmental objectives of the Union, Member States should adopt appropriate measures to minimise the disposal of WEEE as unsorted municipal waste and to achieve a high level of separate collection of WEEE. In order to ensure that Member States strive to set up efficient collection schemes, they should be required to achieve a high level of collection of WEEE, particularly for cooling and freezing equipment containing ozone-depleting substances and fluorinated greenhouse gases, given their high environmental impact and in view of the obligations contained in Regulation (EC) No 842/2006 and Regulation (EC) No 1005/2009. Data included in the impact assessment carried out by the Commission in 2008 show that 65 % of the EEE placed on the market was already separately collected then, but more than half of this was potentially the object of improper treatment and illegal exports, and, even when properly treated, this was not reported. This leads to losses of valuable secondary raw materials, environmental degradation, and provision of inconsistent data. To avoid this, it is necessary to set an ambitious collection target and to ensure that WEEE collected is treated in an environmentally sound way and is correctly reported. It is appropriate to lay down minimum requirements for shipments of used EEE suspected to be WEEE, in the application of which Member States may have regard to any relevant Correspondents’ Guidelines elaborated in the context of the implementation of Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste (112). Such minimum requirements should in any case have the purpose of avoiding unwanted shipments of non-functional EEE to developing countries. (16) The setting of ambitious collection targets should be based on the amount of WEEE generated where due account is taken of the differing life cycles of products in the Member States, of non-saturated markets and of EEE with a long life cycle. Therefore, a methodology for calculating collection rates based on WEEE generated should be developed in the near future. According to current estimates, a collection rate of 85 % of WEEE generated is broadly equivalent to a collection rate of 65 % of the average weight of EEE placed on the market in the three preceding years. (17) Specific treatment for WEEE is indispensable in order to avoid the dispersion of pollutants in recycled material or the waste stream. Such treatment is the most effective means of ensuring compliance with the chosen level of protection of the environment of the Union. Any establishment or undertaking carrying out collection, recycling and treatment operations should comply with minimum standards to prevent negative environmental impacts associated with the treatment of WEEE. The best available treatment, recovery and recycling techniques should be used, provided that they ensure human health and a high level of environmental protection. Best available treatment, recovery and recycling techniques may be further defined in accordance with the procedures of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (113). (18) The Scientific Committee on Emerging and Newly Identified Health Risks, in its opinion on ‘Risk Assessment of Products of Nanotechnology’ of 19 January OJ L 161, 14.6.2006, p. 1. OJ L 190, 12.7.2006, p. 1.

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2009, stated that exposure to nanomaterials that are firmly embedded in large structures, for example in electronic circuits, may occur in the waste phase and during recycling. To control possible risks to human health and the environment from the treatment of WEEE that contains nanomaterials, it is appropriate for the Commission to assess whether specific treatment may be necessary. (19) The collection, storage, transport, treatment and recycling of WEEE as well as its preparation for re-use shall be conducted with an approach geared to protecting the environment and human health and preserving raw materials and shall aim at recycling valuable resources contained in EEE with a view to ensuring a better supply of commodities within the Union. (20) Where appropriate, priority should be given to preparing for re-use of WEEE and its components, sub-assemblies and consumables. Where this is not preferable, all WEEE collected separately should be sent for recovery, in the course of which a high level of recycling and recovery should be achieved. In addition, producers should be encouraged to integrate recycled material in new equipment. (21) The recovery, preparation for re-use and recycling of WEEE should be counted towards the achievement of the targets laid down in this Directive only if that recovery, preparation for re-use or recycling does not conflict with other Union or national legislation applicable to the equipment. Ensuring proper preparation for re-use, recycling and recovery of WEEE is important for sound resource management and will optimise supply of resources. (22) Basic principles with regard to the financing of WEEE management have to be set at the level of the Union, and financing schemes have to contribute to high collection rates, as well as to the implementation of the principle of producer responsibility. (23) Users of EEE from private households should have the possibility of returning WEEE at least free of charge. Producers should finance at least the collection from collection facilities, and the treatment, recovery and disposal of WEEE. Member States should encourage producers to take full responsibility for the WEEE collection, in particular by financing the collection of WEEE throughout the entire waste chain, including from private households, in order to avoid separately collected WEEE becoming the object of suboptimal treatment and illegal exports, to create a level playing field by harmonising producer financing across the Union and to shift payment for the collection of this waste from general tax payers to the consumers of EEE, in line with the ‘polluter pays’ principle. In order to give maximum effect to the concept of producer responsibility, each producer should be responsible for financing the management of the waste from his own products. The producer should be able to choose to fulfil this obligation either individually or by joining a collective scheme. Each producer should, when placing a product on the market, provide a financial guarantee to prevent costs for the management of WEEE from orphan products from falling on society or the remaining producers. The responsibility for the financing of the management of historical waste should be shared by all existing producers through collective financing schemes to which all producers that exist on the market when the costs occur contribute proportionately. Collective financing schemes should not have the effect of excluding niche and low-volume producers, importers and new entrants. Collective schemes could provide for differentiated fees based on how easily products and the valuable secondary raw materials that they contain could be recycled. In the case of products which have a long life cycle and which are



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now covered by this Directive, such as photovoltaic panels, the best possible use should be made of existing collection and recovery systems, provided that they meet the requirements laid down in this Directive. (24) Producers could be allowed to show purchasers, on a voluntary basis at the time of sale of new products, the costs of collecting, treating and disposing of WEEE in an environmentally sound way. This is in line with the Commission Communication on Sustainable Consumption and Production and Sustainable Industrial Policy Action Plan, in particular with regard to smarter consumption and green public procurement. (25) Information to users about the requirement not to dispose of WEEE as unsorted municipal waste and to collect WEEE separately and about the collection systems and their role in the management of WEEE is indispensable for the success of WEEE collection. Such information necessitates the proper marking of EEE which could end up in rubbish bins or similar means of municipal waste collection. (26) Information on component and material identification to be provided by producers is important to facilitate the management, and in particular the treatment and recovery or recycling, of WEEE. (27) Member States should ensure that inspection and monitoring infrastructure enables the proper implementation of this Directive to be verified, having regard, inter alia, to Recommendation 2001/331/EC of the European Parliament and of the Council of 4 April 2001 providing for minimum criteria for environmental inspections in the Member States (114). (28) Member States should provide for effective, proportionate and dissuasive penalties to be imposed on natural and legal persons responsible for waste management, where they infringe the provisions of this Directive. Member States should also be able to take action to recover the costs of non-compliance and remedial measures, without prejudice to Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (115). (29) Information about the weight of EEE placed on the market in the Union and the rates of collection, preparation for re-use, including as far as possible preparation for re-use of whole appliances, recovery or recycling and export of WEEE collected in accordance with this Directive is necessary to monitor the achievement of the objectives of this Directive. For the purposes of calculating collection rates, a common methodology for the calculation of weight of EEE should be developed to ascertain, inter alia, whether this term includes the actual weight of the entire equipment in the form in which it is marketed, including all components, subassemblies, accessories and consumables but excluding packaging, batteries, instructions for use and manuals. (30) It is appropriate to allow Member States to choose to implement certain provisions of this Directive by means of agreements between the competent authorities and the economic sectors concerned, provided that particular requirements are met. (31) In order to address difficulties faced by Member States in achieving the collection rates, to take into account technical and scientific progress and to supplement the provisions on fulfilment of recovery targets, the power to adopt acts in OJ L 24, 29.1.2008, p. 8. OJ L 118, 27.4.2001, p. 41.

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accordance with Article  290 of the Treaty on the Functioning of the European Union (TFEU) should be delegated to the Commission in respect of transitional adjustments for certain Member States, adaptation to technical and scientific progress and the adoption of detailed rules on WEEE exported out of the Union counting towards the fulfilment of recovery targets. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council. (32) In order to ensure uniform conditions for the implementation of this Directive, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No  182/2011 of the European Parliament and of the Council of 16  February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (116). (33) The obligation to transpose this Directive into national law should be confined to those provisions which represent a substantive change as compared with the earlier Directives. The obligation to transpose the provisions which are unchanged arises under the earlier Directives. (34) In accordance with the Joint Political Declaration of 28  September 2011 of Member States and the Commission on explanatory documents (117), Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified. (35) This Directive should be without prejudice to the obligations of the Member States relating to the time limits for transposition into national law and application of the Directives set out in Annex XI, Part B. (36) Since the objective of this Directive cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale of the problem, be better achieved at the level of the Union, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective, HAVE ADOPTED THIS DIRECTIVE: Article 1 Subject matter This Directive lays down measures to protect the environment and human health by preventing or reducing the adverse impacts of the generation and management of waste from electrical and electronic equipment (WEEE) and by reducing overall impacts of resource use and improving the efficiency of such use in accordance with Articles 1 and 4 of Directive 2008/98/EC, thereby contributing to sustainable development.

OJ L 143, 30.4.2004, p. 56. OJ L 55, 28.2.2011, p. 13.

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Article 2 Scope 1.

This Directive shall apply to electrical and electronic equipment (EEE) as follows: (a) from 13 August 2012 to 14 August 2018 (transitional period), subject to paragraph 3, to EEE falling within the categories set out in Annex I. Annex II contains an indicative list of EEE which falls within the categories set out in Annex I; (b) from 15 August 2018, subject to paragraphs 3 and 4, to all EEE. All EEE shall be classified within the categories set out in Annex III. Annex IV contains a non-exhaustive list of EEE which falls within the categories set out in Annex III (open scope).

2.

This Directive shall apply without prejudice to the requirements of Union legislation on safety and health, on chemicals, in particular Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency (118), as well as of specific Union waste management or product design legislation.

3.

This Directive shall not apply to any of the following EEE: (a)

equipment which is necessary for the protection of the essential interests of the security of Member States, including arms, munitions and war material intended for specifically military purposes;

(b) equipment which is specifically designed and installed as part of another type of equipment that is excluded from or does not fall within the scope of this Directive, which can fulfil its function only if it is part of that equipment; (c) 4.

filament bulbs.

In addition to the equipment specified in paragraph 3, from 15 August 2018, this Directive shall not apply to the following EEE: (a)

equipment designed to be sent into space;

(b) large-scale stationary industrial tools; (c)

large-scale fixed installations, except any equipment which is not specifically designed and installed as part of those installations;

(d) means of transport for persons or goods, excluding electric two-wheel vehicles which are not type-approved; (e)

non-road mobile machinery made available exclusively for professional use;

(f) equipment specifically designed solely for the purposes of research and development that is only made available on a business-to-business basis; (g)

5.

medical devices and in vitro diagnostic medical devices, where such devices are expected to be infective prior to end of life, and active implantable medical devices.

No later than 14 August 2015, the Commission shall review the scope of this Directive set out in point (b) of paragraph 1, including the parameters to distinguish

OJ L 396, 30.12.2006, p. 1.

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between large and small equipment in Annex III, and shall present a report thereon to the European Parliament and to the Council. The report shall be accompanied by a legislative proposal, if appropriate. Article 3 Definitions 1.

For the purposes of this Directive, the following definitions shall apply: (a) ‘electrical and electronic equipment’ or ‘EEE’ means equipment which is dependent on electric currents or electromagnetic fields in order to work properly and equipment for the generation, transfer and measurement of such currents and fields and designed for use with a voltage rating not exceeding 1 000 volts for alternating current and 1 500 volts for direct current; (b) ‘large-scale stationary industrial tools’ means a large size assembly of machines, equipment, and/or components, functioning together for a specific application, permanently installed and de-installed by professionals at a given place, and used and maintained by professionals in an industrial manufacturing facility or research and development facility; (c) ‘large-scale fixed installation’ means a large-size combination of several types of apparatus and, where applicable, other devices, which: (i)

are assembled, installed and de-installed by professionals;

(ii) are intended to be used permanently as part of a building or a structure at a pre-defined and dedicated location; and (iii) can only be replaced by the same specifically designed equipment; (d) ‘non-road mobile machinery’ means machinery, with on-board power source, the operation of which requires either mobility or continuous or semi-continuous movement between a succession of fixed working locations while working; (e) ‘waste electrical and electronic equipment’ or ‘WEEE’ means electrical or electronic equipment which is waste within the meaning of Article 3(1) of Directive 2008/98/EC, including all components, sub-assemblies and consumables which are part of the product at the time of discarding; (f)

‘producer’ means any natural or legal person who, irrespective of the selling technique used, including distance communication within the meaning of Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (119): (i)

is established in a Member State and manufactures EEE under his own name or trademark, or has EEE designed or manufactured and markets it under his name or trademark within the territory of that Member State;

(ii) is established in a Member State and resells within the territory of that Member State, under his own name or trademark, equipment produced by other suppliers, a reseller not being regarded as the ‘producer’ if

OJ L 144, 4.6.1997, p. 19.

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the brand of the producer appears on the equipment, as provided for in point (i); (iii) is established in a Member State and places on the market of that Member State, on a professional basis, EEE from a third country or from another Member State; or (iv) sells EEE by means of distance communication directly to private households or to users other than private households in a Member State, and is established in another Member State or in a third country. Whoever exclusively provides financing under or pursuant to any finance agreement shall not be deemed to be a ‘producer’ unless he also acts as a producer within the meaning of points (i) to (iv); (g) ‘distributor’ means any natural or legal person in the supply chain, who makes an EEE available on the market. This definition does not prevent a distributor from being, at the same time, a producer within the meaning of point (f); (h) ‘WEEE from private households’ means WEEE which comes from private households and WEEE which comes from commercial, industrial, institutional and other sources which, because of its nature and quantity, is similar to that from private households. Waste from EEE likely to be used by both private households and users other than private households shall in any event be considered to be WEEE from private households; (i)

‘finance agreement’ means any loan, lease, hiring or deferred sale agreement or arrangement relating to any equipment whether or not the terms of that agreement or arrangement or any collateral agreement or arrangement provide that a transfer of ownership of that equipment will or may take place;

(j) ‘making available on the market’ means any supply of a product for distribution, consumption or use on the market of a Member State in the course of a commercial activity, whether in return for payment or free of charge; (k) ‘placing on the market’ means the first making available of a product on the market within the territory of a Member State on a professional basis; (l)

‘removal’ means manual, mechanical, chemical or metallurgic handling with the result that hazardous substances, mixtures and components are contained in an identifiable stream or are an identifiable part of a stream within the treatment process. A  substance, mixture or component is identifiable if it can be monitored to verify environmentally safe treatment;

(m) ‘medical device’ means a medical device or accessory within the meaning of, respectively, point (a) or (b) of Article 1(2) of Council Directive 93/42/ EEC of 14 June 1993 concerning medical devices (120) which is EEE; (n) ‘in vitro diagnostic medical device’ means an in vitro diagnostic device or accessory within the meaning of, respectively, point (b) or (c) of Article 1(2)

OJ L 169, 12.7.1993, p. 1.

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of Directive 98/79/EC of the European Parliament and of the Council of 27 October 1998 on in vitro diagnostic medical devices (121) which is EEE; (o) ‘active implantable medical device’ means an active implantable medical device within the meaning of point (c) of Article 1(2) of Council Directive 90/385/EEC of 20  June 1990 on the approximation of the laws of the Member States relating to active implantable medical devices (122) which is EEE. 2.

In addition, the definitions of ‘hazardous waste’, ‘collection’, ‘separate collection’, ‘prevention’, ‘re-use’, ‘treatment’, ‘recovery’, ‘preparing for re-use’, ‘recycling’ and ‘disposal’ laid down in Article 3 of Directive 2008/98/EC shall apply.

Article 4 Product design Member States shall, without prejudice to the requirements of Union legislation on the proper functioning of the internal market and on product design, including Directive 2009/125/EC, encourage cooperation between producers and recyclers and measures to promote the design and production of EEE, notably in view of facilitating re-use, dismantling and recovery of WEEE, its components and materials. In this context, Member States shall take appropriate measures so that the ecodesign requirements facilitating re-use and treatment of WEEE established in the framework of Directive 2009/125/EC are applied and producers do not prevent, through specific design features or manufacturing processes, WEEE from being re-used, unless such specific design features or manufacturing processes present overriding advantages, for example, with regard to the protection of the environment and/or safety requirements. Article 5 Separate collection 1.

Member States shall adopt appropriate measures to minimise the disposal of WEEE in the form of unsorted municipal waste, to ensure the correct treatment of all collected WEEE and to achieve a high level of separate collection of WEEE, notably, and as a matter of priority, for temperature exchange equipment containing ozone-depleting substances and fluorinated greenhouse gases, fluorescent lamps containing mercury, photovoltaic panels and small equipment as referred to in categories 5 and 6 of Annex III.

2.

For WEEE from private households, Member States shall ensure that: (a) systems are set up allowing final holders and distributors to return such waste at least free of charge. Member States shall ensure the availability and accessibility of the necessary collection facilities, taking into account, in particular, the population density; (b)

when supplying a new product, distributors are responsible for ensuring that such waste can be returned to the distributor at least free of charge on a oneto-one basis as long as the equipment is of equivalent type and has fulfilled the same functions as the supplied equipment. Member States may derogate from this provision provided that they ensure that returning the WEEE is not thereby made more difficult for the final holder and that it remains free of charge for the final holder. Member States making use of this derogation shall inform the Commission thereof;

OJ L 331, 7.12.1998, p. 1. OJ L 189, 20.7.1990, p. 17.

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(c) distributors provide for the collection, at retail shops with sales areas relating to EEE of at least 400 m2, or in their immediate proximity, of very small WEEE (no external dimension more than 25 cm) free of charge to end-users and with no obligation to buy EEE of an equivalent type, unless an assessment shows that alternative existing collection schemes are likely to be at least as effective. Such assessments shall be available to the public. WEEE collected shall be properly treated in accordance with Article 8; (d) without prejudice to points (a), (b) and (c), producers are allowed to set up and to operate individual and/or collective take-back systems for WEEE from private households provided that these are in line with the objectives of this Directive; (e)

having regard to national and Union health and safety standards, WEEE that presents a health and safety risk to personnel because of contamination may be refused for return under points (a), (b) and (c). Member States shall make specific arrangements for such WEEE.

Member States may provide for specific arrangements for the return of WEEE pursuant to points (a), (b) and (c) for cases in which the equipment does not contain its essential components or if the equipment contains waste other than WEEE. 3.

Member States may designate the operators that are allowed to collect WEEE from private households as referred to in paragraph 2.

4.

Member States may require that the WEEE deposited at collection facilities referred to in paragraphs 2 and 3 is handed over to producers or third parties acting on their behalf or is handed over, for purposes of preparing for re-use, to designated establishments or undertakings.

5.

In the case of WEEE other than WEEE from private households, and without prejudice to Article 13, Member States shall ensure that producers or third parties acting on their behalf provide for the collection of such waste. Article 6 Disposal and transport of collected WEEE

1.

Member States shall prohibit the disposal of separately collected WEEE which has not yet undergone the treatment specified in Article 8.

2.

Member States shall ensure that the collection and transport of separately collected WEEE is carried out in a way which allows optimal conditions for preparing for re-use, recycling and the confinement of hazardous substances. In order to maximise preparing for re-use, Member States shall promote that, prior to any further transfer, collection schemes or facilities provide, where appropriate, for the separation at the collection points of WEEE that is to be prepared for reuse from other separately collected WEEE, in particular by granting access for personnel from re-use centres. Article 7 Collection rate

1. Without prejudice to Article  5(1), each Member State shall ensure the implementation of the ‘producer responsibility’ principle and, on that basis, that a minimum collection rate is achieved annually. From 2016, the minimum collection rate shall be 45 % calculated on the basis of the total weight of WEEE collected in accordance with Articles 5 and 6 in a given year in the Member State concerned,

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expressed as a percentage of the average weight of EEE placed on the market in the three preceding years in that Member State. Member States shall ensure that the volume of WEEE collected evolves gradually during the period from 2016 to 2019, unless the collection rate laid down in the second subparagraph has already been achieved. From 2019, the minimum collection rate to be achieved annually shall be 65 % of the average weight of EEE placed on the market in the three preceding years in the Member State concerned, or alternatively 85 % of WEEE generated on the territory of that Member State. Until 31 December 2015, a rate of separate collection of at least 4 kilograms on average per inhabitant per year of WEEE from private households or the same amount of weight of WEEE as was collected in that Member State on average in the three preceding years, whichever is greater, shall continue to apply. Member States may set more ambitious rates for separate collection of WEEE and shall in such a case report this to the Commission. 2.

In order to establish whether the minimum collection rate has been achieved, Member States shall ensure that information concerning the WEEE that is separately collected in accordance with Article  5 is transmitted to the Member States free of charge, including at least information on WEEE that has been: (a)

received by collection and treatment facilities;

(b) received by distributors; (c) 3.

separately collected by producers or third parties acting on their behalf.

By way of derogation from paragraph 1, Bulgaria, the Czech Republic, Latvia, Lithuania, Hungary, Malta, Poland, Romania, Slovenia and Slovakia may, because of their lack of the necessary infrastructure and their low level of EEE consumption, decide to: (a)

achieve, from 14 August 2016, a collection rate that is lower than 45 % but higher than 40 % of the average weight of EEE placed on the market in the three preceding years; and

(b) postpone the achievement of the collection rate referred to in the second subparagraph of paragraph 1 until a date of their own choice which shall not be later than 14 August 2021. 4.

The Commission shall be empowered to adopt delegated acts in accordance with Article 20 laying down the necessary transitional adjustments in order to address difficulties faced by Member States in adhering to the requirements laid down in paragraph 1.

5.

In order to ensure uniform conditions for the implementation of this Article, the Commission shall, by 14 August 2015, adopt implementing acts establishing a common methodology for the calculation of the weight of EEE placed on the national market and a common methodology for the calculation of the quantity of WEEE generated by weight in each Member State. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 21(2).

6.

The Commission shall, by 14  August 2015, present a report to the European Parliament and to the Council on the re-examination of the deadlines relating to the collection rates referred to in paragraph 1 and on possibly setting individual



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collection rates for one or more categories set out in Annex III, particularly for temperature exchange equipment, photovoltaic panels, small equipment, small IT and telecommunication equipment and lamps containing mercury. The report shall, if appropriate, be accompanied by a legislative proposal. 7.

If the Commission considers, on the basis of an impact study, that the collection rate based on WEEE generated requires revision, it shall submit a legislative proposal to the European Parliament and the Council. Article 8 Proper treatment

1.

Member States shall ensure that all separately collected WEEE undergoes proper treatment.

2.

Proper treatment, other than preparing for re-use, and recovery or recycling operations shall, as a minimum, include the removal of all fluids and a selective treatment in accordance with Annex VII.

3.

Member States shall ensure that producers or third parties acting on their behalf set up systems to provide for the recovery of WEEE using best available techniques. The systems may be set up by producers individually or collectively. Member States shall ensure that any establishment or undertaking carrying out collection or treatment operations stores and treats WEEE in compliance with the technical requirements set out in Annex VIII.

4.

The Commission shall be empowered to adopt delegated acts in accordance with Article 20 concerning the amendment of Annex VII in order to introduce other treatment technologies that ensure at least the same level of protection for human health and the environment. The Commission shall evaluate, as a matter of priority, whether the entries regarding printed circuit boards for mobile phones and liquid crystal displays need to be amended. The Commission is invited to evaluate whether amendments to Annex VII are necessary to address nanomaterials contained in EEE.

5.

For the purposes of environmental protection, Member States may set up minimum quality standards for the treatment of the WEEE that has been collected. Member States which opt for such quality standards shall inform the Commission thereof, which shall publish these standards. The Commission shall, not later than 14  February 2013, request the European standardisation organisations to develop European standards for the treatment, including recovery, recycling and preparing for re-use, of WEEE. Those standards shall reflect the state of the art. In order to ensure uniform conditions for the implementation of this Article, the Commission may adopt implementing acts laying down minimum quality standards based in particular on the standards developed by the European standardisation organisations. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 21(2). A reference to the standards adopted by the Commission shall be published.

6.

Member States shall encourage establishments or undertakings which carry out treatment operations to introduce certified environmental management systems in accordance with Regulation (EC) No 1221/2009 of the European Parliament and of

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the Council of 25 November 2009 on the voluntary participation by organisations in a Community eco-management and audit scheme (EMAS) (123). Article 9 Permits 1.

Member States shall ensure that any establishment or undertaking carrying out treatment operations obtains a permit from the competent authorities in compliance with Article 23 of Directive 2008/98/EC.

2.

Exemptions from permit requirements, conditions for exemptions and registration shall be in compliance, respectively, with Articles  24, 25 and 26 of Directive 2008/98/EC.

3.

Member States shall ensure that the permit or the registration referred to in paragraphs 1 and 2 includes all the conditions that are necessary for compliance with the requirements of Article 8(2), (3) and (5) and for the achievement of the recovery targets set out in Article 11. Article 10 Shipments of WEEE

1.

The treatment operation may also be undertaken outside the respective Member State or the Union provided that the shipment of WEEE is in compliance with Regulation (EC) No 1013/2006 and Commission Regulation (EC) No 1418/2007 of 29 November 2007 concerning the export for recovery of certain waste listed in Annex III or IIIA to Regulation (EC) No 1013/2006 of the European Parliament and of the Council to certain countries to which the OECD Decision on the control of transboundary movements of wastes does not apply (124).

2.

WEEE exported out of the Union shall only count towards the fulfilment of obligations and targets set out in Article 11 of this Directive if, in compliance with Regulations (EC) No 1013/2006 and (EC) No 1418/2007, the exporter can prove that the treatment took place in conditions that are equivalent to the requirements of this Directive.

3.

The Commission shall, not later than 14  February 2014, adopt delegated acts, in accordance with Article  20, laying down detailed rules supplementing those in paragraph  2 of this Article, in particular the criteria for the assessment of equivalent conditions. Article 11 Recovery targets

1.

Regarding all WEEE separately collected in accordance with Article 5 and sent for treatment in accordance with Articles 8, 9 and 10, Member States shall ensure that producers meet the minimum targets set out in Annex V.

2.

The achievement of the targets shall be calculated, for each category, by dividing the weight of the WEEE that enters the recovery or recycling/preparing for reuse facility, after proper treatment in accordance with Article 8(2) with regard to recovery or recycling, by the weight of all separately collected WEEE for each category, expressed as a percentage.

OJ L 342, 22.12.2009, p. 1. OJ L 316, 4.12.2007, p. 6.

123 124



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Preliminary activities including sorting and storage prior to recovery shall not count towards the achievement of these targets. 3.

In order to ensure uniform conditions for the implementation of this Article, the Commission may adopt implementing acts establishing additional rules on the calculation methods for the application of the minimum targets. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 21(2).

4.

Member States shall ensure that, for the purpose of calculating these targets, producers or third parties acting on their behalf keep records on the weight of WEEE, its components, materials or substances when leaving (output) the collection facility, entering (input) and leaving (output) the treatment facilities and when entering (input) the recovery or recycling/preparing for re-use facility. Member States shall also ensure that, for the purposes of paragraph  6, records on the weight of products and materials when leaving (output) the recovery or recycling/preparing for re-use facility are kept.

5.

Member States shall encourage the development of new recovery, recycling and treatment technologies.

6.

On the basis of a report of the Commission accompanied, if appropriate, by a legislative proposal, the European Parliament and the Council shall, by 14 August 2016, re-examine the recovery targets referred to in Annex V, Part 3, examine the possibility of setting separate targets for WEEE to be prepared for re-use and reexamine the calculation method referred to in paragraph 2 with a view to analysing the feasibility of setting targets on the basis of products and materials resulting (output) from the recovery, recycling and preparation for re-use processes. Article 12 Financing in respect of WEEE from private households

1.

Member States shall ensure that producers provide at least for the financing of the collection, treatment, recovery and environmentally sound disposal of WEEE from private households that has been deposited at collection facilities set up under Article 5(2).

2.

Member States may, where appropriate, encourage producers to finance also the costs occurring for collection of WEEE from private households to collection facilities.

3.

For products placed on the market later than 13 August 2005, each producer shall be responsible for financing the operations referred to in paragraph 1 relating to the waste from his own products. The producer may choose to fulfil this obligation either individually or by joining a collective scheme. Member States shall ensure that each producer provides a guarantee when placing a product on the market showing that the management of all WEEE will be financed and shall ensure that producers clearly mark their products in accordance with Article 15(2). This guarantee shall ensure that the operations referred to in paragraph 1 relating to this product will be financed. The guarantee may take the form of participation by the producer in appropriate schemes for the financing of the management of WEEE, a recycling insurance or a blocked bank account.

4.

The responsibility for the financing of the costs of the management of WEEE from products placed on the market on or before 13  August 2005 (‘historical waste’) shall be borne by one or more systems to which all producers existing

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on the market when the respective costs occur contribute proportionately, e.g. in proportion to their respective share of the market by type of equipment. 5.

Member States shall take the necessary measures to ensure that appropriate mechanisms or refund procedures are developed for the reimbursement of contributions to the producers where EEE is transferred for placing on the market outside the territory of the Member State concerned. Such mechanisms or procedures may be developed by producers or third parties acting on their behalf.

6.

The Commission is invited to report, by 14 August 2015, on the possibility of developing criteria to incorporate the real end-of-life costs into the financing of WEEE by producers, and to submit a legislative proposal to the European Parliament and the Council if appropriate. Article 13 Financing in respect of WEEE from users other than private households

1.

Member States shall ensure that the financing of the costs for the collection, treatment, recovery and environmentally sound disposal of WEEE from users other than private households resulting from products placed on the market after 13 August 2005 is to be provided for by producers. For historical waste being replaced by new equivalent products or by new products fulfilling the same function, the financing of the costs shall be provided for by producers of those products when supplying them. Member States may, as an alternative, provide that users other than private households also be made, partly or totally, responsible for this financing. For other historical waste, the financing of the costs shall be provided for by the users other than private households.

2.

Producers and users other than private households may, without prejudice to this Directive, conclude agreements stipulating other financing methods. Article 14 Information for users

1.

Member States may require producers to show purchasers, at the time of sale of new products, the costs of collection, treatment and disposal in an environmentally sound way. The costs mentioned shall not exceed the best estimate of the actual costs incurred.

2.

Member States shall ensure that users of EEE in private households are given the necessary information about: (a)

the requirement not to dispose of WEEE as unsorted municipal waste and to collect such WEEE separately;

(b) the return and collection systems available to them, encouraging the coordination of information on the available collection points irrespective of the producers or other operators which have set them up; (c) their role in contributing to re-use, recycling and other forms of recovery of WEEE; (d) the potential effects on the environment and human health as a result of the presence of hazardous substances in EEE; (e)

the meaning of the symbol shown in Annex IX.



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3.

Member States shall adopt appropriate measures so that consumers participate in the collection of WEEE and to encourage them to facilitate the process of re-use, treatment and recovery.

4.

With a view to minimising the disposal of WEEE as unsorted municipal waste and to facilitating its separate collection, Member States shall ensure that producers appropriately mark — preferably in accordance with the European standard EN 50419 (125) — EEE placed on the market with the symbol shown in Annex IX. In exceptional cases, where this is necessary because of the size or the function of the product, the symbol shall be printed on the packaging, on the instructions for use and on the warranty of the EEE.

5.

Member States may require that some or all of the information referred to in paragraphs 2, 3 and 4 shall be provided by producers and/or distributors, e.g. in the instructions for use, at the point of sale and through public awareness campaigns. Article 15 Information for treatment facilities

1.

In order to facilitate the preparation for re-use and the correct and environmentally sound treatment of WEEE, including maintenance, upgrade, refurbishment and recycling, Member States shall take the necessary measures to ensure that producers provide information free of charge about preparation for re-use and treatment in respect of each type of new EEE placed for the first time on the Union market within one year after the equipment is placed on the market. This information shall identify, as far as it is needed by centres which prepare for re-use and treatment and recycling facilities in order to comply with the provisions of this Directive, the different EEE components and materials, as well as the location of dangerous substances and mixtures in EEE. It shall be made available to centres which prepare for re-use and treatment and recycling facilities by producers of EEE in the form of manuals or by means of electronic media (e.g. CD-ROM, online services).

2.

In order to enable the date upon which the EEE was placed on the market to be determined unequivocally, Member States shall ensure that a mark on the EEE specifies that the latter was placed on the market after 13 August 2005. Preferably, the European Standard EN 50419 shall be applied for this purpose. Article 16 Registration, information and reporting

1.

Member States shall, in accordance with paragraph 2, draw up a register of producers, including producers supplying EEE by means of distance communication. That register shall serve to monitor compliance with the requirements of this Directive. Producers supplying EEE by means of distance communication as defined in Article 3(1)(f)(iv) shall be registered in the Member State that they sell to. Where such producers are not registered in the Member State that they are selling to, they shall be registered through their authorised representatives as referred to in Article 17(2).

2.

Member States shall ensure that: (a) each producer, or each authorised representative where appointed under Article 17, is registered as required and has the possibility of entering online

Adopted by Cenelec in March 2006.

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in their national register all relevant information reflecting that producer’s activities in that Member State; (b) upon registering, each producer, or each authorised representative where appointed under Article 17, provides the information set out in Annex X, Part A, undertaking to update it as appropriate; (c) each producer, or each authorised representative where appointed under Article 17, provides the information set out in Annex X, Part B; (d) national registers provide links to other national registers on their website to facilitate, in all Member States, registration of producers or, where appointed under Article 17, authorised representatives. 3.

In order to ensure uniform conditions for the implementation of this Article, the Commission shall adopt implementing acts establishing the format for registration and reporting and the frequency of reporting to the register. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 21(2).

4.

Member States shall collect information, including substantiated estimates, on an annual basis, on the quantities and categories of EEE placed on their markets, collected through all routes, prepared for re-use, recycled and recovered within the Member State, and on separately collected WEEE exported, by weight.

————— 6.

Member States shall report the data concerning the implementation of paragraph 4 for each calendar year to the Commission. They shall report the data electronically within 18 months of the end of the reporting year for which the data are collected. The data shall be reported in the format established by the Commission in accordance with paragraph 9. The first reporting period shall start in the first full calendar year after the adoption of the implementing act that establishes the format for reporting, in accordance with paragraph 9, and it shall cover the data for that reporting period.

7.

The data reported by Member States in accordance with paragraph  6 shall be accompanied by a quality check report.

8.

The Commission shall review the data reported in accordance with paragraph 6 and publish a report on the results of its review. The report shall assess the organisation of the data collection, the sources of data and the methodology used in Member States as well as the completeness, reliability, timeliness and consistency of that data. The assessment may include specific recommendations for improvement. The report shall be drawn up after the first reporting of the data by the Member States and every four years thereafter.

9.

The Commission shall adopt implementing acts laying down the format for reporting the data referred to in paragraph 6 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 21(2).

Article 16a Incentives for the application of the waste hierarchy In order to contribute to the objectives laid down in this Directive, Member States may make use of economic instruments and other measures to provide incentives for the



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application of the waste hierarchy, such as those indicated in Annex IVa to Directive 2008/98/EC or other appropriate instruments and measures. Article 17 Authorised representative 1.

Each Member State shall ensure that a producer as defined in Article  3(1)(f) (i) to (iii) established in another Member State is allowed, by way of exception to Article  3(1)(f)(i) to (iii), to appoint a legal or natural person established on its territory as the authorised representative that is responsible for fulfilling the obligations of that producer, pursuant to this Directive, on its territory.

2.

Each Member State shall ensure that a producer as defined in Article 3(1)(f)(iv) and established on its territory, which sells EEE to another Member State in which it is not established, appoints an authorised representative in that Member State as the person responsible for fulfilling the obligations of that producer, pursuant to this Directive, on the territory of that Member State.

3.

Appointment of an authorised representative shall be by written mandate.

Article 18 Administrative cooperation and exchange of information Member States shall ensure that authorities responsible for implementing this Directive cooperate with each other, in particular to establish an adequate flow of information to ensure that producers comply with the provisions of this Directive and, where appropriate, provide each other and the Commission with information in order to facilitate the proper implementation of this Directive. The administrative cooperation and exchange of information, in particular between national registers, shall include electronic means of communication. Cooperation shall include, inter alia, granting access to the relevant documents and information including the results of any inspections, subject to the provisions of the data protection law in force in the Member State of the authority which is requested to cooperate. Article 19 Adaptation to scientific and technical progress The Commission is empowered to adopt delegated acts in accordance with Article 20 of this Directive concerning the amendments necessary in order to adapt Annexes IV, VII, VIII and IX to this Directive to scientific and technical progress. The Commission shall adopt a separate delegated act in respect of each Annex to be amended. When amending Annex VII to this Directive, the exemptions granted under Directive 2011/65/EU of the European Parliament and of the Council (126) shall be taken into consideration. Before the Annexes are amended, the Commission shall, inter alia, consult producers of EEE, recyclers, treatment operators and environmental organisations and employees’ and consumer associations. Article 20 Exercise of the delegation 1.

The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

Directive 2011/65/EU of the European Parliament and of the Council of 8 June 2011 on the restriction of the use of certain hazardous substances in electrical and electronic equipment (OJ L 174, 1.7.2011, p. 88).

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2.

The power to adopt delegated acts referred to in Article  7(4), Article  8(4), Article 10(3) and Article 19 shall be conferred on the Commission for a period of five years from 13 August 2012. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.

3.

The delegation of power referred to in Article  7(4), Article  8(4), Article  10(3) and Article  19 may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

4.

As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

5.

A delegated act adopted pursuant to Article 7(4), Article 8(4), Article 10(3) and Article  19 shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and to the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council. Article 21 Committee procedure

1.

The Commission shall be assisted by the Committee established by Article 39 of Directive 2008/98/EC. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

2.

Where reference is made to this paragraph, Article  5 of Regulation (EU) No 182/2011 shall apply. Where the committee delivers no opinion, the Commission shall not adopt the draft implementing act and the third subparagraph of Article 5(4) of Regulation (EU) No 182/2011 shall apply.

Article 22 Penalties The Member States shall lay down the rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive. The Member States shall notify those provisions to the Commission by 14 February 2014 at the latest and shall notify it without delay of any subsequent amendment affecting them. Article 23 Inspection and monitoring 1.

Member States shall carry out appropriate inspections and monitoring to verify the proper implementation of this Directive. Those inspections shall at least cover: (a)

information reported in the framework of the register of producers;



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(b) shipments, in particular exports of WEEE outside the Union in compliance with Regulation (EC) No 1013/2006 and Regulation (EC) No 1418/2007; and (c)

the operations at treatment facilities in accordance with Directive 2008/98/ EC and Annex VII of this Directive.

2.

Member States shall ensure that shipments of used EEE suspected to be WEEE are carried out in accordance with the minimum requirements in Annex VI and shall monitor such shipments accordingly.

3.

The costs of appropriate analyses and inspections, including storage costs, of used EEE suspected to be WEEE may be charged to the producers, to third parties acting on their behalf or to other persons arranging the shipment of used EEE suspected to be WEEE.

4.

In order to ensure uniform conditions for the implementation of this Article and of Annex VI, the Commission may adopt implementing acts establishing additional rules on inspections and monitoring and in particular uniform conditions for the implementation of Annex VI, point 2. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 21(2). Article 24 Transposition

1.

Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 14  February 2014. They shall immediately communicate to the Commission the text of those provisions. When Member States adopt those provisions, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. They shall also include a statement that references in existing laws, regulations and administrative provisions to the directives repealed by this Directive shall be construed as references to this Directive. Member States shall determine how such reference is to be made and how that statement is to be formulated.

2.

Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

3.

Provided that the objectives set out in this Directive are achieved, Member States may transpose the provisions set out in Article 8(6), Article 14(2) and Article 15 by means of agreements between the competent authorities and the economic sectors concerned. Such agreements shall meet the following requirements: (a)

agreements shall be enforceable;

(b) agreements shall specify objectives with the corresponding deadlines; (c) agreements shall be published in the national official journal or an official document equally accessible to the public and transmitted to the Commission; (d) the results achieved shall be monitored regularly, reported to the competent authorities and the Commission and made available to the public under the conditions set out in the agreement; (e)

the competent authorities shall ensure that the progress achieved under the agreement is examined;

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(f)

in the case of non-compliance with the agreement, Member States must implement the relevant provisions of this Directive by legislative, regulatory or administrative measures.

Article 25 Repeal Directive 2002/96/EC as amended by the Directives listed in Annex XI, Part A is repealed with effect from 15 February 2014, without prejudice to the obligations of the Member States relating to the time limits for transposition into national law and application of the Directives set out in Annex XI, Part B. References to the repealed Directives shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex XII. Article 26 Entry into force This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. Article 27 Addressees This Directive is addressed to the Member States. ANNEX I Categories of EEE covered by this Directive during the transitional period as provided for in Article 2(1)(a) 1.

Large household appliances

2.

Small household appliances

3.

IT and telecommunications equipment

4.

Consumer equipment and photovoltaic panels

5.

Lighting equipment

6.

Electrical and electronic tools (with the exception of large-scale stationary industrial tools)

7.

Toys, leisure and sports equipment

8.

Medical devices (with the exception of all implanted and infected products)

9.

Monitoring and control instruments

10. Automatic dispensers ANNEX II Indicative list of EEE which falls within the categories of Annex I 1. LARGE HOUSEHOLD APPLIANCES Large cooling appliances Refrigerators Freezers Other large appliances used for refrigeration, conservation and storage of food Washing machines Clothes dryers Dish washing machines Cookers Electric stoves Electric hot plates



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Microwaves Other large appliances used for cooking and other processing of food Electric heating appliances Electric radiators Other large appliances for heating rooms, beds, seating furniture Electric fans Air conditioner appliances Other fanning, exhaust ventilation and conditioning equipment 2. SMALL HOUSEHOLD APPLIANCES Vacuum cleaners Carpet sweepers Other appliances for cleaning Appliances used for sewing, knitting, weaving and other processing for textiles Irons and other appliances for ironing, mangling and other care of clothing Toasters Fryers Grinders, coffee machines and equipment for opening or sealing containers or packages Electric knives Appliances for hair cutting, hair drying, tooth brushing, shaving, massage and other body care appliances Clocks, watches and equipment for the purpose of measuring, indicating or registering time Scales 3. IT AND TELECOMMUNICATIONS EQUIPMENT Centralised data processing: Mainframes Minicomputers Printer units Personal computing: Personal computers (CPU, mouse, screen and keyboard included) Laptop computers (CPU, mouse, screen and keyboard included) Notebook computers Notepad computers Printers Copying equipment Electrical and electronic typewriters Pocket and desk calculators and other products and equipment for the collection, storage, processing, presentation or communication of information by electronic means User terminals and systems Facsimile machine (fax) Telex Telephones Pay telephones Cordless telephones Cellular telephones Answering systems and other products or equipment of transmitting sound, images or other information by telecommunications 4. CONSUMER EQUIPMENT AND PHOTOVOLTAIC PANELS Radio sets Television sets

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Video cameras Video recorders Hi-fi recorders Audio amplifiers Musical instruments and other products or equipment for the purpose of recording or reproducing sound or images, including signals or other technologies for the distribution of sound and image than by telecommunications Photovoltaic panels 5. LIGHTING EQUIPMENT Luminaires for fluorescent lamps with the exception of luminaires in households Straight fluorescent lamps Compact fluorescent lamps High intensity discharge lamps, including pressure sodium lamps and metal halide lamps Low pressure sodium lamps Other lighting or equipment for the purpose of spreading or controlling light with the exception of filament bulbs 6. ELECTRICAL AND ELECTRONIC TOOLS (WITH THE EXCEPTION OF LARGE-SCALE STATIONARY INDUSTRIAL TOOLS) Drills Saws Sewing machines Equipment for turning, milling, sanding, grinding, sawing, cutting, shearing, drilling, making holes, punching, folding, bending or similar processing of wood, metal and other materials Tools for riveting, nailing or screwing or removing rivets, nails, screws or similar uses Tools for welding, soldering or similar use Equipment for spraying, spreading, dispersing or other treatment of liquid or gaseous substances by other means Tools for mowing or other gardening activities 7. TOYS, LEISURE AND SPORTS EQUIPMENT Electric trains or car racing sets Hand-held video game consoles Video games Computers for biking, diving, running, rowing, etc. Sports equipment with electric or electronic components Coin slot machines 8. MEDICAL DEVICES (WITH THE EXCEPTION OF ALL IMPLANTED AND INFECTED PRODUCTS) Radiotherapy equipment Cardiology equipment Dialysis equipment Pulmonary ventilators Nuclear medicine equipment Laboratory equipment for in vitro diagnosis Analysers Freezers Fertilization tests Other appliances for detecting, preventing, monitoring, treating, alleviating illness, injury or disability 9. MONITORING AND CONTROL INSTRUMENTS Smoke detector



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Heating regulators Thermostats Measuring, weighing or adjusting appliances for household or as laboratory equipment Other monitoring and control instruments used in industrial installations (e.g. in control panels) 10. AUTOMATIC DISPENSERS Automatic dispensers for hot drinks Automatic dispensers for hot or cold bottles or cans Automatic dispensers for solid products Automatic dispensers for money All appliances which deliver automatically all kinds of products ANNEX III CATEGORIES OF EEE COVERED BY THIS DIRECTIVE 1.

Temperature exchange equipment

2.

Screens, monitors, and equipment containing screens having a surface greater than 100 cm2

3. Lamps 4.

Large equipment (any external dimension more than 50 cm) including, but not limited to: Household appliances; IT and telecommunication equipment; consumer equipment; luminaires; equipment reproducing sound or images, musical equipment; electrical and electronic tools; toys, leisure and sports equipment; medical devices; monitoring and control instruments; automatic dispensers; equipment for the generation of electric currents. This category does not include equipment included in categories 1 to 3.

5.

Small equipment (no external dimension more than 50 cm) including, but not limited to: Household appliances; consumer equipment; luminaires; equipment reproducing sound or images, musical equipment; electrical and electronic tools; toys, leisure and sports equipment; medical devices; monitoring and control instruments; automatic dispensers; equipment for the generation of electric currents. This category does not include equipment included in categories 1 to 3 and 6.

6.

Small IT and telecommunication equipment (no external dimension more than 50 cm)

ANNEX IV Non-exhaustive list of EEE which falls within the categories listed in Annex III 1.

Temperature exchange equipment Refrigerators, Freezers, Equipment which automatically delivers cold products, Air conditioning equipment, Dehumidifying equipment, Heat pumps, Radiators containing oil and other temperature exchange equipment using fluids other than water for the temperature exchange.

2.

Screens, monitors, and equipment containing screens having a surface greater than 100 cm2 Screens, Televisions, LCD photo frames, Monitors, Laptops, Notebooks.

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3. Lamps Straight fluorescent lamps, Compact fluorescent lamps, Fluorescent lamps, High intensity discharge lamps – including pressure sodium lamps and metal halide lamps, Low pressure sodium lamps, LED. 4.

Large equipment Washing machines, Clothes dryers, Dish washing machines, Cookers, Electric stoves, Electric hot plates, Luminaires, Equipment reproducing sound or images, Musical equipment (excluding pipe organs installed in churches), Appliances for knitting and weaving, Large computer-mainframes, Large printing machines, Copying equipment, Large coin slot machines, Large medical devices, Large monitoring and control instruments, Large appliances which automatically deliver products and money, Photovoltaic panels.

5.

Small equipment Vacuum cleaners, Carpet sweepers, Appliances for sewing, Luminaires, Microwaves, Ventilation equipment, Irons, Toasters, Electric knives, Electric kettles, Clocks and Watches, Electric shavers, Scales, Appliances for hair and body care, Calculators, Radio sets, Video cameras, Video recorders, Hi-fi equipment, Musical instruments, Equipment reproducing sound or images, Electrical and electronic toys, Sports equipment, Computers for biking, diving, running, rowing, etc., Smoke detectors, Heating regulators, Thermostats, Small Electrical and electronic tools, Small medical devices, Small Monitoring and control instruments, Small Appliances which automatically deliver products, Small equipment with integrated photovoltaic panels.

6.

Small IT and telecommunication equipment (no external dimension more than 50 cm) Mobile phones, GPS, Pocket calculators, Routers, Personal computers, Printers, Telephones.

ANNEX V MINIMUM RECOVERY TARGETS REFERRED TO IN ARTICLE 11 Part 1: Minimum targets applicable by category from 13 August 2012 until 14 August 2015 with reference to the categories listed in Annex I: (a)

for WEEE falling within category 1 or 10 of Annex I, —

80 % shall be recovered, and

—

75 % shall be recycled;

(b) for WEEE falling within category 3 or 4 of Annex I,

(c)

—

75 % shall be recovered, and

—

65 % shall be recycled;

for WEEE falling within category 2, 5, 6, 7, 8 or 9 of Annex I, —

70 % shall be recovered, and

—

50 % shall be recycled;

(d) for gas discharge lamps, 80 % shall be recycled. Part 2: Minimum targets applicable by category from 15 August 2015 until 14 August 2018 with reference to the categories listed in Annex I:



(a)

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for WEEE falling within category 1 or 10 of Annex I, —

85 % shall be recovered, and

—

80 % shall be prepared for re-use and recycled;

(b) for WEEE falling within category 3 or 4 of Annex I,

(c)

—

80 % shall be recovered, and

—

70 % shall be prepared for re-use and recycled;

for WEEE falling within category 2, 5, 6, 7, 8 or 9 of Annex I, —

75 % shall be recovered, and

—

55 % shall be prepared for re-use and recycled;

(d) for gas discharge lamps, 80 % shall be recycled. Part 3: Minimum targets applicable by category from 15 August 2018 with reference to the categories listed in Annex III: (a)

for WEEE falling within category 1 or 4 of Annex III, —

85 % shall be recovered, and

—

80 % shall be prepared for re-use and recycled;

(b) for WEEE falling within category 2 of Annex III,

(c)

—

80 % shall be recovered, and

—

70 % shall be prepared for re-use and recycled;

for WEEE falling within category 5 or 6 of Annex III, —

75 % shall be recovered, and

—

55 % shall be prepared for re-use and recycled;

(d) for WEEE falling within category 3 of Annex III, 80 % shall be recycled. ANNEX VI MINIMUM REQUIREMENTS FOR SHIPMENTS 1.

In order to distinguish between EEE and WEEE, where the holder of the object claims that he intends to ship or is shipping used EEE and not WEEE, Member States shall require the holder to have available the following to substantiate this claim: (a) a copy of the invoice and contract relating to the sale and/or transfer of ownership of the EEE which states that the equipment is destined for direct re-use and that it is fully functional; (b)

evidence of evaluation or testing in the form of a copy of the records (certificate of testing, proof of functionality) on every item within the consignment and a protocol containing all record information according to point 3;

(c) a declaration made by the holder who arranges the transport of the EEE that none of the material or equipment within the consignment is waste as defined by Article 3(1) of Directive 2008/98/EC; and (d) appropriate protection against damage during transportation, loading and unloading in particular through sufficient packaging and appropriate stacking of the load.

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By way of derogation, point 1(a) and (b) and point 3 do not apply where it is documented by conclusive proof that the shipment is taking place in the framework of a business-to-business transfer agreement and that: (a)

the EEE is sent back to the producer or a third party acting on his behalf as defective for repair under warranty with the intention of re-use; or

(b) the used EEE for professional use is sent to the producer or a third party acting on his behalf or a third-party facility in countries to which Decision C(2001)107/Final of the OECD Council concerning the revision of Decision C(92)39/Final on control of transboundary movements of wastes destined for recovery operations applies, for refurbishment or repair under a valid contract with the intention of re-use; or (c)

3.

the defective used EEE for professional use, such as medical devices or their parts, is sent to the producer or a third party acting on his behalf for root cause analysis under a valid contract, in cases where such an analysis can only be conducted by the producer or third parties acting on his behalf.

In order to demonstrate that the items being shipped constitute used EEE rather than WEEE, Member States shall require the following steps for testing and record keeping for used EEE to be carried out: Step 1: Testing (a)

Functionality shall be tested and the presence of hazardous substances shall be evaluated. The tests to be conducted depend on the kind of EEE. For most of the used EEE a functionality test of the key functions is sufficient.

(b) Results of evaluation and testing shall be recorded. Step 2: Record (a) The record shall be fixed securely but not permanently on either the EEE itself (if not packed) or on the packaging so it can be read without unpacking the equipment. (b) The record shall contain the following information: —

name of item (name of the equipment if listed in Annex II or Annex IV, as appropriate, and category set out in Annex I or Annex III, as appropriate),

—

identification number of the item (type No) where applicable,

—

year of production (if available),

— name and address of the company responsible for evidence of functionality,

4.

—

result of tests as described in step 1 (including date of the functionality test),

—

kind of tests performed.

In addition to the documentation requested in points 1, 2 and 3, every load (e.g. shipping container, lorry) of used EEE shall be accompanied by: (a)

a relevant transport document, e.g. CMR or waybill;

(b) a declaration by the liable person on its responsibility.



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5.

821

In the absence of proof that an object is used EEE and not WEEE through the appropriate documentation required in points 1, 2, 3 and 4 and of appropriate protection against damage during transportation, loading and unloading in particular through sufficient packaging and appropriate stacking of the load, which are the obligations of the holder who arranges the transport, Member State authorities shall consider that an item is WEEE and presume that the load comprises an illegal shipment. In these circumstances the load will be dealt with in accordance with Articles 24 and 25 of Regulation (EC) No 1013/2006. ANNEX VII Selective treatment for materials and components of waste electrical and electronic equipment referred to in Article 8(2)

1.

As a minimum the following substances, mixtures and components have to be removed from any separately collected WEEE: — polychlorinated biphenyls (PCB) containing capacitors in accordance with Council Directive 96/59/EC of 16 September 1996 on the disposal of polychlorinated biphenyls and polychlorinated terphenyls (PCB/PCT) (127), —

mercury containing components, such as switches or backlighting lamps,

— batteries, —

printed circuit boards of mobile phones generally, and of other devices if the surface of the printed circuit board is greater than 10 square centimetres,

—

toner cartridges, liquid and paste, as well as colour toner,

—

plastic containing brominated flame retardants,

—

asbestos waste and components which contain asbestos,

—

cathode ray tubes,

— chlorofluorocarbons (CFC), hydrochlorofluorocarbons hydrofluorocarbons (HFC), hydrocarbons (HC),

(HCFC)

or

—

gas discharge lamps,

—

liquid crystal displays (together with their casing where appropriate) of a surface greater than 100 square centimetres and all those back-lighted with gas discharge lamps,

—

external electric cables,

—

components containing refractory ceramic fibres as described in Commission Directive 97/69/EC of 5 December 1997 adapting to technical progress for the 23rd time Council Directive 67/548/EEC on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (128),

— components containing radioactive substances with the exception of components that are below the exemption thresholds set in Article 3 of and Annex I to Council Directive 96/29/Euratom of 13 May 1996 laying down

OJ L 243, 24.9.1996, p. 31. OJ L 343, 13.12.1997, p. 19.

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basic safety standards for the protection of the health of workers and the general public against the dangers arising from ionizing radiation (129), —

electrolyte capacitors containing substances of concern (height > 25 mm, diameter > 25 mm or proportionately similar volume). These substances, mixtures and components shall be disposed of or recovered in compliance with Directive 2008/98/EC. 2.

The following components of WEEE that is separately collected have to be treated as indicated: —

cathode ray tubes: the fluorescent coating has to be removed,

— equipment containing gases that are ozone depleting or have a global warming potential (GWP) above 15, such as those contained in foams and refrigeration circuits: the gases must be properly extracted and properly treated. Ozone-depleting gases must be treated in accordance with Regulation (EC) No 1005/2009, —

gas discharge lamps: the mercury shall be removed.

3. Taking into account environmental considerations and the desirability of preparation for re-use and recycling, points 1 and 2 shall be applied in such a way that environmentally-sound preparation for re-use and recycling of components or whole appliances is not hindered. ANNEX VIII TECHNICAL REQUIREMENTS REFERRED TO IN ARTICLE 8(3) 1.

2.

Sites for storage (including temporary storage) of WEEE prior to its treatment (without prejudice to the requirements of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste (130)): —

impermeable surfaces for appropriate areas with the provision of spillage collection facilities and, where appropriate, decanters and cleanserdegreasers,

—

weatherproof covering for appropriate areas.

Sites for treatment of WEEE: —

scales to measure the weight of the treated waste,

— impermeable surfaces and waterproof covering for appropriate areas with the provision of spillage collection facilities and, where appropriate, decanters and cleanser-degreasers, —

appropriate storage for disassembled spare parts,

— appropriate containers for storage of batteries, PCBs/PCTs containing capacitors and other hazardous waste such as radioactive waste, — equipment for the treatment of water in compliance with health and environmental regulations.

OJ L 159, 29.6.1996, p. 1. OJ L 182, 16.7.1999, p. 1.

129 130



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ANNEX IX SYMBOL FOR THE MARKING OF EEE The symbol indicating separate collection for EEE consists of the crossed-out wheeled bin, as shown below. The symbol must be printed visibly, legibly and indelibly.

ANNEX X INFORMATION FOR REGISTRATION AND REPORTING REFERRED TO IN ARTICLE 16 A. Information to be submitted upon registration: 1.

Name and address of the producer or of the authorised representative where appointed under Article  17 (postal code and location, street name and number, country, telephone and fax number, e-mail, as well as a contact person). In the case of an authorised representative as defined in Article 17, also the contact details of the producer that is represented.

2.

National identification code of the producer, including European tax number or national tax number of the producer.

3.

Category of EEE set out in Annex I or III, as appropriate.

4.

Type of EEE (household or other than household equipment).

5.

Brand name of EEE.

6.

Information on how the producer meets its responsibilities: individual or collective scheme, including information on financial guarantee.

7.

Selling technique used (e.g. distance selling).

8.

Declaration stating that the information provided is true.

B. Information to be submitted for reporting: 1.

National identification code of the producer.

2.

Reporting period.

3.

Category of EEE set out in Annex I or III, as appropriate.

4.

Quantity of EEE placed on the national market, by weight.

5.

Quantity, by weight, of waste of EEE separately collected, recycled (including prepared for re-use), recovered and disposed of within the Member State or shipped within or outside the Union. Note: information set out in points 4 and 5 must be given by category.

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ANNEX XI PART A Repealed Directive with its successive amendments (referred to in Article 25) Directive 2002/96/EC on waste electrical and electronic equipment (WEEE) Directive 2003/108/EC of the European Parliament and of the Council Directive 2008/34/EC of the European Parliament and of the Council

(OJ L 37, 13.2.2003, p. 24) (OJ L 345, 31.12.2003, p. 106) (OJ L 81, 20.3.2008, p. 65)

PART B List of time limits for transposition into national law (referred to in Article 25) Directive 2002/96/EC 2003/108/EC 2008/34/EC

Deadline for transposition 13 August 2004 13 August 2004 — ANNEX XII CORRELATION TABLE

Directive 2002/96/EC Article 1 — Article 2(1) Article 2(2) Article 2(3) Article 2(1) (partly) Annex IB, point 5, last item Annex IB, point 8 — Article 3(a) — Article 3(b) Article 3(c) to (h) Article 3(i) Article 3(j) Article 3(k) Article 3(l) Article 3(m)

This Directive — Article 1 Article 2(1) Article 2(2) Article 2(3)(a) Article 2(3)(b) Article 2(3)(c) Article 2(4)(g) Article 2(4)(a) to (f) and 2(5) Article 3(1)(a) Article 3(1)(b) to (d) Article 3(1)(e) Article 3(2) Article 3(1)(f) Article 3(1)(g) Article 3(1)(h) — Article 3(1)(i)



Related Directives

— Article 4 Article 5(1) to (2) — Article 5(3) — Article 5(4) Article 5(5) —

Article 3(1)(j) to (o) Article 4 Article 5(1) to (2) Article 5(3) to (4) Article 5(5) Article 6(1) Article 6(2) Article 7(1) and (2) Article 8(1)

Article 6(1), first and second subparagraphs, and (3) Annex II(4)

Article 8(2), (3) and (4)

Article 6(1), third subparagraph Article 6(6) Article 6(2) Article 6(4) Article 6(5) — Article 7(1) Article 7(2) — — Article 7(3), first subparagraph Article 7(3), second subparagraph Article 7(4) Article 7(5) — Article 8(1) — Article 8(2), first and second subparagraphs Article 8(2), third subparagraph Article 8(3), first subparagraph — Article 8(3), second subparagraph Article 8(4) Article 9(1), first subparagraph

Article 8(4), second subparagraph, first sentence Article 8(5) Article 8(6) Article 9(1) and (2) Article 9(3) Article 10(1) and (2) Article 10(3) — Article 11(1) and Annex V Article 11(2) Article 11(3) Article 11(4) — — Article 11(5) Article 11(6) Article 12(1) Article 12(2) Article 12(3) Article 14(1) (partly) Article 12(4) Article 12(5) Article 14(1) (partly) — Article 13(1), first subparagraph

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Article 9(1), second subparagraph Article 9(1), third subparagraph Article 9(1), fourth subparagraph Article 9(2) Article 10(1) Article 10(2) Article 10(3) Article 10(4) Article 11 Article 12(1) (partly) Article 12(1), first subparagraph (partly) Article 12(1), second subparagraph Article 12(1), third subparagraph — Article 12(1), fourth subparagraph Article 12(2) Article 13 — Article 14 Article 15 Article 16 — Article 17(1) to (3) Article 17(4) Article 17(5) — Article 18 Article 19 Annex IA Annex IB — Annexes II to IV — —

— Article 13(1), second subparagraph Article 13(1), third subparagraph Article 13(2) Article 14(2) Article 14(3) Article 14(4) Article 14(5) Article 15 Article 16(1) to (3) Article 16(4) Article 16(1) and (2) and Article 17(2) and (3) Article 16(3) and (5) Article 17(1) Article 18 Article 16(5) Article 19 Article 20 Article 21 Article 22 Article 23(1) Article 23(2) to (4) Article 24(1) to (3) Article 7(3) Article 7(4) to (7), Article 11(6) and Article 12(6) Article 25 Article 26 Article 27 Annex I Annex II Annexes III, IV and VI Annexes VII to IX Annexes X and XI Annex XII



Related Directives

827

DIRECTIVE 2014/30/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 26 February 2014 on the harmonisation of the laws of the Member States relating to electromagnetic compatibility[131] (recast) (Text with EEA relevance) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, Having regard to the opinion of the European Economic and Social Committee (132), Acting in accordance with the ordinary legislative procedure (133), Whereas: (1)

A number of amendments are to be made to Directive 2004/108/EC of the European Parliament and of the Council of 15 December 2004 on the approximation of the laws of the Member States relating to electromagnetic compatibility and repealing Directive 89/336/EEC (134). In the interests of clarity, that Directive should be recast.

(2) Regulation (EC) No 765/2008 of the European Parliament and of the Council of 9 July 2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products (135) lays down rules on the accreditation of conformity assessment bodies, provides a framework for the market surveillance of products and for controls on products from third countries, and lays down the general principles of the CE marking. (3) Decision No  768/2008/EC of the European Parliament and of the Council of 9  July 2008 on a common framework for the marketing of products (136), lays down common principles and reference provisions intended to apply across sectoral legislation in order to provide a coherent basis for revision or recasts of that legislation. Directive 2004/108/EC should be adapted to that Decision. (4) Member States should be responsible for ensuring that radiocommunications, including radio broadcast reception and the amateur radio service operating in accordance with International Telecommunication Union (ITU) radio regulations, electrical supply networks and telecommunications networks, as well as equipment connected thereto, are protected against electromagnetic disturbance. (5)

Provisions of national law ensuring protection against electromagnetic disturbance need to be harmonised in order to guarantee the free movement of electrical and

OJ L 96, 29.3.2014, p. 79. Incorporating amendments as per the consolidated version of 11 September 2018 (amended by Regulation (EU) 2018/1139 of the European Parliament and of the Council of 4 July 2018). 132 OJ C 181, 21.6.2012, p. 105. 133 Position of the European Parliament of 5 February 2014 (not yet published in the Official Journal) and decision of the Council of 20 February 2014. 134 OJ L 390, 31.12.2004, p. 24. 135 OJ L 218, 13.8.2008, p. 30. 136 OJ L 218, 13.8.2008, p. 82. 131

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electronic apparatus without lowering justified levels of protection in the Member States. (6) This Directive covers products which are new to the Union market when they are placed on the market; that is to say they are either new products made by a manufacturer established in the Union or products, whether new or second-hand, imported from a third country. (7) This Directive should apply to all forms of supply, including distance selling. (8) The equipment covered by this Directive should include both apparatus and fixed installations. However, separate provision should be made for each. This is so because, whereas apparatus as such may move freely within the Union, fixed installations on the other hand are installed for permanent use at a predefined location, as assemblies of various types of apparatus and, where appropriate, other devices. The composition and function of such installations correspond in most cases to the particular needs of their operators. (9) Where this Directive regulates apparatus, it should apply to finished apparatus placed on the market. Certain components or sub-assemblies should, under certain conditions, be considered to be apparatus if they are made available to the enduser. (10) Radio equipment and telecommunications terminal equipment should not be covered by this Directive since they are already regulated by Directive 1999/5/ EC of the European Parliament and of the Council of 9  March 1999 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity (137). The electromagnetic compatibility requirements in both Directives achieve the same level of protection. (11) Aircraft or equipment intended to be fitted into aircraft should not be covered by this Directive, since they are already subject to special Union or international rules governing electromagnetic compatibility. (12) This Directive should not regulate equipment which is inherently benign in terms of electromagnetic compatibility. (13) This Directive should not deal with the safety of equipment, since that is dealt with by separate Union or national legislation. (14) Manufacturers of equipment intended to be connected to networks should construct such equipment in a way that prevents networks from suffering unacceptable degradation of service when used under normal operating conditions. Network operators should construct their networks in such a way that manufacturers of equipment liable to be connected to networks do not suffer a disproportionate burden in order to prevent networks from suffering an unacceptable degradation of service. The European standardisation organisations should take due account of that objective (including the cumulative effects of the relevant types of electromagnetic phenomena) when developing harmonised standards. (15) Protection against electromagnetic disturbance requires obligations to be imposed on the various economic operators. Those obligations should be applied in a fair and effective way in order to achieve such protection.

OJ L 91, 7.4.1999, p. 10.

137



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829

(16) Economic operators should be responsible for the compliance of apparatus with this Directive, in relation to their respective roles in the supply chain, so as to ensure a high level of protection of public interests covered by this Directive, and to guarantee fair competition on the Union market. (17) All economic operators intervening in the supply and distribution chain should take appropriate measures to ensure that they only make available on the market apparatus which are in conformity with this Directive. It is necessary to provide for a clear and proportionate distribution of obligations which correspond to the role of each economic operator in the supply and distribution chain. (18) In order to facilitate communication between economic operators, market surveillance authorities and consumers, Member States should encourage economic operators to include a website address in addition to the postal address. (19) The manufacturer, having detailed knowledge of the design and production process, is best placed to carry out the conformity assessment procedure. Conformity assessment should therefore remain solely the obligation of the manufacturer. (20) It is necessary to ensure that products from third countries entering the Union market comply with this Directive, and in particular that appropriate conformity assessment procedures have been carried out by manufacturers with regard to those apparatus. Provision should therefore be made for importers to make sure that the apparatus they place on the market comply with the requirements of this Directive and that they do not place on the market apparatus which do not comply with such requirements or present a risk. Provision should also be made for importers to make sure that conformity assessment procedures have been carried out and that marking of apparatus and documentation drawn up by manufacturers are available for inspection by the competent national authorities. (21) When placing apparatus on the market, every importer should indicate on the apparatus his name, registered trade name or registered trade mark and the postal address at which he can be contacted. Exceptions should be provided for in cases where the size or nature of the apparatus does not allow it. This includes cases where the importer would have to open the packaging to put his name and address on the apparatus. (22) The distributor makes apparatus available on the market after it has been placed on the market by the manufacturer or the importer and should act with due care to ensure that its handling of the apparatus does not adversely affect the compliance of the apparatus. (23) Any economic operator that either places apparatus on the market under his own name or trade mark or modifies apparatus in such a way that compliance with this Directive may be affected should be considered to be the manufacturer and should assume the obligations of the manufacturer. (24) Distributors and importers, being close to the market place, should be involved in market surveillance tasks carried out by the competent national authorities, and should be prepared to participate actively, providing those authorities with all necessary information relating to the apparatus concerned. (25) Ensuring traceability of apparatus throughout the whole supply chain helps to make market surveillance simpler and more efficient. An efficient traceability system facilitates market surveillance authorities’ task of tracing economic operators who made non-compliant apparatus available on the market. When keeping the information required under this Directive for the identification of

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other economic operators, economic operators should not be required to update such information in respect of other economic operators who have either supplied them with apparatus or to whom they have supplied apparatus. (26) Fixed installations, including large machines and networks, may generate electromagnetic disturbance, or be affected by it. There may be an interface between fixed installations and apparatus, and the electromagnetic disturbances produced by fixed installations may affect apparatus, and vice versa. In terms of electromagnetic compatibility, it is irrelevant whether the electromagnetic disturbance is produced by apparatus or by a fixed installation. Accordingly, fixed installations and apparatus should be subject to a coherent and comprehensive regime of essential requirements. (27) This Directive should be limited to the expression of the essential requirements. In order to facilitate conformity assessment with those requirements it is necessary to provide for a presumption of conformity for equipment which is in conformity with harmonised standards that are adopted in accordance with Regulation (EU) No 1025/2012 of the European Parliament and of the Council of 25 October 2012 on European Standardisation (138) for the purpose of expressing detailed technical specifications of those requirements. Harmonised standards reflect the generally acknowledged state of the art as regards electromagnetic compatibility in the Union. (28) Regulation (EU) No  1025/2012 provides for a procedure for objections to harmonised standards where those standards do not entirely satisfy the requirements of this Directive. (29) In order to enable economic operators to demonstrate and the competent authorities to ensure that apparatus made available on the market conform to the essential requirements, it is necessary to provide for conformity assessment procedures. Decision No  768/2008/EC establishes modules for conformity assessment procedures, which include procedures from the least to the most stringent, in proportion to the level of risk involved. In order to ensure inter-sectoral coherence and to avoid ad-hoc variants, conformity assessment procedures should be chosen from among those modules. (30) The conformity assessment obligation should require the manufacturer to perform an electromagnetic compatibility assessment of apparatus, based on relevant phenomena, in order to determine whether or not it meets the essential requirements of this Directive. (31) Where apparatus is capable of taking different configurations, the electromagnetic compatibility assessment should confirm whether the apparatus meets the essential requirements in the configurations foreseeable by the manufacturer as representative of normal use in the intended applications. In such cases it should be sufficient to perform an assessment on the basis of the configuration most likely to cause maximum disturbance and the configuration most susceptible to disturbance. (32) It is not appropriate to carry out the conformity assessment of apparatus placed on the market for incorporation into a given fixed installation, and otherwise not made available on the market, in isolation from the fixed installation into which it is to be incorporated. Such apparatus should therefore be exempted from the OJ L 316, 14.11.2012, p. 12.

138



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831

conformity assessment procedures normally applicable to apparatus. However, such apparatus should not be permitted to compromise the conformity of the fixed installation into which it is incorporated. Should apparatus be incorporated into more than one identical fixed installation, identifying the electromagnetic compatibility characteristics of these installations should be sufficient to ensure exemption from the conformity assessment procedure. (33) Manufacturers should draw up an EU declaration of conformity to provide information required under this Directive on the conformity of an apparatus with this Directive and with other relevant Union harmonisation legislation. (34) To ensure effective access to information for market surveillance purposes, the information required to identify all applicable Union acts should be available in a single EU declaration of conformity. In order to reduce the administrative burden on economic operators, that single EU declaration of conformity may be a dossier made up of relevant individual declarations of conformity. (35) The CE marking, indicating the conformity of apparatus, is the visible consequence of a whole process comprising conformity assessment in a broad sense. General principles governing the CE marking are set out in Regulation (EC) No 765/2008. Rules governing the affixing of the CE marking should be laid down in this Directive. (36) Due to their specific characteristics, fixed installations need not be subject to the affixing of the CE marking or to the EU declaration of conformity. (37) One of the conformity assessment procedures set out in this Directive requires the intervention of conformity assessment bodies, which are notified by the Member States to the Commission. (38) Experience has shown that the criteria set out in Directive 2004/108/EC that conformity assessment bodies have to fulfil to be notified to the Commission are not sufficient to ensure a uniformly high level of performance of notified bodies throughout the Union. It is, however, essential that all notified bodies perform their functions to the same level and under conditions of fair competition. That requires the setting of obligatory requirements for conformity assessment bodies wishing to be notified in order to provide conformity assessment services. (39) If a conformity assessment body demonstrates conformity with the criteria laid down in harmonised standards, it should be presumed to comply with the corresponding requirements set out in this Directive. (40) In order to ensure a consistent level of conformity assessment quality it is also necessary to set requirements for notifying authorities and other bodies involved in the assessment, notification and monitoring of notified bodies. (41) The system set out in this Directive should be complemented by the accreditation system provided for in Regulation (EC) No 765/2008. Since accreditation is an essential means of verifying the competence of conformity assessment bodies, it should also be used for the purposes of notification. (42) Transparent accreditation as provided for in Regulation (EC) No  765/2008, ensuring the necessary level of confidence in certificates, should be considered by the national public authorities throughout the Union as the preferred means of demonstrating the technical competence of conformity assessment bodies. However, national authorities may consider that they possess the appropriate means of carrying out that evaluation themselves. In such cases, in order to ensure

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the appropriate level of credibility of evaluations carried out by other national authorities, they should provide the Commission and the other Member States with the necessary documentary evidence demonstrating the compliance of the conformity assessment bodies evaluated with the relevant regulatory requirements. (43) Conformity assessment bodies frequently subcontract parts of their activities linked to the assessment of conformity or have recourse to a subsidiary. In order to safeguard the level of protection required for the apparatus to be placed on the Union market, it is essential that conformity assessment subcontractors and subsidiaries fulfil the same requirements as notified bodies in relation to the performance of conformity assessment tasks. Therefore, it is important that the assessment of the competence and the performance of bodies to be notified and the monitoring of bodies already notified cover also activities carried out by subcontractors and subsidiaries. (44) It is necessary to increase the efficiency and transparency of the notification procedure and, in particular, to adapt it to new technologies so as to enable online notification. (45) Since notified bodies may offer their services throughout the Union, it is appropriate to give the other Member States and the Commission the opportunity to raise objections concerning a notified body. It is therefore important to provide for a period during which any doubts or concerns as to the competence of conformity assessment bodies can be clarified before they start operating as notified bodies. (46) In the interests of competitiveness, it is crucial that notified bodies apply the conformity assessment procedures without creating unnecessary burdens for economic operators. For the same reason, and to ensure equal treatment of economic operators, consistency in the technical application of the conformity assessment procedures needs to be ensured. That can best be achieved through appropriate coordination and cooperation between notified bodies. (47) In order to ensure legal certainty, it is necessary to clarify that rules on Union market surveillance and control of products entering the Union market provided for in Regulation (EC) No 765/2008 apply to apparatus covered by this Directive. This Directive should not prevent Member States from choosing the competent authorities to carry out those tasks. (48) Directive 2004/108/EC already provides for a safeguard procedure. In order to increase transparency and to reduce processing time, it is necessary to improve the existing safeguard procedure, with a view to making it more efficient and drawing on the expertise available in Member States. (49) The existing system should be supplemented by a procedure under which interested parties are informed of measures intended to be taken with regard to apparatus presenting a risk to aspects of public interest protection covered by this Directive. It should also allow market surveillance authorities, in cooperation with the relevant economic operators, to act at an earlier stage in respect of such apparatus. (50) Where the Member States and the Commission agree as to the justification of a measure taken by a Member State, no further involvement of the Commission should be required, except where non-compliance can be attributed to shortcomings of a harmonised standard. (51) In order to ensure uniform conditions for the implementation of this Directive, implementing powers should be conferred on the Commission. Those powers



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should be exercised in accordance with Regulation (EU) No  182/2011 of the European Parliament and of the Council of 16  February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (139). (52) The advisory procedure should be used for the adoption of implementing acts requesting the notifying Member State to take the necessary corrective measures in respect of notified bodies that do not meet or no longer meet the requirements for their notification. (53) In line with established practice, the committee set up by this Directive can play a useful role in examining matters concerning the application of this Directive raised either by its chair or by a representative of a Member State in accordance with its rules of procedure (54) When matters relating to this Directive, other than its implementation or infringements, are being examined, i.e. in a Commission expert group, the European Parliament should in line with existing practice receive full information and documentation and, where appropriate, an invitation to attend such meetings. (55) The Commission should, by means of implementing acts and, given their special nature, acting without the application of Regulation (EU) No 182/2011, determine whether measures taken by Member States in respect of non-compliant apparatus are justified or not. (56) Member States should lay down rules on penalties applicable to infringements of the provisions of national law adopted pursuant to this Directive and ensure that those rules are enforced. The penalties provided for should be effective, proportionate and dissuasive. (57) It is necessary to provide for reasonable transitional arrangements that allow the making available on the market and putting into service, without the need to comply with further product requirements, of apparatus that has already been placed on the market in accordance with Directive 2004/108/EC before the date of application of national measures transposing this Directive. Distributors should therefore be able to supply apparatus that has been placed on the market, namely stock that is already in the distribution chain, before the date of application of national measures transposing this Directive. (58) Since the objective of this Directive, namely to ensure the functioning of the internal market by requiring equipment to comply with an adequate level of electromagnetic compatibility, cannot be sufficiently achieved by the Member States but can rather, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective. (59) The obligation to transpose this Directive into national law should be confined to those provisions which represent a substantive amendment as compared to the earlier Directive. The obligation to transpose the provisions which are unchanged arises under the earlier Directive.

OJ L 55, 28.2.2011, p. 13.

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(60) This Directive should be without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law and the dates of application of the Directive set out in Annex V, HAVE ADOPTED THIS DIRECTIVE: CHAPTER 1 GENERAL PROVISIONS Article 1 Subject matter This Directive regulates the electromagnetic compatibility of equipment. It aims to ensure the functioning of the internal market by requiring equipment to comply with an adequate level of electromagnetic compatibility. Article 2 Scope 1.

This Directive shall apply to equipment as defined in Article 3.

2.

This Directive shall not apply to: (a)

equipment covered by Directive 1999/5/EC;

(b) the following aviation equipment, where that equipment falls within the scope of Regulation (EU) 2018/1139 of the European Parliament and of the Council (140) and is intended exclusively for airborne use: (i)

aircraft, other than unmanned aircraft, as well as associated engines, propellers, parts and non-installed equipment;

(ii) unmanned aircraft, as well as associated engines, propellers, parts and non-installed equipment, the design of which is certified in accordance with Article 56(1) of that Regulation which are intended to operate only on frequencies allocated by the Radio Regulations of the International Telecommunications Union for protected aeronautical use; (c) radio equipment used by radio amateurs within the meaning of the Radio Regulations adopted in the framework of the Constitution of the International Telecommunication Union and the Convention of the International Telecommunication Union (141), unless the equipment is made available on the market; (d) equipment the inherent nature of the physical characteristics of which is such that: (i) it is incapable of generating or contributing to electromagnetic emissions which exceed a level allowing radio and telecommunication equipment and other equipment to operate as intended; and

Regulation (EU) 2018/1139 of the European Parliament and of the Council of 4 July 2018 on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency, and amending Regulations (EC) No 2111/2005, (EC) No 1008/2008, (EU) No 996/2010, (EU) No 376/2014 and Directives 2014/30/EU and 2014/53/EU of the European Parliament and of the Council, and repealing Regulations (EC) No 552/2004 and (EC) No 216/2008 of the European Parliament and of the Council and Council Regulation (EEC) No 3922/91 (OJ L 212, 22.8.2018, p. 1). 141 Constitution and Convention of the International Telecommunication Union adopted by the Additional Plenipotentiary Conference (Geneva, 1992) as amended by the Plenipotentiary Conference (Kyoto, 1994). 140



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(ii) it operates without unacceptable degradation in the presence of the electromagnetic disturbance normally consequent upon its intended use; (e) custom built evaluation kits destined for professionals to be used solely at research and development facilities for such purposes. For the purposes of point (c) of the first subparagraph, kits of components to be assembled by radio amateurs and equipment made available on the market and modified by and for the use of radio amateurs are not regarded as equipment made available on the market. 3.

Where, for the equipment referred to in paragraph 1, the essential requirements set out in Annex I are wholly or partly laid down more specifically by other Union legislation, this Directive shall not apply, or shall cease to apply, to that equipment in respect of such requirements from the date of implementation of that Union legislation.

4.

This Directive shall not affect the application of Union or national legislation regulating the safety of equipment.

Article 3 Definitions 1. For the purposes of this Directive, the following definitions shall apply: (1) ‘equipment’ means any apparatus or fixed installation; (2) ‘apparatus’ means any finished appliance or combination thereof made available on the market as a single functional unit, intended for the end-user and liable to generate electromagnetic disturbance, or the performance of which is liable to be affected by such disturbance; (3) ‘fixed installation’ means a particular combination of several types of apparatus and, where applicable, other devices, which are assembled, installed and intended to be used permanently at a predefined location; (4) ‘electromagnetic compatibility’ means the ability of equipment to function satisfactorily in its electromagnetic environment without introducing intolerable electromagnetic disturbances to other equipment in that environment; (5) ‘electromagnetic disturbance’ means any electromagnetic phenomenon which may degrade the performance of equipment; an electromagnetic disturbance may be electromagnetic noise, an unwanted signal or a change in the propagation medium itself; (6) ‘immunity’ means the ability of equipment to perform as intended without degradation in the presence of an electromagnetic disturbance; (7) ‘safety purposes’ means the purposes of safeguarding human life or property; (8) ‘electromagnetic environment’ means all electromagnetic phenomena observable in a given location; (9) ‘making available on the market’ means any supply of apparatus for distribution, consumption or use on the Union market in the course of a commercial activity, whether in return for payment or free of charge; (10) ‘placing on the market’ means the first making available of apparatus on the Union market;

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(11) ‘manufacturer’ means any natural or legal person who manufactures apparatus or has apparatus designed or manufactured, and markets that apparatus under his name or trade mark; (12) ‘authorised representative’ means any natural or legal person established within the Union who has received a written mandate from a manufacturer to act on his behalf in relation to specified tasks; (13) ‘importer’ means any natural or legal person established within the Union who places apparatus from a third country on the Union market; (14) ‘distributor’ means any natural or legal person in the supply chain, other than the manufacturer or the importer, who makes apparatus available on the market; (15) ‘economic operators’ means the manufacturer, the authorised representative, the importer and the distributor; (16) ‘technical specification’ means a document that prescribes technical requirements to be fulfilled by the equipment; (17) ‘harmonised standard’ means harmonised standard as defined in point (c) of point 1 of Article 2 of Regulation (EU) No 1025/2012; (18) ‘accreditation’ means accreditation as defined in point 10 of Article 2 of Regulation (EC) No 765/2008; (19) ‘national accreditation body’ means national accreditation body as defined in point 11 of Article 2 of Regulation (EC) No 765/2008; (20) ‘conformity assessment’ means the process demonstrating whether the essential requirements of this Directive relating to an apparatus have been fulfilled; (21) ‘conformity assessment body’ means a body that performs conformity assessment activities including calibration, testing, certification and inspection; (22) ‘recall’ means any measure aimed at achieving the return of apparatus that has already been made available to the end-user; (23) ‘withdrawal’ means any measure aimed at preventing apparatus in the supply chain from being made available on the market; (24) ‘Union harmonisation legislation’ means any Union legislation harmonising the conditions for the marketing of products; (25) ‘CE marking’ means a marking by which the manufacturer indicates that the apparatus is in conformity with the applicable requirements set out in Union harmonisation legislation providing for its affixing. 2. For the purposes of this Directive, the following shall be considered as apparatus: (1) ‘components’ or ‘sub-assemblies’ intended for incorporation into an apparatus by the end-user, which are liable to generate electromagnetic disturbance, or the performance of which is liable to be affected by such disturbance; (2)

‘mobile installations’ defined as a combination of apparatus and, where applicable, other devices, intended to be moved and operated in a range of locations.

Article 4 Making available on the market and/or putting into service Member States shall take all appropriate measures to ensure that equipment is made available on the market and/or put into service only if it complies with this Directive when properly installed, maintained and used for its intended purpose.



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Article 5 Free movement of equipment 1. Member States shall not impede, for reasons relating to electromagnetic compatibility, the making available on the market and/or the putting into service in their territory of equipment which complies with this Directive. 2.

The requirements of this Directive shall not prevent the application in any Member State of the following special measures concerning the putting into service or use of equipment: (a)

measures to overcome an existing or predicted electromagnetic compatibility problem at a specific site;

(b) measures taken for safety reasons to protect public telecommunications networks or receiving or transmitting stations when used for safety purposes in well-defined spectrum situations. Without prejudice to Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (142), Member States shall notify those special measures to the Commission and to the other Member States. The special measures which have been accepted shall be published by the Commission in the Official Journal of the European Union. 3.

Member States shall not create any obstacles to the display and/or demonstration at trade fairs, exhibitions or similar events of equipment which does not comply with this Directive, provided that a visible sign clearly indicates that such equipment may not be made available on the market and/or put into service until it has been brought into conformity with this Directive. Demonstration may only take place provided that adequate measures have been taken to avoid electromagnetic disturbances.

Article 6 Essential requirements The equipment shall meet the essential requirements set out in Annex I. CHAPTER 2 OBLIGATIONS OF ECONOMIC OPERATORS Article 7 Obligations of manufacturers 1.

When placing their apparatus on the market, manufacturers shall ensure that they have been designed and manufactured in accordance with the essential requirements set out in Annex I.

2.

Manufacturers shall draw up the technical documentation referred to in Annex II or Annex III and carry out the relevant conformity assessment procedure referred to in Article 14 or have it carried out. Where compliance of apparatus with the applicable requirements has been demonstrated by that procedure, manufacturers shall draw up an EU declaration of conformity and affix the CE marking.

OJ L 204, 21.7.1998, p. 37.

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3.

Manufacturers shall keep the technical documentation and the EU declaration of conformity for 10 years after the apparatus has been placed on the market.

4.

Manufacturers shall ensure that procedures are in place for series production to remain in conformity with this Directive. Changes in apparatus design or characteristics and changes in the harmonised standards or in other technical specifications by reference to which conformity of apparatus is declared shall be adequately taken into account.

5.

Manufacturers shall ensure that apparatus which they have placed on the market bear a type, batch or serial number or other element allowing their identification, or, where the size or nature of the apparatus does not allow it, that the required information is provided on the packaging or in a document accompanying the apparatus.

6.

Manufacturers shall indicate, on the apparatus, their name, registered trade name or registered trade mark and the postal address at which they can be contacted or, where that is not possible, on its packaging or in a document accompanying the apparatus. The address shall indicate a single point at which the manufacturer can be contacted. The contact details shall be in a language easily understood by endusers and market surveillance authorities.

7.

Manufacturers shall ensure that the apparatus is accompanied by instructions and the information referred to in Article 18 in a language which can be easily understood by consumers and other end-users, as determined by the Member State concerned. Such instructions and information, as well as any labelling, shall be clear, understandable and intelligible.

8.

Manufacturers who consider or have reason to believe that an apparatus which they have placed on the market is not in conformity with this Directive shall immediately take the corrective measures necessary to bring that apparatus into conformity, to withdraw it or recall it, if appropriate. Furthermore, where the apparatus presents a risk, manufacturers shall immediately inform the competent national authorities of the Member States in which they made the apparatus available on the market to that effect, giving details, in particular, of the noncompliance and of any corrective measures taken.

9.

Manufacturers shall, further to a reasoned request from a competent national authority, provide it with all the information and documentation in paper or electronic form necessary to demonstrate the conformity of the apparatus with this Directive, in a language which can be easily understood by that authority. They shall cooperate with that authority, at its request, on any action taken to eliminate the risks posed by apparatus which they have placed on the market. Article 8 Authorised representatives

1.

A manufacturer may, by a written mandate, appoint an authorised representative. The obligations laid down in Article 7(1) and the obligation to draw up technical documentation referred to in Article  7(2) shall not form part of the authorised representative’s mandate.

2.

An authorised representative shall perform the tasks specified in the mandate received from the manufacturer. The mandate shall allow the authorised representative to do at least the following:



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(a) keep the EU declaration of conformity and the technical documentation at the disposal of national market surveillance authorities for 10 years after the apparatus has been placed on the market; (b) further to a reasoned request from a competent national authority, provide that authority with all the information and documentation necessary to demonstrate the conformity of the apparatus; (c) cooperate with the competent national authorities, at their request, on any action taken to eliminate the risks posed by the apparatus covered by the authorised representative’s mandate. Article 9 Obligations of importers 1.

Importers shall place only compliant apparatus on the market.

2.

Before placing apparatus on the market importers shall ensure that the appropriate conformity assessment procedure referred to in Article  14 has been carried out by the manufacturer. They shall ensure that the manufacturer has drawn up the technical documentation, that the apparatus bears the CE marking and is accompanied by the required documents, and that the manufacturer has complied with the requirements set out in Article 7(5) and (6). Where an importer considers or has reason to believe that apparatus is not in conformity with the essential requirements set out in Annex I, he shall not place the apparatus on the market until it has been brought into conformity. Furthermore, where the apparatus presents a risk, the importer shall inform the manufacturer and the market surveillance authorities to that effect.

3.

Importers shall indicate on the apparatus their name, registered trade name or registered trade mark and the postal address at which they can be contacted or, where that is not possible, on its packaging or in a document accompanying the apparatus. The contact details shall be in a language easily understood by endusers and market surveillance authorities.

4.

Importers shall ensure that the apparatus is accompanied by instructions and the information referred to in Article 18 in a language which can be easily understood by consumers and other end-users, as determined by the Member State concerned.

5.

Importers shall ensure that, while an apparatus is under their responsibility, its storage or transport conditions do not jeopardise its compliance with the essential requirements set out in Annex I.

6.

Importers who consider or have reason to believe that an apparatus which they have placed on the market is not in conformity with this Directive shall immediately take the corrective measures necessary to bring that apparatus into conformity, to withdraw it or recall it, if appropriate. Furthermore, where the apparatus presents a risk, importers shall immediately inform the competent national authorities of the Member States in which they made the apparatus available on the market to that effect, giving details, in particular, of the non-compliance and of any corrective measures taken.

7.

Importers shall, for 10 years after the apparatus has been placed on the market, keep a copy of the EU declaration of conformity at the disposal of the market surveillance authorities and ensure that the technical documentation can be made available to those authorities, upon request.

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Importers shall, further to a reasoned request from a competent national authority, provide it with all the information and documentation in paper or electronic form, necessary to demonstrate the conformity of apparatus in a language which can be easily understood by that authority. They shall cooperate with that authority, at its request, on any action taken to eliminate the risks posed by apparatus which they have placed on the market. Article 10 Obligations of distributors

1.

When making apparatus available on the market distributors shall act with due care in relation to the requirements of this Directive.

2.

Before making apparatus available on the market distributors shall verify that the apparatus bears the CE marking, that it is accompanied by the required documents and by instructions and the information referred to in Article  18 in a language which can be easily understood by consumers and other end-users in the Member State in which the apparatus is to be made available on the market and that the manufacturer and the importer have complied with the requirements set out in Article 7(5) and (6) and Article 9(3) respectively. Where a distributor considers or has reason to believe that apparatus is not in conformity with the essential requirements set out in Annex I, he shall not make the apparatus available on the market until it has been brought into conformity. Furthermore, where the apparatus presents a risk, the distributor shall inform the manufacturer or the importer to that effect as well as the market surveillance authorities.

3.

Distributors shall ensure that, while apparatus is under their responsibility, its storage or transport conditions do not jeopardise its compliance with the essential requirements set out in Annex I.

4.

Distributors who consider or have reason to believe that apparatus which they have made available on the market is not in conformity with this Directive shall make sure that the corrective measures necessary to bring that apparatus into conformity, to withdraw it or recall it, if appropriate, are taken. Furthermore, where the apparatus presents a risk, distributors shall immediately inform the competent national authorities of the Member States in which they made the apparatus available on the market to that effect, giving details, in particular, of the non-compliance and of any corrective measures taken.

5.

Distributors shall, further to a reasoned request from a competent national authority, provide it with all the information and documentation in paper or electronic form, necessary to demonstrate the conformity of the apparatus. They shall cooperate with that authority, at its request, on any action taken to eliminate the risks posed by apparatus which they have made available on the market.

Article 11 Cases in which obligations of manufacturers apply to importers and distributors An importer or distributor shall be considered a manufacturer for the purposes of this Directive and he shall be subject to the obligations of the manufacturer under Article 7, where he places apparatus on the market under his name or trade mark or modifies apparatus already placed on the market in such a way that compliance with this Directive may be affected. Article 12 Identification of economic operators Economic operators shall, on request, identify the following to the market surveillance authorities:



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(a) any economic operator who has supplied them with apparatus; (b) any economic operator to whom they have supplied apparatus. Economic operators shall be able to present the information referred to in the first paragraph for 10 years after they have been supplied with the apparatus and for 10 years after they have supplied the apparatus. CHAPTER 3 CONFORMITY OF EQUIPMENT Article 13 Presumption of conformity of equipment Equipment which is in conformity with harmonised standards or parts thereof the references of which have been published in the Official Journal of the European Union shall be presumed to be in conformity with the essential requirements set out in Annex I covered by those standards or parts thereof. Article 14 Conformity assessment procedures for apparatus Compliance of apparatus with the essential requirements set out in Annex I  shall be demonstrated by means of either of the following conformity assessment procedures: (a) internal production control set out in Annex II; (b) EU type examination that is followed by Conformity to type based on internal production control set out in Annex III. The manufacturer may choose to restrict the application of the procedure referred to in point (b) of the first paragraph to some aspects of the essential requirements, provided that for the other aspects of the essential requirements the procedure referred to in point (a) of the first paragraph is applied. Article 15 EU declaration of conformity 1. The EU declaration of conformity shall state that the fulfilment of the essential requirements set out in Annex I has been demonstrated. 2. The EU declaration of conformity shall have the model structure set out in Annex IV, shall contain the elements specified in the relevant modules set out in Annexes II and III and shall be continuously updated. It shall be translated into the language or languages required by the Member State in which the apparatus is placed or made available on the market. 3. Where apparatus is subject to more than one Union act requiring an EU declaration of conformity, a single EU declaration of conformity shall be drawn up in respect of all such Union acts. That declaration shall contain the identification of the Union acts concerned including their publication references. 4. By drawing up the EU declaration of conformity, the manufacturer shall assume responsibility for the compliance of the apparatus with the requirements laid down in this Directive. Article 16 General principles of the CE marking The CE marking shall be subject to the general principles set out in Article  30 of Regulation (EC) No 765/2008. Article 17 Rules and conditions for affixing the CE marking 1. The CE marking shall be affixed visibly, legibly and indelibly to the apparatus or to its data plate. Where that is not possible or not warranted on account of the nature

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of the apparatus, it shall be affixed to the packaging and to the accompanying documents. 2.

The CE marking shall be affixed before the apparatus is placed on the market.

3.

Member States shall build upon existing mechanisms to ensure correct application of the regime governing the CE marking and shall take appropriate action in the event of improper use of that marking. Article 18 Information concerning the use of apparatus

1.

Apparatus shall be accompanied by information on any specific precautions that must be taken when the apparatus is assembled, installed, maintained or used, in order to ensure that, when put into service, the apparatus is in conformity with the essential requirements set out in point 1 of Annex I.

2.

Apparatus for which compliance with the essential requirements set out in point 1 of Annex I is not ensured in residential areas shall be accompanied by a clear indication of such restriction of use, where appropriate also on the packaging.

3.

The information required to enable apparatus to be used in accordance with the intended purpose of the apparatus shall be included in the instructions accompanying the apparatus. Article 19 Fixed installations

1.

Apparatus which has been made available on the market and which may be incorporated into a fixed installation shall be subject to all relevant provisions for apparatus set out in this Directive. However, the requirements of Articles 6 to 12 and Articles 14 to 18 shall not be compulsory in the case of apparatus which is intended for incorporation into a particular fixed installation and is otherwise not made available on the market. In such cases, the accompanying documentation shall identify the fixed installation and its electromagnetic compatibility characteristics and shall indicate the precautions to be taken for the incorporation of the apparatus into the fixed installation in order not to compromise the conformity of that installation. It shall also include the information referred to in Article 7(5) and (6) and Article 9(3). The good engineering practices referred to in point 2 of Annex I shall be documented and the documentation shall be held by the person or persons responsible at the disposal of the relevant national authorities for inspection for as long as the fixed installation is in operation.

2.

Where there are indications of non-compliance of the fixed installation, in particular, where there are complaints about disturbances being generated by the installation, the competent authorities of the Member State concerned may request evidence of compliance of the fixed installation, and, when appropriate, initiate an evaluation. Where non-compliance is established, the competent authorities shall impose appropriate measures to bring the fixed installation into compliance with the essential requirements set out in Annex I.

3.

Member States shall set out the necessary provisions for identifying the person or persons responsible for the establishment of compliance of a fixed installation with the relevant essential requirements.



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CHAPTER 4 NOTIFICATION OF CONFORMITY ASSESSMENT BODIES Article 20 Notification Member States shall notify the Commission and the other Member States of bodies authorised to carry out third-party conformity assessment tasks under this Directive. Article 21 Notifying authorities 1.

Member States shall designate a notifying authority that shall be responsible for setting up and carrying out the necessary procedures for the assessment and notification of conformity assessment bodies and the monitoring of notified bodies, including compliance with Article 26.

2.

Member States may decide that the assessment and monitoring referred to in paragraph  1 shall be carried out by a national accreditation body within the meaning of and in accordance with Regulation (EC) No 765/2008.

3.

Where the notifying authority delegates or otherwise entrusts the assessment, notification or monitoring referred to in paragraph  1 to a body which is not a governmental entity, that body shall be a legal entity and shall comply mutatis mutandis with the requirements laid down in Article 22. In addition it shall have arrangements to cover liabilities arising out of its activities.

4.

The notifying authority shall take full responsibility for the tasks performed by the body referred to in paragraph 3. Article 22 Requirements relating to notifying authorities

1.

A notifying authority shall be established in such a way that no conflict of interest with conformity assessment bodies occurs.

2.

A  notifying authority shall be organised and operated so as to safeguard the objectivity and impartiality of its activities.

3.

A notifying authority shall be organised in such a way that each decision relating to notification of a conformity assessment body is taken by competent persons different from those who carried out the assessment.

4.

A  notifying authority shall not offer or provide any activities that conformity assessment bodies perform or consultancy services on a commercial or competitive basis.

5.

A  notifying authority shall safeguard the confidentiality of the information it obtains.

6.

A notifying authority shall have a sufficient number of competent personnel at its disposal for the proper performance of its tasks.

Article 23 Information obligation on notifying authorities Member States shall inform the Commission of their procedures for the assessment and notification of conformity assessment bodies and the monitoring of notified bodies, and of any changes thereto. The Commission shall make that information publicly available.

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Article 24 Requirements relating to notified bodies 1.

For the purposes of notification, a conformity assessment body shall meet the requirements laid down in paragraphs 2 to 11.

2.

A  conformity assessment body shall be established under national law of a Member State and have legal personality.

3.

A  conformity assessment body shall be a third-party body independent of the organisation or the apparatus it assesses. A body belonging to a business association or professional federation representing undertakings involved in the design, manufacturing, provision, assembly, use or maintenance of apparatus which it assesses, may, on condition that its independence and the absence of any conflict of interest are demonstrated, be considered such a body.

4.

A  conformity assessment body, its top level management and the personnel responsible for carrying out the conformity assessment tasks shall not be the designer, manufacturer, supplier, installer, purchaser, owner, user or maintainer of the apparatus which they assess, nor the representative of any of those parties. This shall not preclude the use of assessed apparatus that are necessary for the operations of the conformity assessment body or the use of such apparatus for personal purposes. A  conformity assessment body, its top level management and the personnel responsible for carrying out the conformity assessment tasks shall not be directly involved in the design, manufacture or construction, the marketing, installation, use or maintenance of those apparatus, or represent the parties engaged in those activities. They shall not engage in any activity that may conflict with their independence of judgement or integrity in relation to conformity assessment activities for which they are notified. This shall in particular apply to consultancy services. Conformity assessment bodies shall ensure that the activities of their subsidiaries or subcontractors do not affect the confidentiality, objectivity or impartiality of their conformity assessment activities.

5.

Conformity assessment bodies and their personnel shall carry out the conformity assessment activities with the highest degree of professional integrity and the requisite technical competence in the specific field and shall be free from all pressures and inducements, particularly financial, which might influence their judgement or the results of their conformity assessment activities, especially as regards persons or groups of persons with an interest in the results of those activities.

6.

A conformity assessment body shall be capable of carrying out all the conformity assessment tasks assigned to it by Annex III and in relation to which it has been notified, whether those tasks are carried out by the conformity assessment body itself or on its behalf and under its responsibility. At all times and for each conformity assessment procedure and each kind or category of apparatus in relation to which it has been notified, a conformity assessment body shall have at its disposal the necessary: (a) personnel with technical knowledge and sufficient and appropriate experience to perform the conformity assessment tasks;



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(b)

descriptions of procedures in accordance with which conformity assessment is carried out, ensuring the transparency and the ability of reproduction of those procedures. It shall have appropriate policies and procedures in place that distinguish between tasks it carries out as a notified body and other activities;

(c)

procedures for the performance of activities which take due account of the size of an undertaking, the sector in which it operates, its structure, the degree of complexity of the apparatus technology in question and the mass or serial nature of the production process.

A  conformity assessment body shall have the means necessary to perform the technical and administrative tasks connected with the conformity assessment activities in an appropriate manner and shall have access to all necessary equipment or facilities. 7.

The personnel responsible for carrying out conformity assessment tasks shall have the following: (a) sound technical and vocational training covering all the conformity assessment activities in relation to which the conformity assessment body has been notified; (b) satisfactory knowledge of the requirements of the assessments they carry out and adequate authority to carry out those assessments; (c)

appropriate knowledge and understanding of the essential requirements set out in Annex I, of the applicable harmonised standards and of the relevant provisions of Union harmonisation legislation and of national legislation;

(d) the ability to draw up certificates, records and reports demonstrating that assessments have been carried out. 8.

The impartiality of the conformity assessment bodies, their top level management and of the personnel responsible for carrying out the conformity assessment tasks shall be guaranteed. The remuneration of the top level management and personnel responsible for carrying out the conformity assessment tasks of a conformity assessment body shall not depend on the number of assessments carried out or on the results of those assessments.

9.

Conformity assessment bodies shall take out liability insurance unless liability is assumed by the State in accordance with national law, or the Member State itself is directly responsible for the conformity assessment.

10. The personnel of a conformity assessment body shall observe professional secrecy with regard to all information obtained in carrying out their tasks under Annex III or any provision of national law giving effect to it, except in relation to the competent authorities of the Member State in which its activities are carried out. Proprietary rights shall be protected. 11. Conformity assessment bodies shall participate in, or ensure that their personnel responsible for carrying out the conformity assessment tasks are informed of, the relevant standardisation activities and the activities of the notified body coordination group established under the relevant Union harmonisation legislation and shall apply as general guidance the administrative decisions and documents produced as a result of the work of that group.

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Article 25 Presumption of conformity of notified bodies Where a conformity assessment body demonstrates its conformity with the criteria laid down in the relevant harmonised standards or parts thereof the references of which have been published in the Official Journal of the European Union it shall be presumed to comply with the requirements set out in Article 24 in so far as the applicable harmonised standards cover those requirements. Article 26 Subsidiaries of and subcontracting by notified bodies 1.

Where a notified body subcontracts specific tasks connected with conformity assessment or has recourse to a subsidiary, it shall ensure that the subcontractor or the subsidiary meets the requirements set out in Article 24 and shall inform the notifying authority accordingly.

2. Notified bodies shall take full responsibility for the tasks performed by subcontractors or subsidiaries wherever these are established. 3.

Activities may be subcontracted or carried out by a subsidiary only with the agreement of the client.

4.

Notified bodies shall keep at the disposal of the notifying authority the relevant documents concerning the assessment of the qualifications of the subcontractor or the subsidiary and the work carried out by them under Annex III. Article 27 Application for notification

1.

A conformity assessment body shall submit an application for notification to the notifying authority of the Member State in which it is established.

2.

The application for notification shall be accompanied by a description of the conformity assessment activities, the conformity assessment module or modules and the apparatus for which that body claims to be competent, as well as by an accreditation certificate, where one exists, issued by a national accreditation body attesting that the conformity assessment body fulfils the requirements laid down in Article 24.

3.

Where the conformity assessment body concerned cannot provide an accreditation certificate, it shall provide the notifying authority with all the documentary evidence necessary for the verification, recognition and regular monitoring of its compliance with the requirements laid down in Article 24. Article 28 Notification procedure

1.

Notifying authorities may notify only conformity assessment bodies which have satisfied the requirements laid down in Article 24.

2.

They shall notify the Commission and the other Member States using the electronic notification tool developed and managed by the Commission.

3.

The notification shall include full details of the conformity assessment activities, the conformity assessment module or modules and apparatus concerned and the relevant attestation of competence.

4.

Where a notification is not based on an accreditation certificate as referred to in Article  27(2), the notifying authority shall provide the Commission and the



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other Member States with documentary evidence which attests to the conformity assessment body’s competence and the arrangements in place to ensure that that body will be monitored regularly and will continue to satisfy the requirements laid down in Article 24. 5.

The body concerned may perform the activities of a notified body only where no objections are raised by the Commission or the other Member States within two weeks of a notification where an accreditation certificate is used or within two months of a notification where accreditation is not used. Only such a body shall be considered a notified body for the purposes of this Directive.

6.

The notifying authority shall notify the Commission and the other Member States of any subsequent relevant changes to the notification. Article 29 Identification numbers and lists of notified bodies

1.

The Commission shall assign an identification number to a notified body. It shall assign a single such number even where the body is notified under several Union acts.

2.

The Commission shall make publicly available the list of the bodies notified under this Directive, including the identification numbers that have been assigned to them and the activities for which they have been notified. The Commission shall ensure that the list is kept up to date. Article 30 Changes to notifications

1.

Where a notifying authority has ascertained or has been informed that a notified body no longer meets the requirements laid down in Article 24, or that it is failing to fulfil its obligations, the notifying authority shall restrict, suspend or withdraw notification as appropriate, depending on the seriousness of the failure to meet those requirements or fulfil those obligations. It shall immediately inform the Commission and the other Member States accordingly.

2.

In the event of restriction, suspension or withdrawal of notification, or where the notified body has ceased its activity, the notifying Member State shall take appropriate steps to ensure that the files of that body are either processed by another notified body or kept available for the responsible notifying and market surveillance authorities at their request. Article 31 Challenge of the competence of notified bodies

1.

The Commission shall investigate all cases where it doubts, or doubt is brought to its attention regarding, the competence of a notified body or the continued fulfilment by a notified body of the requirements and responsibilities to which it is subject.

2.

The notifying Member State shall provide the Commission, on request, with all information relating to the basis for the notification or the maintenance of the competence of the notified body concerned.

3.

The Commission shall ensure that all sensitive information obtained in the course of its investigations is treated confidentially.

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Where the Commission ascertains that a notified body does not meet or no longer meets the requirements for its notification, it shall adopt an implementing act requesting the notifying Member State to take the necessary corrective measures, including withdrawal of notification if necessary. That implementing act shall be adopted in accordance with the advisory procedure referred to in Article 41(2). Article 32 Operational obligations of notified bodies

1.

Notified bodies shall carry out conformity assessments in accordance with the conformity assessment procedures provided for in Annex III.

2.

Conformity assessments shall be carried out in a proportionate manner, avoiding unnecessary burdens for economic operators. Conformity assessment bodies shall perform their activities taking due account of the size of an undertaking, the sector in which it operates, its structure, the degree of complexity of the apparatus technology in question and the mass or serial nature of the production process. In so doing they shall nevertheless respect the degree of rigour and the level of protection required for the compliance of the apparatus with this Directive.

3.

Where a notified body finds that the essential requirements set out in Annex I or corresponding harmonised standards or other technical specifications have not been met by a manufacturer, it shall require that manufacturer to take appropriate corrective measures and shall not issue a certificate.

4.

Where, in the course of the monitoring of conformity following the issue of a certificate, a notified body finds that an apparatus no longer complies, it shall require the manufacturer to take appropriate corrective measures and shall suspend or withdraw the certificate if necessary.

5.

Where corrective measures are not taken or do not have the required effect, the notified body shall restrict, suspend or withdraw any certificates, as appropriate.

Article 33 Appeal against decisions of notified bodies Member States shall ensure that an appeal procedure against decisions of the notified bodies is available. Article 34 Information obligation on notified bodies 1.

Notified bodies shall inform the notifying authority of the following: (a)

any refusal, restriction, suspension or withdrawal of a certificate;

(b) any circumstances affecting the scope of or conditions for notification; (c) any request for information which they have received from market surveillance authorities regarding conformity assessment activities; (d) on request, conformity assessment activities performed within the scope of their notification and any other activity performed, including cross-border activities and subcontracting. 2.

Notified bodies shall provide the other bodies notified under this Directive carrying out similar conformity assessment activities covering the same apparatus



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with relevant information on issues relating to negative and, on request, positive conformity assessment results. Article 35 Exchange of experience The Commission shall provide for the organisation of exchange of experience between the Member States’ national authorities responsible for notification policy. Article 36 Coordination of notified bodies The Commission shall ensure that appropriate coordination and cooperation between bodies notified under this Directive are put in place and properly operated in the form of a sectoral group of notified bodies. Member States shall ensure that the bodies notified by them participate in the work of that group, directly or by means of designated representatives. CHAPTER 5 UNION MARKET SURVEILLANCE AND CONTROL OF APPARATUS ENTERING THE UNION MARKET AND UNION SAFEGUARD PROCEDURE Article 37 Union market surveillance and control of apparatus entering the Union market Article  15(3) and Articles  16 to 29 of Regulation (EC) No  765/2008 shall apply to apparatus. Article 38 Procedure for dealing with apparatus presenting a risk at national level 1.

Where the market surveillance authorities of one Member State have sufficient reason to believe that an apparatus covered by this Directive presents a risk to aspects of public interest protection covered by this Directive, they shall carry out an evaluation in relation to the apparatus concerned covering all relevant requirements laid down in this Directive. The relevant economic operators shall cooperate as necessary with the market surveillance authorities for that purpose. Where, in the course of the evaluation referred to in the first subparagraph, the market surveillance authorities find that the apparatus does not comply with the requirements laid down in this Directive, they shall without delay require the relevant economic operator to take all appropriate corrective actions to bring the apparatus into compliance with those requirements, to withdraw the apparatus from the market, or to recall it within a reasonable period, commensurate with the nature of the risk, as they may prescribe. The market surveillance authorities shall inform the relevant notified body accordingly. Article 21 of Regulation (EC) No 765/2008 shall apply to the measures referred to in the second subparagraph of this paragraph.

2.

Where the market surveillance authorities consider that non-compliance is not restricted to their national territory, they shall inform the Commission and the other Member States of the results of the evaluation, and of the actions which they have required the economic operator to take.

3.

The economic operator shall ensure that all appropriate corrective action is taken in respect of all the apparatus concerned that it has made available on the market throughout the Union.

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EECC Handbook

Where the relevant economic operator does not take adequate corrective action within the period referred to in the second subparagraph of paragraph  1, the market surveillance authorities shall take all appropriate provisional measures to prohibit or restrict the apparatus’s being made available on their national market, to withdraw the apparatus from that market or to recall it. The market surveillance authorities shall inform the Commission and the other Member States, without delay, of those measures.

5.

The information referred to in the second subparagraph of paragraph  4 shall include all available details, in particular the data necessary for the identification of the non-compliant apparatus, the origin of the apparatus, the nature of the noncompliance alleged and the risk involved, the nature and duration of the national measures taken and the arguments put forward by the relevant economic operator. In particular, the market surveillance authorities shall indicate whether the noncompliance is due to either of the following: (a)

failure of the apparatus to meet the requirements relating to aspects of public interest protection covered by this Directive; or

(b)

shortcomings in the harmonised standards referred to in Article 13 conferring a presumption of conformity.

6.

Member States other than the Member State initiating the procedure under this Article shall without delay inform the Commission and the other Member States of any measures adopted and of any additional information at their disposal relating to the non-compliance of the apparatus concerned, and, in the event of disagreement with the adopted national measure, of their objections.

7.

Where, within three months of receipt of the information referred to in the second subparagraph of paragraph 4, no objection has been raised by either a Member State or the Commission in respect of a provisional measure taken by a Member State, that measure shall be deemed justified.

8.

Member States shall ensure that appropriate restrictive measures, such as withdrawal of the apparatus from the market, are taken in respect of the apparatus concerned without delay. Article 39 Union safeguard procedure

1.

Where, on completion of the procedure set out in Article 38(3) and (4), objections are raised against a measure taken by a Member State, or where the Commission considers a national measure to be contrary to Union legislation, the Commission shall without delay enter into consultation with the Member States and the relevant economic operator or operators and shall evaluate the national measure. On the basis of the results of that evaluation, the Commission shall adopt an implementing act determining whether the national measure is justified or not. The Commission shall address its decision to all Member States and shall immediately communicate it to them and the relevant economic operator or operators.

2.

If the national measure is considered justified, all Member States shall take the necessary measures to ensure that the non-compliant apparatus is withdrawn from their market, and shall inform the Commission accordingly. If the national measure is considered unjustified, the Member State concerned shall withdraw that measure.



3.

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Where the national measure is considered justified and the non-compliance of the apparatus is attributed to shortcomings in the harmonised standards referred to in point (b) of Article 38(5) of this Directive, the Commission shall apply the procedure provided for in Article 11 of Regulation (EU) No 1025/2012. Article 40 Formal non-compliance

1.

Without prejudice to Article 38, where a Member State makes one of the following findings, it shall require the relevant economic operator to put an end to the noncompliance concerned: (a) the CE marking has been affixed in violation of Article  30 of Regulation (EC) No 765/2008 or of Article 17 of this Directive; (b) the CE marking has not been affixed; (c)

the EU declaration of conformity has not been drawn up;

(d) the EU declaration of conformity has not been drawn up correctly;

2.

(e)

technical documentation is either not available or not complete;

(f)

the information referred to in Article 7(6) or Article 9(3) is absent, false or incomplete;

(g)

any other administrative requirement provided for in Article 7 or Article 9 is not fulfilled.

Where the non-compliance referred to in paragraph 1 persists, the Member State concerned shall take all appropriate measures to restrict or prohibit the apparatus being made available on the market or ensure that it is recalled or withdrawn from the market. CHAPTER 6 COMMITTEE, TRANSITIONAL AND FINAL PROVISIONS Article 41 Committee procedure

1.

The Commission shall be assisted by the Committee on Electromagnetic Compatibility. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

2.

Where reference is made to this paragraph, Article  4 of Regulation (EU) No 182/2011 shall apply.

3.

The committee shall be consulted by the Commission on any matter for which consultation of sectoral experts is required by Regulation (EU) No 1025/2012 or by any other Union legislation. The committee may furthermore examine any other matter concerning the application of this Directive raised either by its chair or by a representative of a Member State in accordance with its rules of procedure.

Article 42 Penalties Member States shall lay down rules on penalties applicable to infringements by economic operators of the provisions of national law adopted pursuant to this Directive and shall take all measures necessary to ensure that they are enforced. Such rules may include criminal penalties for serious infringements. The penalties provided for shall be effective, proportionate and dissuasive.

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Article 43 Transitional provisions Member States shall not impede the making available on the market and/or the putting into service of equipment covered by Directive 2004/108/EC which is in conformity with that Directive and which was placed on the market before 20 April 2016. Article 44c Transposition 1. Member States shall adopt and publish, by 19 April 2016, the laws, regulations and administrative provisions necessary to comply with Article 2(2), points (9) to (25) of Article 3(1), Article 4, Article 5(1), Articles 7 to 12, Articles 15, 16 and 17, the first subparagraph of Article 19(1), Articles 20 to 43, and Annexes II, III and IV. They shall forthwith communicate the text of those measures to the Commission. They shall apply those measures from 20 April 2016. When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. They shall also include a statement that references in existing laws, regulations and administrative provisions to the Directive repealed by this Directive shall be construed as references to this Directive. Member States shall determine how such reference is to be made and how that statement is to be formulated. 2. Member States shall communicate to the Commission the texts of the main provisions of national law which they adopt in the field covered by this Directive. Article 45 Repeal Directive 2004/108/EC is repealed with effect from 20 April 2016, without prejudice to the obligations of the Member States relating to the time-limit for transposition into national law and the dates of application of the Directive set out in Annex V. References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex VI. Article 46 Entry into force and application This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. Article 1, Article 2, points (1) to (8) of Article 3(1), Article 3(2), Article 5(2) and (3), Article 6, Article 13, Article 19(3) and Annex I shall apply from 20 April 2016. Article 47 Addressees This Directive is addressed to the Member States. ANNEX I ESSENTIAL REQUIREMENTS

1. General requirements Equipment shall be so designed and manufactured, having regard to the state of the art, as to ensure that: (a) the electromagnetic disturbance generated does not exceed the level above which radio and telecommunications equipment or other equipment cannot operate as intended; (b) it has a level of immunity to the electromagnetic disturbance to be expected in its intended use which allows it to operate without unacceptable degradation of its intended use.



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2. Specific requirements for fixed installations Installation and intended use of components A fixed installation shall be installed applying good engineering practices and respecting the information on the intended use of its components, with a view to meeting the essential requirements set out in point 1. ANNEX II MODULE A: INTERNAL PRODUCTION CONTROL 1. Internal production control is the conformity assessment procedure whereby the manufacturer fulfils the obligations laid down in points 2, 3, 4 and 5 of this Annex, and ensures and declares on his sole responsibility that the apparatus concerned satisfy the requirements of this Directive that apply to it. 2. Electromagnetic compatibility assessment The manufacturer shall perform an electromagnetic compatibility assessment of the apparatus, on the basis of the relevant phenomena, with a view to meeting the essential requirements set out in point 1 of Annex I. The electromagnetic compatibility assessment shall take into account all normal intended operating conditions. Where the apparatus is capable of taking different configurations, the electromagnetic compatibility assessment shall confirm whether the apparatus meets the essential requirements set out in point 1 of Annex I in all the possible configurations identified by the manufacturer as representative of its intended use. 3. Technical documentation The manufacturer shall establish the technical documentation. The documentation shall make it possible to assess the apparatus conformity to the relevant requirements, and shall include an adequate analysis and assessment of the risk(s). The technical documentation shall specify the applicable requirements and cover, as far as relevant for the assessment, the design, manufacture and operation of the apparatus. The technical documentation shall, wherever applicable, contain at least the following elements: (a)

a general description of the apparatus;

(b) conceptual design and manufacturing drawings and schemes of components, subassemblies, circuits, etc.; (c) descriptions and explanations necessary for the understanding of those drawings and schemes and the operation of the apparatus; (d)

a list of the harmonised standards applied in full or in part the references of which have been published in the Official Journal of the European Union and, where those harmonised standards have not been applied, descriptions of the solutions adopted to meet the essential requirements of this Directive, including a list of other relevant technical specifications applied. In the event of partly applied harmonised standards, the technical documentation shall specify the parts which have been applied;

(e)

results of design calculations made, examinations carried out, etc.;

(f) test reports. 4. Manufacturing The manufacturer shall take all measures necessary so that the manufacturing process and its monitoring ensure compliance of the manufactured apparatus with the technical documentation referred to in point 3 of this Annex and with the essential requirements set out in point 1 of Annex I.

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5. CE marking and EU declaration of conformity 5.1. The manufacturer shall affix the CE marking to each individual apparatus that satisfies the applicable requirements of this Directive. 5.2. The manufacturer shall draw up a written EU declaration of conformity for an apparatus model and keep it together with the technical documentation at the disposal of the national authorities for 10 years after the apparatus has been placed on the market. The EU declaration of conformity shall identify the apparatus for which it has been drawn up. A  copy of the EU declaration of conformity shall be made available to the relevant authorities upon request. 6. Authorised representative The manufacturer’s obligations set out in point 5 may be fulfilled by his authorised representative, on his behalf and under his responsibility, provided that they are specified in the mandate. ANNEX III PART A Module B: EU-type examination 1. EU-type examination is the part of a conformity assessment procedure in which a notified body examines the technical design of an apparatus and verifies and attests that the technical design of the apparatus meets the essential requirements set out in point 1 of Annex I. 2. EU-type examination shall be carried out by assessment of the adequacy of the technical design of the apparatus through examination of the technical documentation referred to in point 3, without examination of a specimen (design type). It may be restricted to some aspects of the essential requirements as specified by the manufacturer or his authorised representative. 3. The manufacturer shall lodge an application for EU-type examination with a single notified body of his choice. The application shall specify the aspects of the essential requirements for which examination is requested and shall include: (a)

the name and address of the manufacturer and, if the application is lodged by the authorised representative, his name and address as well;

(b) a written declaration that the same application has not been lodged with any other notified body; (c)

the technical documentation. The technical documentation shall make it possible to assess the apparatus conformity with the applicable requirements of this Directive and shall include an adequate analysis and assessment of the risk(s). The technical documentation shall specify the applicable requirements and cover, as far as relevant for the assessment, the design, manufacture and operation of the apparatus. The technical documentation shall contain, wherever applicable, at least the following elements: (i)

a general description of the apparatus;

(ii)

conceptual design and manufacturing drawings and schemes of components, sub-assemblies, circuits, etc.;

(iii) descriptions and explanations necessary for the understanding of those drawings and schemes and the operation of the apparatus; (iv) a list of the harmonised standards applied in full or in part the references of which have been published in the Official Journal of the European Union,



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and, where those harmonised standards have not been applied, descriptions of the solutions adopted to meet the essential requirements of this Directive, including a list of other relevant technical specifications applied. In the event of partly applied harmonised standards, the technical documentation shall specify the parts which have been applied; (v) results of design calculations made, examinations carried out, etc.; (vi) test reports. 4. The notified body shall examine the technical documentation to assess the adequacy of the technical design of the apparatus in relation to the aspects of the essential requirements for which examination is requested. 5. The notified body shall draw up an evaluation report that records the activities undertaken in accordance with point 4 and their outcomes. Without prejudice to its obligations vis-à-vis the notifying authorities, the notified body shall release the content of that report, in full or in part, only with the agreement of the manufacturer. 6. Where the type meets the requirements of this Directive that apply to the apparatus concerned, the notified body shall issue an EU-type examination certificate to the manufacturer. That certificate shall contain the name and address of the manufacturer, the conclusions of the examination, the aspects of the essential requirements covered by the examination, the conditions (if any) for its validity and the necessary data for identification of the approved type. The EU-type examination certificate may have one or more annexes attached. The EU-type examination certificate and its annexes shall contain all relevant information to allow the conformity of manufactured apparatus with the examined type to be evaluated and to allow for in-service control. Where the type does not satisfy the applicable requirements of this Directive, the notified body shall refuse to issue an EU-type examination certificate and shall inform the applicant accordingly, giving detailed reasons for its refusal. 7. The notified body shall keep itself apprised of any changes in the generally acknowledged state of the art which indicate that the approved type may no longer comply with the applicable requirements of this Directive, and shall determine whether such changes require further investigation. If so, the notified body shall inform the manufacturer accordingly. The manufacturer shall inform the notified body that holds the technical documentation relating to the EU-type examination certificate of all modifications to the approved type that may affect the conformity of the apparatus with the essential requirements of this Directive or the conditions for validity of that certificate. Such modifications shall require additional approval in the form of an addition to the original EU-type examination certificate. 8. Each notified body shall inform its notifying authority concerning the EU-type examination certificates and/or any additions thereto which it has issued or withdrawn, and shall, periodically or upon request, make available to its notifying authority the list of such certificates and/or any additions thereto refused, suspended or otherwise restricted. Each notified body shall inform the other notified bodies concerning the EU-type examination certificates and/or any additions thereto which it has refused, withdrawn, suspended or otherwise restricted, and, upon request, concerning such certificates and/ or additions thereto which it has issued. The Commission, the Member States and the other notified bodies may, on request, obtain a copy of the EU-type examination certificates and/or additions thereto. On request, the Commission and the Member States may obtain a copy of the technical documentation and the results of the examinations carried out by the notified body. The

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notified body shall keep a copy of the EU-type examination certificate, its annexes and additions, as well as the technical file including the documentation submitted by the manufacturer, until the expiry of the validity of that certificate. 9. The manufacturer shall keep a copy of the EU-type examination certificate, its annexes and additions together with the technical documentation at the disposal of the national authorities for 10 years after the apparatus has been placed on the market. 10. The manufacturer’s authorised representative may lodge the application referred to in point 3 and fulfil the obligations set out in points 7 and 9, provided that they are specified in the mandate. PART B Module C: conformity to type based on internal production control 1. Conformity to type based on internal production control is the part of a conformity assessment procedure whereby the manufacturer fulfils the obligations laid down in points 2 and 3, and ensures and declares that the apparatus concerned are in conformity with the type described in the EU-type examination certificate and satisfy the requirements of this Directive that apply to them. 2. Manufacturing The manufacturer shall take all measures necessary so that the manufacturing process and its monitoring ensure conformity of the manufactured apparatus with the approved type described in the EU-type examination certificate and with the requirements of this Directive that apply to them. 3. 3.1. The manufacturer shall affix the CE marking to each individual apparatus that is in conformity with the type described in the EU-type examination certificate and satisfies the applicable requirements of this Directive. 3.2. The manufacturer shall draw up a written EU declaration of conformity for each apparatus model and keep it at the disposal of the national authorities for 10 years after the apparatus has been placed on the market. The EU declaration of conformity shall identify the apparatus model for which it has been drawn up. A  copy of the EU declaration of conformity shall be made available to the relevant authorities upon request. 4. Authorised representative The manufacturer’s obligations set out in point 3 may be fulfilled by his authorised representative, on his behalf and under his responsibility, provided that they are specified in the mandate. ANNEX IV EU declaration of conformity (No Xxxx) (143) 1. Apparatus model/Product (product, type, batch or serial number): 2. Name and address of the manufacturer or his authorised representative: 3. This declaration of conformity is issued under the sole responsibility of the manufacturer. 4. Object of the declaration (identification of apparatus allowing traceability; it may include a colour image of sufficient clarity where necessary for the identification of the apparatus): 5. The object of the declaration described above is in conformity with the relevant Union harmonisation legislation: 6. References to the relevant harmonised standards used, including the date of the standard, or references to the other technical specifications, including the date of the specification, in relation to which conformity is declared:

It is optional for the manufacturer to assign a number to the declaration of conformity.

143



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7. Where applicable, the notified body … (name, number) performed … (description of intervention) and issued the certificate: 8. Additional information: Signed for and on behalf of: (place and date of issue): (name, function) (signature): ANNEX V Time-limit for transposition into national law and date of application (referred to in Article 45) Directive 2004/108/EC

Time-limit for transposition 20 January 2007

Date of application 20 July 2007

ANNEX VI Correlation table Directive 2004/108/EC Article 1(1) Article 1(2) Article 1(3) Article 1(4) Article 1(5) Article 2(1)(a) Article 2(1)(b) Article 2(1)(c) Article 2(1)(d) Article 2(1)(e) Article 2(1)(f) Article 2(1)(g) Article 2(1)(h) Article 2(2) Article 3 Article 4 Article 5 Article 6 Article 7 Article 8 Article 9(1) Article 9(2) Article 9(3) Article 9(4) Article 9(5)

This Directive Article 1 and Article 2(1) Article 2(2)(a) to (c) Article 2(2)(d) Article 2(3) Article 2(4) Article 3(1)(1) Article 3(1)(2) Article 3(1)(3) Article 3(1)(4) Article 3(1)(5) Article 3(1)(6) Article 3(1)(7) Article 3(1)(8) Article 3(2) Article 4 Article 5 Article 6 Article 13 Article 14 Articles 16 and 17 Article 7(5) Article 7(6) Article 18(1) Article 18(2) Article 18(3)

858

Directive 2004/108/EC Articles 10 and 11 Article 12 Article 13 Article 14 Article 15 Article 16 Article 17 Article 18 Annex I Annex II and point 1 of Annex IV Annex III Point 2 of Annex IV Annex V Annex VI Annex VII

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This Directive Articles 37, 38 and 39 Chapter 4 Article 19 Article 45 Article 43 Article 44 Article 46 Article 47 Annex I Annex II Annex III Annex IV Articles 16 and 17 Article 24 Annex VI

STATEMENT OF THE EUROPEAN PARLIAMENT The European Parliament considers that only when and in so far as implementing acts in the sense of Regulation (EU) No 182/2011 are discussed in meetings of committees, can the latter be considered as ‘comitology committees’ within the meaning of Annex I to the Framework Agreement on the relations between the European Parliament and the European Commission. Meetings of committees thus fall within the scope of point 15 of the Framework Agreement when and insofar as other issues are discussed.



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DIRECTIVE 2014/35/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 26 February 2014 on the harmonisation of the laws of the Member States relating to the making available on the market of electrical equipment designed for use within certain voltage limits[144] (recast) (Text with EEA relevance) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, Having regard to the opinion of the European Economic and Social Committee (145), Acting in accordance with the ordinary legislative procedure (146), Whereas: (1)

A number of amendments are to be made to Directive 2006/95/EC of the European Parliament and of the Council of 12 December 2006 on the harmonisation of the laws of Member States relating to electrical equipment designed for use within certain voltage limits (147). In the interests of clarity, that Directive should be recast.

(2) Regulation (EC) No 765/2008 of the European Parliament and of the Council of 9 July 2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products (148) lays down rules on the accreditation of conformity assessment bodies, provides a framework for the market surveillance of products and for controls on products from third countries, and lays down the general principles of the CE marking. (3) Decision No  768/2008/EC of the European Parliament and of the Council of 9 July 2008 on a common framework for the marketing of products (149) lays down common principles and reference provisions intended to apply across sectoral legislation in order to provide a coherent basis for revision or recasts of that legislation. Directive 2006/95/EC should therefore be adapted to that Decision. (4)

This Directive covers electrical equipment designed for use within certain voltage limits which is new to the Union market when it is placed on the market; that is to say it is either new electrical equipment made by a manufacturer established in the Union or electrical equipment, whether new or second-hand, imported from a third country.

(5) This Directive should apply to all forms of supply, including distance selling.

OJ L 96, 29.3.2014, p. 357. OJ C 181, 21.6.2012, p. 105. 146 Position of the European Parliament of of 5 February 2014 (not yet published in the Official Journal) and decision of the Council of 20 February 2014. 147 OJ L 374, 27.12.2006, p. 10. Directive 2006/95/EC is the codification of Council Directive 73/23/EEC of 19 February 1973 on the harmonization of the laws of Member States relating to electrical equipment designed for use within certain voltage limits (OJ L 77, 26.3.1973, p. 29). 148 OJ L 218, 13.8.2008, p. 30. 149 OJ L 218, 13.8.2008, p. 82. 144 145

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(6) Economic operators should be responsible for the compliance of electrical equipment with this Directive, in relation to their respective roles in the supply chain, so as to ensure a high level of protection of public interests, such as health and safety of persons, of domestic animals and property, and to guarantee fair competition on the Union market. (7) All economic operators intervening in the supply and distribution chain should take appropriate measures to ensure that they only make available on the market electrical equipment which is in conformity with this Directive. It is necessary to provide for a clear and proportionate distribution of obligations which correspond to the role of each economic operator in the supply and distribution chain. (8) In order to facilitate communication between economic operators, market surveillance authorities and consumers, Member States should encourage economic operators to include a website address in addition to the postal address. (9)

The manufacturer, having detailed knowledge of the design and production process, is best placed to carry out the conformity assessment procedure. Conformity assessment should therefore remain solely the obligation of the manufacturer. There is no conformity assessment procedure in this Directive which requires the intervention of a notified body.

(10) It is necessary to ensure that electrical equipment from third countries entering the Union market comply with this Directive, and in particular that appropriate conformity assessment procedures have been carried out by manufacturers with regard to that electrical equipment. Provision should therefore be made for importers to make sure that electrical equipment they place on the market comply with the requirements of this Directive and that they do not place on the market electrical equipment which does not comply with such requirements or present a risk. Provision should also be made for importers to make sure that conformity assessment procedures have been carried out and that marking of electrical equipment and documentation drawn up by manufacturers are available for inspection by the competent national authorities. (11) When placing electrical equipment on the market, every importer should indicate on the electrical equipment his name, registered trade name or registered trade mark and the postal address at which he can be contacted. Exceptions should be provided for in cases where the size or nature of the electrical equipment does not allow it. This includes cases where the importer would have to open the packaging to put his name and address on the electrical equipment. (12) The distributor makes electrical equipment available on the market after it has been placed on the market by the manufacturer or the importer and should act with due care to ensure that its handling of electrical equipment does not adversely affect the compliance of the electrical equipment. (13) Any economic operator that either places electrical equipment on the market under his own name or trade mark or modifies electrical equipment in such a way that compliance with this Directive may be affected should be considered to be the manufacturer and should assume the obligations of the manufacturer. (14) Distributors and importers, being close to the market place, should be involved in market surveillance tasks carried out by the competent national authorities, and should be prepared to participate actively, providing those authorities with all necessary information relating to the electrical equipment concerned.



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(15) Ensuring traceability of electrical equipment throughout the whole supply chain helps to make market surveillance simpler and more efficient. An efficient traceability system facilitates market surveillance authorities’ task of tracing economic operators who made non-compliant electrical equipment available on the market. When keeping the information required under this Directive for the identification of other economic operators, economic operators should not be required to update such information in respect of other economic operators who have either supplied them with electrical equipment or to whom they have supplied electrical equipment. (16) This Directive should be limited to the expression of the safety objectives. In order to facilitate conformity assessment with those objectives it is necessary to provide for a presumption of conformity for electrical equipment which is in conformity with harmonised standards that are adopted in accordance with Regulation (EU) No 1025/2012 of the European Parliament and of the Council of 25 October 2012 on European Standardisation (150) for the purpose of expressing detailed technical specifications of those objectives. (17) Regulation (EU) No  1025/2012 provides for a procedure for objections to harmonised standards where those standards do not entirely satisfy the safety objectives set out in this Directive. (18) The harmonised standards relevant to this Directive should also take into account the United Nations Convention on the Rights of Persons with Disabilities (151). (19) The free movement of electrical equipment for which harmonised standards do not exist should be achieved by applying the safety provisions of the international standards laid down by the International Electrotechnical Commission or by applying national standards. (20) In order to enable economic operators to demonstrate and the competent authorities to ensure that electrical equipment made available on the market is in conformity with the safety objectives it is necessary to provide for conformity assessment procedures. Decision No  768/2008/EC establishes modules for conformity assessment procedures, which include procedures from the least to the most stringent, in proportion to the level of risk involved and the level of safety required. In order to ensure inter-sectoral coherence and to avoid ad-hoc variants, conformity assessment procedures should be chosen from among those modules. (21) Manufacturers should draw up an EU declaration of conformity to provide information required under this Directive on the conformity of electrical equipment with this Directive and of other relevant Union harmonisation legislation. (22) To ensure effective access to information for market surveillance purposes, the information required to identify all applicable Union acts should be available in a single EU declaration of conformity. In order to reduce the administrative burden on economic operators, that single EU declaration of conformity may be a dossier made up of relevant individual declarations of conformity. (23) The CE marking, indicating the conformity of electrical equipment, is the visible consequence of a whole process comprising conformity assessment in a broad OJ L 316, 14.11.2012, p. 12. Approved by Council Decision 2010/48/EC of 26  November 2009 concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities (OJ L 23, 27.1.2010, p. 35).

150 151

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sense. General principles governing the CE marking are set out in Regulation (EC) No 765/2008. Rules governing the affixing of the CE marking should be laid down in this Directive. (24) In order to ensure legal certainty, it is necessary to clarify that rules on Union market surveillance and control of products entering the Union market provided for in Regulation (EC) No 765/2008 apply to electrical equipment. This Directive should not prevent Member States from choosing the competent authorities to carry out those tasks. (25) Member States should take all appropriate measures to ensure that electrical equipment may be placed on the market only if, when properly stored and used for its intended purpose, or under conditions of use which can be reasonably foreseen, it does not endanger the health and safety of persons. Electrical equipment should be considered as non-compliant with the safety objectives laid down in this Directive only under conditions of use which can be reasonably foreseen, that is when such use could result from lawful and readily predictable human behaviour. (26) Directive 2006/95/EC already provides for a safeguard procedure which applies only in the event of disagreement between Member States over measures taken by a Member State. In order to increase transparency and to reduce processing time, it is necessary to improve the existing safeguard procedure, with a view to making it more efficient and drawing on the expertise available in Member States. (27) The existing system should be supplemented by a procedure under which interested parties are informed of measures intended to be taken with regard to electrical equipment presenting a risk to the health or safety of persons or domestic animals, or to property. It should also allow market surveillance authorities, in cooperation with the relevant economic operators, to act at an earlier stage in respect of such electrical equipment. (28) Where the Member States and the Commission agree as to the justification of a measure taken by a Member State, no further involvement of the Commission should be required, except where non-compliance can be attributed to shortcomings of a harmonised standard. (29) In order to ensure uniform conditions for the implementation of this Directive, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No  182/2011 of the European Parliament and of the Council of 16  February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (152). (30) The examination procedure should be used for the adoption of implementing acts with respect to compliant electrical equipment which presents a risk to the health or safety of persons or to other aspects of public interest protection. (31) The Commission should adopt immediately applicable implementing acts where, in duly justified cases relating to compliant electrical equipment which presents a risk to the health or safety of persons, or to domestic animals or to property, imperative grounds of urgency so require. (32) In line with established practice, the committee set up by this Directive can play a useful role in examining matters concerning the application of this Directive OJ L 55, 28.2.2011, p. 13.

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raised either by its chair or by a representative of a Member State in accordance with its rules of procedure. (33) When matters relating to this Directive, other than its implementation or infringements, are being examined, i.e. in a Commission expert group, the European Parliament should in line with existing practice receive full information and documentation and, where appropriate, an invitation to attend such meetings. (34) The Commission should, by means of implementing acts and, given their special nature, acting without the application of Regulation (EU) No 182/2011, determine whether measures taken by Member States in respect of non-compliant electrical equipment are justified or not. (35) Member States should lay down rules on penalties applicable to infringements of provisions of national law adopted pursuant to this Directive and ensure that those rules are enforced. The penalties provided for should be effective, proportionate and dissuasive. (36) It is necessary to provide for reasonable transitional arrangements that allow the making available on the market, without the need to comply with further product requirements, of electrical equipment which has already been placed on the market in accordance with Directive 2006/95/EC before the date of application of national measures transposing this Directive. Distributors should therefore be able to supply electrical equipment that has been placed on the market, namely stock that is already in the distribution chain, before the date of application of national measures transposing this Directive. (37) Since the objective of this Directive, namely to ensure that electrical equipment on the market fulfils the safety objectives providing for a high level of protection of health and safety of persons, and of domestic animals and property, while guaranteeing the functioning of the internal, market cannot be sufficiently achieved by the Member States but can rather, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective. (38) The obligation to transpose this Directive into national law should be confined to those provisions which represent a substantive amendment as compared to the earlier Directive. The obligation to transpose the provisions which are unchanged arises under the earlier Directive. (39) This Directive should be without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law and the dates of application of the Directives set out in Annex V, HAVE ADOPTED THIS DIRECTIVE: CHAPTER 1 GENERAL PROVISIONS Article 1 Subject matter and scope The purpose of this Directive is to ensure that electrical equipment on the market fulfils the requirements providing for a high level of protection of health and safety of persons, and of domestic animals and property, while guaranteeing the functioning of the internal market.

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This Directive shall apply to electrical equipment designed for use with a voltage rating of between 50 and 1 000 V for alternating current and between 75 and 1 500 V for direct current, other than the equipment and phenomena listed in Annex II. Article 2 Definitions For the purposes of this Directive, the following definitions shall apply: (1) ‘making available on the market’ means any supply of electrical equipment for distribution, consumption or use on the Union market in the course of a commercial activity, whether in return for payment or free of charge; (2) ‘placing on the market’ means the first making available of electrical equipment on the Union market; (3) ‘manufacturer’ means any natural or legal person who manufactures electrical equipment or has electrical equipment designed or manufactured, and markets that equipment under his name or trade mark; (4) ‘authorised representative’ means any natural or legal person established within the Union who has received a written mandate from a manufacturer to act on his behalf in relation to specified tasks; (5) ‘importer’ means any natural or legal person established within the Union who places electrical equipment from a third country on the Union market; (6) ‘distributor’ means any natural or legal person in the supply chain, other than the manufacturer or the importer, who makes electrical equipment available on the market; (7) ‘economic operators’ means the manufacturer, the authorised representative, the importer and the distributor; (8) ‘technical specification’ means a document that prescribes technical requirements to be fulfilled by an electrical equipment; (9) ‘harmonised standard’ means harmonised standard as defined in point (c) of point 1 of Article 2 of Regulation (EU) No 1025/2012; (10) ‘conformity assessment’ means the process demonstrating whether the safety objectives referred to in Article  3 and set out in Annex I  relating to electrical equipment have been fulfilled; (11) ‘recall’ means any measure aimed at achieving the return of electrical equipment that has already been made available to the end-user; (12) ‘withdrawal’ means any measure aimed at preventing electrical equipment in the supply chain from being made available on the market; (13) ‘Union harmonisation legislation’ means any Union legislation harmonising the conditions for the marketing of products; (14) ‘CE marking’ means a marking by which the manufacturer indicates that the electrical equipment is in conformity with the applicable requirements set out in Union harmonisation legislation providing for its affixing. Article 3 Making available on the market and safety objectives Electrical equipment may be made available on the Union market only if, having been constructed in accordance with good engineering practice in safety matters in force in



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the Union, it does not endanger the health and safety of persons and domestic animals, or property, when properly installed and maintained and used in applications for which it was made. The principal elements of the safety objectives are listed in Annex I. Article 4 Free movement The Member States shall not impede, for the aspects covered by this Directive, the making available on the market of electrical equipment which complies with this Directive. Article 5 Supply of electricity In relation to electrical equipment, the Member States shall ensure that stricter safety requirements than the safety objectives referred to in Article 3 and set out in Annex I are not imposed by electricity supply bodies for connection to the grid, or for the supply of electricity to users of electrical equipment. CHAPTER 2 OBLIGATIONS OF ECONOMIC OPERATORS Article 6 Obligations of manufacturers 1.

When placing their electrical equipment on the market, manufacturers shall ensure that it has been designed and manufactured in accordance with the safety objectives referred to in Article 3 and set out in Annex I.

2.

Manufacturers shall draw up the technical documentation referred to in Annex III and carry out the conformity assessment procedure referred to in Annex III or have it carried out. Where compliance of electrical equipment with the safety objectives referred to in Article 3 and set out in Annex I has been demonstrated by the conformity assessment procedure referred to in the first subparagraph, manufacturers shall draw up an EU declaration of conformity and affix the CE marking.

3.

Manufacturers shall keep the technical documentation referred to in Annex III and the EU declaration of conformity for 10 years after the electrical equipment has been placed on the market.

4.

Manufacturers shall ensure that procedures are in place for series production to remain in conformity with this Directive. Changes in product design or characteristics and changes in the harmonised standards referred to in Article 12, the international or national standards referred to in Articles 13 and 14, or in other technical specifications by reference to which conformity of electrical equipment is declared shall be adequately taken into account. When deemed appropriate with regard to the risks presented by electrical equipment, manufacturers shall, to protect the health and safety of consumers, carry out sample testing of electrical equipment made available on the market, investigate, and, if necessary, keep a register of complaints, of non-conforming electrical equipment and electrical equipment recalls, and shall keep distributors informed of any such monitoring.

5.

Manufacturers shall ensure that electrical equipment which they have placed on the market bears a type, batch or serial number or other element allowing its identification, or, where the size or nature of the electrical equipment does

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not allow it, that the required information is provided on its packaging or in a document accompanying the electrical equipment. 6.

Manufacturers shall indicate on the electrical equipment their name, registered trade name or registered trade mark and the postal address at which they can be contacted or, where that is not possible, on its packaging or in a document accompanying the electrical equipment. The address shall indicate a single point at which the manufacturer can be contacted. The contact details shall be in a language easily understood by end-users and market surveillance authorities.

7.

Manufacturers shall ensure that the electrical equipment is accompanied by instructions and safety information in a language which can be easily understood by consumers and other end-users, as determined by the Member State concerned. Such instructions and safety information, as well as any labelling, shall be clear, understandable and intelligible.

8.

Manufacturers who consider or have reason to believe that electrical equipment which they have placed on the market is not in conformity with this Directive shall immediately take the corrective measures necessary to bring that electrical equipment into conformity, to withdraw it or recall it, if appropriate. Furthermore, where the electrical equipment presents a risk, manufacturers shall immediately inform the competent national authorities of the Member States in which they made the electrical equipment available on the market to that effect, giving details, in particular, of the non-compliance and of any corrective measures taken.

9.

Manufacturers shall, further to a reasoned request from a competent national authority, provide it with all the information and documentation in paper or electronic form necessary to demonstrate the conformity of the electrical equipment with this Directive, in a language which can be easily understood by that authority. They shall cooperate with that authority, at its request, on any action taken to eliminate the risks posed by electrical equipment which they have placed on the market. Article 7 Authorised representatives

1.

A manufacturer may, by a written mandate, appoint an authorised representative. The obligations laid down in Article 6(1) and the obligation to draw up technical documentation referred to in Article  6(2) shall not form part of the authorised representative’s mandate.

2.

An authorised representative shall perform the tasks specified in the mandate received from the manufacturer. The mandate shall allow the authorised representative to do at least the following: (a) keep the EU declaration of conformity and the technical documentation at the disposal of national market surveillance authorities for 10 years after the electrical equipment has been placed on the market; (b) further to a reasoned request from a competent national authority, provide that authority with all the information and documentation necessary to demonstrate the conformity of electrical equipment; (c) cooperate with the competent national authorities, at their request, on any action taken to eliminate the risks posed by electrical equipment covered by the authorised representative’s mandate.



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Article 8 Obligations of importers 1.

Importers shall place only compliant electrical equipment on the market.

2.

Before placing electrical equipment on the market importers shall ensure that the appropriate conformity assessment procedure has been carried out by the manufacturer. They shall ensure that the manufacturer has drawn up the technical documentation, that the electrical equipment bears the CE marking and is accompanied by the required documents, and that the manufacturer has complied with the requirements set out in Article 6(5) and (6). Where an importer considers or has reason to believe that electrical equipment is not in conformity with the safety objectives referred to in Article 3 and set out in Annex I, he shall not place the electrical equipment on the market until it has been brought into conformity. Furthermore, where the electrical equipment presents a risk, the importer shall inform the manufacturer and the market surveillance authorities to that effect.

3.

Importers shall indicate on the electrical equipment their name, registered trade name or registered trade mark and the postal address at which they can be contacted or, where that is not possible, on its packaging or in a document accompanying the electrical equipment. The contact details shall be in a language easily understood by end-users and market surveillance authorities.

4.

Importers shall ensure that the electrical equipment is accompanied by instructions and safety information in a language which can be easily understood by consumers and other end-users, as determined by the Member State concerned.

5.

Importers shall ensure that, while electrical equipment is under their responsibility, its storage or transport conditions do not jeopardise its compliance with the safety objectives referred to in Article 3 and set out in Annex I.

6.

When deemed appropriate with regard to the risks presented by electrical equipment, importers shall, to protect the health and safety of consumers, carry out sample testing of electrical equipment made available on the market, investigate and, if necessary, keep a register of complaints, of non-conforming electrical equipment and electrical equipment recalls, and shall keep distributors informed of any such monitoring.

7.

Importers who consider or have reason to believe that electrical equipment which they have placed on the market is not in conformity with this Directive shall immediately take the corrective measures necessary to bring that electrical equipment into conformity, to withdraw it or recall it, if appropriate. Furthermore, where the electrical equipment presents a risk, importers shall immediately inform the competent national authorities of the Member States in which they made the electrical equipment available on the market to that effect, giving details, in particular, of the non-compliance and of any corrective measures taken.

8.

Importers shall, for 10 years after the electrical equipment has been placed on the market, keep a copy of the EU declaration of conformity at the disposal of the market surveillance authorities and ensure that the technical documentation can be made available to those authorities, upon request.

9.

Importers shall, further to a reasoned request from a competent national authority, provide it with all the information and documentation in paper or electronic form necessary to demonstrate the conformity of electrical equipment in a language

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which can be easily understood by that authority. They shall cooperate with that authority, at its request, on any action taken to eliminate the risks posed by electrical equipment which they have placed on the market. Article 9 Obligations of distributors 1.

When making electrical equipment available on the market distributors shall act with due care in relation to the requirements of this Directive.

2.

Before making electrical equipment available on the market distributors shall verify that the electrical equipment bears the CE marking, that it is accompanied by the required documents and by instructions and safety information in a language which can be easily understood by consumers and other end-users in the Member State in which the electrical equipment is to be made available on the market, and that the manufacturer and the importer have complied with the requirements set out in Article 6(5) and (6) and Article 8(3) respectively. Where a distributor considers or has reason to believe that electrical equipment is not in conformity with the safety objectives referred to in Article 3 and set out in Annex I, he shall not make the electrical equipment available on the market until it has been brought into conformity. Furthermore, where the electrical equipment presents a risk, the distributor shall inform the manufacturer or the importer to that effect as well as the market surveillance authorities.

3. Distributors shall ensure that, while electrical equipment is under their responsibility, its storage or transport conditions do not jeopardise its compliance with the safety objectives referred to in Article 3 and set out in Annex I. 4.

Distributors who consider or have reason to believe that electrical equipment which they have made available on the market is not in conformity with this Directive shall make sure that the corrective measures necessary to bring that equipment into conformity, to withdraw it or recall it, if appropriate, are taken. Furthermore, where the electrical equipment presents a risk, distributors shall immediately inform the competent national authorities of the Member States in which they made the electrical equipment available on the market to that effect, giving details, in particular, of the non-compliance and of any corrective measures taken.

5.

Distributors shall, further to a reasoned request from a competent national authority, provide it with all the information and documentation in paper or electronic form necessary to demonstrate the conformity of electrical equipment. They shall cooperate with that authority, at its request, on any action taken to eliminate the risks posed by electrical equipment which they have made available on the market. Article 10 Cases in which obligations of manufacturers apply to importers and distributors An importer or distributor shall be considered a manufacturer for the purposes of this Directive and he shall be subject to the obligations of the manufacturer under Article 6, where he places electrical equipment on the market under his name or trade mark or modifies electrical equipment already placed on the market in such a way that compliance with this Directive may be affected. Article 11 Identification of economic operators Economic operators shall, on request, identify the following to the market surveillance authorities: (a)

any economic operator who has supplied them with electrical equipment;



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(b) any economic operator to whom they have supplied electrical equipment. Economic operators shall be able to present the information referred to in the first paragraph for 10 years after they have been supplied with the electrical equipment and for 10 years after they have supplied the electrical equipment. CHAPTER 3 CONFORMITY OF THE ELECTRICAL EQUIPMENT Article 12 Presumption of conformity on the basis of harmonised standards Electrical equipment which is in conformity with harmonised standards or parts thereof the references of which have been published in the Official Journal of the European Union shall be presumed to be in conformity with the safety objectives referred to in Article 3 and set out in Annex I covered by those standards or parts thereof. Article 13 Presumption of conformity on the basis of international standards 1.

Where harmonised standards referred to in Article  12 have not been drawn up and published, the Member States shall take all appropriate measures to ensure that, for the purposes of making available on the market or free movement as referred to in Articles 3 and 4 respectively, their competent authorities shall also regard as complying with the safety objectives referred to in Article 3 and set out in Annex I electrical equipment which complies with the safety provisions of the international standards set out by the International Electrotechnical Commission (IEC) in respect of which the publication procedure laid down in paragraphs 2 and 3 of this Article has been applied.

2.

The safety provisions referred to in paragraph 1 shall be notified to the Member States by the Commission. The Commission, after consulting the Member States, shall state the safety provisions and in particular the variants thereof which it recommends to be published.

3.

The Member States shall inform the Commission within a period of three months of any objections they may have to the safety provisions notified in accordance with paragraph 2, stating the safety grounds on account of which the provisions should not be recognised. For purposes of information the references of the safety provisions against which no objection has been raised shall be published in the Official Journal of the European Union.

Article 14 Presumption of conformity on the basis of national standards Where harmonised standards referred to in Article  12 have not been drawn up and published and international standards referred to in Article 13 have not been published, the Member States shall take all appropriate measures to ensure that, for the purpose of making available on the market or free movement as referred to in Articles 3 and 4 respectively, their competent authorities shall also regard as complying with the safety objectives referred to in Article 3 and set out in Annex I electrical equipment manufactured in accordance with the safety provisions of the standards in force in the Member State of manufacture, if it ensures a safety level equivalent to that required in their own territory. Article 15 EU declaration of conformity 1.

The EU declaration of conformity shall state that the fulfilment of the safety objectives referred to in Article 3 and set out in Annex I has been demonstrated.

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2.

The EU declaration of conformity shall have the model structure set out in Annex IV, shall contain the elements specified in Module A as set out in Annex III and shall be continuously updated. It shall be translated into the language or languages required by the Member State in which the electrical equipment is placed or made available on the market.

3.

Where electrical equipment is subject to more than one Union act requiring an EU declaration of conformity, a single EU declaration of conformity shall be drawn up in respect of all such Union acts. That declaration shall contain the identification of the Union acts concerned including their publication references.

4.

By drawing up the EU declaration of conformity, the manufacturer shall assume responsibility for the compliance of the electrical equipment with the requirements laid down in this Directive.

Article 16 General principles of the CE marking The CE marking shall be subject to the general principles set out in Article  30 of Regulation (EC) No 765/2008. Article 17 Rules and conditions for affixing the CE marking 1.

The CE marking shall be affixed visibly, legibly and indelibly to the electrical equipment or to its data plate. Where that is not possible or not warranted on account of the nature of the electrical equipment, it shall be affixed to the packaging and to the accompanying documents.

2.

The CE marking shall be affixed before the electrical equipment is placed on the market.

3.

Member States shall build upon existing mechanisms to ensure correct application of the regime governing the CE marking and shall take appropriate action in the event of improper use of that marking.

CHAPTER 4 UNION MARKET SURVEILLANCE, CONTROL OF ELECTRICAL EQUIPMENT ENTERING THE UNION MARKET AND UNION SAFEGUARD PROCEDURE Article 18 Union market surveillance and control of electrical equipment entering the Union market Article  15(3) and Articles  16 to 29 of Regulation (EC) No  765/2008 shall apply to electrical equipment. Article 19 Procedure for dealing with electrical equipment presenting a risk at national level 1.

Where the market surveillance authorities of one Member State have sufficient reason to believe that electrical equipment covered by this Directive presents a risk to the health or safety of persons or domestic animals, or to property, they shall carry out an evaluation in relation to the electrical equipment concerned covering all relevant requirements laid down in this Directive. The relevant economic operators shall cooperate as necessary with the market surveillance authorities for that purpose. Where, in the course of the evaluation referred to in the first subparagraph, the market surveillance authorities find that the electrical equipment does not comply



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with the requirements laid down in this Directive, they shall without delay require the relevant economic operator to take all appropriate corrective actions to bring the electrical equipment into compliance with those requirements, to withdraw the electrical equipment from the market, or to recall it within a reasonable period, commensurate with the nature of the risk, as they may prescribe. Article 21 of Regulation (EC) No 765/2008 shall apply to the measures referred to in the second subparagraph of this paragraph. 2.

Where the market surveillance authorities consider that non-compliance is not restricted to their national territory, they shall inform the Commission and the other Member States of the results of the evaluation and of the actions which they have required the economic operator to take.

3.

The economic operator shall ensure that all appropriate corrective action is taken in respect of electrical equipment concerned that it has made available on the market throughout the Union.

4.

Where the relevant economic operator does not take adequate corrective action within the period referred to in the second subparagraph of paragraph 1, the market surveillance authorities shall take all appropriate provisional measures to prohibit or restrict the electrical equipment’s being made available on their national market, to withdraw the electrical equipment from that market or to recall it. The market surveillance authorities shall inform the Commission and the other Member States, without delay, of those measures.

5.

The information referred to in the second subparagraph of paragraph  4 shall include all available details, in particular the data necessary for the identification of the non-compliant electrical equipment, the origin of the electrical equipment, the nature of the non-compliance alleged and the risk involved, the nature and duration of the national measures taken and the arguments put forward by the relevant economic operator. In particular, the market surveillance authorities shall indicate whether the non-compliance is due to either of the following: (a) failure of the electrical equipment to meet the safety objectives referred to in Article 3 and set out in Annex I relating to the health or safety of persons or domestic animals, or to property; or (b) shortcomings in the harmonised standards referred to in Article  12 or in the international or national standards referred to in Articles  13 and 14 conferring a presumption of conformity.

6.

Member States other than the Member State initiating the procedure under this Article shall without delay inform the Commission and the other Member States of any measures adopted and of any additional information at their disposal relating to the non-compliance of the electrical equipment concerned, and, in the event of disagreement with the adopted national measure, of their objections.

7.

Where, within three months of receipt of the information referred to in the second subparagraph of paragraph 4, no objection has been raised by either a Member State or the Commission in respect of a provisional measure taken by a Member State, that measure shall be deemed justified.

8.

Member States shall ensure that appropriate restrictive measures are taken in respect of the electrical equipment concerned such as withdrawal of the electrical equipment from the market, without delay.

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Article 20 Union safeguard procedure 1.

Where, on completion of the procedure set out in Article 19(3) and (4), objections are raised against a measure taken by a Member State, or where the Commission considers a national measure to be contrary to Union legislation, the Commission shall without delay enter into consultation with the Member States and the relevant economic operator or operators and shall evaluate the national measure. On the basis of the results of that evaluation, the Commission shall adopt an implementing act determining whether the national measure is justified or not. The Commission shall address its decision to all Member States and shall immediately communicate it to them and the relevant economic operator or operators.

2.

If the national measure is considered justified, all Member States shall take the necessary measures to ensure that the non-compliant electrical equipment is withdrawn from their market, and shall inform the Commission accordingly. If the national measure is considered unjustified, the Member State concerned shall withdraw that measure.

3.

Where the national measure is considered justified and the non-compliance of the electrical equipment is attributed to shortcomings in the harmonised standards referred to in point (b) of Article 19(5) of this Directive, the Commission shall apply the procedure provided for in Article 11 of Regulation (EU) No 1025/2012. Article 21 Compliant electrical equipment which presents a risk

1.

Where, having carried out an evaluation under Article 19(1), a Member State finds that although electrical equipment is in compliance with this Directive, it presents a risk to the health or safety of persons, or to domestic animals or to property it shall require the relevant economic operator to take all appropriate measures to ensure that the electrical equipment concerned, when placed on the market, no longer presents that risk, to withdraw the electrical equipment from the market or to recall it within a reasonable period, commensurate with the nature of the risk, as it may prescribe.

2.

The economic operator shall ensure that corrective action is taken in respect of all electrical equipment concerned that he has made available on the market throughout the Union.

3.

The Member State shall immediately inform the Commission and the other Member States. That information shall include all available details, in particular the data necessary for the identification of the electrical equipment concerned, the origin and the supply chain of the electrical equipment, the nature of the risk involved and the nature and duration of the national measures taken.

4.

The Commission shall without delay enter into consultation with the Member States and the relevant economic operator or operators and shall evaluate the national measures taken. On the basis of the results of that evaluation, the Commission shall decide by means of implementing acts whether the national measure is justified or not, and where necessary, propose appropriate measures. The implementing acts referred to in the first subparagraph of this paragraph shall be adopted in accordance with the examination procedure referred to in Article 23(2).



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On duly justified imperative grounds of urgency relating to the protection of health and safety of persons, or of domestic animals or of property, the Commission shall adopt immediately applicable implementing acts in accordance with the procedure referred to in Article 23(3). 5.

The Commission shall address its decision to all Member States and shall immediately communicate it to them and the relevant economic operator or operators. Article 22 Formal non-compliance

1.

Without prejudice to Article 19, where a Member State makes one of the following findings, it shall require the relevant economic operator to put an end to the noncompliance concerned: (a) the CE marking has been affixed in violation of Article  30 of Regulation (EC) No 765/2008 or of Article 17 of this Directive; (b) the CE marking has not been affixed; (c)

the EU declaration of conformity has not been drawn up;

(d) the EU declaration of conformity has not been drawn up correctly;

2.

(e)

technical documentation is either not available or not complete;

(f)

the information referred to in Article 6(6) or Article 8(3) is absent, false or incomplete;

(g)

any other administrative requirement provided for in Article 6 or Article 8 is not fulfilled.

Where the non-compliance referred to in paragraph 1 persists, the Member State concerned shall take all appropriate measures to restrict or prohibit the electrical equipment being made available on the market or ensure that it is recalled or withdrawn from the market. CHAPTER 5 COMMITTEE, TRANSITIONAL AND FINAL PROVISIONS Article 23 Committee procedure

1.

The Commission shall be assisted by the Committee on Electrical Equipment. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

2.

Where reference is made to this paragraph, Article  5 of Regulation (EU) No 182/2011 shall apply.

3.

Where reference is made to this paragraph, Article  8 of Regulation (EU) No 182/2011, in conjunction with Article 5 thereof, shall apply.

4.

The committee shall be consulted by the Commission on any matter for which consultation of sectoral experts is required by Regulation (EU) No 1025/2012 or by any other Union legislation. The committee may furthermore examine any other matter concerning the application of this Directive raised either by its chair or by a representative of a Member State in accordance with its rules of procedure.

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Article 24 Penalties Member States shall lay down rules on penalties, applicable to infringements by economic operators of the provisions of national law adopted pursuant to this Directive and shall take all measures necessary to ensure that they are enforced. Such rules may include criminal penalties for serious infringements. The penalties provided for shall be effective, proportionate and dissuasive. Article 25 Transitional provisions Member States shall not impede the making available on the market of electrical equipment covered by Directive 2006/95/EC which is in conformity with that Directive and which was placed on the market before 20 April 2016. Article 26 Transposition 1. Member States shall adopt and publish, by 19 April 2016, the laws, regulations and administrative provisions necessary to comply with Article 2, the first paragraph of Article 3, Article 4, Articles 6 to 12, Article 13(1), Articles 14 to 25 and Annexes II, III and IV. They shall forthwith communicate the text of those measures to the Commission. They shall apply those measures from 20 April 2016. When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. They shall also include a statement that references in existing laws, regulations and administrative provisions to the Directive repealed by this Directive shall be construed as references to this Directive. Member States shall determine how such reference is to be made and how that statement is to be formulated. 2. Member States shall communicate to the Commission the texts of the main provisions of national law which they adopt in the field covered by this Directive. Article 27 Repeal Directive 2006/95/EC is repealed with effect from 20 April 2016, without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law and the dates of application of the Directives set out in Annex V. References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex VI. Article 28 Entry into force This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. Article 1, the second paragraph of Article 3, Article 5, Article 13(2) and (3) and Annexes I, V and VI shall apply from 20 April 2016. Article 29 Addressees This Directive is addressed to the Member States. Done at Strasbourg, 26 February 2014. For the European Parliament The President M. SCHULZ

For the Council The President D. KOURKOULAS



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ANNEX I PRINCIPAL ELEMENTS OF THE SAFETY OBJECTIVES FOR ELECTRICAL EQUIPMENT DESIGNED FOR USE WITHIN CERTAIN VOLTAGE LIMITS 1.

General conditions (a) the essential characteristics, the recognition and observance of which will ensure that electrical equipment will be used safely and in applications for which it was made, shall be marked on the electrical equipment, or, if this is not possible, on an accompanying document; (b) the electrical equipment, together with its component parts, shall be made in such a way as to ensure that it can be safely and properly assembled and connected; (c)

2.

the electrical equipment shall be so designed and manufactured as to ensure that protection against the hazards set out in points 2 and 3 is assured, providing that the equipment is used in applications for which it was made and is adequately maintained.

Protection against hazards arising from the electrical equipment Measures of a technical nature shall be laid down in accordance with point 1, in order to ensure that: (a) persons and domestic animals are adequately protected against the danger of physical injury or other harm which might be caused by direct or indirect contact; (b) temperatures, arcs or radiation which would cause a danger, are not produced; (c) persons, domestic animals and property are adequately protected against non-electrical dangers caused by the electrical equipment which are revealed by experience; (d) the insulation is suitable for foreseeable conditions.

3.

Protection against hazards which may be caused by external influences on the electrical equipment Technical measures shall be laid down in accordance with point 1, in order to ensure that the electrical equipment: (a) meets the expected mechanical requirements in such a way that persons, domestic animals and property are not endangered; (b) is resistant to non-mechanical influences in expected environmental conditions, in such a way that persons, domestic animals and property are not endangered; (c) does not endanger persons, domestic animals and property in foreseeable conditions of overload.

ANNEX II EQUIPMENT AND PHENOMENA OUTSIDE THE SCOPE OF THIS DIRECTIVE Electrical equipment for use in an explosive atmosphere Electrical equipment for radiology and medical purposes Electrical parts for goods and passenger lifts Electricity meters

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Plugs and socket outlets for domestic use Electric fence controllers Radio-electrical interference Specialised electrical equipment, for use on ships, aircraft or railways, which complies with the safety provisions drawn up by international bodies in which the Member States participate. Custom built evaluation kits destined for professionals to be used solely at research and development facilities for such purposes. ANNEX III MODULE A Internal production control 1. Internal production control is the conformity assessment procedure whereby the manufacturer fulfils the obligations laid down in points 2, 3 and 4, and ensures and declares on his sole responsibility that the electrical equipment concerned satisfy the requirements of this Directive that apply to it. 2. Technical documentation The manufacturer shall establish the technical documentation. The documentation shall make it possible to assess the electrical equipment’s conformity to the relevant requirements, and shall include an adequate analysis and assessment of the risk(s). The technical documentation shall specify the applicable requirements and cover, as far as relevant for the assessment, the design, manufacture and operation of the electrical equipment. The technical documentation shall, where applicable, contain at least the following elements: (a)

a general description of the electrical equipment;

(b) conceptual design and manufacturing drawings and schemes of components, subassemblies, circuits, etc.; (c) descriptions and explanations necessary for the understanding of those drawings and schemes and the operation of the electrical equipment; (d) a list of the harmonised standards applied in full or in part the references of which have been published in the Official Journal of the European Union or international or national standards referred to in Articles 13 and 14 and, where those harmonised standards or international or national standards have not been applied, descriptions of the solutions adopted to meet the safety objectives of this Directive, including a list of other relevant technical specifications applied. In the event of partly applied harmonised standards or international or national standards referred to in Articles 13 and 14, the technical documentation shall specify the parts which have been applied; (e)

results of design calculations made, examinations carried out, etc.; and

(f) test reports. 3. Manufacturing The manufacturer shall take all measures necessary so that the manufacturing process and its monitoring ensure compliance of the manufactured electrical equipment with the technical documentation referred to in point 2 and with the requirements of this Directive that apply to it. 4. CE marking and EU declaration of conformity 4.1. The manufacturer shall affix the CE marking to each individual electrical equipment that satisfies the applicable requirements of this Directive.



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4.2. The manufacturer shall draw up a written EU declaration of conformity for a product model and keep it together with the technical documentation at the disposal of the national market surveillance authorities for 10 years after the electrical equipment has been placed on the market. The EU declaration of conformity shall identify the electrical equipment for which it has been drawn up. A  copy of the EU declaration of conformity shall be made available to the relevant market surveillance authorities upon request. 5. Authorised representative The manufacturer’s obligations set out in point 4 may be fulfilled by his authorised representative, on his behalf and under his responsibility, provided that they are specified in the mandate. ANNEX IV EU DECLARATION OF CONFORMITY (No XXXX) (153) 1.

Product model/product (product, type, batch or serial number):

2.

Name and address of the manufacturer or his authorised representative:

3.

This declaration of conformity is issued under the sole responsibility of the manufacturer.

4. Object of the declaration (identification of electrical equipment allowing traceability; it may include a colour image of sufficient clarity where necessary for the identification of the electrical equipment): 5.

The object of the declaration described above is in conformity with the relevant Union harmonisation legislation:

6.

References to the relevant harmonised standards used or references to the other technical specifications in relation to which conformity is declared:

7. Additional information: Signed for and on behalf of: (place and date of issue): (name, function) (signature): ANNEX V Time-limits for transposition into national law and dates of application of the Directives set out in Part B of Annex V to Directive 2006/95/EC (referred to in Article 27) Directive 73/23/EEC 93/68/EEC

Time-limit for transposition 21 August 1974 (154) 1 July 1994

Date of application — 1 January 1995 (155)

It is optional for the manufacturer to assign a number to the declaration of conformity. In the case of Denmark the time-limit was extended to five years, i.e. 21 February 1978. See Article 13(1) of Directive 73/23/EEC. 155 Until 1 January 1997 Member States had to allow the placing on the market and the bringing into service of products which complied with the marking arrangements in force before 1 January 1995. See Article 14(2) of Directive 93/68/EEC. 153 154

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ANNEX VI CORRELATION TABLE Directive 2006/95/EC Article 1 Article 2 Article 3 Article 4 Article 5 Article 6 Article 7 Article 8(1) Article 8(2) Article 8(3) Article 9 Article 10 Article 11 Article 12 Article 13 Article 14 Article 15 Annex I Annex II Annex III Annex IV Annex V

This Directive Second paragraph of Article 1 Article 3 Article 4 Article 5 Article 12 Article 13 Article 14 Articles 16 and 17 — — Articles 18 to 20 Articles 16 and 17 — — Article 26(2) Article 27 Article 28 Annex I Annex II Articles 15 and 16 and Annex IV Annex III Annex V

STATEMENT OF THE EUROPEAN PARLIAMENT The European Parliament considers that only when and in so far as implementing acts in the sense of Regulation (EU) No 182/2011 are discussed in meetings of committees, can the latter be considered as ‘comitology committees’ within the meaning of Annex I to the Framework Agreement on the relations between the European Parliament and the European Commission. Meetings of committees thus fall within the scope of point 15 of the Framework Agreement when and insofar as other issues are discussed.



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DIRECTIVE 2014/53/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 16 April 2014 on the harmonisation of the laws of the Member States relating to the making available on the market of radio equipment and repealing Directive 1999/5/EC[156] (Text with EEA relevance) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, Having regard to the opinion of the Economic and Social Committee (157), Acting in accordance with the ordinary legislative procedure (158), Whereas: (1) Directive 1999/5/EC of the European Parliament and of the Council (159) has been substantially amended several times. Since further amendments are to be made, it should be replaced in the interests of clarity. (2)

Regulation (EC) No 765/2008 of the European Parliament and of the Council (160) lays down rules on the accreditation of conformity assessment bodies, provides a framework for the market surveillance of products and for controls on products from third countries, and lays down the general principles of the CE marking.

(3) Decision No  768/2008/EC of the European Parliament and of the Council (161) lays down common principles and reference provisions intended to apply across sectoral legislation in order to provide a coherent basis for revision or recasts of that legislation. Directive 1999/5/EC should therefore be adapted to that Decision. (4) The essential requirements laid down in Directive 1999/5/EC which are relevant to fixed-line terminal equipment, i.e. to ensure the protection of health and safety of persons and of domestic animals and the protection of property and an adequate level of electromagnetic compatibility, are appropriately covered by Directive 2014/35/EU of the European Parliament and of the Council (162) and Directive

OJ L 153 22.5.2014, p. 62. Incorporating amendments as per the consolidated version of 11 September 2018 (amended by Regulation (EU) 2018/1139 of the European Parliament and of the Council of 4 July 2018). 157 OJ C 133, 9.5.2013, p. 58. 158 Position of the European Parliament of 13  March 2014 (not yet published in the Official Journal) and decision of the Council of 14 April 2014. 159 Directive 1999/5/EC of the European Parliament and of the Council of 9 March 1999 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity (OJ  L  91, 7.4.1999, p. 10). 160 Regulation (EC) No 765/2008 of the European Parliament and of the Council of 9 July 2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93 (OJ L 218, 13.8.2008, p. 30). 161 Decision No 768/2008/EC of the European Parliament and of the Council of 9 July 2008 on a common framework for the marketing of products, and repealing Council Decision 93/465/EEC (OJ  L  218, 13.8.2008, p. 82). 162 Directive 2014/35/EU of the European Parliament and of the Council of 26  February 2014 on the harmonisation of the laws of Member States relating to the making available on the market of electrical equipment designed for use within certain voltage limits (OJ L 96, 29.3.2014, p. 357). 156

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2014/30/EU of the European Parliament and of the Council (163). This Directive should therefore not apply to fixed-line terminal equipment. (5)

Competition issues in the market for terminal equipment are appropriately covered by Commission Directive 2008/63/EC (164), in particular through the obligation for national regulatory authorities to ensure the publication of details of technical interface specifications for network access. It is therefore not necessary to include in this Directive requirements facilitating competition in the market for terminal equipment covered by Directive 2008/63/EC.

(6) Equipment which intentionally emits or receives radio waves for the purpose of radio communication or radiodetermination makes systematic use of radio spectrum. In order to ensure an efficient use of radio spectrum so as to avoid harmful interference, all such equipment should fall within the scope of this Directive. (7)

The objectives with respect to safety requirements laid down in Directive 2014/35/ EU are sufficient to cover radio equipment, and should therefore be the reference and made applicable by virtue of this Directive. In order to avoid unnecessary duplications of provisions other than those concerning such requirements, Directive 2014/35/EU should not apply to radio equipment.

(8) The essential requirements in the area of electromagnetic compatibility laid down by Directive 2014/30/EU are sufficient to cover radio equipment, and should therefore be the reference and made applicable by virtue of this Directive. In order to avoid unnecessary duplications of provisions other than those concerning essential requirements, Directive 2014/30/EU should not apply to radio equipment. (9) This Directive should apply to all forms of supply, including distance selling. (10) In order to ensure that radio equipment uses the radio spectrum effectively and supports the efficient use of radio spectrum, radio equipment should be constructed so that: in the case of a transmitter, when the transmitter is properly installed, maintained and used for its intended purpose it generates radio waves emissions that do not create harmful interference, while unwanted radio waves emissions generated by the transmitter (e.g. in adjacent channels) with a potential negative impact on the goals of radio spectrum policy should be limited to such a level that, according to the state of the art, harmful interference is avoided; and, in the case of a receiver, it has a level of performance that allows it to operate as intended and protects it against the risk of harmful interference, in particular from shared or adjacent channels, and, in so doing, supports improvements in the efficient use of shared or adjacent channels. (11) Although receivers do not themselves cause harmful interference, reception capabilities are an increasingly important factor in ensuring the efficient use of radio spectrum by way of an increased resilience of receivers against harmful interference and unwanted signals on the basis of the relevant essential requirements of Union harmonisation legislation.

Directive 2014/30/EU of the European Parliament and of the Council of 26  February 2014 on the harmonisation of the laws of the Member States relating to electromagnetic compatibility (OJ  L  96, 29.3.2014, p. 79). 164 Commission Directive 2008/63/EC of 20 June 2008 on competition in the markets in telecommunications terminal equipment (OJ L 162, 21.6.2008, p. 20). 163



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(12) Interworking via networks with other radio equipment and connection with interfaces of the appropriate type throughout the Union is necessary in some cases. Interoperability between radio equipment and accessories such as chargers simplifies the use of radio equipment and reduces unnecessary waste and costs. A renewed effort to develop a common charger for particular categories or classes of radio equipment is necessary, in particular for the benefit of consumers and other end-users; this Directive should therefore include specific requirements in that area. In particular, mobile phones that are made available on the market should be compatible with a common charger. (13) The protection of personal data and privacy of users and of subscribers of radio equipment and the protection from fraud may be enhanced by particular features of radio equipment. Radio equipment should therefore in appropriate cases be designed in such a way that it supports those features. (14) Radio equipment can be instrumental in providing access to emergency services. Radio equipment should therefore in appropriate cases be designed in such a way that it supports the features required for access to those services. (15) Radio equipment is important to the well-being and employment of people with disabilities, who represent a substantial and growing proportion of the population of Member States. Radio equipment should therefore in appropriate cases be designed in such a way that people with disabilities may use it without or with only minimal adaptation. (16) The compliance of some categories of radio equipment with the essential requirements set out in this Directive may be affected by the inclusion of software or modification of its existing software. The user, the radio equipment or a third party should only be able to load software into the radio equipment where this does not compromise the subsequent compliance of that radio equipment with the applicable essential requirements. (17) In order to supplement or amend certain non-essential elements of this Directive, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union (TFEU) should be delegated to the Commission. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council. (18) In order to effectively address the needs related to interoperability, protection of personal data and privacy of the user and of the subscriber, protection from fraud, access to emergency services, use by users with a disability or the prevention of non-compliant combinations of radio equipment and software, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of the specification of categories or classes of radio equipment that have to comply with one or more of the additional essential requirements set out in this Directive which address those needs. (19) Verification by radio equipment of the compliance of its combination with software should not be abused in order to prevent its use with software provided by independent parties. The availability to public authorities, manufacturers and users of information on the compliance of intended combinations of radio equipment and software should contribute to facilitate competition. In order to achieve those objectives, the power to adopt acts in accordance with Article 290 TFEU should

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be delegated to the Commission in respect of the specification of categories or classes of radio equipment for which manufacturers have to provide information on the compliance of intended combinations of radio equipment and software with the essential requirements set out in this Directive. (20) A  requirement to register in a central system radio equipment to be placed on the market may enhance the efficiency and effectiveness of market surveillance and thereby contribute to ensuring a high level of compliance with this Directive. Such a requirement entails additional burden to economic operators and should therefore be introduced only for those categories of radio equipment where a high level of compliance has not been attained. In order to ensure the application of such a requirement, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of the specification of the categories of radio equipment which manufacturers have to register within a central system and the elements of the technical documentation to be provided on the basis of the information on the compliance of radio equipment to be provided by Member States and following an evaluation of the risk of non-implementation of the essential requirements. (21) Radio equipment which complies with the relevant essential requirements should be allowed to circulate freely. Such equipment should be allowed to be put into service and used for its intended purpose, where applicable in accordance with rules on authorisations for the use of radio spectrum and the provision of the service concerned. (22) In order to avoid unnecessary barriers to trade in radio equipment within the internal market, Member States should notify, under Directive 98/34/EC of the European Parliament and of the Council (165), other Member States and the Commission of their projects in the area of technical regulations, such as radio interfaces, unless those technical regulations allow Member States to comply with binding Union acts such as Commission decisions on the harmonised use of radio spectrum adopted under Decision No 676/2002/EC of the European Parliament and of the Council (166), or where they correspond to radio equipment which can be put into service and used without restrictions within the Union. (23) The provision of information on the equivalence of regulated radio interfaces and their conditions of use reduces barriers for the access of radio equipment to the internal market. The Commission should therefore assess and establish the equivalence of regulated radio interfaces and make such information available in the form of radio equipment classes. (24) In accordance with Commission Decision 2007/344/EC (167), Member States are to use the Frequency Information System (EFIS) of the European Communications Office (ECO) in order to make comparable information regarding the use of radio spectrum in each Member State available to the public via the internet. Manufacturers can search in EFIS frequency information for all Member States

Directive 98/34/EC of the European Parliament and of the Council of 22  June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services (OJ L 204, 21.7.1998, p. 37). 166 Decision No 676/2002/EC of the European Parliament and of the Council of 7 March 2002 on a regulatory framework for radio spectrum policy in the European Community (Radio Spectrum Decision) (OJ L 108, 24.4.2002, p. 1). 167 Commission Decision 2007/344/EC of 16 May 2007 on harmonised availability of information regarding spectrum use within the Community (OJ L 129, 17.5.2007, p. 67). 165



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prior to the placing on the market of radio equipment and thereby evaluate whether and under which conditions such radio equipment may be used within each Member State. There is therefore no need to include in this Directive additional provisions, such as prior notification, allowing manufacturers to be informed of the conditions of use of radio equipment using non-harmonised frequency bands. (25) For the purpose of promotion of research and demonstration activities it should be possible, in the context of trade fairs, exhibitions and similar events, to display radio equipment which does not comply with this Directive and cannot be placed on the market, on the condition that exhibitors ensure that sufficient information is provided to the visiting public. (26) Economic operators should be responsible for the compliance of radio equipment with this Directive, in relation to their respective roles in the supply chain, so as to ensure a high level of protection of health and safety of persons and of domestic animals, and the protection of property, an adequate level of electromagnetic compatibility, an effective and efficient use of radio spectrum and, where necessary, a high level of protection of other public interests, and to guarantee fair competition on the Union market. (27) All economic operators intervening in the supply and distribution chain should take appropriate measures to ensure that they only make available on the market radio equipment which is in conformity with this Directive. It is necessary to provide for a clear and proportionate distribution of obligations which correspond to the role of each economic operator in the supply and distribution chain. (28) In order to facilitate communication between economic operators, market surveillance authorities and consumers, Member States should encourage economic operators to include a website address in addition to the postal address. (29) The manufacturer, having detailed knowledge of the design and production process, is best placed to carry out the conformity assessment procedure. Conformity assessment should therefore remain solely the obligation of the manufacturer. (30) The manufacturer should provide sufficient information on the intended use of the radio equipment so as to allow its use in compliance with the essential requirements. Such information may need to include a description of accessories such as antennas and of components such as software, and specifications of the installation process of the radio equipment. (31) The requirement laid down in Directive 1999/5/EC to include an EU declaration of conformity with equipment has been found to simplify and to enhance the information and the efficiency of market surveillance. The possibility to provide a simplified EU declaration of conformity has allowed the burden associated with this requirement to be reduced without reduction of its effectiveness, and should therefore be provided for within this Directive. Furthermore, in order to ensure easy and efficient access to an EU declaration of conformity, including a simplified EU declaration of conformity, it should be possible to affix it to the packaging of the radio equipment concerned. (32) It is necessary to ensure that radio equipment from third countries entering the Union market complies with this Directive, and in particular that appropriate conformity assessment procedures have been carried out by manufacturers with regard to that radio equipment. Provision should therefore be made for importers to make sure that the radio equipment they place on the market complies with the requirements of this Directive and that they do not place on the market

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radio equipment which does not comply with such requirements or presents a risk. Provision should also be made for importers to make sure that conformity assessment procedures have been carried out and that marking of radio equipment and documentation drawn up by manufacturers are available for inspection by the competent national authorities. (33) When placing radio equipment on the market, every importer should indicate on the radio equipment his name, registered trade name or registered trade mark and the postal address at which he can be contacted. Exceptions should be provided for in cases where the size or nature of the radio equipment does not allow it. This includes cases where the importer would have to open the packaging in order to put his name and address on the radio equipment. (34) The distributor makes radio equipment available on the market after it has been placed on the market by the manufacturer or the importer and should act with due care to ensure that its handling of the radio equipment does not adversely affect the compliance of the radio equipment. (35) Any economic operator that either places radio equipment on the market under his own name or trade mark or modifies radio equipment in such a way that compliance with this Directive may be affected should be considered to be the manufacturer and should assume the obligations of the manufacturer. (36) Distributors and importers, being close to the market place, should be involved in market surveillance tasks carried out by the competent national authorities, and should be prepared to participate actively, providing those authorities with all necessary information relating to the radio equipment concerned. (37) Ensuring traceability of radio equipment throughout the whole supply chain helps to make market surveillance simpler and more efficient. An efficient traceability system facilitates market surveillance authorities’ task of tracing economic operators who made non-compliant radio equipment available on the market. When keeping the information required under this Directive for the identification of other economic operators, economic operators should not be required to update such information in respect of other economic operators who have either supplied them with radio equipment or to whom they have supplied radio equipment. (38) This Directive should be limited to the expression of essential requirements. In order to facilitate conformity assessment with those requirements it is necessary to provide for a presumption of conformity for radio equipment which is in conformity with harmonised standards that are adopted in accordance with Regulation (EU) No 1025/2012 of the European Parliament and of the Council (168) for the purpose of expressing detailed technical specifications of those requirements. (39) Regulation (EU) No  1025/2012 provides for a procedure for objections to harmonised standards where those standards do not entirely satisfy the requirements of this Directive. (40) In order to enable economic operators to demonstrate and the competent authorities to ensure that radio equipment made available on the market conforms

Regulation (EU) No 1025/2012 of the European Parliament and of the Council of 25 October 2012 on European standardisation, amending Council Directives 89/686/EEC and 93/15/EEC and Directives 94/9/ EC, 94/25/EC, 95/16/EC, 97/23/EC, 98/34/EC, 2004/22/EC, 2007/23/EC, 2009/23/EC and 2009/105/EC of the European Parliament and of the Council and repealing Council Decision 87/95/EEC and Decision No 1673/2006/EC of the European Parliament and of the Council (OJ L 316, 14.11.2012, p. 12).

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to the essential requirements, it is necessary to provide for conformity assessment procedures. Decision No  768/2008/EC establishes modules for conformity assessment procedures, which include procedures from the least to the most stringent, in proportion to the level of risk involved and the level of safety required. In order to ensure inter-sectoral coherence and to avoid ad-hoc variants, conformity assessment procedures should be chosen from among those modules. (41) Manufacturers should draw up an EU declaration of conformity to provide information required under this Directive on the conformity of radio equipment with the requirements of this Directive and of the other relevant Union harmonisation legislation. (42) To ensure effective access to information for market surveillance purposes, the information required to identify all applicable Union acts should be available in a single EU declaration of conformity. In order to reduce the administrative burden on economic operators, that single EU declaration of conformity may be a dossier made up of relevant individual declarations of conformity. (43) The CE marking, indicating the conformity of radio equipment, is the visible consequence of a whole process comprising conformity assessment in a broad sense. General principles governing the CE marking are set out in Regulation (EC) No 765/2008. Rules governing the affixing of the CE marking should be laid down in this Directive. (44) The requirement to affix the CE marking on products is important for the information of consumers and public authorities. The possibility laid down in Directive 1999/5/EC to affix a reduced CE mark on small-sized equipment, provided that it remains visible and legible, has allowed the application of that requirement to be simplified without reducing its effectiveness, and should therefore be included in this Directive. (45) The requirement laid down in Directive 1999/5/EC to affix the CE marking on the packaging of equipment has been found to simplify the task of market surveillance, and should therefore be included in this Directive. (46) Member States should take appropriate measures to ensure that radio equipment may be made available on the market only if, when properly installed and maintained and used for its intended purpose, it complies with the essential requirements set out in this Directive, and, in the case of the essential requirement to ensure the protection of the health and safety of persons and of domestic animals and the protection of property, also under conditions of use which can be reasonably foreseen. Radio equipment should be considered as non-compliant with that essential requirement only under conditions of use which can be reasonably foreseen, that is when such use could result from lawful and readily predictable human behaviour. (47) In view of the rapid pace of technological change towards a paperless environment, where radio equipment is fitted with an integral screen, the Commission should examine, as part of a review of the operation of this Directive, the feasibility of replacing the requirements for affixing: the manufacturer’s name, registered trade name or registered trade mark and a single point or postal address at which they can be contacted, CE marking and EU declaration of conformity with either a function whereby such information is automatically displayed upon starting up the radio equipment, or a function allowing the end-user to select the display of the relevant information. Furthermore, as part of that examination of feasibility, where radio equipment fitted with an integral screen operates from an integral battery which

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does not hold an initial charge, the Commission should also consider the use of removable transparent integral screen covering labels which would display the same information. (48) Certain conformity assessment procedures set out in this Directive require the intervention of conformity assessment bodies, which are notified by the Member States to the Commission. (49) Experience has shown that the criteria set out in Directive 1999/5/EC that conformity assessment bodies have to fulfil to be notified to the Commission are not sufficient to ensure a uniformly high level of performance of notified bodies throughout the Union. It is, however, essential that all notified bodies perform their functions to the same level and under conditions of fair competition. That requires the setting of obligatory requirements for conformity assessment bodies wishing to be notified in order to provide conformity assessment services. (50) If a conformity assessment body demonstrates conformity with the criteria laid down in harmonised standards, it should be presumed to comply with the corresponding requirements set out in this Directive. (51) In order to ensure a consistent level of conformity assessment quality it is also necessary to set requirements for notifying authorities and other bodies involved in the assessment, notification and monitoring of notified bodies. (52) The system set out in this Directive should be complemented by the accreditation system provided for in Regulation (EC) No 765/2008. Since accreditation is an essential means of verifying the competence of conformity assessment bodies, it should also be used for the purposes of notification. (53) Transparent accreditation as provided for in Regulation (EC) No  765/2008, ensuring the necessary level of confidence in conformity certificates, should be considered by the national public authorities throughout the Union as the preferred means of demonstrating the technical competence of conformity assessment bodies. However, national authorities may consider that they possess the appropriate means of carrying out that evaluation themselves. In such cases, in order to ensure the appropriate level of credibility of evaluations carried out by other national authorities, they should provide the Commission and the other Member States with the necessary documentary evidence demonstrating the compliance of the conformity assessment bodies evaluated with the relevant regulatory requirements. (54) Conformity assessment bodies frequently subcontract parts of their activities linked to the assessment of conformity or have recourse to a subsidiary. In order to safeguard the level of protection required for radio equipment to be placed on the Union market, it is essential that conformity assessment subcontractors and subsidiaries fulfil the same requirements as notified bodies in relation to the performance of conformity assessment tasks. Therefore, it is important that the assessment of the competence and the performance of bodies to be notified and the monitoring of bodies already notified cover also activities carried out by subcontractors and subsidiaries. (55) It is necessary to increase the efficiency and transparency of the notification procedure and, in particular, to adapt it to new technologies so as to enable online notification. (56) Since notified bodies may offer their services throughout the Union, it is appropriate to give the other Member States and the Commission the opportunity to raise



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objections concerning a notified body. It is therefore important to provide for a period during which any doubts or concerns as to the competence of conformity assessment bodies can be clarified before they start operating as notified bodies. (57) In the interests of competitiveness, it is crucial that notified bodies apply the conformity assessment procedures without creating unnecessary burdens for economic operators. For the same reason, and to ensure equal treatment of economic operators, consistency in the technical application of the conformity assessment procedures needs to be ensured. That can best be achieved through appropriate coordination and cooperation between notified bodies. (58) In order to ensure legal certainty, it is necessary to clarify that rules on Union market surveillance and control of products entering the Union market provided for in Regulation (EC) No  765/2008 apply to radio equipment covered by this Directive. This Directive should not prevent Member States from choosing the competent authorities to carry out those tasks. (59) Directive 1999/5/EC already provides for a safeguard procedure which applies only in the event of disagreement between Member States over measures taken by a Member State. In order to increase transparency and to reduce processing time, it is necessary to improve the existing safeguard procedure, with a view to making it more efficient and drawing on the expertise available in Member States. (60) The decisions of the Commission adopted under Decision No 676/2002/EC may include conditions for the availability and efficient use of radio spectrum which may have as a consequence the limitation of the total number of items of radio equipment put into service, such as a ‘sunset’ date, a maximum penetration rate or a maximum number of items of radio equipment in each Member State or throughout the Union. Those conditions enable the market to be opened up to new radio equipment while limiting the risk of harmful interference by accumulation of an excessive number of items of radio equipment put into service, even though that equipment individually complies with the essential requirements set out in this Directive. Infringing such conditions may create a risk to the essential requirements, particularly a risk of harmful interference. (61) The existing system should be supplemented by a procedure under which interested parties are informed of measures intended to be taken with regard to radio equipment presenting a risk to the health or safety of persons or to other aspects of public interest protection covered by this Directive. It should also allow market surveillance authorities, in cooperation with the relevant economic operators, to act at an earlier stage in respect of such equipment. (62) Where the Member States and the Commission agree as to the justification of a measure taken by a Member State, no further involvement of the Commission should be required, except where non-compliance can be attributed to shortcomings of a harmonised standard. (63) In order to ensure uniform conditions for the implementation of this Directive, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No  182/2011 of the European Parliament and of the Council (169).

Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).

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(64) The advisory procedure should be used for the adoption of implementing acts specifying how to present information in cases of restrictions on putting into service or of existing requirements for authorisation of use; and requesting the notifying Member State to take the necessary corrective measures in respect of a notified body that does not meet or no longer meets the requirements for its notification. (65) The examination procedure should be used for the adoption of implementing acts: determining whether certain categories of electrical or electronic products meet the definition of ‘radio equipment’; laying down the operational rules for making the information on compliance available; laying down the operational rules for registration and the operational rules for affixing the registration number on radio equipment; and establishing the equivalence between notified radio interfaces and assigning a radio equipment class. It should also be used with respect to compliant radio equipment which presents a risk to the health or safety of persons or to other aspects of public interest protection. (66) The Commission should adopt immediately applicable implementing acts where, in duly justified cases relating to compliant radio equipment which presents a risk to the health or safety of persons, imperative grounds of urgency so require. (67) In line with established practice, the committee set up by this Directive can play a useful role in examining matters concerning the application of this Directive raised either by its chair or by a representative of a Member State in accordance with its rules of procedure. (68) When matters relating to this Directive, other than its implementation or infringements, are being examined, i.e. in a Commission expert group, the European Parliament should in line with existing practice receive full information and documentation and, where appropriate, an invitation to attend such meetings. (69) The Commission should, by means of implementing acts and, given their special nature, acting without the application of Regulation (EU) No 182/2011, determine whether measures taken by Member States in respect of non-compliant radio equipment are justified or not. (70) The Member States should lay down rules on penalties applicable to infringements of the provisions of national law adopted pursuant to this Directive and ensure that those rules are enforced. The penalties provided for should be effective, proportionate and dissuasive. (71) It is necessary to provide for transitional arrangements that allow the making available on the market and putting into service of radio equipment that has already been placed on the market in accordance with Directive 1999/5/EC. (72) The European Data Protection Supervisor has been consulted. (73) Since the objective of this Directive, namely to ensure that radio equipment made available on the market fulfils requirements providing a high level of protection of health and safety, adequate level of electromagnetic compatibility and an effective and efficient use of radio spectrum so as to avoid harmful interference while guaranteeing the proper functioning of the internal market, cannot be sufficiently achieved by the Member States but can rather, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.



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(74) Directive 1999/5/EC should be repealed. (75) In accordance with the Joint Political Declaration of 28  September 2011 of Member States and the Commission on explanatory documents (170), Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified, HAVE ADOPTED THIS DIRECTIVE: CHAPTER I GENERAL PROVISIONS Article 1 Subject matter and scope 1.

This Directive establishes a regulatory framework for the making available on the market and putting into service in the Union of radio equipment.

2.

This Directive shall not apply to equipment listed in Annex I.

3.

This Directive shall not apply to radio equipment exclusively used for activities concerning public security, defence, State security, including the economic wellbeing of the State in the case of activities pertaining to State security matters, and the activities of the State in the area of criminal law.

4.

Radio equipment falling within the scope of this Directive shall not be subject to Directive 2014/35/EU, except as set out in point (a) of Article  3(1) of this Directive. Article 2 Definitions

1.

For the purposes of this Directive, the following definitions apply: (1) ‘radio equipment’ means an electrical or electronic product, which intentionally emits and/or receives radio waves for the purpose of radio communication and/or radiodetermination, or an electrical or electronic product which must be completed with an accessory, such as antenna, so as to intentionally emit and/or receive radio waves for the purpose of radio communication and/or radiodetermination; (2) ‘radio communication’ means communication by means of radio waves; (3) ‘radiodetermination’ means the determination of the position, velocity and/ or other characteristics of an object, or the obtaining of information relating to those parameters, by means of the propagation properties of radio waves; (4)

‘radio waves’ means electromagnetic waves of frequencies lower than 3 000 GHz, propagated in space without artificial guide;

(5) ‘radio interface’ means the specification of the regulated use of radio spectrum; (6) ‘radio equipment class’ means a class identifying particular categories of radio equipment which, under this Directive, are considered similar and those radio interfaces for which the radio equipment is designed; OJ C 369, 17.12.2011, p. 14.

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(7) ‘harmful interference’ means harmful interference as defined in point (r) of Article 2 of Directive 2002/21/EC of the European Parliament and of the Council (171); (8)

‘electromagnetic disturbance’ means electromagnetic disturbance as defined in point 5 of Article 3(1) of Directive 2014/30/EU;

(9) ‘making available on the market’ means any supply of radio equipment for distribution, consumption or use on the Union market in the course of a commercial activity, whether in return for payment or free of charge; (10) ‘placing on the market’ means the first making available of radio equipment on the Union market; (11) ‘putting into service’ means the first use of radio equipment in the Union by its end-user; (12) ‘manufacturer’ means any natural or legal person who manufactures radio equipment or has radio equipment designed or manufactured, and markets that equipment under his name or trade mark; (13) ‘authorised representative’ means any natural or legal person established within the Union who has received a written mandate from a manufacturer to act on his behalf in relation to specified tasks; (14) ‘importer’ means any natural or legal person established within the Union who places radio equipment from a third country on the Union market; (15) ‘distributor’ means any natural or legal person in the supply chain, other than the manufacturer or the importer, who makes radio equipment available on the market; (16) ‘economic operators’ means the manufacturer, the authorised representative, the importer and the distributor; (17) ‘technical specification’ means a document that prescribes technical requirements to be fulfilled by radio equipment; (18) ‘harmonised standard’ means harmonised standard as defined in point (c) of point 1 of Article 2 of Regulation (EU) No 1025/2012; (19) ‘accreditation’ means accreditation as defined in point 10 of Article  2 of Regulation (EC) No 765/2008; (20) ‘national accreditation body’ means national accreditation body as defined in point 11 of Article 2 of Regulation (EC) No 765/2008; (21) ‘conformity assessment’ means the process demonstrating whether the essential requirements of this Directive relating to radio equipment have been fulfilled; (22) ‘conformity assessment body’ means a body that performs conformity assessment activities; (23) ‘recall’ means any measure aimed at achieving the return of radio equipment that has already been made available to the end-user; 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) (OJ L 108, 24.4.2002, p. 33).

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(24) ‘withdrawal’ means any measure aimed at preventing radio equipment in the supply chain from being made available on the market; (25) ‘Union harmonisation legislation’ means any Union legislation harmonising the conditions for the marketing of products; (26) ‘CE marking’ means a marking by which the manufacturer indicates that the radio equipment is in conformity with the applicable requirements set out in Union harmonisation legislation providing for its affixing. 2.

The Commission may adopt implementing acts to determine whether certain categories of electrical or electronic products meet the definition set out in point 1 of paragraph  1 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 45(3). Article 3 Essential requirements

1.

Radio equipment shall be constructed so as to ensure: (a)

the protection of health and safety of persons and of domestic animals and the protection of property, including the objectives with respect to safety requirements set out in Directive 2014/35/EU, but with no voltage limit applying;

(b) an adequate level of electromagnetic compatibility as set out in Directive 2014/30/EU. 2.

Radio equipment shall be so constructed that it both effectively uses and supports the efficient use of radio spectrum in order to avoid harmful interference.

3.

Radio equipment within certain categories or classes shall be so constructed that it complies with the following essential requirements: (a) radio equipment interworks with accessories, in particular with common chargers; (b) radio equipment interworks via networks with other radio equipment; (c) radio equipment can be connected to interfaces of the appropriate type throughout the Union; (d) radio equipment does not harm the network or its functioning nor misuse network resources, thereby causing an unacceptable degradation of service; (e) radio equipment incorporates safeguards to ensure that the personal data and privacy of the user and of the subscriber are protected; (f)

radio equipment supports certain features ensuring protection from fraud;

(g) radio equipment supports certain features ensuring access to emergency services; (h) radio equipment supports certain features in order to facilitate its use by users with a disability; (i)

radio equipment supports certain features in order to ensure that software can only be loaded into the radio equipment where the compliance of the combination of the radio equipment and software has been demonstrated.

The Commission shall be empowered to adopt delegated acts in accordance with Article 44 specifying which categories or classes of radio equipment are concerned

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by each of the requirements set out in points (a) to (i) of the first subparagraph of this paragraph. Article 4 Provision of information on the compliance of combinations of radio equipment and software 1.

Manufacturers of radio equipment and of software allowing radio equipment to be used as intended shall provide the Member States and the Commission with information on the compliance of intended combinations of radio equipment and software with the essential requirements set out in Article 3. Such information shall result from a conformity assessment carried out in accordance with Article 17, and shall be given in the form of a statement of compliance which includes the elements set out in Annex VI. Depending on the specific combinations of radio equipment and software, the information shall precisely identify the radio equipment and the software which have been assessed, and it shall be continuously updated.

2.

The Commission shall be empowered to adopt delegated acts in accordance with Article 44 specifying which categories or classes of radio equipment are concerned by the requirement set out in paragraph 1 of this Article.

3.

The Commission shall adopt implementing acts laying down the operational rules for making the information on compliance available for the categories and classes specified by the delegated acts adopted pursuant to paragraph  2 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 45(3). Article 5 Registration of radio equipment types within some categories

1.

As from 12 June 2018, manufacturers shall register radio equipment types within categories of radio equipment affected by a low level of compliance with the essential requirements set out in Article 3 within a central system referred to in paragraph 4 of this Article prior to radio equipment within those categories being placed on the market. When registering such radio equipment types, manufacturers shall provide some, or where justified all, elements of the technical documentation listed in points (a), (d), (e), (f), (g), (h) and (i) of Annex V. The Commission shall allocate to each registered radio equipment type a registration number, which manufacturers shall affix on radio equipment placed on the market.

2.

The Commission shall be empowered to adopt delegated acts in accordance with Article  44 specifying which categories of radio equipment are concerned by the requirement set out in paragraph 1 of this Article, and the elements of the technical documentation to be provided, taking into account the information on the compliance of radio equipment provided by Member States in accordance with Article 47(1) and following an evaluation of the risk of non-implementation of the essential requirements.

3.

The Commission shall adopt implementing acts laying down the operational rules for registration and the operational rules for affixing the registration number on radio equipment for the categories specified by the delegated acts adopted pursuant to paragraph 2 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 45(3).

4.

The Commission shall make available a central system allowing manufacturers to register the required information. That system shall ensure appropriate control of access to information of confidential nature.



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Following the date of application of a delegated act adopted pursuant to paragraph 2 of this Article, the reports prepared in accordance with Article 47(1) and (2) shall evaluate its impacts.

Article 6 Making available on the market Member States shall take appropriate measures to ensure that radio equipment is made available on the market only if it complies with this Directive. Article 7 Putting into service and use Member States shall allow the putting into service and use of radio equipment if it complies with this Directive when it is properly installed, maintained and used for its intended purpose. Without prejudice to their obligations under Decision No 676/2002/ EC and to the conditions attached to authorisations for the use of frequencies in conformity with Union law, in particular under Article 9(3) and (4) of Directive 2002/21/ EC, Member States may only introduce additional requirements for the putting into service and/or use of radio equipment for reasons related to the effective and efficient use of the radio spectrum, to the avoidance of harmful interference, to the avoidance of electromagnetic disturbances or to public health. Article 8 Notification of radio interface specifications and assignment of radio equipment classes 1.

Member States shall notify, in accordance with the procedure set out in Directive 98/34/EC, the radio interfaces which they intend to regulate except: (a)

the radio interfaces which fully and without any deviation comply with the Commission decisions on the harmonised use of radio spectrum adopted pursuant to Decision No 676/2002/EC; and

(b) the radio interfaces which, in accordance with implementing acts adopted pursuant to paragraph 2 of this Article, correspond to radio equipment which can be put into service and used without restrictions within the Union. 2.

The Commission shall adopt implementing acts establishing the equivalence between notified radio interfaces and assigning a radio equipment class, details of which shall be published in the Official Journal of the European Union. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 45(3). Article 9 Free movement of radio equipment

1.

Member States shall not impede, for reasons relating to aspects covered by this Directive, the making available on the market in their territory of radio equipment which complies with this Directive.

2.

At trade fairs, exhibitions and similar events, Member States shall not create any obstacles to the display of radio equipment which does not comply with this Directive, provided that a visible sign clearly indicates that such radio equipment may not be made available on the market or put into service until it has been brought into conformity with this Directive. Demonstration of radio equipment may only take place provided that adequate measures, as prescribed by Member States, have been taken to avoid harmful interference, electromagnetic disturbances and risk to the health or safety of persons or of domestic animals or to property.

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CHAPTER II OBLIGATIONS OF ECONOMIC OPERATORS Article 10 Obligations of manufacturers 1.

When placing their radio equipment on the market, manufacturers shall ensure that it has been designed and manufactured in accordance with the essential requirements set out in Article 3.

2.

Manufacturers shall ensure that radio equipment shall be so constructed that it can be operated in at least one Member State without infringing applicable requirements on the use of radio spectrum.

3.

Manufacturers shall draw up the technical documentation referred to in Article 21 and carry out the relevant conformity assessment procedure referred to in Article 17 or have it carried out. Where compliance of radio equipment with the applicable requirements has been demonstrated by that conformity assessment procedure, manufacturers shall draw up an EU declaration of conformity and affix the CE marking.

4.

Manufacturers shall keep the technical documentation and the EU declaration of conformity for 10 years after the radio equipment has been placed on the market.

5.

Manufacturers shall ensure that procedures are in place for series production to remain in conformity with this Directive. Changes in radio equipment design or characteristics and changes in the harmonised standards or in other technical specifications by reference to which conformity of radio equipment is declared shall be adequately taken into account. When deemed appropriate with regard to the risks presented by radio equipment, manufacturers shall, to protect the health and safety of end-users, carry out sample testing of radio equipment made available on the market, investigate, and, if necessary, keep a register of complaints, of non-conforming radio equipment and radio equipment recalls, and shall keep distributors informed of any such monitoring.

6.

Manufacturers shall ensure that radio equipment which they have placed on the market bears a type, batch or serial number or other element allowing its identification, or, where the size or nature of the radio equipment does not allow it, that the required information is provided on the packaging, or in a document accompanying the radio equipment.

7.

Manufacturers shall indicate on the radio equipment their name, registered trade name or registered trade mark and the postal address at which they can be contacted or, where the size or nature of radio equipment does not allow it, on its packaging, or in a document accompanying the radio equipment. The address shall indicate a single point at which the manufacturer can be contacted. The contact details shall be in a language easily understood by end-users and market surveillance authorities.

8.

Manufacturers shall ensure that the radio equipment is accompanied by instructions and safety information in a language which can be easily understood by consumers and other end-users, as determined by the Member State concerned. Instructions shall include the information required to use radio equipment in accordance with its intended use. Such information shall include, where applicable, a description of accessories and components, including software, which allow the radio equipment



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to operate as intended. Such instructions and safety information, as well as any labelling, shall be clear, understandable and intelligible. The following information shall also be included in the case of radio equipment intentionally emitting radio waves: (a)

frequency band(s) in which the radio equipment operates;

(b) maximum radio-frequency power transmitted in the frequency band(s) in which the radio equipment operates. 9.

Manufacturers shall ensure that each item of radio equipment is accompanied by a copy of the EU declaration of conformity or by a simplified EU declaration of conformity. Where a simplified EU declaration of conformity is provided, it shall contain the exact internet address where the full text of the EU declaration of conformity can be obtained.

10. In cases of restrictions on putting into service or of requirements for authorisation of use, information available on the packaging shall allow the identification of the Member States or the geographical area within a Member State where restrictions on putting into service or requirements for authorisation of use exist. Such information shall be completed in the instructions accompanying the radio equipment. The Commission may adopt implementing acts specifying how to present that information. Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 45(2). 11. Manufacturers who consider or have reason to believe that radio equipment which they have placed on the market is not in conformity with this Directive shall immediately take the corrective measures necessary to bring that radio equipment into conformity, to withdraw it or recall it, if appropriate. Furthermore, where the radio equipment presents a risk, manufacturers shall immediately inform the competent national authorities of the Member States in which they made the radio equipment available on the market to that effect, giving details, in particular, of the non-compliance, of any corrective measures taken and of the results thereof. 12.

Manufacturers shall, further to a reasoned request from a competent national authority, provide it with all the information and documentation in paper or electronic form necessary to demonstrate the conformity of the radio equipment with this Directive, in a language which can be easily understood by that authority. They shall cooperate with that authority, at its request, on any action taken to eliminate the risks posed by radio equipment which they have placed on the market. Article 11 Authorised representatives

1.

A manufacturer may, by a written mandate, appoint an authorised representative. The obligations laid down in Article 10(1) and the obligation to draw up technical documentation laid down in Article  10(3) shall not form part of the authorised representative’s mandate.

2.

An authorised representative shall perform the tasks specified in the mandate received from the manufacturer. The mandate shall allow the authorised representative to do at least the following: (a) keep the EU declaration of conformity and the technical documentation at the disposal of national market surveillance authorities for 10 years after the radio equipment has been placed on the market;

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(b) further to a reasoned request from a competent national authority, provide that authority with all the information and documentation necessary to demonstrate the conformity of radio equipment; (c) cooperate with the competent national authorities, at their request, on any action taken to eliminate the risks posed by radio equipment covered by the authorised representative’s mandate. Article 12 Obligations of importers 1.

Importers shall place only compliant radio equipment on the market.

2.

Before placing radio equipment on the market importers shall ensure that the appropriate conformity assessment procedure referred to in Article 17 has been carried out by the manufacturer and that the radio equipment is so constructed that it can be operated in at least one Member State without infringing applicable requirements on the use of radio spectrum. They shall ensure that the manufacturer has drawn up the technical documentation, that the radio equipment bears the CE marking and is accompanied by the information and documents referred to in Article 10(8), (9) and (10), and that the manufacturer has complied with the requirements set out in Article 10(6) and (7). Where an importer considers or has reason to believe that radio equipment is not in conformity with the essential requirements set out in Article  3, he shall not place the radio equipment on the market until it has been brought into conformity. Furthermore, where the radio equipment presents a risk, the importer shall inform the manufacturer and the market surveillance authorities to that effect.

3.

Importers shall indicate on the radio equipment their name, registered trade name or registered trade mark and the postal address at which they can be contacted or, where that is not possible, on its packaging or in a document accompanying the radio equipment. This includes cases where the size of radio equipment does not allow it, or where importers would have to open the packaging in order to indicate their name and address on the radio equipment. The contact details shall be in a language easily understood by end-users and market surveillance authorities.

4.

Importers shall ensure that the radio equipment is accompanied by instructions and safety information in a language which can be easily understood by consumers and other end-users, as determined by the Member State concerned.

5.

Importers shall ensure that, while radio equipment is under their responsibility, its storage or transport conditions do not jeopardise its compliance with the essential requirements set out in Article 3.

6.

When deemed appropriate with regard to the risks presented by radio equipment, importers shall, to protect the health and safety of end-users, carry out sample testing of radio equipment made available on the market, investigate, and, if necessary, keep a register of complaints, of non-conforming radio equipment and radio equipment recalls, and shall keep distributors informed of any such monitoring.

7.

Importers who consider or have reason to believe that radio equipment which they have placed on the market is not in conformity with this Directive shall immediately take the corrective measures necessary to bring that radio equipment into conformity, to withdraw it or recall it, if appropriate. Furthermore, where the radio equipment presents a risk, importers shall immediately inform the



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competent national authorities of the Member States in which they made the radio equipment available on the market to that effect, giving details, in particular, of the non-compliance and of any corrective measures taken. 8.

Importers shall, for 10 years after the radio equipment has been placed on the market, keep a copy of the EU declaration of conformity at the disposal of the market surveillance authorities and ensure that the technical documentation can be made available to those authorities, upon request.

9.

Importers shall, further to a reasoned request from a competent national authority, provide it with all the information and documentation in paper or electronic form necessary to demonstrate the conformity of radio equipment in a language which can be easily understood by that authority. They shall cooperate with that authority, at its request, on any action taken to eliminate the risks posed by radio equipment which they have placed on the market. Article 13 Obligations of distributors

1.

When making radio equipment available on the market distributors shall act with due care in relation to the requirements of this Directive.

2.

Before making radio equipment available on the market distributors shall verify that the radio equipment bears the CE marking, that it is accompanied by the documents required by this Directive and by the instructions and safety information in a language which can be easily understood by consumers and other end-users in the Member State in which the radio equipment is to be made available on the market, and that the manufacturer and the importer have complied with the requirements set out in Article  10(2) and (6) to (10) and Article 12(3) respectively. Where a distributor considers or has reason to believe that radio equipment is not in conformity with the essential requirements set out in Article  3, he shall not make the radio equipment available on the market until it has been brought into conformity. Furthermore, where the radio equipment presents a risk, the distributor shall inform the manufacturer or the importer to that effect as well as the market surveillance authorities.

3.

Distributors shall ensure that, while radio equipment is under their responsibility, its storage or transport conditions do not jeopardise its compliance with the essential requirements set out in Article 3.

4.

Distributors who consider or have reason to believe that radio equipment which they have made available on the market is not in conformity with this Directive shall make sure that the corrective measures necessary to bring that radio equipment into conformity, to withdraw it or recall it, if appropriate, are taken. Furthermore, where the radio equipment presents a risk, distributors shall immediately inform the competent national authorities of the Member States in which they made the radio equipment available on the market to that effect, giving details, in particular, of the non-compliance and of any corrective measures taken.

5.

Distributors shall, further to a reasoned request from a competent national authority, provide it with all the information and documentation in paper or electronic form necessary to demonstrate the conformity of radio equipment. They shall cooperate with that authority, at its request, on any action taken to eliminate the risks posed by radio equipment which they have made available on the market.

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Article 14 Cases in which obligations of manufacturers apply to importers and distributors An importer or distributor shall be considered a manufacturer for the purposes of this Directive and he shall be subject to the obligations of the manufacturer under Article 10, where he places radio equipment on the market under his name or trade mark or modifies radio equipment already placed on the market in such a way that compliance with this Directive may be affected. Article 15 Identification of economic operators Economic operators shall, on request, identify the following to the market surveillance authorities: (a)

any economic operator who has supplied them with radio equipment;

(b) any economic operator to whom they have supplied radio equipment. Economic operators shall be able to present the information referred to in the first paragraph for 10 years after they have been supplied with the radio equipment and for 10 years after they have supplied the radio equipment. CHAPTER III CONFORMITY OF RADIO EQUIPMENT Article 16 Presumption of conformity of radio equipment Radio equipment which is in conformity with harmonised standards or parts thereof the references of which have been published in the Official Journal of the European Union shall be presumed to be in conformity with the essential requirements set out in Article 3 covered by those standards or parts thereof. Article 17 Conformity assessment procedures 1.

The manufacturer shall perform a conformity assessment of the radio equipment with a view to meeting the essential requirements set out in Article  3. The conformity assessment shall take into account all intended operating conditions and, for the essential requirement set out in point (a) of Article 3(1), the assessment shall also take into account the reasonably foreseeable conditions. Where the radio equipment is capable of taking different configurations, the conformity assessment shall confirm whether the radio equipment meets the essential requirements set out in Article 3 in all possible configurations.

2.

Manufacturers shall demonstrate compliance of radio equipment with the essential requirements set out in Article  3(1) using any of the following conformity assessment procedures: (a)

internal production control set out in Annex II;

(b) EU-type examination that is followed by the conformity to type based on internal production control set out in Annex III; (c) 3.

conformity based on full quality assurance set out in Annex IV.

Where, in assessing the compliance of radio equipment with the essential requirements set out in Article  3(2) and (3), the manufacturer has applied harmonised standards the references of which have been published in the Official Journal of the European Union, he shall use any of the following procedures: (a)

internal production control set out in Annex II;



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(b) EU-type examination that is followed by the conformity to type based on internal production control set out in Annex III; (c) 4.

conformity based on full quality assurance set out in Annex IV.

Where, in assessing the compliance of radio equipment with the essential requirements set out in Article 3(2) and (3), the manufacturer has not applied or has applied only in part harmonised standards the references of which have been published in the Official Journal of the European Union, or where such harmonised standards do not exist, radio equipment shall be submitted with regard to those essential requirements to either of the following procedures: (a) EU-type examination that is followed by the conformity to type based on internal production control set out in Annex III; (b) conformity based on full quality assurance set out in Annex IV. Article 18 EU declaration of conformity

1.

The EU declaration of conformity shall state that the fulfilment of the essential requirements set out in Article 3 has been demonstrated.

2.

The EU declaration of conformity shall have the model structure set out in Annex VI, shall contain the elements set out in that Annex and shall be continuously updated. It shall be translated into the language or languages required by the Member State in which the radio equipment is placed or made available on the market. The simplified EU declaration of conformity referred to in Article 10(9) shall contain the elements set out in Annex VII and shall be continuously updated. It shall be translated into the language or languages required by the Member State in which the radio equipment is placed or made available on the market. The full text of the EU declaration of conformity shall be available at the internet address referred to in the simplified EU declaration of conformity, in a language or languages required by the Member State in which the radio equipment is placed or made available on the market.

3.

4.

Where radio equipment is subject to more than one Union act requiring an EU declaration of conformity, a single EU declaration of conformity shall be drawn up in respect of all such Union acts. That declaration shall contain the identification of the Union acts concerned including their publication references.

By drawing up the EU declaration of conformity, the manufacturer shall assume responsibility for the compliance of the radio equipment with the requirements laid down in this Directive. Article 19 General principles of the CE marking 1. The CE marking shall be subject to the general principles set out in Article 30 of Regulation (EC) No 765/2008. 2. On account of the nature of radio equipment, the height of the CE marking affixed to radio equipment may be lower than 5 mm, provided that it remains visible and legible. Article 20 Rules and conditions for affixing the CE marking and the identification number of the notified body 1. The CE marking shall be affixed visibly, legibly and indelibly to the radio equipment or to its data plate, unless that is not possible or not warranted on

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account of the nature of radio equipment. The CE marking shall also be affixed visibly and legibly to the packaging. 2.

The CE marking shall be affixed before the radio equipment is placed on the market.

3.

The CE marking shall be followed by the identification number of the notified body where the conformity assessment procedure set out in Annex IV is applied. The identification number of the notified body shall have the same height as the CE marking. The identification number of the notified body shall be affixed by the notified body itself or, under its instructions, by the manufacturer or his authorised representative.

4.

Member States shall build upon existing mechanisms to ensure correct application of the regime governing the CE marking and shall take appropriate action in the event of improper use of that marking. Article 21 Technical documentation

1.

The technical documentation shall contain all relevant data or details of the means used by the manufacturer to ensure that radio equipment complies with the essential requirements set out in Article 3. It shall, at least, contain the elements set out in Annex V.

2.

The technical documentation shall be drawn up before radio equipment is placed on the market and shall be continuously updated.

3.

The technical documentation and correspondence relating to any EU-type examination procedure shall be drawn up in an official language of the Member State in which the notified body is established or in a language acceptable to that body.

4.

Where the technical documentation does not comply with paragraphs 1, 2 or 3 of this Article, and in so doing fails to present sufficient relevant data or means used to ensure compliance of radio equipment with the essential requirements set out in Article 3, the market surveillance authority may ask the manufacturer or the importer to have a test performed by a body acceptable to the market surveillance authority at the expense of the manufacturer or the importer within a specified period in order to verify compliance with the essential requirements set out in Article 3.

CHAPTER IV NOTIFICATION OF CONFORMITY ASSESSMENT BODIES Article 22 Notification Member States shall notify the Commission and the other Member States of bodies authorised to carry out third-party conformity assessment tasks under this Directive. Article 23 Notifying authorities 1.

Member States shall designate a notifying authority that shall be responsible for setting up and carrying out the necessary procedures for the assessment and notification of conformity assessment bodies and the monitoring of notified bodies, including compliance with Article 28.



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2.

Member States may decide that the assessment and monitoring referred to in paragraph  1 shall be carried out by a national accreditation body within the meaning of and in accordance with Regulation (EC) No 765/2008.

3.

Where the notifying authority delegates or otherwise entrusts the assessment, notification or monitoring referred to in paragraph  1 to a body which is not a governmental entity, that body shall be a legal entity and shall comply mutatis mutandis with the requirements laid down in Article 24. In addition it shall have arrangements to cover liabilities arising out of its activities.

4.

The notifying authority shall take full responsibility for the tasks performed by the body referred to in paragraph 3. Article 24 Requirements relating to notifying authorities

1.

A notifying authority shall be established in such a way that no conflict of interest with conformity assessment bodies occurs.

2.

A  notifying authority shall be organised and operated so as to safeguard the objectivity and impartiality of its activities.

3.

A notifying authority shall be organised in such a way that each decision relating to notification of a conformity assessment body is taken by competent persons different from those who carried out the assessment.

4.

A  notifying authority shall not offer or provide any activities that conformity assessment bodies perform or consultancy services on a commercial or competitive basis.

5.

A  notifying authority shall safeguard the confidentiality of the information it obtains.

6.

A notifying authority shall have a sufficient number of competent personnel at its disposal for the proper performance of its tasks.

Article 25 Information obligation on notifying authorities Member States shall inform the Commission of their procedures for the assessment and notification of conformity assessment bodies and the monitoring of notified bodies, and of any changes thereto. The Commission shall make that information publicly available. Article 26 Requirements relating to notified bodies 1.

For the purposes of notification, a conformity assessment body shall meet the requirements laid down in paragraphs 2 to 11.

2.

A  conformity assessment body shall be established under national law of a Member State and have legal personality.

3.

A  conformity assessment body shall be a third-party body independent of the organisation or the radio equipment it assesses. A body belonging to a business association or professional federation representing undertakings involved in the design, manufacturing, provision, assembly, use or maintenance of radio equipment which it assesses may, on condition that its independence and the absence of any conflict of interest are demonstrated, be considered such a body.

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A  conformity assessment body, its top level management and the personnel responsible for carrying out the conformity assessment tasks shall not be the designer, manufacturer, supplier, installer, purchaser, owner, user or maintainer of the radio equipment which they assess, nor the representative of any of those parties. This shall not preclude the use of assessed radio equipment that is necessary for the operations of the conformity assessment body or the use of such radio equipment for personal purposes. A  conformity assessment body, its top level management and the personnel responsible for carrying out the conformity assessment tasks shall not be directly involved in the design, manufacture or construction, the marketing, installation, use or maintenance of that radio equipment, or represent the parties engaged in those activities. They shall not engage in any activity that may conflict with their independence of judgement or integrity in relation to conformity assessment activities for which they are notified. This shall in particular apply to consultancy services. Conformity assessment bodies shall ensure that the activities of their subsidiaries or subcontractors do not affect the confidentiality, objectivity or impartiality of their conformity assessment activities.

5.

Conformity assessment bodies and their personnel shall carry out the conformity assessment activities with the highest degree of professional integrity and the requisite technical competence in the specific field and shall be free from all pressures and inducements, particularly financial, which might influence their judgement or the results of their conformity assessment activities, especially as regards persons or groups of persons with an interest in the results of those activities.

6.

A conformity assessment body shall be capable of carrying out all the conformity assessment tasks assigned to it by Annexes III and IV in relation to which it has been notified, whether those tasks are carried out by the conformity assessment body itself or on its behalf and under its responsibility. At all times and for each conformity assessment procedure and each kind or category of radio equipment in relation to which it has been notified, a conformity assessment body shall have at its disposal the necessary: (a) personnel with technical knowledge and sufficient and appropriate experience to perform the conformity assessment tasks; (b)

descriptions of procedures in accordance with which conformity assessment is carried out, ensuring the transparency and the ability of reproduction of those procedures. It shall have appropriate policies and procedures in place that distinguish between tasks it carries out as a notified body and other activities;

(c)

procedures for the performance of activities which take due account of the size of an undertaking, the sector in which it operates, its structure, the degree of complexity of radio equipment technology in question and the mass or serial nature of the production process.

A  conformity assessment body shall have the means necessary to perform the technical and administrative tasks connected with the conformity assessment activities in an appropriate manner. 7.

The personnel responsible for carrying out conformity assessment tasks shall have the following:



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(a) sound technical and vocational training covering all the conformity assessment activities in relation to which the conformity assessment body has been notified; (b) satisfactory knowledge of the requirements of the assessments they carry out and adequate authority to carry out those assessments; (c)

appropriate knowledge and understanding of the essential requirements set out in Article 3, of the applicable harmonised standards and of the relevant provisions of Union harmonisation legislation and of national legislation;

(d) the ability to draw up EU-type examination certificates or quality system approvals, records and reports demonstrating that assessments have been carried out. 8.

The impartiality of the conformity assessment bodies, their top level management and of the personnel responsible for carrying out the conformity assessment tasks shall be guaranteed. The remuneration of the top level management and personnel responsible for carrying out the conformity assessment tasks of a conformity assessment body shall not depend on the number of assessments carried out or on the results of those assessments.

9.

Conformity assessment bodies shall take out liability insurance unless liability is assumed by the State in accordance with national law, or the Member State itself is directly responsible for the conformity assessment.

10. The personnel of a conformity assessment body shall observe professional secrecy with regard to all information obtained in carrying out their tasks under Annexes III and IV or any provision of national law giving effect to them, except in relation to the competent authorities of the Member State in which its activities are carried out. Proprietary rights shall be protected. 11. Conformity assessment bodies shall participate in, or ensure that their personnel responsible for carrying out the conformity assessment tasks are informed of, the relevant standardisation activities, the regulatory activities in the area of radio equipment and frequency planning, and the activities of the notified body coordination group established under the relevant Union harmonisation legislation and shall apply as general guidance the administrative decisions and documents produced as a result of the work of that group. Article 27 Presumption of conformity of notified bodies Where a conformity assessment body demonstrates its conformity with the criteria laid down in the relevant harmonised standards or parts thereof the references of which have been published in the Official Journal of the European Union it shall be presumed to comply with the requirements set out in Article 26 in so far as the applicable harmonised standards cover those requirements. Article 28 Subsidiaries of and subcontracting by notified bodies 1.

Where a notified body subcontracts specific tasks connected with conformity assessment or has recourse to a subsidiary, it shall ensure that the subcontractor or the subsidiary meets the requirements set out in Article 26 and shall inform the notifying authority accordingly.

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2. Notified bodies shall take full responsibility for the tasks performed by subcontractors or subsidiaries wherever these are established. 3.

Activities may be subcontracted or carried out by a subsidiary only with the agreement of the client.

4.

Notified bodies shall keep at the disposal of the notifying authority the relevant documents concerning the assessment of the qualifications of the subcontractor or the subsidiary and the work carried out by them under Annexes III and IV. Article 29 Application for notification

1.

A conformity assessment body shall submit an application for notification to the notifying authority of the Member State in which it is established.

2.

The application for notification shall be accompanied by a description of the conformity assessment activities, the conformity assessment module or modules and the radio equipment for which that body claims to be competent, as well as by an accreditation certificate, where one exists, issued by a national accreditation body attesting that the conformity assessment body fulfils the requirements laid down in Article 26.

3.

Where the conformity assessment body concerned cannot provide an accreditation certificate, it shall provide the notifying authority with all the documentary evidence necessary for the verification, recognition and regular monitoring of its compliance with the requirements laid down in Article 26. Article 30 Notification procedure

1.

Notifying authorities may notify only conformity assessment bodies which have satisfied the requirements laid down in Article 26.

2.

They shall notify the Commission and the other Member States using the electronic notification tool developed and managed by the Commission.

3.

The notification shall include full details of the conformity assessment activities, the conformity assessment module or modules and the radio equipment concerned and the relevant attestation of competence.

4.

Where a notification is not based on an accreditation certificate as referred to in Article  29(2), the notifying authority shall provide the Commission and the other Member States with documentary evidence which attests to the conformity assessment body’s competence and the arrangements in place to ensure that that body will be monitored regularly and will continue to satisfy the requirements laid down in Article 26.

5.

The body concerned may perform the activities of a notified body only where no objections are raised by the Commission or the other Member States within two weeks of a notification where an accreditation certificate is used or within two months of a notification where accreditation is not used. Only such a body shall be considered a notified body for the purposes of this Directive.

6.

The notifying authority shall notify the Commission and the other Member States of any subsequent relevant changes to the notification.



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Article 31 Identification numbers and lists of notified bodies 1.

The Commission shall assign an identification number to a notified body. It shall assign a single such number even where the body is notified under several Union acts.

2.

The Commission shall make publicly available the list of the bodies notified under this Directive, including the identification numbers that have been assigned to them and the activities for which they have been notified. The Commission shall ensure that the list is kept up to date. Article 32 Changes to notifications

1.

Where a notifying authority has ascertained or has been informed that a notified body no longer meets the requirements laid down in Article 26, or that it is failing to fulfil its obligations, the notifying authority shall restrict, suspend or withdraw notification as appropriate, depending on the seriousness of the failure to meet those requirements or fulfil those obligations. It shall immediately inform the Commission and the other Member States accordingly.

2.

In the event of restriction, suspension or withdrawal of notification, or where the notified body has ceased its activity, the notifying Member State shall take appropriate steps to ensure that the files of that body are either processed by another notified body or kept available for the responsible notifying and market surveillance authorities at their request. Article 33 Challenge of the competence of notified bodies

1.

The Commission shall investigate all cases where it doubts, or doubt is brought to its attention regarding, the competence of a notified body or the continued fulfilment by a notified body of the requirements and responsibilities to which it is subject.

2.

The notifying Member State shall provide the Commission, on request, with all information relating to the basis for the notification or the maintenance of the competence of the notified body concerned.

3.

The Commission shall ensure that all sensitive information obtained in the course of its investigations is treated confidentially.

4.

Where the Commission ascertains that a notified body does not meet or no longer meets the requirements for its notification, it shall adopt an implementing act requesting the notifying Member State to take the necessary corrective measures, including withdrawal of notification if necessary. That implementing act shall be adopted in accordance with the advisory procedure referred to in Article 45(2). Article 34 Operational obligations of notified bodies

1.

Notified bodies shall carry out conformity assessments in accordance with the conformity assessment procedures provided for in Annexes III and IV.

2.

Conformity assessments shall be carried out in a proportionate manner, avoiding unnecessary burdens for economic operators. Conformity assessment bodies

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shall perform their activities taking due account of the size of an undertaking, the sector in which it operates, its structure, the degree of complexity of the radio equipment technology in question and the mass or serial nature of the production process. In so doing they shall nevertheless respect the degree of rigour and the level of protection required for the compliance of the radio equipment with this Directive. 3.

Where a notified body finds that the essential requirements set out in Article  3 or corresponding harmonised standards or other technical specifications have not been met by a manufacturer, it shall require that manufacturer to take appropriate corrective measures and shall not issue an EU-type examination certificate or a quality system approval.

4.

Where, in the course of the monitoring of conformity following the issue of an EU-type examination certificate or a quality system approval, a notified body finds that radio equipment no longer complies, it shall require the manufacturer to take appropriate corrective measures and shall suspend or withdraw the EU-type examination certificate or the quality system approval if necessary.

5.

Where corrective measures are not taken or do not have the required effect, the notified body shall restrict, suspend or withdraw any EU-type examination certificates or quality system approvals, as appropriate.

Article 35 Appeal against decisions of notified bodies Member States shall ensure that an appeal procedure against decisions of the notified bodies is available. Article 36 Information obligation on notified bodies 1.

Notified bodies shall inform the notifying authority of the following: (a)

any refusal, restriction, suspension or withdrawal of an EU-type examination certificate or a quality system approval in accordance with the requirements of Annexes III and IV;

(b) any circumstances affecting the scope of or conditions for notification; (c) any request for information whichthey have received from market surveillance authorities regarding conformity assessment activities; (d) on request, conformity assessment activities performed within the scope of their notification and any other activity performed, including cross-border activities and subcontracting. 2.

Notified bodies shall, in accordance with the requirements of Annexes III and IV, provide the other bodies notified under this Directive carrying out similar conformity assessment activities covering the same categories of radio equipment with relevant information on issues relating to negative and, on request, positive conformity assessment results.

3.

Notified bodies shall fulfil information obligations under Annexes III and IV.

Article 37 Exchange of experience The Commission shall provide for the organisation of exchange of experience between the Member States’ national authorities responsible for notification policy.



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Article 38 Coordination of notified bodies The Commission shall ensure that appropriate coordination and cooperation between bodies notified under this Directive are put in place and properly operated in the form of a sectoral group of notified bodies. Member States shall ensure that the bodies notified by them participate in the work of that group, directly or by means of designated representatives. CHAPTER V UNION MARKET SURVEILLANCE, CONTROL OF RADIO EQUIPMENT ENTERING THE UNION MARKET AND UNION SAFEGUARD PROCEDURE Article 39 Union market surveillance and control of radio equipment entering the Union market Article 15(3) and Articles 16 to 29 of Regulation (EC) No 765/2008 shall apply to radio equipment. Article 40 Procedure for dealing with radio equipment presenting a risk at national level 1.

Where the market surveillance authorities of one Member State have sufficient reason to believe that radio equipment covered by this Directive presents a risk to the health or safety of persons or to other aspects of public interest protection covered by this Directive, they shall carry out an evaluation in relation to the radio equipment concerned covering all relevant requirements laid down in this Directive. The relevant economic operators shall cooperate as necessary with the market surveillance authorities for that purpose. Where, in the course of the evaluation referred to in the first subparagraph, the market surveillance authorities find that the radio equipment does not comply with the requirements laid down in this Directive, they shall without delay require the relevant economic operator to take all appropriate corrective actions to bring the radio equipment into compliance with those requirements, to withdraw the radio equipment from the market, or to recall it within a reasonable period, commensurate with the nature of the risk, as they may prescribe. The market surveillance authorities shall inform the relevant notified body accordingly. Article 21 of Regulation (EC) No 765/2008 shall apply to the measures referred to in the second subparagraph of this paragraph.

2.

Where the market surveillance authorities consider that non-compliance is not restricted to their national territory, they shall inform the Commission and the other Member States of the results of the evaluation and of the actions which they have required the economic operator to take.

3.

The economic operator shall ensure that all appropriate corrective action is taken in respect of all radio equipment concerned that it has made available on the market throughout the Union.

4.

Where the relevant economic operator does not take adequate corrective action within the period referred to in the second subparagraph of paragraph  1, the market surveillance authorities shall take all appropriate provisional measures to prohibit or restrict the radio equipment being made available on their national market, to withdraw the radio equipment from that market or to recall it.

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The market surveillance authorities shall inform the Commission and the other Member States, without delay, of those measures. 5.

The information referred to in the second subparagraph of paragraph  4 shall include all available details, in particular the data necessary for the identification of the non-compliant radio equipment, the origin of the radio equipment, the nature of the non-compliance alleged and the risk involved, the nature and duration of the national measures taken and the arguments put forward by the relevant economic operator. In particular, the market surveillance authorities shall indicate whether the non-compliance is due to either of the following: (a)

failure of the radio equipment to meet the relevant essential requirements set out in Article 3; or

(b)

shortcomings in the harmonised standards referred to in Article 16 conferring a presumption of conformity.

6.

Member States other than the Member State initiating the procedure under this Article shall without delay inform the Commission and the other Member States of any measures adopted and of any additional information at their disposal relating to the non-compliance of the radio equipment concerned, and, in the event of disagreement with the adopted national measure, of their objections.

7.

Where, within three months of receipt of the information referred to in the second subparagraph of paragraph 4, no objection has been raised by either a Member State or the Commission in respect of a provisional measure taken by a Member State, that measure shall be deemed justified.

8.

Member States shall ensure that appropriate restrictive measures, such as withdrawal of the radio equipment from the market, are taken in respect of the radio equipment concerned without delay. Article 41 Union safeguard procedure

1.

Where, on completion of the procedure set out in Article 40(3) and (4), objections are raised against a measure taken by a Member State, or where the Commission considers a national measure to be contrary to Union legislation, the Commission shall without delay enter into consultation with the Member States and the relevant economic operator or operators and shall evaluate the national measure. On the basis of the results of that evaluation, the Commission shall adopt an implementing act determining whether the national measure is justified or not. The Commission shall address its decision to all Member States and shall immediately communicate it to them and the relevant economic operator or operators.

2.

If the national measure is considered justified, all Member States shall take the necessary measures to ensure that the non-compliant radio equipment is withdrawn or recalled from their market, and shall inform the Commission accordingly. If the national measure is considered unjustified, the Member State concerned shall withdraw that measure.

3.

Where the national measure is considered justified and the non-compliance of the radio equipment is attributed to shortcomings in the harmonised standards referred to in point (b) of Article 40(5) of this Directive, the Commission shall apply the procedure provided for in Article 11 of Regulation (EU) No 1025/2012.



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Article 42 Compliant radio equipment which presents a risk 1.

Where, having carried out an evaluation under Article 40(1), a Member State finds that although radio equipment is in compliance with this Directive, it presents a risk to the health or safety of persons or to other aspects of public interest protection covered by this Directive, it shall require the relevant economic operator to take all appropriate measures to ensure that the radio equipment concerned, when placed on the market, no longer presents that risk, to withdraw the radio equipment from the market or to recall it within a reasonable period, commensurate with the nature of the risk, as it may prescribe.

2.

The economic operator shall ensure that corrective action is taken in respect of all the radio equipment concerned that he has made available on the market throughout the Union.

3.

The Member State shall immediately inform the Commission and the other Member States. That information shall include all available details, in particular the data necessary for the identification of the radio equipment concerned, the origin and the supply chain of radio equipment, the nature of the risk involved and the nature and duration of the national measures taken.

4.

The Commission shall without delay enter into consultation with the Member States and the relevant economic operator or operators and shall evaluate the national measures taken. On the basis of the results of that evaluation, the Commission shall decide by means of implementing acts whether the national measure is justified or not and, where necessary, propose appropriate measures. The implementing acts referred to in the first subparagraph of this paragraph shall be adopted in accordance with the examination procedure referred to in Article 45(3). On duly justified imperative grounds of urgency relating to the protection of health and safety of persons, the Commission shall adopt immediately applicable implementing acts in accordance with the procedure referred to in Article 45(4).

5.

The Commission shall address its decision to all Member States and shall immediately communicate it to them and the relevant economic operator or operators. Article 43 Formal non-compliance

1.

Without prejudice to Article 40, where a Member State makes one of the following findings, it shall require the relevant economic operator to put an end to the noncompliance concerned: (a) the CE marking has been affixed in violation of Article  30 of Regulation (EC) No 765/2008 or of Article 20 of this Directive; (b) the CE marking has not been affixed; (c) the identification number of the notified body, where the conformity assessment procedure set out in Annex IV is applied, has been affixed in violation of Article 20 or has not been affixed; (d) the EU declaration of conformity has not been drawn up; (e)

the EU declaration of conformity has not been drawn up correctly;

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(f)

technical documentation is either not available or not complete;

(g) the information referred to in Article 10(6) or (7) or Article 12(3) is absent, false or incomplete; (h) information on the intended use of radio equipment, the EU declaration of conformity or usage restrictions as set out in Article 10(8), (9) and (10) does not accompany the radio equipment;

2.

(i)

requirements on identification of economic operators set out in Article 15 are not fulfilled;

(j)

Article 5 is not complied with.

Where the non-compliance referred to in paragraph 1 persists, the Member State concerned shall take all appropriate measures to restrict or prohibit corresponding radio equipment being made available on the market or ensure that it is withdrawn or recalled from the market.

CHAPTER VI DELEGATED ACTS AND IMPLEMENTING ACTS AND THE COMMITTEE Article 44 Exercise of the delegation 1.

The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

2.

The power to adopt delegated acts referred to in the second subparagraph of Articles 3(3), 4(2) and 5(2) shall be conferred on the Commission for a period of five years from 11 June 2014. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the fiveyear period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.

3.

The delegation of power referred to in the second subparagraph of Articles 3(3), 4(2) and 5(2) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

4.

As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

5.

A delegated act adopted pursuant to the second subparagraph of Articles 3(3), 4(2) and 5(2) shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council. Article 45 Committee procedure

1.

The Commission shall be assisted by the Telecommunication Conformity Assessment and Market Surveillance Committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.



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2.

Where reference is made to this paragraph, Article  4 of Regulation (EU) No 182/2011 shall apply.

3.

Where reference is made to this paragraph, Article  5 of Regulation (EU) No 182/2011 shall apply.

4.

Where reference is made to this paragraph, Article  8 of Regulation (EU) No 182/2011, in conjunction with Article 5 thereof, shall apply.

5.

The committee shall be consulted by the Commission on any matter for which consultation of sectoral experts is required by Regulation (EU) No 1025/2012 or by any other Union legislation. The committee may furthermore examine any other matter concerning the application of this Directive raised either by its chair or by a representative of a Member State in accordance with its rules of procedure.

CHAPTER VII FINAL AND TRANSITIONAL PROVISIONS Article 46 Penalties Member States shall lay down rules on penalties applicable to infringements by economic operators of the provisions of national law adopted pursuant to this Directive and shall take all measures necessary to ensure that they are enforced. Such rules may include criminal penalties for serious infringements. The penalties provided for shall be effective, proportionate and dissuasive. Article 47 Review and reporting 1.

Member States shall submit to the Commission regular reports on the application of this Directive by 12  June 2017 and at least every two years thereafter. The reports shall contain a presentation of the market surveillance activities performed by the Member States and provide information on whether and to what extent compliance with the requirements of this Directive has been attained, including in particular requirements on identification of economic operators.

2.

The Commission shall review the operation of this Directive and report thereon to the European Parliament and to the Council, by 12 June 2018 and every five years thereafter. The report shall cover progress on drawing up the relevant standards, as well as any problems that have arisen in the course of implementation. The report shall also outline the activities of the Telecommunication Conformity Assessment and Market Surveillance Committee, assess progress in achieving an open competitive market for radio equipment at Union level and examine how the regulatory framework for the making available on the market and putting into service of radio equipment should be developed in order to achieve the following: (a) ensure that a coherent system is achieved at Union level for all radio equipment; (b) allow for convergence of the telecommunications, audiovisual and information technology sectors; (c)

enable regulatory measures to be harmonised at international level;

(d) reach a high level of consumer protection; (e) ensure that portable radio equipment interworks with accessories, in particular with common chargers;

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(f)

where radio equipment is fitted with an integral screen, allow the display of the required information on the integral screen.

Article 48 Transitional provisions Member States shall not impede, for the aspects covered by this Directive, the making available on the market or putting into service of radio equipment covered by this Directive which is in conformity with the relevant Union harmonisation legislation applicable before 13 June 2016 and which was placed on the market before 13 June 2017. Article 49 Transposition 1.

Member States shall adopt and publish, by 12 June 2016, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith communicate the text of those measures to the Commission. They shall apply those measures from 13 June 2016. When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. They shall also include a statement that references in existing laws, regulations and administrative provisions to the Directive repealed by this Directive shall be construed as references to this Directive. Member States shall determine how such reference is to be made and how that statement is to be formulated.

2.

Member States shall communicate to the Commission the texts of the main provisions of national law which they adopt in the field covered by this Directive.

Article 50 Repeal Directive 1999/5/EC is repealed with effect from 13 June 2016. References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex VIII. Article 51 Entry into force This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. Article 52 Addressees This Directive is addressed to the Member States. ANNEX I EQUIPMENT NOT COVERED BY THIS DIRECTIVE 1.

Radio equipment used by radio amateurs within the meaning of Article 1, definition 56, of the International Telecommunications Union (ITU) Radio Regulations, unless the equipment is made available on the market. The following shall be regarded as not being made available on the market: (a)

radio kits for assembly and use by radio amateurs;

(b) radio equipment modified by and for the use of radio amateurs; (c) equipment constructed by individual radio amateurs for experimental and scientific purposes related to amateur radio.



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2.

Marine equipment falling within the scope of Council Directive 96/98/EC (172).

3.

The following aviation equipment, where that equipment falls within the scope of Regulation (EU) 2018/1139 of the European Parliament and of the Council (173) and is intended exclusively for airborne use: (a) aircraft, other than unmanned aircraft, as well as associated engines, propellers, parts and non-installed equipment; (b) unmanned aircraft, as well as associated engines, propellers, parts and noninstalled equipment, the design of which is certified in accordance with Article  56(1) of that Regulation and which are intended to operate only on frequencies allocated by the Radio Regulations of the International Telecommunications Union for protected aeronautical use.

4.

Custom-built evaluation kits destined for professionals to be used solely at research and development facilities for such purposes.

ANNEX II CONFORMITY ASSESSMENT MODULE A 1. Internal production control is the conformity assessment procedure whereby the manufacturer fulfils the obligations laid down in points 2, 3 and 4 of this Annex, and ensures and declares on his sole responsibility that the radio equipment concerned satisfies the essential requirements set out in Article 3. 2. Technical documentation The manufacturer shall establish the technical documentation in accordance with Article 21. 3. Manufacturing The manufacturer shall take all measures necessary so that the manufacturing process and its monitoring ensure compliance of the manufactured radio equipment with the technical documentation referred to in point 2 of this Annex and with the relevant essential requirements set out in Article 3. 4. CE marking and EU declaration of conformity 4.1. The manufacturer shall affix the CE marking in accordance with Articles 19 and 20 to each item of radio equipment that satisfies the applicable requirements of this Directive. 4.2. The manufacturer shall draw up a written EU declaration of conformity for each radio equipment type and keep it together with the technical documentation at the disposal of the national authorities for 10 years after the radio equipment has been placed on the market. The EU declaration of conformity shall identify the radio equipment for which it has been drawn up. A  copy of the EU declaration of conformity shall be made available to the relevant authorities upon request.

Council Directive 96/98/EC of 20 December 1996 on marine equipment (OJ L 46, 17.2.1997, p. 25). Regulation (EU) 2018/1139 of the European Parliament and of the Council of 4 July 2018 on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency, and amending Regulations (EC) No 2111/2005, (EC) No 1008/2008, (EU) No 996/2010, (EU) No 376/2014 and Directives 2014/30/EU and 2014/53/EU of the European Parliament and of the Council, and repealing Regulations (EC) No 552/2004 and (EC) No 216/2008 of the European Parliament and of the Council and Council Regulation (EEC) No 3922/91 (OJ L 212, 22.8.2018, p. 1).

172 173

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5. Authorised representative The manufacturer’s obligations set out in point 4 may be fulfilled by his authorised representative, on his behalf and under his responsibility, provided that they are specified in the mandate. ANNEX III CONFORMITY ASSESSMENT MODULES B AND C EU-TYPE EXAMINATION AND CONFORMITY TO TYPE BASED ON INTERNAL PRODUCTION CONTROL When reference is made to this Annex, the conformity assessment procedure shall follow Modules B (EU-type examination) and C (Conformity to type based on internal production control) of this Annex. Module B EU-type examination 1. EU-type examination is the part of a conformity assessment procedure in which a notified body examines the technical design of the radio equipment and verifies and attests that the technical design of the radio equipment meets the essential requirements set out in Article 3. 2. EU-type examination shall be carried out by assessment of the adequacy of the technical design of the radio equipment through examination of the technical documentation and supporting evidence referred to in point 3, without examination of a specimen (design type). 3. The manufacturer shall lodge an application for EU-type examination with a single notified body of his choice. The application shall include: (a) the name and address of the manufacturer and, if the application is lodged by the authorised representative, his name and address as well; (b) a written declaration that the same application has not been lodged with any other notified body; (c) the technical documentation. The technical documentation shall make it possible to assess the radio equipment’s conformity with the applicable requirements of this Directive and shall include an adequate analysis and assessment of the risk(s). The technical documentation shall specify the applicable requirements and cover, as far as relevant for the assessment, the design, manufacture and operation of the radio equipment. The technical documentation shall contain, wherever applicable, the elements set out in Annex V; (d) the supporting evidence for the adequacy of the technical design solution. That supporting evidence shall mention any documents that have been used, in particular where the relevant harmonised standards have not been applied or have not been fully applied. The supporting evidence shall include, where necessary, the results of tests carried out in accordance with other relevant technical specifications by the appropriate laboratory of the manufacturer, or by another testing laboratory on his behalf and under his responsibility. 4. The notified body shall examine the technical documentation and supporting evidence to assess the adequacy of the technical design of the radio equipment. 5. The notified body shall draw up an evaluation report that records the activities undertaken in accordance with point 4 and their outcomes. Without prejudice to its obligations as provided in point 8, the notified body shall release the content of that report, in full or in part, only with the agreement of the manufacturer. 6. Where the type meets the requirements of this Directive that apply to the radio equipment concerned, the notified body shall issue an EU-type examination certificate to



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the manufacturer. That certificate shall contain the name and address of the manufacturer, the conclusions of the examination, the aspects of the essential requirements covered by the examination, the conditions (if any) for its validity and the necessary data for identification of the assessed type. The EU-type examination certificate may have one or more annexes attached. The EU-type examination certificate and its annexes shall contain all relevant information to allow the conformity of manufactured radio equipment with the examined type to be evaluated and to allow for in-service control. Where the type does not satisfy the applicable requirements of this Directive, the notified body shall refuse to issue an EU-type examination certificate and shall inform the applicant accordingly, giving detailed reasons for its refusal. 7. The notified body shall keep itself apprised of any changes in the generally acknowledged state of the art which indicate that the approved type may no longer comply with the applicable requirements of this Directive, and shall determine whether such changes require further investigation. If so, the notified body shall inform the manufacturer accordingly. The manufacturer shall inform the notified body that holds the technical documentation relating to the EU-type examination certificate of all modifications to the approved type that may affect the conformity of the radio equipment with the essential requirements of this Directive or the conditions for validity of that certificate. Such modifications shall require additional approval in the form of an addition to the original EU-type examination certificate. 8. Each notified body shall inform its notifying authority concerning the EU-type examination certificates and/or any additions thereto which it has issued or withdrawn, and shall, periodically or upon request, make available to its notifying authority the list of such certificates and/or any additions thereto refused, suspended or otherwise restricted. Each notified body shall inform the other notified bodies concerning the EU-type examination certificates and/or any additions thereto which it has refused, withdrawn, suspended or otherwise restricted, and, upon request, concerning such certificates and/ or additions thereto which it has issued. Each notified body shall inform the Member States of EU-type examination certificates it has issued and/or additions thereto in those cases where harmonised standards the references of which have been published in the Official Journal of the European Union have not been applied or not been fully applied. The Member States, the Commission and the other notified bodies may, on request, obtain a copy of the EU-type examination certificates and/or additions thereto. On request, the Member States and the Commission may obtain a copy of the technical documentation and the results of the examinations carried out by the notified body. The notified body shall keep a copy of the EU-type examination certificate, its annexes and additions, as well as the technical file including the documentation submitted by the manufacturer for 10 years after the radio equipment has been assessed or until the expiry of the validity of that certificate. 9. The manufacturer shall keep a copy of the EU-type examination certificate, its annexes and additions together with the technical documentation at the disposal of the national authorities for 10 years after the radio equipment has been placed on the market. 10. The manufacturer’s authorised representative may lodge the application referred to in point 3 and fulfil the obligations set out in points 7 and 9, provided that they are specified in the mandate. Module C Conformity to type based on internal production control 1. Conformity to type based on internal production control is the part of a conformity assessment procedure whereby the manufacturer fulfils the obligations laid down

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in points 2 and 3, and ensures and declares that the radio equipment concerned is in conformity with the type described in the EU-type examination certificate and satisfies the requirements of this Directive that apply to it. 2. Manufacturing The manufacturer shall take all measures necessary so that the manufacturing process and its monitoring ensure conformity of the manufactured radio equipment with the approved type described in the EU-type examination certificate and with the requirements of this Directive that apply to it. 3. CE marking and EU declaration of conformity 3.1. The manufacturer shall affix the CE marking in accordance with Articles 19 and 20 to each item of radio equipment that is in conformity with the type described in the EU-type examination certificate and satisfies the applicable requirements of this Directive. 3.2. The manufacturer shall draw up a written EU declaration of conformity for each radio equipment type and keep it at the disposal of the national authorities for 10 years after the radio equipment has been placed on the market. The EU declaration of conformity shall identify the radio equipment type for which it has been drawn up. A  copy of the EU declaration of conformity shall be made available to the relevant authorities upon request. 4. Authorised representative The manufacturer’s obligations set out in point 3 may be fulfilled by his authorised representative, on his behalf and under his responsibility, provided that they are specified in the mandate. ANNEX IV CONFORMITY ASSESSMENT MODULE H CONFORMITY BASED ON FULL QUALITY ASSURANCE 1. Conformity based on full quality assurance is the conformity assessment procedure whereby the manufacturer fulfils the obligations laid down in points 2 and 5, and ensures and declares on his sole responsibility that the radio equipment concerned satisfies the requirements of this Directive that apply to it. 2. Manufacturing The manufacturer shall operate an approved quality system for design, manufacture, final radio equipment inspection and testing of the radio equipment concerned as specified in point 3 and shall be subject to surveillance as specified in point 4. 3. Quality system 3.1. The manufacturer shall lodge an application for assessment of his quality system with the notified body of his choice, for the radio equipment concerned. The application shall include: (a) the name and address of the manufacturer and, if the application is lodged by the authorised representative, his name and address as well; (b) the technical documentation for each radio equipment type intended to be manufactured. The technical documentation shall contain, wherever applicable, the elements set out in Annex V; (c) the documentation concerning the quality system; and (d) a written declaration that the same application has not been lodged with any other notified body.



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3.2. The quality system shall ensure compliance of the radio equipment with the requirements of this Directive that apply to it. All the elements, requirements and provisions adopted by the manufacturer shall be documented in a systematic and orderly manner in the form of written policies, procedures and instructions. That quality system documentation shall permit a consistent interpretation of the quality programmes, plans, manuals and records. It shall, in particular, contain an adequate description of: (a) the quality objectives and the organisational structure, responsibilities and powers of the management with regard to design and product quality; (b) the technical design specifications, including standards, that will be applied and, where the relevant harmonised standards will not be applied in full, the means that will be used to ensure that the essential requirements of this Directive that apply to the radio equipment will be met; (c) the design control and design verification techniques, processes and systematic actions that will be used when designing radio equipment pertaining to the radio equipment type covered; (d) the corresponding manufacturing, quality control and quality assurance techniques, processes and systematic actions that will be used; (e) the examinations and tests that will be carried out before, during and after manufacture, and the frequency with which they will be carried out; (f)

the quality records, such as inspection reports and test data, calibration data, reports concerning the qualifications of the personnel, etc.;

(g)

the means of monitoring the achievement of the required design and product quality and the effective operation of the quality system.

3.3. The notified body shall assess the quality system to determine whether it satisfies the requirements referred to in point 3.2. It shall presume conformity with those requirements in respect of the elements of the quality system that comply with the corresponding specifications of the relevant harmonised standard. In addition to experience in quality management systems, the auditing team shall have at least one member experienced as an assessor in the relevant radio equipment field and radio equipment technology concerned, and knowledge of the applicable requirements of this Directive. The audit shall include an assessment visit to the manufacturer’s premises. The auditing team shall review the technical documentation referred to in point 3.1(b) to verify the manufacturer’s ability to identify the applicable requirements of this Directive and to carry out the necessary examinations with a view to ensuring compliance of the radio equipment with those requirements. The manufacturer or his authorised representative shall be notified of the decision. The notification shall contain the conclusions of the audit and the reasoned assessment decision. 3.4. The manufacturer shall undertake to fulfil the obligations arising out of the quality system as approved and to maintain it so that it remains adequate and efficient. 3.5. The manufacturer shall keep the notified body that has approved the quality system informed of any intended change to the quality system.

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The notified body shall evaluate any proposed changes and decide whether the modified quality system will continue to satisfy the requirements referred to in point 3.2 or whether a reassessment is necessary. It shall notify the manufacturer of its decision. The notification shall contain the conclusions of the examination and the reasoned assessment decision. 4. Surveillance under the responsibility of the notified body 4.1. The purpose of surveillance is to make sure that the manufacturer duly fulfils the obligations arising out of the approved quality system. 4.2. The manufacturer shall, for assessment purposes, allow the notified body access to the design, manufacture, inspection, testing and storage sites, and shall provide it with all necessary information, in particular: (a)

the quality system documentation;

(b) the quality records as provided for by the design part of the quality system, such as results of analyses, calculations, tests, etc.; (c)

the quality records as provided for by the manufacturing part of the quality system, such as inspection reports and test data, calibration data, reports concerning the qualifications of the personnel, etc.

4.3. The notified body shall carry out periodic audits to make sure that the manufacturer maintains and applies the quality system and shall provide the manufacturer with an audit report. 4.4. In addition, the notified body may pay unexpected visits to the manufacturer. During such visits, the notified body may, if necessary, carry out radio equipment tests, or have them carried out, in order to check the proper functioning of the quality system. It shall provide the manufacturer with a visit report and, if tests have been carried out, with a test report. 5. CE marking and EU declaration of conformity 5.1. The manufacturer shall affix the CE marking in accordance with Articles 19 and 20 and, under the responsibility of the notified body referred to in point 3.1, the latter’s identification number to each item of radio equipment that satisfies the applicable requirements set out in Article 3. 5.2. The manufacturer shall draw up a written EU declaration of conformity for each radio equipment type and keep it at the disposal of the national authorities for 10 years after the radio equipment has been placed on the market. The EU declaration of conformity shall identify the radio equipment type for which it has been drawn up. A  copy of the EU declaration of conformity shall be made available to the relevant authorities upon request. 6. The manufacturer shall, for a period ending 10 years after the radio equipment has been placed on the market, keep at the disposal of the national authorities: (a)

the technical documentation referred to in point 3.1;

(b) the documentation concerning the quality system referred to in point 3.1; (c)

the change referred to in point 3.5, as approved;

(d) the decisions and reports of the notified body referred to in points 3.5, 4.3 and 4.4. 7. Each notified body shall inform its notifying authority of quality system approvals issued or withdrawn, and shall, periodically or upon request, make available to its



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notifying authority the list of quality system approvals refused, suspended or otherwise restricted. Each notified body shall inform the other notified bodies of quality system approvals which it has refused, suspended or withdrawn, and, upon request, of quality system approvals which it has issued. 8. Authorised representative The manufacturer’s obligations set out in points 3.1, 3.5, 5 and 6 may be fulfilled by his authorised representative, on his behalf and under his responsibility, provided that they are specified in the mandate. ANNEX V CONTENTS OF TECHNICAL DOCUMENTATION The technical documentation shall, wherever applicable, contain at least the following elements: (a)

a general description of the radio equipment including: (i)

photographs or illustrations showing external features, marking and internal layout;

(ii) versions of software or firmware affecting compliance with essential requirements; (iii) user information and installation instructions; (b) conceptual design and manufacturing drawings and schemes of components, subassemblies, circuits and other relevant similar elements; (c) descriptions and explanations necessary for the understanding of those drawings and schemes and the operation of the radio equipment; (d)

a list of the harmonised standards applied in full or in part the references of which have been published in the Official Journal of the European Union, and, where those harmonised standards have not been applied, descriptions of the solutions adopted to meet the essential requirements set out in Article  3, including a list of other relevant technical specifications applied. In the event of partly applied harmonised standards, the technical documentation shall specify the parts which have been applied;

(e)

copy of the EU declaration of conformity;

(f)

where the conformity assessment module in Annex III has been applied, copy of the EU-type examination certificate and its annexes as delivered by the notified body involved;

(g) results of design calculations made, examinations carried out, and other relevant similar elements; (h) test reports; (i)

an explanation of the compliance with the requirement of Article 10(2) and of the inclusion or not of information on the packaging in accordance with Article 10(10). ANNEX VI EU DECLARATION OF CONFORMITY (No XXX) (174)

1.

Radio equipment (product, type, batch or serial number):

It is optional for the manufacturer to assign a number to the EU declaration of conformity.

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2.

Name and address of the manufacturer or his authorised representative:

3.

This declaration of conformity is issued under the sole responsibility of the manufacturer.

4. Object of the declaration (identification of the radio equipment allowing traceability; it may include a colour image of sufficient clarity where necessary for the identification of the radio equipment): 5.

The object of the declaration described above is in conformity with the relevant Union harmonisation legislation: Directive 2014/53/EU Other Union harmonisation legislation where applicable

6.

References to the relevant harmonised standards used or references to the other technical specifications in relation to which conformity is declared. References must be listed with their identification number and version and, where applicable, date of issue:

7.

Where applicable, the notified body … (name, number) … performed … (description of intervention) … and issued the EU-type examination certificate: …

8.

Where applicable, description of accessories and components, including software, which allow the radio equipment to operate as intended and covered by the EU declaration of conformity:

9.

Additional information: Signed for and on behalf of: … (place and date of issue): (name, function) (signature):

ANNEX VII SIMPLIFIED EU DECLARATION OF CONFORMITY The simplified EU declaration of conformity referred to in Article 10(9) shall be provided as follows: Hereby, [Name of manufacturer] declares that the radio equipment type [designation of type of radio equipment] is in compliance with Directive 2014/53/EU. The full text of the EU declaration of conformity is available at the following internet address: ANNEX VIII CORRELATION TABLE Directive 1999/5/EC Article 1 Article 2 Article 3(1) and (2) Article 3(3) and Article 15a Article 4(1) and Articles 13 to 15 Article 4(2)

This Directive Article 1 Article 2 Article 3(1) and (2) Article 3(3), with the exception of Article 3(3)(i), and Article 44 Articles 8 and 45 —



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Article 5(1) Article 5(2) and (3) Article 6(1) Article 6(2) Article 6(3) Article 6(4) Article 7(1) and (2) Article 7(3), (4) and (5) Article 8(1) and (2) Article 8(3) Article 9 Article 10 Article 11 Article 12 Article 16 Article 17 Article 18 Article 19 Article 20 Article 21 Article 22 Annex I Annex II Annex III Annex IV Annex V Annex VI Annex VII(1) to (4) Annex VII(5)

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Article 16 — Article 6 — Article 10(8), (9) and (10) — Article 7 — Article 9 — Articles 39 to 43 Article 17 Articles 22 to 38 Articles 19 and 20 and Article 10(6) and (7) — Article 47 Article 48 Article 49 Article 50 Article 51 Article 52 Annex I Annex II — Annex III Annex IV Article 26 Articles 19 and 20 Article 10(10)

STATEMENT OF THE EUROPEAN PARLIAMENT The European Parliament considers that only when and insofar as implementing acts in the sense of Regulation (EU) No 182/2011 are discussed in meetings of committees, can the latter be considered as ‘comitology committees’ within the meaning of Annex I to the Framework Agreement on the relations between the European Parliament and the European Commission. Meetings of committees thus fall within the scope of point 15 of the Framework Agreement when and insofar as other issues are discussed.

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DIRECTIVE 2014/61/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 15 May 2014 on measures to reduce the cost of deploying high-speed electronic communications networks[175] (Text with EEA relevance) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, Having regard to the opinion of the European Economic and Social Committee (176), Having regard to the opinion of the Committee of the Regions (177), Acting in accordance with the ordinary legislative procedure (178), Whereas: (1) The digital economy is changing the internal market profoundly. With its innovation, speed and reach across borders it has the potential to take internal market integration to a new level. The Union’s vision is that of a digital economy that delivers sustainable economic and social benefits based on modern online services and fast internet connections. A  high quality digital infrastructure underpins virtually all sectors of a modern and innovative economy and is of strategic importance to social and territorial cohesion. Therefore, all citizens as well as the private and public sectors must have the opportunity to be part of the digital economy. (2) Acknowledging the importance of high-speed broadband roll-out, Member States have endorsed the ambitious broadband targets set out in the Communication from the Commission entitled ‘The Digital Agenda for Europe — Driving European growth digitally’ (‘the Digital Agenda’), namely to bring basic broadband to all Europeans by 2013, and to ensure that, by 2020, all Europeans have access to much higher internet speeds of above 30 Mbps and 50 % or more of Union households subscribe to internet connections above 100 Mbps. (3) Given the rapid evolution of technologies, the exponential growth in broadband traffic and the increasing demand for e-services, the targets laid down in the Digital Agenda should be considered to be an absolute minimum and the Union should aim for more ambitious broadband targets in order to achieve more growth, competitiveness and productivity. In the context of the review of this Directive, the Commission should assess whether and how this Directive could further contribute to that aim. (4) The Digital Agenda has also identified the need for policies to lower the costs of broadband deployment in the entire territory of the Union, including proper planning and coordination and the reduction of administrative burdens. In that respect, significant upfront investments need to be made by Member States in order to enable the sharing of physical infrastructure. Having regard to the Digital Agenda targets, while at the same time acknowledging the significant reduction of

OJ L 155, 23.5.2014, p. 1. OJ C 327, 12.11.2013, p. 102. 177 OJ C 280, 27.9.2013, p. 50. 178 Position of the European Parliament of 15 April 2014 (not yet published in the Official Journal) and decision of the Council of 8 May 2014. 175 176



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financial resources dedicated to broadband under the Connecting Europe Facility established by Regulation (EU) No 1316/2013 of the European Parliament and of the Council (179), Member States should be able, for the purposes of attaining the objectives of this Directive, to use Union funding available in accordance with applicable Union provisions. (5) Reducing the costs of deploying high-speed electronic communications networks would also contribute to achieving the digitisation of the public sector, allowing a digital leverage effect on all sectors of the economy, in addition to the reduction in costs for public administrations and increased efficiency of services provided to citizens. (6)

Taking into account the need for action at Union level to provide better broadband coverage, including by reducing the cost of high-speed broadband infrastructure as reflected by the Conclusions of the European Council of 13/14 December 2012, the Communication from the Commission entitled ‘Single Market Act II’ stresses the need for additional efforts in order to achieve quickly the objectives laid down in the Digital Agenda by, inter alia, addressing the high-speed network investment challenge.

(7)

The roll-out of high-speed fixed and wireless electronic communications networks across the Union requires substantial investments, a significant proportion of which is represented by the cost of civil engineering works. Limiting some of the cost-intensive civil engineering works would make broadband roll-out more effective.

(8) A  major part of those costs can be attributed to inefficiencies in the roll-out process related to the use of existing passive infrastructure (such as ducts, conduits, manholes, cabinets, poles, masts, antenna installations, towers and other supporting constructions), bottlenecks related to coordination of civil works, burdensome administrative permit granting procedures, and bottlenecks concerning in-building deployment of networks, which lead to high financial barriers, in particular in rural areas. (9) Measures aiming at increasing efficiency in the use of existing infrastructures and at reducing costs and obstacles in carrying out new civil engineering works should provide a substantial contribution to ensuring a fast and extensive deployment of high-speed electronic communications networks while maintaining effective competition, without adversely affecting the safety, security and smooth operation of the existing public infrastructure. (10) Some Member States have adopted measures intended to reduce the costs of broadband roll-out. However those measures remain scarce and scattered. Scaling up those measures across the Union could significantly contribute to the establishment of a digital single market. Moreover differences in regulatory requirements sometimes prevent cooperation across utilities and may raise barriers to entry for new network operators and new business opportunities, hindering the development of an internal market for use and deployment of physical infrastructures for high-speed electronic communications networks. Finally, the initiatives at Member State level do not always seem to be holistic, whereas it is

Regulation (EU) No  1316/2013 of the European Parliament and of the Council of 11  December 2013 establishing the Connecting Europe Facility, amending Regulation (EU) No  913/2010 and repealing Regulations (EC) No 680/2007 and (EC) No 67/2010 (OJ L 348, 20.12.2013, p. 129).

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essential to take action across the whole roll-out process, and across sectors, in order to achieve a coherent and significant impact. (11) This Directive aims at laying down some minimum rights and obligations applicable across the Union in order to facilitate the roll-out of high-speed electronic communications networks and cross-sector coordination. While ensuring a minimum level playing field, this should be without prejudice to existing best practices and measures adopted at national and local level entailing more detailed provisions and conditions as well as additional measures complementing those rights and obligations, in accordance with the subsidiarity principle. (12) In the light of the lex specialis principle, when more specific regulatory measures in conformity with Union law apply, those should prevail over the minimum rights and obligations provided for in this Directive. Therefore this Directive should be without prejudice to the Union regulatory framework for electronic communications set out in Directive 2002/21/EC of the European Parliament and of the Council (180) as well as Directive 2002/19/EC of the European Parliament and of the Council (181), Directive 2002/20/EC of the European Parliament and of the Council (182), Directive 2002/22/EC of the European Parliament and of the Council (183) and Commission Directive 2002/77/EC (184), including national measures adopted pursuant to that regulatory framework, such as specific symmetric or asymmetric regulatory measures. (13) It can be significantly more efficient for electronic communications network operators, in particular new entrants, to re-use existing physical infrastructures, including those of other utilities, in order to roll out electronic communications networks, in particular in areas where no suitable electronic communications network is available or where it may not be economically feasible to build up a new physical infrastructure. Moreover, synergies across sectors may significantly reduce the need for civil works due to the deployment of electronic communications networks and therefore also the social and environmental costs linked to them, such as pollution, nuisances and traffic congestion. Therefore this Directive should apply not only to public communications network providers but to any owner or holder of rights to use, in the latter case without prejudice to any third party’s property rights, extensive and ubiquitous physical infrastructures suitable to host electronic communications network elements, such as physical networks for the provision of electricity, gas, water and sewage and drainage systems, heating and transport services. (14) With a view to improving the deployment of high-speed electronic communications networks in the internal market, this Directive should lay down rights for public 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) (OJ L 108, 24.4.2002, p. 33). 181 Directive 2002/19/EC of the European Parliament and of the Council of 7  March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) (OJ L 108, 24.4.2002, p. 7). 182 Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (OJ L 108, 24.4.2002, p. 21). 183 Directive 2002/22/EC of the European Parliament and of the Council of 7  March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ L 108, 24.4.2002, p. 51). 184 Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services (OJ L 249, 17.9.2002, p. 21). 180



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communications network providers to access physical infrastructure irrespective of its location under fair and reasonable terms consistent with the normal exercise of property rights. The obligation to give access to the physical infrastructure should be without prejudice to the rights of the owner of the land or of the building in which the infrastructure is located. (15) In view of their low degree of differentiation, the physical facilities of a network can often host a wide range of electronic communications network elements at the same time, including those capable of delivering broadband access services at speeds of at least 30 Mbps in line with the technological neutrality principle, without affecting the main service conveyed and with minimum adaptation costs. Therefore, a physical infrastructure that is intended to only host other elements of a network without becoming itself an active network element, such as in the case of dark fibre, can in principle be used to accommodate electronic communications cables, equipment or any other element of electronic communications networks, regardless of its actual use or its ownership, in the absence of any security concerns or prejudice to the future business interests of the owner of the infrastructure. The physical infrastructure of public communications networks can in principle also be used to accommodate elements of other networks, and therefore Member States may choose to apply the principle of reciprocity in appropriate cases, and allow public communications network operators to offer access to their networks for the deployment of other networks. Without prejudice to the pursuit of the specific general interest linked to the provision of the main service, synergies across network operators should be encouraged in order to contribute to achieving the targets of the Digital Agenda at the same time. (16) While this Directive should be without prejudice to any specific safeguard needed to ensure safety and public health, the security and integrity of the networks, in particular that of critical infrastructure, and to ensure that the main service provided by the network operator is not affected, in particular in networks used for the provision of water intended for human consumption, general rules in national legislation prohibiting network operators from negotiating access to physical infrastructures by electronic communications network providers could prevent the establishment of a market for access to physical infrastructures. Such general rules should therefore be abolished. At the same time, the measures set out in this Directive should be without prejudice to the possibility for Member States to render the provision of infrastructure access by utilities operators more attractive by excluding revenues stemming from that service from the basis for the calculation of end-user tariffs for their main activity or activities, in accordance with applicable Union law. (17) A  network operator may refuse access to specific physical infrastructures for objective reasons. In particular, a physical infrastructure may not be technically suitable due to specific circumstances concerning infrastructures for which access has been requested, such as lack of currently available space or due to future needs for space which are sufficiently demonstrated, for instance by publicly available investment plans. Similarly, in specific circumstances, sharing the infrastructure may jeopardise safety or public health, network integrity and security, including that of critical infrastructure, or may endanger the provision of services that are primarily provided over the same infrastructure. Moreover, when the network operator already provides wholesale physical network infrastructure access that would meet the needs of the access seeker, access to the underlying physical infrastructure may have an adverse economic impact on its business model and incentives to invest while possibly entailing an inefficient duplication of

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network elements. At the same time in the case of physical infrastructure access obligations imposed pursuant to the Union regulatory framework for electronic communications, such as those on undertakings having significant market power, this would be already covered by specific regulatory obligations that should not be affected by this Directive. (18) Where undertakings providing or authorised to provide public communications networks request access in a specified area, network operators should make an offer for the shared use of their facilities under fair and reasonable terms and conditions, including price, unless access is refused for objective reasons. Depending on the circumstances, several elements could influence the conditions under which such access is granted, such as: any additional maintenance and adaptation costs; any preventive safeguards to be adopted to limit adverse impacts on network safety, security and integrity; any specific liability arrangements in the event of damages; the use of any public subsidy granted for the construction of the infrastructure, including specific terms and conditions attached to the subsidy or provided under national law in compliance with Union law; the ability to deliver or provide infrastructure capacity to meet public service obligations; any constraints stemming from national provisions aiming at protecting the environment, public health, public security or to meet town and country planning objectives. (19) In the event of a disagreement during the commercial negotiation on technical and commercial terms and conditions, each party should be able to call on a dispute settlement body at national level to impose a solution on the parties, in order to avoid unjustified refusals to deal or the imposition of unreasonable conditions. When determining prices for granting access, the dispute settlement body should ensure that the access provider has a fair opportunity to recover its costs incurred in providing access to its physical infrastructure, taking into account specific national conditions and any tariff structures put in place to provide a fair opportunity for cost recovery taking into account any previous imposition of remedies by a national regulatory authority. In so doing, the dispute settlement body should also take into account the impact of the requested access on the business plan of the access provider, including the investments made by the access provider to whom the access is requested, in particular investments made in the physical infrastructure to which the access is requested. In the specific case of access to physical infrastructures of public communications network providers, the investments made in such infrastructure may directly contribute to the objectives of the Digital Agenda and downstream competition may be influenced by free-riding. Hence, any access obligation should fully take into account the economic viability of those investments based on their risk profile, any time schedule for the return on investment, any impact of access on downstream competition and consequently on prices and return on investment, any depreciation of the network assets at the time of the access request, any business case underpinning the investment, in particular in the physical infrastructures used for the provision of high-speed electronic communications services, and any possibility previously offered to the access seeker to co-deploy. (20) In order to effectively plan the deployment of high-speed electronic communications networks and to ensure the most effective use of existing infrastructures suitable for rolling out electronic communications networks, undertakings providing or authorised to provide public communications networks should be able to have access to minimum information concerning physical infrastructures available in the area of deployment. Such minimum information should make it possible to assess the potential for using existing infrastructure in a specific area, as well as



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to reduce damage to any existing physical infrastructures. In view of the number of stakeholders involved, and in order to facilitate access to that information, also across sectors and borders, such minimum information should be made available via a single information point. That single information point should allow access to minimum information already available in electronic format subject to limitations to ensure network security and integrity, in particular that of critical infrastructure, or to safeguard legitimate operating and business secrets. (21) Without imposing any new mapping obligation on Member States, this Directive should provide that minimum information already collected by public sector bodies and available in electronic format pursuant to national initiatives as well as Union law, such as Directive 2007/2/EC of the European Parliament and of the Council (185), should be made available, for example by means of a hyperlink, to the single information point. That would allow coordinated access to information on physical infrastructures for public communications network providers while at the same time ensuring the security and integrity of any such information, in particular as concerns national critical infrastructure. The making available of such information should be without prejudice to the transparency requirements already applicable to the re-use of public sector information pursuant to Directive 2003/98/EC of the European Parliament and of the Council (186). Where information available to the public sector does not ensure adequate knowledge of the existing physical infrastructures in a specific area or of a certain type, network operators should make the information available to undertakings providing or authorised to provide public communications networks. (22) Where minimum information is not available via the single information point, the possibility of undertakings providing or authorised to provide public communications networks to directly request such specific information from any network operator in the area concerned should nevertheless be ensured. In addition, if the request is reasonable, in particular if needed in view of the possibility to share existing physical infrastructures or to coordinate civil works, undertakings providing or authorised to provide public communications networks should be granted the possibility to make on-site surveys and to request information concerning planned civil works under transparent, proportionate and non-discriminatory conditions and without prejudice to the safeguards adopted to ensure network security and integrity as well as the protection of confidentiality, and operating and business secrets. Advanced transparency of planned civil works by network operators themselves, or via single information points should be incentivised, in particular for areas of greatest utility, by redirecting authorised operators to such information whenever available. (23) Where disputes concerning access to the information on the physical infrastructures with a view to deploying high-speed electronic communications networks arise, the dispute settlement body should be able to resolve such disputes by means of a binding decision. In any case, decisions of such body should be without prejudice to the possibility of any party to refer the case to a court. (24) The coordination of civil works concerning physical infrastructures may ensure significant savings and minimise inconvenience to the area affected by Directive 2007/2/EC of the European Parliament and of the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in the European Community (INSPIRE) (OJ L 108, 25.4.2007, p. 1). 186 Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information (OJ L 345, 31.12.2003, p. 90). 185

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the deployment of new electronic communications networks. For that reason, regulatory constraints preventing as a general rule the negotiation among network operators with a view to coordinating such works in order to deploy also highspeed electronic communications networks should be prohibited. In the case of civil works not financed by public means, this Directive should be without prejudice for the stakeholders to conclude civil works coordination agreements according to their own investment and business plans and their preferred timing. (25) Civil works fully or partially financed by public means should aim to maximise the positive collective outcome, by exploiting the positive externalities of those works across sectors and ensuring equal opportunities to share the available and planned physical infrastructure in view of deploying electronic communications networks. While the main purpose of the civil works financed by public means should not be adversely affected, timely and reasonable requests to coordinate deployment of elements of high-speed electronic communications networks, ensuring for example the coverage of any additional costs, including those caused by delays, and the minimisation of changes to the original plans, should be met by the network operator carrying out directly or indirectly, for example through a sub-contractor, the civil works concerned under proportionate, non-discriminatory and transparent terms. Without prejudice to applicable State aid rules, Member States should be able to provide rules on apportioning the costs associated with the coordinated deployment. Specific settlement procedures should be available to ensure the rapid resolution of disputes concerning the negotiation of those coordination agreements under proportionate, fair and non-discriminatory terms. Such provisions should be without prejudice to the right of the Member States to reserve capacity for electronic communications networks even in the absence of specific requests, with a view to meeting future demand for physical infrastructures to maximise the value of civil works, or to adopt measures entailing similar rights to coordinate civil works for operators of other types of networks, such as gas or electricity. (26) A  number of different permits concerning the deployment of electronic communications networks or new network elements may be necessary, including building, town planning, environmental and other permits, in order to protect national and Union general interests. The number of permits required for the deployment of different types of electronic communications networks and the local character of the deployment may entail the application of a variety of procedures and conditions. While preserving the right of each competent authority to be involved and maintain its decision making prerogatives in accordance with the subsidiarity principle, all relevant information on the procedures and general conditions applicable to civil works should be available via the single information point. This could reduce complexity and increase efficiency and transparency, in particular for new entrants or smaller operators not active in that area. Moreover, Member States should be able to provide for the right of undertakings providing or authorised to provide public communications networks to submit their permit request via a single contact point. (27) To ensure that permit granting procedures do not act as barriers to investment, and that they do not have an adverse effect on the internal market, Member States should ensure that a decision on whether or not to grant permit requests concerning the deployment of electronic communications networks or new network elements should in any case be made available at the latest within four months, without prejudice to other specific deadlines or obligations laid down for the proper conduct of the procedure which are applicable to the permit granting procedure



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in accordance with national or Union law. Such decision may be tacit or explicit according to the applicable legal provisions. Where appropriate, Member States should provide for the right for providers that suffer damage due to the delay of a competent authority to grant permits within the applicable deadlines to receive compensation. (28) In order to ensure that such permits granting procedures are completed within reasonable deadlines, Member States could consider establishing several safeguards, such as tacit approval, or take measures to simplify granting procedures by, inter alia, reducing the number of permits needed to deploy electronic communications networks or by exempting certain categories of small or standardised civil works from permit granting. Authorities, at national, regional or local level, should justify any refusal to grant such permits within their competence, on the basis of objective, transparent, non-discriminatory and proportionate criteria and conditions. That should be without prejudice to any measure adopted by the Member States exempting certain elements of electronic communications networks, whether passive or active, from permit granting. (29) The achievement of the Digital Agenda targets requires that the infrastructure roll-out be brought close to the end-user’s location, while fully respecting the principle of proportionality as regards any limitation on to the right to property in view of the general interest pursued. The existence of high-speed electronic communications networks up to the end-user should be facilitated while ensuring at the same time technological neutrality, in particular by high-speed-ready inbuilding physical infrastructure. Given that providing for mini-ducts during the construction of a building has only a limited incremental cost while retrofitting buildings with high-speed infrastructure may represent a significant part of the cost of high-speed network deployment, all new buildings or buildings subject to major renovation should be equipped with physical infrastructure, allowing the connection of end-users with high-speed networks. In order to roll out highspeed electronic communications networks, new multi-dwelling buildings and multi-dwelling buildings subject to major renovation should be equipped with an access point, by which the provider may access the in-building infrastructure. Moreover, building developers should foresee that empty ducts are provided from every dwelling to the access point, located in or outside the multi-dwelling building. There may be cases such as new single dwellings or categories of major renovation works in isolated areas where the prospect of high-speed connection is considered, on objective grounds, too remote to justify equipping a building with high-speed-ready in-building physical infrastructure or an access point or where so equipping the building would be disproportionate for other economic, urban heritage conservation or environmental reasons, such as for specific categories of monuments. (30) In order to help prospective buyers and tenants identify buildings that are equipped with high-speed-ready in-building physical infrastructure and that therefore have considerable cost-saving potential, and in order to promote the high-speed readiness of buildings, Member States should be able to develop a voluntary ‘broadband-ready’ label for buildings equipped with such infrastructure and an access point in accordance with this Directive. (31) When public communications network providers deploy high-speed electronic communications networks in a specific area, there are significant economies of scale if they can terminate their network to the building access point, irrespective of whether a subscriber has expressed explicit interest for the service at that

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moment in time, but provided that the impact on private property is minimised, by using existing physical infrastructure and restoring the affected area. Once the network is terminated at the access point, the connection of an additional customer is possible at a significantly lower cost, in particular by means of access to a high-speed-ready vertical segment inside the building, where it already exists. That objective is equally fulfilled when the building itself is already equipped with a high-speed electronic communications network to which access is provided to any public communications network provider who has an active subscriber in the building on transparent, proportionate and non-discriminatory terms and conditions. That may in particular be the case in Member States which have taken measures on the basis of Article 12 of Directive 2002/21/EC. (32) New buildings should be equipped with high-speed-ready in-building infrastructure and, in the case of multi-dwelling buildings, with an access point. Member States should have a degree of flexibility to achieve this aim. In that respect, this Directive does not seek to harmonise rules on related costs, including on the recovery of costs of equipping buildings with high-speed-ready in-building physical infrastructure and an access point. (33) In view of the social benefits stemming from digital inclusion and taking into account the economics of deployment of high-speed electronic communications networks, where there is neither existing passive or active high-speed-ready infrastructure serving end-users’ premises nor alternatives to providing high-speed electronic communications networks to a subscriber, any public communications network provider should have the right to terminate its network to a private premise at its own costs, provided that the impact on private property is minimised, for example, if possible, by reusing the existing physical infrastructure available in the building or ensuring full restoration of the affected areas. (34) In line with the principle of subsidiarity, this Directive should be without prejudice to the possibility of Member States to allocate the regulatory tasks provided for to the authorities best suited to fulfil them in accordance with the domestic constitutional system of attribution of competences and powers and with the requirements set forth in this Directive. (35) The designated national dispute settlement body should ensure impartiality and independence vis-à-vis the parties involved and should have the appropriate competences and resources. (36) Appropriate, effective, proportionate and dissuasive penalties should be provided for by Member States in the event of lack of compliance with the national measures adopted pursuant to this Directive. (37) In order to ensure the effectiveness of the single information points provided for by this Directive, Member States should ensure adequate resources as well as the availability of relevant information concerning a specific area at the single information points at an optimal level of aggregation where valuable efficiencies may be ensured in view of the tasks assigned, including at the local cadastre. In that regard, Member States could consider the possible synergies and economies of scope with the Points of Single Contact within the meaning of Article  6 of Directive 2006/123/EC of the European Parliament and of the Council187, with a view to building on existing structures and maximising the benefits for end-users. Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ L 376, 27.12.2006, p. 36).

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(38) Since the objectives of this Directive aiming at facilitating the deployment of physical infrastructures suitable for high-speed electronic communications networks across the Union cannot be sufficiently achieved by the Member States but can rather, by reason of the scale or effects of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives. (39) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union and in particular the right to privacy and the protection of business secrets, the freedom to conduct business, the right to property and the right to an effective remedy. This Directive has to be applied by the Member States in accordance with those rights and principles, HAVE ADOPTED THIS DIRECTIVE:

1.

2.

3.

4.

Article 1 Subject matter and scope This Directive aims to facilitate and incentivise the roll-out of high-speed electronic communications networks by promoting the joint use of existing physical infrastructure and by enabling a more efficient deployment of new physical infrastructure so that such networks can be rolled out at lower cost. This Directive establishes minimum requirements relating to civil works and physical infrastructure, with a view to approximating certain aspects of the laws, regulations and administrative provisions of the Member States in those areas. Member States may maintain or introduce measures in conformity with Union law which go beyond the minimum requirements established by this Directive with a view to better achieving the aim referred to in paragraph 1. If any provision of this Directive conflicts with a provision of Directive 2002/21/ EC, Directive 2002/19/EC, Directive 2002/20/EC, Directive 2002/22/EC or Directive 2002/77/EC, the relevant provision of those Directives shall prevail.

Article 2 Definitions For the purposes of this Directive, the definitions set out in Directive 2002/21/EC apply. The following definitions also apply: (1) ‘network operator’ means an undertaking providing or authorised to provide public communications networks as well as an undertaking providing a physical infrastructure intended to provide: (a) a service of production, transport or distribution of: (i) gas; (ii) electricity, including public lighting; (iii) heating; (iv) water, including disposal or treatment of waste water and sewage, and drainage systems; (b) transport services, including railways, roads, ports and airports; (2) ‘physical infrastructure’ means any element of a network which is intended to host other elements of a network without becoming itself an active element of the

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network, such as pipes, masts, ducts, inspection chambers, manholes, cabinets, buildings or entries to buildings, antenna installations, towers and poles; cables, including dark fibre, as well as elements of networks used for the provision of water intended for human consumption, as defined in point 1 of Article  2 of Council Directive 98/83/EC (188) are not physical infrastructure within the meaning of this Directive; (3) ‘high-speed electronic communications network’ means an electronic communication network which is capable of delivering broadband access services at speeds of at least 30 Mbps; (4)

‘civil works’ means every outcome of building or civil engineering works taken as a whole which is sufficient of itself to fulfil an economic or technical function and entails one or more elements of a physical infrastructure;

(5)

‘public sector body’ means a state, regional or local authority, a body governed by public law or an association formed by one or several such authorities or one or several such bodies governed by public law;

(6) ‘bodies governed by public law’ means bodies that have all of the following characteristics: (a)

they are established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character;

(b) they have legal personality; and (c) they are financed, in full or for the most part, by the State, or regional or local authorities, or by other bodies governed by public law; or are subject to management supervision by those authorities or bodies; or have an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities or by other bodies governed by public law; (7) ‘in-building physical infrastructure’ means physical infrastructure or installations at the end-user’s location, including elements under joint ownership, intended to host wired and/or wireless access networks, where such access networks are capable of delivering electronic communications services and connecting the building access point with the network termination point; (8) ‘high-speed-ready in-building physical infrastructure’ means in-building physical infrastructure intended to host elements or enable delivery of high-speed electronic communications networks; (9) ‘major renovation works’ means building or civil engineering works at the end user’s location encompassing structural modifications of the entire in-building physical infrastructure or a significant part thereof, and requiring a building permit; (10) ‘permit’ means an explicit or implicit decision of a competent authority following any procedure under which an undertaking is required to take steps in order to legally carry out building or civil engineering works; (11) ‘access point’ means a physical point, located inside or outside the building, accessible to undertakings providing or authorised to provide public Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption (OJ L 330, 5.12.1998, p. 32).

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communications networks, where connection to the high-speed-ready in-building physical infrastructure is made available. Article 3 Access to existing physical infrastructure 1.

Member States shall ensure that every network operator has the right to offer to undertakings providing or authorised to provide electronic communications networks access to its physical infrastructure with a view to deploying elements of high-speed electronic communications networks. Reciprocally, Member States may provide for the right of public communications network operators to offer access to their physical infrastructure for the purpose of deploying networks other than electronic communications networks.

2.

Member States shall ensure that, upon written request of an undertaking providing or authorised to provide public communications networks, any network operator has the obligation to meet all reasonable requests for access to its physical infrastructure under fair and reasonable terms and conditions, including price, with a view to deploying elements of high-speed electronic communications networks. Such written request shall specify the elements of the project for which the access is requested, including a specific time frame.

3.

Member States shall require that every refusal of access be based on objective, transparent, and proportionate criteria, such as: (a) the technical suitability of the physical infrastructure to which access has been requested to host any of the elements of high-speed electronic communications networks referred to in paragraph 2; (b) availability of space to host the elements of high-speed electronic communications networks referred to in paragraph 2, including the network operator’s future needs for space that are sufficiently demonstrated; (c)

safety and public health concerns;

(d) integrity and security of any network, in particular of critical national infrastructure; (e) the risk of serious interferences of the planned electronic communications services with the provision of other services over the same physical infrastructure; (f)

the availability of viable alternative means of wholesale physical network infrastructure access provided by the network operator and suitable for the provision of high-speed electronic communications networks, provided that such access is offered under fair and reasonable terms and conditions.

Member States shall ensure that the network operator states the reasons for the refusal within two months from the date of the receipt of the complete request for access. 4.

Where access is refused or agreement on specific terms and conditions, including price, has not been reached within two months from the date of receipt of the request for access, Member States shall ensure that either party is entitled to refer the issue to the competent national dispute settlement body.

5.

Member States shall require the national dispute settlement body referred to in paragraph  4 to issue, taking full account of the principle of proportionality, a binding decision to resolve the dispute initiated pursuant to paragraph 4, including

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the setting of fair and reasonable terms and conditions, including price where appropriate. The national dispute settlement body shall resolve the dispute, within the shortest possible time frame and in any case within four months from the date of the receipt of the complete request except in exceptional circumstances, without prejudice to the possibility of any party to refer the case to a court. Where the dispute relates to access to the infrastructure of an electronic communications network provider and the national dispute settlement body is the national regulatory authority, it shall, where appropriate, take into account the objectives set out in Article 8 of Directive 2002/21/EC. Any price set by the dispute settlement body shall ensure that the access provider has a fair opportunity to recover its costs and shall take into account the impact of the requested access on the business plan of the access provider, including the investments made by the network operator to whom access is requested, in particular in the physical infrastructures used for the provision of high-speed electronic communications services. 6.

This Article shall be without prejudice to the right to property of the owner of the physical infrastructure in cases where the network operator is not the owner, and to the right to property of any other third parties, such as landowners and private property owners. Article 4 Transparency concerning physical infrastructure

1.

Member States shall ensure that, in order to request access to physical infrastructure in accordance with Article  3(2), every undertaking providing or authorised to provide public communications networks has the right to access, upon request, the following minimum information concerning the existing physical infrastructure of any network operator: (a)

location, and route;

(b) type and current use of the infrastructure; and (c)

a contact point.

Member States shall ensure that the undertaking requesting access specifies the area in which it envisages deploying elements of high-speed electronic communications networks. Member States may allow access to the minimum information to be limited only if necessary in view of the security of the networks and their integrity, national security, public health or safety, confidentiality or operating and business secrets. 2.

Member States may require every public sector body holding, in electronic format, by reason of its tasks elements of the minimum information referred to in paragraph  1 concerning the physical infrastructure of a network operator to make it available via the single information point by electronic means before 1  January 2017, and Member States shall require such public sector bodies to make it available, upon request, to undertakings providing or authorised to provide public communications networks, without prejudice to limitations pursuant to paragraph 1. Any update to that information and any new element of minimum information referred to in paragraph 1 received by the public sector body shall be made available to the single information point within two months from the date of its receipt. That period may be extended by a maximum of one month, where this is required to guarantee the reliability of the information provided.



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3.

Minimum information made available to a single information point pursuant to paragraph  2 shall be accessible promptly, via the single information point, in electronic format and under proportionate, non-discriminatory and transparent terms. Member States shall ensure that access to the minimum information pursuant to this paragraph is made available via the single information point by 1 January 2017.

4.

Where the minimum information referred to in paragraph 1 is not available via the single information point, Member States shall require network operators to provide access to such information upon the specific written request by an undertaking providing or authorised to provide public communications networks. Such request shall specify the area envisaged for the deployment of elements of high-speed electronic communications networks. Access to information shall be granted within two months from the date of receipt of the written request under proportionate, non-discriminatory and transparent terms, without prejudice to the limitations pursuant to paragraph 1.

5.

Upon the specific written request of an undertaking providing or authorised to provide public communications networks, Member States shall require network operators to meet reasonable requests for on-site surveys of specific elements of their physical infrastructure. Such request shall specify the elements of the network concerned with a view to deploying elements of high-speed electronic communications networks. On-site surveys of the specified network elements shall be granted under proportionate, non-discriminatory and transparent terms within one month from the date of receipt of the written request, without prejudice to the limitations pursuant to paragraph 1.

6.

Member States shall ensure that, in the event of a dispute arising in connection with the rights and obligations provided for in this Article, either party is entitled to refer the dispute to a national dispute settlement body. The national dispute settlement body shall, taking full account of the principle of proportionality, issue a binding decision to resolve the dispute within the shortest possible time frame and in any case within two months, except in exceptional circumstances, without prejudice to the possibility of any party to refer the case to a court.

7.

Member States may provide for exemptions from the obligations provided for in paragraphs 1 to 5 in the case of existing physical infrastructures considered not technically suitable for the deployment of high-speed electronic communications networks or in case of critical national infrastructure. Such exemptions shall be duly reasoned. The interested parties shall be given the opportunity to comment on the draft exemptions within a reasonable period. Any such exemption shall be notified to the Commission.

8.

Member States shall ensure that the undertakings providing or authorised to provide public communications networks that obtain access to information pursuant to this Article take appropriate measures to ensure respect for confidentiality, and operating and business secrets. Article 5 Coordination of civil works

1.

Member States shall ensure that every network operator has the right to negotiate agreements concerning the coordination of civil works with undertakings providing or authorised to provide electronic communications networks with a view to deploying elements of high-speed electronic communications networks.

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Member States shall ensure that every network operator performing directly or indirectly civil works, either fully or partially financed by public means, meets any reasonable request to coordinate civil works on transparent and nondiscriminatory terms, made by undertakings providing or authorised to provide public communications networks with a view to deploying elements of high-speed electronic communications networks. Such request shall be met provided that: (a) this will not entail any additional costs, including because of additional delays, for the initially envisaged civil works; (b) this will not impede control over the coordination of the works; and (c) the request to coordinate is filed as soon as possible and in any case at least one month before the submission of the final project to the competent authorities for permit granting. Member States may provide rules on apportioning the costs associated with the coordination of civil works.

3.

Where an agreement on the coordination of civil works pursuant to paragraph 2 is not achieved within one month from the date of receipt of the formal request to negotiate, Member States shall ensure that any party is entitled to refer the issue to the competent national dispute settlement body.

4.

Member States shall ensure that the national dispute settlement body referred to in paragraph 3 issues, taking full account of the principle of proportionality, a decision to resolve the dispute initiated pursuant to paragraph 3, including the determination of fair and non-discriminatory terms, conditions and charges where appropriate. The national dispute settlement body shall resolve the dispute within the shortest possible time frame, and in any case within two months from the date of the receipt of the complete request, except in exceptional circumstances, without prejudice to the possibility for any party to refer the case to a court.

5.

Member States may provide for exemptions from the obligations provided for in this Article for civil works of insignificant importance, such as in terms of value, size or duration, or in the case of critical national infrastructure. Such exemptions shall be duly reasoned. The interested parties shall be given the opportunity to comment on the draft exemptions within a reasonable period. Any such exemption shall be notified to the Commission. Article 6 Transparency concerning planned civil works

1.

In order to negotiate agreements on coordination of civil works referred to in Article  5, Member States shall require any network operator to make available upon the specific written request of an undertaking providing or authorised to provide public communications networks the following minimum information concerning on-going or planned civil works related to its physical infrastructure for which a permit has been granted, a permit granting procedure is pending or first submission to the competent authorities for permit granting is envisaged in the following six months: (a)

the location and the type of works;

(b) the network elements involved; (c)

the estimated date for starting the works and their duration; and

(d) a contact point.



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The request of an undertaking providing or authorised to provide public communications networks shall specify the area in which it envisages deploying elements of high-speed electronic communications networks. Within two weeks from the date of the receipt of the written request, network operators shall provide the requested information under proportionate, non-discriminatory and transparent terms. Member States may allow access to the minimum information to be limited only when considered necessary in view of the security of the networks and their integrity, national security, public health or safety, confidentiality or operating and business secrets. 2.

The network operator may refuse the request pursuant to paragraph 1 if: (a) it has made the requested information publicly available in electronic format; or (b) access to such information is ensured via the single information point.

3.

Member States shall ensure that the network operator makes the requested minimum information referred to in paragraph 1 available via the single information point.

4.

Member States shall ensure that, in the event of a dispute arising in connection with the rights and obligations provided for in this Article, either party is entitled to refer it to a national dispute settlement body. The national dispute settlement body shall, taking full account of the principle of proportionality, issue a binding decision to resolve the dispute within the shortest possible time frame and in any case within two months, except in exceptional circumstances, without prejudice to the possibility of any party to refer the case to a court.

5.

Member States may provide for exemptions from the obligations provided for in this Article for civil works of insignificant value or in the case of critical national infrastructure. Such exemptions shall be duly reasoned. The interested parties shall be given the opportunity to comment on the draft exemptions within a reasonable period. Any such exemption shall be notified to the Commission. Article 7 Permit-granting procedure

1.

Member States shall ensure that all relevant information concerning the conditions and procedures applicable for granting permits for civil works needed with a view to deploying elements of high-speed electronic communications networks, including any information concerning exemptions applicable to such elements as regards some or all permits required under national law, is available via the single information point.

2.

Member States may provide for the right of every undertaking providing or authorised to provide public communications networks to submit, by electronic means via the single information point, applications for permits required for civil works which are needed with a view to deploying elements of high-speed electronic communications networks.

3.

Member States shall take the necessary measures, in order to ensure that the competent authorities grant or refuse permits within four months from the date of the receipt of a complete permit request, without prejudice to other specific deadlines or obligations laid down for the proper conduct of the procedure which are applicable to the permit granting procedure in accordance with national or Union law or of appeal proceedings. Member States may provide that, exceptionally, in duly justified cases, that deadline may be extended. Any extension shall be

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the shortest possible in order to grant or refuse the permit. Any refusal shall be duly justified on the basis of objective, transparent, non-discriminatory and proportionate criteria. 4.

Member States may ensure that every undertaking providing or authorised to provide public communications networks which has suffered damage as a result of non-compliance with the deadlines applicable under paragraph 3 has the right to receive compensation for the damage suffered, in accordance with national law. Article 8 In-building physical infrastructure

1.

Member States shall ensure that all newly constructed buildings at the end-user’s location, including elements thereof under joint ownership, for which applications for building permits have been submitted after 31 December 2016, are equipped with a high-speed-ready in-building physical infrastructure, up to the network termination points. The same obligation applies in the event of major renovation works for which applications for building permits have been submitted after 31 December 2016.

2.

Member States shall ensure that all newly constructed multi-dwelling buildings, for which applications for building permits have been submitted after 31 December 2016, are equipped with an access point. The same obligation applies in the event of major renovation works concerning multi-dwelling buildings for which applications for building permits have been submitted after 31 December 2016.

3.

Buildings equipped in accordance with this Article shall be eligible to receive the voluntary ‘broadband-ready’ label in Member States that have chosen to introduce such a label.

4.

Member States may provide for exemptions from the obligations provided for in paragraph 1 and 2 for categories of buildings, in particular single dwellings, or major renovation works in cases in which the fulfilment of those obligations is disproportionate, such as in terms of costs for individual or joint owners or in terms of type of building, such as specific categories of monuments, historic buildings, holiday homes, military buildings or other buildings used for national security purposes. Such exemptions shall be duly reasoned. The interested parties shall be given the opportunity to comment on the draft exemptions within a reasonable period. Any such exemption shall be notified to the Commission. Article 9 Access to in-building physical infrastructure

1.

Member States shall ensure that, subject to the first subparagraph of paragraph 3, every public communications network provider has the right to roll out its network at its own costs, up to the access point.

2.

Member States shall ensure that, subject to the first subparagraph of paragraph 3, every public communications network provider has the right to access any existing in-building physical infrastructure with a view to deploying a high-speed electronic communications network if duplication is technically impossible or economically inefficient.

3.

Member States shall ensure that any holder of a right to use the access point and the in-building physical infrastructure meets all reasonable requests for access from public communications network providers under fair and non-discriminatory terms and conditions, including price, where appropriate.



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Where agreement on access referred to in paragraph  1 or 2 is not achieved within two months from the date of receipt of the formal request for access, Member States shall ensure that each party has the right to refer the issue to the competent national dispute settlement body in order to assess compliance with the requirements provided for in those paragraphs. The national dispute settlement body shall, taking full account of the principle of proportionality, issue a binding decision to resolve the dispute within the shortest possible time frame and in any case within two months, except in exceptional circumstances, without prejudice to the possibility of any party to refer the case to a court. 4.

Member States may grant exemptions from paragraphs 1 to 3 for buildings where access to an existing network that terminates at the end-user’s location and that is suitable for the provision of high-speed electronic communications services is ensured on objective, transparent, proportionate and non-discriminatory terms and conditions.

5.

In the absence of available high-speed-ready in-building infrastructure, Member States shall ensure that every public communications network provider has the right to terminate its network at the premises of the subscriber, subject to the agreement of the subscriber, provided that it minimises the impact on the private property of third parties.

6.

This Article shall be without prejudice to the right to property of the owner of the access point or the in-building physical infrastructure in cases where the holder of a right to use that infrastructure or access point is not the owner thereof, and to the right to property of other third parties, such as landowners and building owners. Member States may lay down rules on adequate financial compensation of persons suffering damage as a result of the exercise of the rights provided for in this Article. Article 10 Competent bodies

1.

Member States shall ensure that each of the tasks assigned to the national dispute settlement body is undertaken by one or more competent bodies.

2.

The national dispute settlement body appointed by a Member State pursuant to paragraph 1 shall be legally distinct and functionally independent of any network operator. Member States may allow the national dispute settlement body to charge fees to cover the costs of carrying out the tasks assigned to it.

3.

Member States shall require that all parties cooperate fully with the national dispute settlement body.

4.

Member States shall appoint one or more competent bodies at national, regional or local level to perform the functions of the single information point referred to in Articles 4, 6 and 7. In order to cover the costs of carrying out those functions, Member States may allow for fees to be charged for the use of the single information points.

5.

Member States shall notify to the Commission the identity of each competent body in accordance with this Article for carrying out a function under this Directive by 1 July 2016 and any modification thereof, before such designation or modification enters into force.

6.

Any decisions taken by any of the competent bodies referred to in this Article shall be subject to an appeal before a court in accordance with national law.

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Article 11 Penalties Member States shall lay down rules on penalties applicable to infringements of national measures adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. The penalties provided shall be appropriate, effective, proportionate and dissuasive. Article 12 Review The Commission shall present a report to the European Parliament and the Council by 1  July 2018 on the implementation of this Directive. The report shall include a summary of the impact of the measures provided by this Directive and an assessment of the progress towards achieving its objectives, including whether and how the Directive could further contribute to achieving more ambitious broadband targets than those set out in the Digital Agenda. Article 13 Transposition Member States shall adopt and publish the laws, regulations and administrative provisions necessary to comply with this Directive by 1 January 2016. They shall inform the Commission thereof. They shall apply those measures from 1 July 2016. When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States. Article 14 Entry into force This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. Article 15 Addressees This Directive is addressed to the Member States. Done at Brussels, 15 May 2014. For the European Parliament The President M. SCHULZ

For the Council The President D. KOURKOULAS



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DIRECTIVE (EU) 2015/1535 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (codification)[189] (Text with EEA relevance) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 114, 337 and 43 thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, Having regard to the opinions of the European Economic and Social Committee (190), Acting in accordance with the ordinary legislative procedure (191), Whereas: (1) Directive 98/34/EC of the European Parliament and of the Council (192) has been substantially amended several times (193). In the interests of clarity and rationality, that Directive should be codified. (2) The internal market comprises an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured. Therefore, the prohibition of quantitative restrictions on the movement of goods and of measures having an equivalent effect is one of the basic principles of the Union. (3) In order to promote the smooth functioning of the internal market, as much transparency as possible should be ensured as regards national initiatives for the establishment of technical regulations. (4) Barriers to trade resulting from technical regulations relating to products may be allowed only where they are necessary in order to meet essential requirements and have an objective in the public interest of which they constitute the main guarantee. (5)

It is essential for the Commission to have the necessary information at its disposal before the adoption of technical provisions. Consequently, the Member States, which are required to facilitate the achievement of its task pursuant to Article 4(3) of the Treaty on European Union (TEU), must notify it of their projects in the field of technical regulations.

(6)

All the Member States must also be informed of the technical regulations envisaged by any one Member State.

OJ L 241, 17.9.2015, p. 1. Opinion of 14  July 2010 (OJ  C  44, 11.2.2011, p. 142) and opinion of 26  February 2014 (OJ  C  214, 8.7.2014, p. 55). 191 Position of the European Parliament of 15 April 2014 (not yet published in the Official Journal) and decision of the Council of 13 July 2015. 192 Directive 98/34/EC of the European Parliament and of the Council of 22  June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services (OJ L 204, 21.7.1998, p. 37). The original title was ‘Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations’. It was amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 amending Directive 98/34/EC laying down a procedure for the provision of information in the field of technical standards and regulations (OJ L 217, 5.8.1998, p. 18). 193 See Annex III, Part A. 189 190

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The aim of the internal market is to create an environment that is conducive to the competitiveness of undertakings. Increased provision of information is one way of helping undertakings to make more of the advantages inherent in this market. It is therefore necessary to enable economic operators to give their assessment of the impact of the national technical regulations proposed by other Member States, by providing for the regular publication of the titles of notified drafts and by means of the provisions relating to the confidentiality of such drafts.

(8) It is appropriate, in the interests of legal certainty, that Member States publicly announce that a national technical regulation has been adopted in accordance with the formalities laid down in this Directive. (9) As far as technical regulations for products are concerned, the measures designed to ensure the proper functioning or the continued development of the market include greater transparency of national intentions and a broadening of the criteria and conditions for assessing the potential effect of the proposed regulations on the market. (10) It is therefore necessary to assess all the requirements laid down in respect of a product and to take account of developments in national practices for the regulation of products. (11) Requirements, other than technical specifications, referring to the life cycle of a product after it has been placed on the market are liable to affect the free movement of that product or to create obstacles to the proper functioning of the internal market. (12) It is necessary to clarify the concept of a de facto technical regulation. In particular, the provisions by which the public authority refers to technical specifications or other requirements, or encourages the observance thereof, and the provisions referring to products with which the public authority is associated, in the public interest, have the effect of conferring on such requirements or specifications a more binding value than they would otherwise have by virtue of their private origin. (13) The Commission and the Member States must also be allowed sufficient time in which to propose amendments to an envisaged measure, in order to remove or reduce any barriers which it might create to the free movement of goods. (14) The Member State concerned must take account of those amendments when formulating the definitive text of the measure envisaged. (15) It is inherent in the internal market that, in particular where the principle of mutual recognition cannot be implemented by the Member States, the Commission adopts or proposes the adoption of binding acts. A specific temporary standstill period has been established in order to prevent the introduction of national measures from compromising the adoption of binding acts by the European Parliament and the Council or by the Commission in the same field. (16) The Member State concerned is to, pursuant to the general obligations laid down in Article 4(3) TEU, defer implementation of the envisaged measure for a period sufficient to allow either a joint examination of the proposed amendments or the preparation of a proposal for a legislative act or the adoption of a binding act of the Commission. (17) With a view to facilitating the adoption of measures by the European Parliament and the Council, Member States should refrain from adopting technical regulations



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once the Council has adopted a position at first reading on a Commission proposal concerning that sector. (18) It is necessary to provide for a Standing Committee, the members of which are appointed by the Member States, with the task of cooperating in the efforts of the Commission to lessen any adverse effects on the free movement of goods. (19) This Directive should be without prejudice to the obligations of the Member States relating to the time limits for the transposition into national law of the Directives set out in Part B of Annex III, HAVE ADOPTED THIS DIRECTIVE: Article 1 1.

For the purposes of this Directive, the following definitions apply: (a)

‘product’ means any industrially manufactured product and any agricultural product, including fish products;

(b) ‘service’ means any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services. For the purposes of this definition: (i)

‘at a distance’ means that the service is provided without the parties being simultaneously present;

(ii)

‘by electronic means’ means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means;

(iii) ‘at the individual request of a recipient of services’ means that the service is provided through the transmission of data on individual request. An indicative list of services not covered by this definition is set out in Annex I; (c) ‘technical specification’ means a specification contained in a document which lays down the characteristics required of a product such as levels of quality, performance, safety or dimensions, including the requirements applicable to the product as regards the name under which the product is sold, terminology, symbols, testing and test methods, packaging, marking or labelling and conformity assessment procedures. The term ‘technical specification’ also covers production methods and processes used in respect of agricultural products, as referred to in the second subparagraph of Article 38(1) of the Treaty on the Functioning of the European Union (TFEU), products intended for human and animal consumption, and medicinal products as defined in Article 1 of Directive 2001/83/EC of the European Parliament and of the Council (194), as well as production methods and processes relating to other products, where these have an effect on their characteristics; (d) ‘other requirements’ means a requirement, other than a technical specification, imposed on a product for the purpose of protecting, in particular, consumers or the Directive 2001/83/EC of the European Parliament and of the Council of 6  November 2001 on the Community code relating to medicinal products for human use (OJ L 311, 28.11.2001, p. 67).

194

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environment, and which affects its life cycle after it has been placed on the market, such as conditions of use, recycling, reuse or disposal, where such conditions can significantly influence the composition or nature of the product or its marketing; (e)

‘rule on services’ means a requirement of a general nature relating to the takingup and pursuit of service activities within the meaning of point (b), in particular provisions concerning the service provider, the services and the recipient of services, excluding any rules which are not specifically aimed at the services defined in that point. For the purposes of this definition: (i)

a rule shall be considered to be specifically aimed at Information Society services where, having regard to its statement of reasons and its operative part, the specific aim and object of all or some of its individual provisions is to regulate such services in an explicit and targeted manner;

(ii) a rule shall not be considered to be specifically aimed at Information Society services if it affects such services only in an implicit or incidental manner; (f)

‘technical regulation’ means technical specifications and other requirements or rules on services, including the relevant administrative provisions, the observance of which is compulsory, de jure or de facto, in the case of marketing, provision of a service, establishment of a service operator or use in a Member State or a major part thereof, as well as laws, regulations or administrative provisions of Member States, except those provided for in Article  7, prohibiting the manufacture, importation, marketing or use of a product or prohibiting the provision or use of a service, or establishment as a service provider. De facto technical regulations shall include: (i)

laws, regulations or administrative provisions of a Member State which refer either to technical specifications or to other requirements or to rules on services, or to professional codes or codes of practice which in turn refer to technical specifications or to other requirements or to rules on services, compliance with which confers a presumption of conformity with the obligations imposed by the aforementioned laws, regulations or administrative provisions;

(ii) voluntary agreements to which a public authority is a contracting party and which provide, in the general interest, for compliance with technical specifications or other requirements or rules on services, excluding public procurement tender specifications; (iii) technical specifications or other requirements or rules on services which are linked to fiscal or financial measures affecting the consumption of products or services by encouraging compliance with such technical specifications or other requirements or rules on services; technical specifications or other requirements or rules on services linked to national social security systems are not included. This comprises technical regulations imposed by the authorities designated by the Member States and appearing on a list drawn up and updated, where appropriate, by the Commission, in the framework of the Committee referred to in Article 2. The same procedure shall be used for amending this list; (g) ‘draft technical regulation’ means the text of a technical specification or other requirement or of a rule on services, including administrative provisions,



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formulated with the aim of enacting it or of ultimately having it enacted as a technical regulation, the text being at a stage of preparation at which substantial amendments can still be made. 2.

This Directive shall not apply to: (a)

radio broadcasting services;

(b) television broadcasting services covered by point (e) of Article  1(1) of Directive 2010/13/EU of the European Parliament and of the Council (195). 3.

This Directive shall not apply to rules relating to matters which are covered by Union legislation in the field of telecommunications services, as covered by Directive 2002/21/EC of the European Parliament and of the Council (196).

4.

This Directive shall not apply to rules relating to matters which are covered by Union legislation in the field of financial services, as listed non-exhaustively in Annex II to this Directive.

5.

With the exception of Article 5(3), this Directive shall not apply to rules enacted by or for regulated markets within the meaning of Directive 2004/39/EC of the European Parliament and of the Council (197) or by or for other markets or bodies carrying out clearing or settlement functions for those markets.

6.

This Directive shall not apply to those measures Member States consider necessary under the Treaties for the protection of persons, in particular workers, when products are used, provided that such measures do not affect the products.

Article 2 A Standing Committee shall be set up consisting of representatives appointed by the Member States who may call on the assistance of experts or advisers; its chairman shall be a representative of the Commission. The Committee shall draw up its own rules of procedure. Article 3 1.

The Committee shall meet at least twice a year. The Committee shall meet in a specific composition to examine questions concerning Information Society services.

2.

The Commission shall submit to the Committee a report on the implementation and application of the procedures set out in this Directive, and shall present proposals aimed at eliminating existing or foreseeable barriers to trade.

3.

The Committee shall express its opinion on the communications and proposals referred to in paragraph 2 and may, in that regard, propose, in particular, that the Commission:

Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (OJ L 95, 15.4.2010, p. 1). 196 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) (OJ L 108, 24.4.2002, p. 33). 197 Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/ EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC (OJ L 145, 30.4.2004, p. 1). 195

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(a) ensure where necessary, in order to avoid the risk of barriers to trade, that initially the Member States concerned decide amongst themselves on appropriate measures; (b) take all appropriate measures; (c) identify the areas where harmonisation appears necessary, and, should the case arise, undertake appropriate harmonisation in a given sector. 4.

The Committee must be consulted by the Commission: (a) when deciding on the actual system through which the exchange of information provided for in this Directive is to be effected and on any change to it; (b) when reviewing the operation of the system provided for in this Directive.

5.

The Committee may be consulted by the Commission on any preliminary draft technical regulation received by the latter.

6.

Any question regarding the implementation of this Directive may be submitted to the Committee at the request of its chairman or of a Member State.

7.

The proceedings of the Committee and the information to be submitted to it shall be confidential. However, the Committee and the national authorities may, provided that the necessary precautions are taken, consult, for an expert opinion, natural or legal persons, including persons in the private sector.

8.

With respect to rules on services, the Commission and the Committee may consult natural or legal persons from industry or academia, and where possible representative bodies, capable of delivering an expert opinion on the social and societal aims and consequences of any draft rule on services, and take note of their advice whenever requested to do so.

Article 4 Member States shall communicate to the Commission, in accordance with Article 5(1), all requests made to standards institutions to draw up technical specifications or a standard for specific products for the purpose of enacting a technical regulation for such products in the form of draft technical regulations, and shall state the grounds for their enactment. Article 5 1.

Subject to Article  7, Member States shall immediately communicate to the Commission any draft technical regulation, except where it merely transposes the full text of an international or European standard, in which case information regarding the relevant standard shall suffice; they shall also let the Commission have a statement of the grounds which make the enactment of such a technical regulation necessary, where those grounds have not already been made clear in the draft. Where appropriate, and unless it has already been sent with a prior communication, Member States shall simultaneously communicate the text of the basic legislative or regulatory provisions principally and directly concerned to the Commission, should knowledge of such text be necessary to assess the implications of the draft technical regulation. Member States shall communicate the draft technical regulation again to the Commission under the conditions set out in the first and second subparagraphs



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of this paragraph if they make changes to the draft that have the effect of significantly altering its scope, shortening the timetable originally envisaged for implementation, adding specifications or requirements, or making the latter more restrictive. Where, in particular, the draft technical regulation seeks to limit the marketing or use of a chemical substance, preparation or product on grounds of public health or of the protection of consumers or the environment, Member States shall also forward either a summary or the references of all relevant data relating to the substance, preparation or product concerned and to known and available substitutes, where such information may be available, and communicate the anticipated effects of the measure on public health and the protection of the consumer and the environment, together with an analysis of the risk carried out as appropriate in accordance with the principles provided for in the relevant part of Section II.3 of Annex XV to Regulation (EC) No 1907/2006 of the European Parliament and of the Council (198). The Commission shall immediately notify the other Member States of the draft technical regulation and all documents which have been forwarded to it; it may also refer this draft, for an opinion, to the Committee referred to in Article 2 of this Directive and, where appropriate, to the committee responsible for the field in question. With respect to the technical specifications or other requirements or rules on services referred to in point (iii) of the second subparagraph of point (f) of Article 1(1) of this Directive, the comments or detailed opinions of the Commission or Member States may concern only aspects which may hinder trade or, in respect of rules on services, the free movement of services or the freedom of establishment of service operators and not the fiscal or financial aspects of the measure. 2.

The Commission and the Member States may make comments to the Member State which has forwarded a draft technical regulation; that Member State shall take such comments into account as far as possible in the subsequent preparation of the technical regulation.

3.

Member States shall communicate the definitive text of a technical regulation to the Commission without delay.

4.

Information supplied under this Article shall not be confidential except at the express request of the notifying Member State. Any such request shall be supported by reasons. In cases of that kind, if the necessary precautions are taken, the Committee referred to in Article 2 and the national authorities may seek expert advice from physical or legal persons in the private sector.

5.

When draft technical regulations form part of measures which are required to be communicated to the Commission at the draft stage under another Union act, Member States may make a communication within the meaning of paragraph  1 under that other act, provided that they formally indicate that the

Regulation (EC) No  1907/2006 of the European Parliament and of the Council of 18  December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ L 396, 30.12.2006, p. 1).

198

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said communication also constitutes a communication for the purposes of this Directive. The absence of a reaction from the Commission under this Directive to a draft technical regulation shall not prejudice any decision which might be taken under other Union acts. Article 6 1.

Member States shall postpone the adoption of a draft technical regulation for three months from the date of receipt by the Commission of the communication referred to in Article 5(1).

2.

Member States shall postpone: — for four months the adoption of a draft technical regulation in the form of a voluntary agreement within the meaning of point (ii) of the second subparagraph of point (f) of Article 1(1), —

without prejudice to paragraphs 3, 4 and 5 of this article, for six months the adoption of any other draft technical regulation except for draft rules on services, from the date of receipt by the Commission of the communication referred to in Article  5(1), if the Commission or another Member State delivers a detailed opinion, within three months of that date, to the effect that the measure envisaged may create obstacles to the free movement of goods within the internal market,

—

without prejudice to paragraphs 4 and 5, for four months the adoption of any draft rule on services, from the date of receipt by the Commission of the communication referred to in Article 5(1), if the Commission or another Member State delivers a detailed opinion, within three months of that date, to the effect that the measure envisaged may create obstacles to the free movement of services or to the freedom of establishment of service operators within the internal market.

With regard to draft rules on services, detailed opinions from the Commission or Member States may not affect any cultural policy measures, in particular in the audiovisual sphere, which Member States might adopt in accordance with the law of the Union, taking account of their linguistic diversity, their specific national and regional characteristics and their cultural heritage. The Member State concerned shall report to the Commission on the action it proposes to take on such detailed opinions. The Commission shall comment on this reaction. With respect to rules on services, the Member State concerned shall indicate, where appropriate, the reasons why the detailed opinions cannot be taken into account. 3.

With the exclusion of draft rules relating to services, Member States shall postpone the adoption of a draft technical regulation for 12 months from the date of receipt by the Commission of the communication referred to in Article 5(1) of this Directive, if, within three months of that date, the Commission announces its intention to propose or adopt a directive, regulation or decision on the matter in accordance with Article 288 TFEU.

4.

Member States shall postpone the adoption of a draft technical regulation for 12 months from the date of receipt by the Commission of the communication



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referred to in Article 5(1) of this Directive, if, within the three months following that date, the Commission announces its finding that the draft technical regulation concerns a matter which is covered by a proposal for a directive, regulation or decision presented to the European Parliament and the Council in accordance with Article 288 TFEU. 5.

If the Council adopts a position at first reading during the standstill period referred to in paragraphs 3 and 4, that period shall, subject to paragraph 6, be extended to 18 months.

6.

The obligations referred to in paragraphs 3, 4 and 5 shall lapse: (a) when the Commission informs the Member States that it no longer intends to propose or adopt a binding act; (b) when the Commission informs the Member States of the withdrawal of its draft or proposal; (c) when a binding act has been adopted by the European Parliament and the Council or by the Commission.

7.

Paragraphs 1 to 5 shall not apply in cases where: (a) for urgent reasons, occasioned by serious and unforeseeable circumstances relating to the protection of public health or safety, the protection of animals or the preservation of plants, and for rules on services, also for public policy, in particular the protection of minors, a Member State is obliged to prepare technical regulations in a very short space of time in order to enact and introduce them immediately without any consultations being possible; or (b) for urgent reasons occasioned by serious circumstances relating to the protection of the security and the integrity of the financial system, in particular the protection of depositors, investors and insured persons, a Member State is obliged to enact and implement rules on financial services immediately. In the communication referred to in Article 5, the Member State shall give reasons for the urgency of the measures taken. The Commission shall give its views on the communication as soon as possible. It shall take appropriate action in cases where improper use is made of this procedure. The European Parliament shall be kept informed by the Commission. Article 7

1.

Articles  5 and 6 shall not apply to those laws, regulations and administrative provisions of the Member States or voluntary agreements by means of which Member States: (a) comply with binding Union acts which result in the adoption of technical specifications or rules on services; (b) fulfil the obligations arising out of international agreements which result in the adoption of common technical specifications or rules on services in the Union; (c) make use of safeguard clauses provided for in binding Union acts; (d) apply Article  12(1) of Directive 2001/95/EC of the European Parliament and of the Council (199);

Directive 2001/95/EC of the European Parliament and of the Council of 3  December 2001 on general product safety (OJ L 11, 15.1.2002, p. 4).

199

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2.

3. 4.

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(e) restrict themselves to implementing a judgment of the Court of Justice of the European Union; (f) restrict themselves to amending a technical regulation within the meaning of point (f) of Article 1(1), in accordance with a Commission request, with a view to removing a barrier to trade or, in the case of rules on services, to the free movement of services or the freedom of establishment of service operators. Article 6 shall not apply to the laws, regulations and administrative provisions of the Member States prohibiting manufacture in so far as they do not impede the free movement of products. Paragraphs 3 to 6 of Article 6 shall not apply to the voluntary agreements referred to in point (ii) of the second subparagraph of point (f) of Article 1(1). Article 6 shall not apply to the technical specifications or other requirements or the rules on services referred to in point (iii) of the second subparagraph of point (f) of Article 1(1).

Article 8 The Commission shall report every two years to the European Parliament, the Council and the European Economic and Social Committee on the results of the application of this Directive. The Commission shall publish annual statistics on the notifications received in the Official Journal of the European Union. Article 9 When Member States adopt a technical regulation, it shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of its official publication. The methods of making such reference shall be laid down by Member States. Article 10 Directive 98/34/EC, as amended by the acts listed in Part A of Annex III to this Directive, is repealed, without prejudice to the obligations of the Member States relating to the time limits for the transposition into national law of the Directives set out in Part B of Annex III to the repealed Directive and in Part B of Annex III to this Directive. References to the repealed Directive shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex IV. Article 11 This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. Article 12 This Directive is addressed to the Member States. Done at Strasbourg, 9 September 2015. For the European Parliament The President M. SCHULZ

For the Council The President N. SCHMIT

ANNEX I Indicative list of services not covered by the second subparagraph of point (b) of Article 1(1) 1. Services not provided ‘at a distance’ Services provided in the physical presence of the provider and the recipient, even if they involve the use of electronic devices:



(a)

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medical examinations or treatment at a doctor’s surgery using electronic equipment where the patient is physically present;

(b) consultation of an electronic catalogue in a shop with the customer on site; (c)

plane ticket reservation at a travel agency in the physical presence of the customer by means of a network of computers;

(d)

electronic games made available in a video arcade where the customer is physically present. 2. Services not provided ‘by electronic means’

•

services having material content even though provided via electronic devices: (a)

automatic cash or ticket dispensing machines (banknotes, rail tickets);

(b) access to road networks, car parks, etc., charging for use, even if there are electronic devices at the entrance/exit controlling access and/or ensuring correct payment is made, •

offline services: distribution of CD-ROMs or software on diskettes,

•

services which are not provided via electronic processing/inventory systems: (a)

voice telephony services;

(b) telefax/telex services; (c)

services provided via voice telephony or fax;

(d) telephone/telefax consultation of a doctor; (e)

telephone/telefax consultation of a lawyer;

(f)

telephone/telefax direct marketing.

3. Services not supplied ‘at the individual request of a recipient of services’ Services provided by transmitting data without individual demand for simultaneous reception by an unlimited number of individual receivers (point to multipoint transmission): (a) television broadcasting services (including near-video on-demand services), covered by point (e) of Article 1(1) of Directive 2010/13/EU; (b) radio broadcasting services; (c)

(televised) teletext. ANNEX II Indicative list of the financial services covered by Article 1(4)

•

Investment services,

•

insurance and reinsurance operations,

•

banking services,

•

operations relating to pension funds,

• services relating to dealings in futures or options. Such services include in particular: (a)

investment services referred to in the Annex to Directive 2004/39/EC; services of collective investment undertakings;

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(b) services covered by the activities subject to mutual recognition referred to in Annex I to Directive 2013/36/EU of the European Parliament and of the Council (200); (c) operations covered by the insurance and reinsurance activities referred to in Directive 2009/138/EC of the European Parliament and of the Council (201). ANNEX III PART A Repealed Directive with list of the successive amendments thereto (referred to in Article 10) Directive 98/34/EC of the European Parliament and of the Council (OJ L 204, 21.7.1998, p. 37) Directive 98/48/EC of the European Parliament and of the Council (OJ L 217, 5.8.1998, p. 18) Part 1, Title H of Annex II to Act of Accession 2004 (OJ L 236, 23.9.2003, p. 68) Council Directive 2006/96/EC (OJ L 363, 20.12.2006, p. 81) Regulation (EU) No 1025/2012 of the European Parliament and of the Council (OJ L 316, 14.11.2012, p. 12)

Only as regards the reference, in point 2, to Directive 98/34/EC Only as regards the reference, in Article 1, to Directive 98/34/EC Only Article 26(2)

PART B Time-limits for transposition into national law (referred to in Article 10) Directive

Time-limit for transposition

98/34/EC 98/48/EC 2006/96/EC

— 5 August 1999 1 January 2007 ANNEX IV Correlation Table

Directive 98/34/EC Article 1, first paragraph, introductory wording Article 1, first paragraph, point (1)

This Directive Article 1(1), introductory wording Article 1(1), point (a)

Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ  L  176, 27.6.2013, p. 338). 201 Directive 2009/138/EC of the European Parliament and of the Council of 25  November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) (OJ L 335, 17.12.2009, p. 1). 200



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Article 1, first paragraph, point (2), first subparagraph Article 1, first paragraph, point (2), second subparagraph, first indent Article 1, first paragraph, point (2), second subparagraph, second indent Article 1, first paragraph, point (2), second subparagraph, third indent Article 1, first paragraph, point (2), third subparagraph Article 1, first paragraph, point (2), fourth subparagraph, introductory wording Article 1, first paragraph, point (2), fourth subparagraph, first indent Article 1, first paragraph, point (2), fourth subparagraph, second indent Article 1, first paragraph, point (3) Article 1, first paragraph, point (4) Article 1, first paragraph, point (5), first subparagraph Article 1, first paragraph, point (5), second subparagraph Article 1, first paragraph, point (5), third subparagraph Article 1, first paragraph, point (5), fourth subparagraph Article 1, first paragraph, point (5), fifth subparagraph, introductory sentence Article 1, first paragraph, point (5), fifth subparagraph, first indent Article 1, first paragraph, point (5), fifth subparagraph, second indent Article 1, first paragraph, point (11), first subparagraph Article 1, first paragraph, point (11), second subparagraph, introductory sentence Article 1, first paragraph, point (11) second subparagraph, first indent Article 1, first paragraph, point (11), second subparagraph, second indent Article 1, first paragraph, point (11), second subparagraph, third indent

953

Article 1(1), point (b), first subparagraph Article 1(1), point (b), second subparagraph, point (i) Article 1(1), point (b), second subparagraph, point (ii) Article 1(1), point (b), second subparagraph, point (iii) Article 1(1), point (b), third subparagraph Article 1(2), introductory wording

Article 1(2), point (a) Article 1(2), point (b) Article 1(1), point (c) Article 1(1), point (d) Article 1(1), point (e), first subparagraph Article 1(3) Article 1(4) Article 1(5) Article 1(1), point (e), second subparagraph, introductory sentence Article 1(1), point (e), second subparagraph, point (i) Article 1(1), point (e), second subparagraph, point (ii) Article 1(1), point (f), first subparagraph Article 1(1), point (f), second subparagraph, introductory sentence Article 1(1), point (f), second subparagraph, point (i) Article 1(1), point (f), second subparagraph, point (ii) Article 1(1), point (f), second subparagraph, point (iii)

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Article 1, first paragraph, point (11), third subparagraph Article 1, first paragraph, point (11), fourth subparagraph Article 1, first paragraph, point (12) Article 1, second paragraph Article 5 Article 6(1) and (2) Article 6(3), introductory wording Article 6(3), second indent Article 6(3), third indent Article 6(3), fourth indent Article 6(4), introductory wording Article 6(4), point (c) Article 6(4), point (d) Article 6(5) to (8) Article 7 Article 8 Article 9(1) to (5) Article 9(6), introductory wording Article 9(6), first indent Article 9(6), second indent Article 9(6), third indent Article 9(7), first subparagraph, introductory wording Article 9(7), first subparagraph, first indent Article 9(7), first subparagraph, second indent Article 9(7), second subparagraph Article 10(1), introductory wording Article 10(1), first indent Article 10(1), second indent Article 10(1), third indent Article 10(1), fourth indent Article 10(1), fifth indent Article 10(1), sixth indent Article 10(2), (3) and (4) Article 11, first sentence

Article 1(1), point (f), third subparagraph Article 1(1), point (f), fourth subparagraph Article 1(1), point (g) Article 1(6) Article 2 Article 3(1) and (2) Article 3(3), introductory wording Article 3(3), point (a) Article 3(3), point (b) Article 3(3), point (c) Article 3(4), introductory wording Article 3(4), point (a) Article 3(4), point (b) Article 3(5) to (8) Article 4 Article 5 Article 6(1) to (5) Article 6(6), introductory wording Article 6(6), point (a) Article 6(6), point (b) Article 6(6), point (c) Article 6(7), first subparagraph, introductory wording Article 6(7), first subparagraph, point (a) Article 6(7), first subparagraph, point (b) Article 6(7), second subparagraph Article 7(1), introductory wording Article 7(1), point (a) Article 7(1), point (b) Article 7(1), point (c) Article 7(1), point (d) Article 7(1), point (e) Article 7(1), point (f) Article 7(2), (3) and (4) Article 8, first paragraph



Related Directives

Article 11, second sentence Article 12 Article 13 — Article 14 Article 15 Annex III Annex IV Annex V Annex VI — —

Article 8, second paragraph Article 9 — Article 10 Article 11 Article 12 — — Annex I Annex II Annex III Annex IV

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DIRECTIVE (EU) 2016/1148 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 6 July 2016 concerning measures for a high common level of security of network and information systems across the Union[202] THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, Having regard to the opinion of the European Economic and Social Committee (203), Acting in accordance with the ordinary legislative procedure (204), Whereas: (1) Network and information systems and services play a vital role in society. Their reliability and security are essential to economic and societal activities, and in particular to the functioning of the internal market. (2) The magnitude, frequency and impact of security incidents are increasing, and represent a major threat to the functioning of network and information systems. Those systems may also become a target for deliberate harmful actions intended to damage or interrupt the operation of the systems. Such incidents can impede the pursuit of economic activities, generate substantial financial losses, undermine user confidence and cause major damage to the economy of the Union. (3) Network and information systems, and primarily the internet, play an essential role in facilitating the cross-border movement of goods, services and people. Owing to that transnational nature, substantial disruptions of those systems, whether intentional or unintentional and regardless of where they occur, can affect individual Member States and the Union as a whole. The security of network and information systems is therefore essential for the smooth functioning of the internal market. (4) Building upon the significant progress within the European Forum of Member States in fostering discussions and exchanges on good policy practices, including the development of principles for European cyber-crisis cooperation, a Cooperation Group, composed of representatives of Member States, the Commission, and the European Union Agency for Network and Information Security (‘ENISA’), should be established to support and facilitate strategic cooperation between the Member States regarding the security of network and information systems. For that group to be effective and inclusive, it is essential that all Member States have minimum capabilities and a strategy ensuring a high level of security of network and information systems in their territory. In addition, security and notification requirements should apply to operators of essential services and to digital service providers to promote a culture of risk management and ensure that the most serious incidents are reported.

OJ L 194, 19.7.2016, p. 1. OJ C 271, 19.9.2013, p. 133. 204 Position of the European Parliament of 13  March 2014 (not yet published in the Official Journal) and position of the Council at first reading of 17 May 2016 (not yet published in the Official Journal). Position of the European Parliament of 6 July 2016 (not yet published in the Official Journal). 202 203



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(5) The existing capabilities are not sufficient to ensure a high level of security of network and information systems within the Union. Member States have very different levels of preparedness, which has led to fragmented approaches across the Union. This results in an unequal level of protection of consumers and businesses, and undermines the overall level of security of network and information systems within the Union. Lack of common requirements on operators of essential services and digital service providers in turn makes it impossible to set up a global and effective mechanism for cooperation at Union level. Universities and research centres have a decisive role to play in spurring research, development and innovation in those areas. (6)

Responding effectively to the challenges of the security of network and information systems therefore requires a global approach at Union level covering common minimum capacity building and planning requirements, exchange of information, cooperation and common security requirements for operators of essential services and digital service providers. However, operators of essential services and digital service providers are not precluded from implementing security measures that are stricter than those provided for under this Directive.

(7) To cover all relevant incidents and risks, this Directive should apply to both operators of essential services and digital service providers. However, the obligations on operators of essential services and digital service providers should not apply to undertakings providing public communication networks or publicly available electronic communication services within the meaning of Directive 2002/21/EC of the European Parliament and of the Council (205), which are subject to the specific security and integrity requirements laid down in that Directive, nor should they apply to trust service providers within the meaning of Regulation (EU) No 910/2014 of the European Parliament and of the Council (206), which are subject to the security requirements laid down in that Regulation. (8)

This Directive should be without prejudice to the possibility for each Member State to take the necessary measures to ensure the protection of the essential interests of its security, to safeguard public policy and public security, and to allow for the investigation, detection and prosecution of criminal offences. In accordance with Article 346 of the Treaty on the Functioning of the European Union (TFEU), no Member State is to be obliged to supply information the disclosure of which it considers to be contrary to the essential interests of its security. In this context, Council Decision 2013/488/EU (207) and non-disclosure agreements, or informal non-disclosure agreements such as the Traffic Light Protocol, are of relevance.

(9) Certain sectors of the economy are already regulated or may be regulated in the future by sector-specific Union legal acts that include rules related to the security of network and information systems. Whenever those Union legal acts contain provisions imposing requirements concerning the security of network and information systems or notifications of incidents, those provisions should apply if they contain requirements which are at least equivalent in effect to the 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) (OJ L 108, 24.4.2002, p. 33). 206 Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC (OJ L 257, 28.8.2014, p. 73). 207 Council Decision 2013/488/EU of 23 September 2013 on the security rules for protecting EU classified information (OJ L 274, 15.10.2013, p. 1). 205

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obligations contained in this Directive. Member States should then apply the provisions of such sector-specific Union legal acts, including those relating to jurisdiction, and should not carry out the identification process for operators of essential services as defined by this Directive. In this context, Member States should provide information to the Commission on the application of such lex specialis provisions. In determining whether the requirements on the security of network and information systems and the notification of incidents contained in sector-specific Union legal acts are equivalent to those contained in this Directive, regard should only be had to the provisions of relevant Union legal acts and their application in the Member States. (10) In the water transport sector, security requirements for companies, ships, port facilities, ports and vessel traffic services under Union legal acts cover all operations, including radio and telecommunication systems, computer systems and networks. Part of the mandatory procedures to be followed includes the reporting of all incidents and should therefore be considered as lex specialis, in so far as those requirements are at least equivalent to the corresponding provisions of this Directive. (11) When identifying operators in the water transport sector, Member States should take into account existing and future international codes and guidelines developed in particular by the International Maritime Organisation, with a view to providing individual maritime operators with a coherent approach. (12) Regulation and supervision in the sectors of banking and financial market infrastructures is highly harmonised at Union level, through the use of primary and secondary Union law and standards developed together with the European supervisory authorities. Within the banking union, the application and the supervision of those requirements are ensured by the single supervisory mechanism. For Member States that are not part of the banking union, this is ensured by the relevant banking regulators of Member States. In other areas of financial sector regulation, the European System of Financial Supervision also ensures a high degree of commonality and convergence in supervisory practices. The European Securities Markets Authority also plays a direct supervision role for certain entities, namely credit-rating agencies and trade repositories. (13) Operational risk is a crucial part of prudential regulation and supervision in the sectors of banking and financial market infrastructures. It covers all operations including the security, integrity and resilience of network and information systems. The requirements in respect of those systems, which often exceed the requirements provided for under this Directive, are set out in a number of Union legal acts, including: rules on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, and rules on prudential requirements for credit institutions and investment firms, which include requirements concerning operational risk; rules on markets in financial instruments, which include requirements concerning risk assessment for investment firms and for regulated markets; rules on OTC derivatives, central counterparties and trade repositories, which include requirements concerning operational risk for central counterparties and trade repositories; and rules on improving securities settlement in the Union and on central securities depositories, which include requirements concerning operational risk. Furthermore, requirements for notification of incidents are part of normal supervisory practice in the financial sector and are often included in supervisory manuals. Member States should consider those rules and requirements in their application of lex specialis.



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(14) As noted by the European Central Bank in its opinion of 25  July 2014 (208), this Directive does not affect the regime under Union law for the Eurosystem’s oversight of payment and settlement systems. It would be appropriate for the authorities responsible for such oversight to exchange experiences on matters concerning security of network and information systems with the competent authorities under this Directive. The same consideration applies to non-euro area members of the European System of Central Banks exercising such oversight of payment and settlement systems on the basis of national laws and regulations. (15) An online marketplace allows consumers and traders to conclude online sales or service contracts with traders, and is the final destination for the conclusion of those contracts. It should not cover online services that serve only as an intermediary to third-party services through which a contract can ultimately be concluded. It should therefore not cover online services that compare the price of particular products or services from different traders, and then redirect the user to the preferred trader to purchase the product. Computing services provided by the online marketplace may include processing of transactions, aggregations of data or profiling of users. Application stores, which operate as online stores enabling the digital distribution of applications or software programmes from third parties, are to be understood as being a type of online marketplace. (16) An online search engine allows the user to perform searches of, in principle, all websites on the basis of a query on any subject. It may alternatively be focused on websites in a particular language. The definition of an online search engine provided in this Directive should not cover search functions that are limited to the content of a specific website, irrespective of whether the search function is provided by an external search engine. Neither should it cover online services that compare the price of particular products or services from different traders, and then redirect the user to the preferred trader to purchase the product. (17) Cloud computing services span a wide range of activities that can be delivered according to different models. For the purposes of this Directive, the term ‘cloud computing services’ covers services that allow access to a scalable and elastic pool of shareable computing resources. Those computing resources include resources such as networks, servers or other infrastructure, storage, applications and services. The term ‘scalable’ refers to computing resources that are flexibly allocated by the cloud service provider, irrespective of the geographical location of the resources, in order to handle fluctuations in demand. The term ‘elastic pool’ is used to describe those computing resources that are provisioned and released according to demand in order to rapidly increase and decrease resources available depending on workload. The term ‘shareable’ is used to describe those computing resources that are provided to multiple users who share a common access to the service, but where the processing is carried out separately for each user, although the service is provided from the same electronic equipment. (18) The function of an internet exchange point (IXP) is to interconnect networks. An IXP does not provide network access or act as a transit provider or carrier. Nor does an IXP provide other services unrelated to interconnection, although this does not preclude an IXP operator from providing unrelated services. An IXP exists to interconnect networks that are technically and organisationally separate. The term ‘autonomous system’ is used to describe a technically stand-alone network.

OJ C 352, 7.10.2014, p. 4.

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(19) Member States should be responsible for determining which entities meet the criteria of the definition of operator of essential services. In order to ensure a consistent approach, the definition of operator of essential services should be coherently applied by all Member States. To that end, this Directive provides for the assessment of the entities active in specific sectors and subsectors, the establishment of a list of essential services, the consideration of a common list of cross-sectoral factors to determine whether a potential incident would have a significant disruptive effect, a consultation process involving relevant Member States in the case of entities providing services in more than one Member State, and the support of the Cooperation Group in the identification process. In order to ensure that possible changes in the market are accurately reflected, the list of identified operators should be reviewed regularly by Member States and updated when necessary. Finally, Member States should submit to the Commission the information necessary to assess the extent to which this common methodology has allowed a consistent application of the definition by Member States. (20) In the process of identification of operators of essential services, Member States should assess, at least for each subsector referred to in this Directive, which services have to be considered as essential for the maintenance of critical societal and economic activities, and whether the entities listed in the sectors and subsectors referred to in this Directive and providing those services meet the criteria for the identification of operators. When assessing whether an entity provides a service which is essential for the maintenance of critical societal or economic activities, it is sufficient to examine whether that entity provides a service that is included in the list of essential services. Furthermore, it should be demonstrated that provision of the essential service is dependent on network and information systems. Finally, when assessing whether an incident would have a significant disruptive effect on the provision of the service, Member States should take into account a number of cross-sectoral factors, as well as, where appropriate, sector-specific factors. (21) For the purposes of identifying operators of essential services, establishment in a Member State implies the effective and real exercise of activity through stable arrangements. The legal form of such arrangements, whether through a branch or a subsidiary possessing legal personality, is not the determining factor in this respect. (22) It is possible that entities operating in the sectors and subsectors referred to in this Directive provide both essential and non-essential services. For example, in the air transport sector, airports provide services which might be considered by a Member State to be essential, such as the management of the runways, but also a number of services which might be considered as non-essential, such as the provision of shopping areas. Operators of essential services should be subject to the specific security requirements only with respect to those services which are deemed to be essential. For the purpose of identifying operators, Member States should therefore establish a list of the services which are considered as essential. (23) The list of services should contain all services provided in the territory of a given Member State that fulfil the requirements under this Directive. Member States should be able to supplement the existing list by including new services. The list of services should serve as a reference point for Member States, allowing for identification of operators of essential services. Its purpose is to identify the types of essential services in any given sector referred to in this Directive, thus distinguishing them from non-essential activities for which an entity active in any given sector might be responsible. The list of services established by each Member



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State would serve as further input in the assessment of the regulatory practice of each Member State with a view to ensuring the overall level of consistency of the identification process amongst Member States. (24) For the purposes of the identification process, where an entity provides an essential service in two or more Member States, those Member States should engage in bilateral or multilateral discussions with each other. This consultation process is intended to help them to assess the critical nature of the operator in terms of crossborder impact, thereby allowing each Member State involved to present its views regarding the risks associated with the services provided. The Member States concerned should take into account each other’s views in this process, and should be able to request the assistance of the Cooperation Group in this regard. (25) As a result of the identification process, Member States should adopt national measures to determine which entities are subject to obligations regarding the security of network and information systems. This result could be achieved by adopting a list enumerating all operators of essential services or by adopting national measures including objective quantifiable criteria, such as the output of the operator or the number of users, which make it possible to determine which entities are subject to obligations regarding the security of network and information systems. The national measures, whether already existing or adopted in the context of this Directive, should include all legal measures, administrative measures and policies allowing for the identification of operators of essential services under this Directive. (26) In order to give an indication of the importance, in relation to the sector concerned, of the identified operators of essential services, Member States should take into account the number and the size of those operators, for example in terms of market share or of the quantity produced or carried, without being obliged to divulge information which would reveal which operators have been identified. (27) In order to determine whether an incident would have a significant disruptive effect on the provision of an essential service, Member States should take into account a number of different factors, such as the number of users relying on that service for private or professional purposes. The use of that service can be direct, indirect or by intermediation. When assessing the impact that an incident could have, in terms of its degree and duration, on economic and societal activities or public safety, Member States should also assess the time likely to elapse before the discontinuity would start to have a negative impact. (28) In addition to the cross-sectoral factors, sector-specific factors should also be considered in order to determine whether an incident would have a significant disruptive effect on the provision of an essential service. With regard to energy suppliers, such factors could include the volume or proportion of national power generated; for oil suppliers, the volume per day; for air transport, including airports and air carriers, rail transport and maritime ports, the proportion of national traffic volume and the number of passengers or cargo operations per year; for banking or financial market infrastructures, their systemic importance based on total assets or the ratio of those total assets to GDP; for the health sector, the number of patients under the provider’s care per year; for water production, processing and supply, the volume and number and types of users supplied, including, for example, hospitals, public service organisations, or individuals, and the existence of alternative sources of water to cover the same geographical area. (29) To achieve and maintain a high level of security of network and information systems, each Member State should have a national strategy on the security of

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network and information systems defining the strategic objectives and concrete policy actions to be implemented. (30) In view of the differences in national governance structures and in order to safeguard already existing sectoral arrangements or Union supervisory and regulatory bodies, and to avoid duplication, Member States should be able to designate more than one national competent authority responsible for fulfilling the tasks linked to the security of the network and information systems of operators of essential services and digital service providers under this Directive. (31) In order to facilitate cross-border cooperation and communication and to enable this Directive to be implemented effectively, it is necessary for each Member State, without prejudice to sectoral regulatory arrangements, to designate a national single point of contact responsible for coordinating issues related to the security of network and information systems and cross-border cooperation at Union level. Competent authorities and single points of contact should have the adequate technical, financial and human resources to ensure that they can carry out the tasks assigned to them in an effective and efficient manner and thus achieve the objectives of this Directive. As this Directive aims to improve the functioning of the internal market by creating trust and confidence, Member State bodies need to be able to cooperate effectively with economic actors and to be structured accordingly. (32) Competent authorities or the computer security incident response teams (‘CSIRTs’) should receive notifications of incidents. The single points of contact should not receive directly any notifications of incidents unless they also act as a competent authority or a CSIRT. A competent authority or a CSIRT should however be able to task the single point of contact with forwarding incident notifications to the single points of contact of other affected Member States. (33) To ensure the effective provision of information to the Member States and to the Commission, a summary report should be submitted by the single point of contact to the Cooperation Group, and should be anonymised in order to preserve the confidentiality of the notifications and the identity of operators of essential services and digital service providers, as information on the identity of the notifying entities is not required for the exchange of best practice in the Cooperation Group. The summary report should include information on the number of notifications received, as well as an indication of the nature of the notified incidents, such as the types of security breaches, their seriousness or their duration. (34) Member States should be adequately equipped, in terms of both technical and organisational capabilities, to prevent, detect, respond to and mitigate network and information system incidents and risks. Member States should therefore ensure that they have well-functioning CSIRTs, also known as computer emergency response teams (‘CERTs’), complying with essential requirements to guarantee effective and compatible capabilities to deal with incidents and risks and ensure efficient cooperation at Union level. In order for all types of operators of essential services and digital service providers to benefit from such capabilities and cooperation, Member States should ensure that all types are covered by a designated CSIRT. Given the importance of international cooperation on cybersecurity, CSIRTs should be able to participate in international cooperation networks in addition to the CSIRTs network established by this Directive. (35) As most network and information systems are privately operated, cooperation between the public and private sectors is essential. Operators of essential services



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and digital service providers should be encouraged to pursue their own informal cooperation mechanisms to ensure the security of network and information systems. The Cooperation Group should be able to invite relevant stakeholders to the discussions where appropriate. To encourage effectively the sharing of information and of best practice, it is essential to ensure that operators of essential services and digital service providers who participate in such exchanges are not disadvantaged as a result of their cooperation. (36) ENISA should assist the Member States and the Commission by providing expertise and advice and by facilitating the exchange of best practice. In particular, in the application of this Directive, the Commission should, and Member States should be able to, consult ENISA. To build capacity and knowledge among Member States, the Cooperation Group should also serve as an instrument for the exchange of best practice, discussion of capabilities and preparedness of the Member States and, on a voluntary basis, to assist its members in evaluating national strategies on the security of network and information systems, building capacity and evaluating exercises relating to the security of network and information systems. (37) Where appropriate, Member States should be able to use or adapt existing organisational structures or strategies when applying this Directive. (38) The respective tasks of the Cooperation Group and of ENISA are interdependent and complementary. In general, ENISA should assist the Cooperation Group in the execution of its tasks, in line with the objective of ENISA set out in Regulation (EU) No  526/2013 of the European Parliament and the Council (209), namely to assist the Union institutions, bodies, offices and agencies and the Member States in implementing the policies necessary to meet the legal and regulatory requirements of network and information system security under existing and future legal acts of the Union. In particular, ENISA should provide assistance in those areas that correspond to its own tasks, as set out in Regulation (EU) No  526/2013, namely analysing network and information system security strategies, supporting the organisation and running of Union exercises relating to the security of network and information systems, and exchanging information and best practice on awareness-raising and training. ENISA should also be involved in the development of guidelines for sectorspecific criteria for determining the significance of the impact of an incident. (39) In order to promote advanced security of network and information systems, the Cooperation Group should, where appropriate, cooperate with relevant Union institutions, bodies, offices and agencies, to exchange know-how and best practice, and to provide advice on security aspects of network and information systems that might have an impact on their work, while respecting existing arrangements for the exchange of restricted information. In cooperating with law enforcement authorities regarding the security aspects of network and information systems that might have an impact on their work, the Cooperation Group should respect existing channels of information and established networks. (40) Information about incidents is increasingly valuable to the general public and businesses, particularly small and medium-sized enterprises. In some cases, such information is already provided via websites at the national level, in the language of a specific country and focusing mainly on incidents and occurrences with a

Regulation (EU) No 526/2013 of the European Parliament and the Council of 21 May 2013 concerning the European Union Agency for Network and Information Security (ENISA) and repealing Regulation (EC) No 460/2004 (OJ L 165, 18.6.2013, p. 41).

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national dimension. Given that businesses increasingly operate across borders and citizens use online services, information on incidents should be provided in an aggregated form at Union level. The secretariat of the CSIRTs network is encouraged to maintain a website or to host a dedicated page on an existing website, where general information on major incidents that have occurred across the Union is made available to the general public, with a specific focus on the interests and needs of businesses. CSIRTs participating in the CSIRTs network are encouraged to provide on a voluntary basis the information to be published on that website, without including confidential or sensitive information. (41) Where information is considered to be confidential in accordance with Union and national rules on business confidentiality, such confidentiality should be ensured when carrying out the activities and fulfilling the objectives set by this Directive. (42) Exercises which simulate real-time incident scenarios are essential for testing Member States’ preparedness and cooperation regarding the security of network and information systems. The CyberEurope cycle of exercises coordinated by ENISA with the participation of the Member States is a useful tool for testing and drawing up recommendations on how incident-handling at Union level should improve over time. Considering that the Member States are not currently under any obligation to either plan or participate in exercises, the creation of the CSIRTs network under this Directive should enable Member States to participate in exercises on the basis of accurate planning and strategic choices. The Cooperation Group set up under this Directive should discuss the strategic decisions regarding exercises, in particular but not exclusively as regards the regularity of the exercises and the design of the scenarios. ENISA should, in accordance with its mandate, support the organisation and running of Union-wide exercises by providing its expertise and advice to the Cooperation Group and the CSIRTs network. (43) Given the global nature of security problems affecting network and information systems, there is a need for closer international cooperation to improve security standards and information exchange, and to promote a common global approach to security issues. (44) Responsibilities in ensuring the security of network and information systems lie, to a great extent, with operators of essential services and digital service providers. A culture of risk management, involving risk assessment and the implementation of security measures appropriate to the risks faced, should be promoted and developed through appropriate regulatory requirements and voluntary industry practices. Establishing a trustworthy level playing field is also essential to the effective functioning of the Cooperation Group and the CSIRTs network, to ensure effective cooperation from all Member States. (45) This Directive applies only to those public administrations which are identified as operators of essential services. Therefore, it is the responsibility of Member States to ensure the security of network and information systems of public administrations not falling within the scope of this Directive. (46) Risk-management measures include measures to identify any risks of incidents, to prevent, detect and handle incidents and to mitigate their impact. The security of network and information systems comprises the security of stored, transmitted and processed data. (47) Competent authorities should retain the ability to adopt national guidelines concerning the circumstances in which operators of essential services are required to notify incidents.



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(48) Many businesses in the Union rely on digital service providers for the provision of their services. As some digital services could be an important resource for their users, including operators of essential services, and as such users might not always have alternatives available, this Directive should also apply to providers of such services. The security, continuity and reliability of the type of digital services referred to in this Directive are of the essence for the smooth functioning of many businesses. A disruption of such a digital service could prevent the provision of other services which rely on it and could thus have an impact on key economic and societal activities in the Union. Such digital services might therefore be of crucial importance for the smooth functioning of businesses that depend on them and, moreover, for the participation of such businesses in the internal market and crossborder trade across the Union. Those digital service providers that are subject to this Directive are those that are considered to offer digital services on which many businesses in the Union increasingly rely. (49) Digital service providers should ensure a level of security commensurate with the degree of risk posed to the security of the digital services they provide, given the importance of their services to the operations of other businesses within the Union. In practice, the degree of risk for operators of essential services, which are often essential for the maintenance of critical societal and economic activities, is higher than for digital service providers. Therefore, the security requirements for digital service providers should be lighter. Digital service providers should remain free to take measures they consider appropriate to manage the risks posed to the security of their network and information systems. Because of their crossborder nature, digital service providers should be subject to a more harmonised approach at Union level. Implementing acts should facilitate the specification and implementation of such measures. (50) While hardware manufacturers and software developers are not operators of essential services, nor are they digital service providers, their products enhance the security of network and information systems. Therefore, they play an important role in enabling operators of essential services and digital service providers to secure their network and information systems. Such hardware and software products are already subject to existing rules on product liability. (51) Technical and organisational measures imposed on operators of essential services and digital service providers should not require a particular commercial information and communications technology product to be designed, developed or manufactured in a particular manner. (52) Operators of essential services and digital service providers should ensure the security of the network and information systems which they use. These are primarily private network and information systems managed by their internal IT staff or the security of which has been outsourced. The security and notification requirements should apply to the relevant operators of essential services and digital service providers regardless of whether they perform the maintenance of their network and information systems internally or outsource it. (53) To avoid imposing a disproportionate financial and administrative burden on operators of essential services and digital service providers, the requirements should be proportionate to the risk presented by the network and information system concerned, taking into account the state of the art of such measures. In the case of digital service providers, those requirements should not apply to microand small enterprises.

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(54) Where public administrations in Member States use services offered by digital service providers, in particular cloud computing services, they might wish to require from the providers of such services additional security measures beyond what digital service providers would normally offer in compliance with the requirements of this Directive. They should be able to do so by means of contractual obligations. (55) The definitions of online marketplaces, online search engines and cloud computing services in this Directive are for the specific purpose of this Directive, and without prejudice to any other instruments. (56) This Directive should not preclude Member States from adopting national measures requiring public-sector bodies to ensure specific security requirements when they contract cloud computing services. Any such national measures should apply to the public-sector body concerned and not to the cloud computing service provider. (57) Given the fundamental differences between operators of essential services, in particular their direct link with physical infrastructure, and digital service providers, in particular their cross-border nature, this Directive should take a differentiated approach with respect to the level of harmonisation in relation to those two groups of entities. For operators of essential services, Member States should be able to identify the relevant operators and impose stricter requirements than those laid down in this Directive. Member States should not identify digital service providers, as this Directive should apply to all digital service providers within its scope. In addition, this Directive and the implementing acts adopted under it should ensure a high level of harmonisation for digital service providers with respect to security and notification requirements. This should enable digital service providers to be treated in a uniform way across the Union, in a manner proportionate to their nature and the degree of risk which they might face. (58) This Directive should not preclude Member States from imposing security and notification requirements on entities that are not digital service providers within the scope of this Directive, without prejudice to Member States’ obligations under Union law. (59) Competent authorities should pay due attention to preserving informal and trusted channels of information-sharing. Publicity of incidents reported to the competent authorities should duly balance the interest of the public in being informed about threats against possible reputational and commercial damage for the operators of essential services and digital service providers reporting incidents. In the implementation of the notification obligations, competent authorities and the CSIRTs should pay particular attention to the need to keep information about product vulnerabilities strictly confidential, prior to the release of appropriate security fixes. (60) Digital service providers should be subject to light-touch and reactive ex post supervisory activities justified by the nature of their services and operations. The competent authority concerned should therefore only take action when provided with evidence, for example by the digital service provider itself, by another competent authority, including a competent authority of another Member State, or by a user of the service, that a digital service provider is not complying with the requirements of this Directive, in particular following the occurrence of an incident. The competent authority should therefore have no general obligation to supervise digital service providers.



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(61) Competent authorities should have the necessary means to perform their duties, including powers to obtain sufficient information in order to assess the level of security of network and information systems. (62) Incidents may be the result of criminal activities the prevention, investigation and prosecution of which is supported by coordination and cooperation between operators of essential services, digital service providers, competent authorities and law enforcement authorities. Where it is suspected that an incident is related to serious criminal activities under Union or national law, Member States should encourage operators of essential services and digital service providers to report incidents of a suspected serious criminal nature to the relevant law enforcement authorities. Where appropriate, it is desirable that coordination between competent authorities and law enforcement authorities of different Member States be facilitated by the European Cybercrime Centre (EC3) and ENISA. (63) Personal data are in many cases compromised as a result of incidents. In this context, competent authorities and data protection authorities should cooperate and exchange information on all relevant matters to tackle any personal data breaches resulting from incidents. (64) Jurisdiction in respect of digital service providers should be attributed to the Member State in which the digital service provider concerned has its main establishment in the Union, which in principle corresponds to the place where the provider has its head office in the Union. Establishment implies the effective and real exercise of activity through stable arrangements. The legal form of such arrangements, whether through a branch or a subsidiary with a legal personality, is not the determining factor in this respect. This criterion should not depend on whether the network and information systems are physically located in a given place; the presence and use of such systems do not, in themselves, constitute such main establishment and are therefore not criteria for determining the main establishment. (65) Where a digital service provider not established in the Union offers services within the Union, it should designate a representative. In order to determine whether such a digital service provider is offering services within the Union, it should be ascertained whether it is apparent that the digital service provider is planning to offer services to persons in one or more Member States. The mere accessibility in the Union of the digital service provider’s or an intermediary’s website or of an email address and of other contact details, or the use of a language generally used in the third country where the digital service provider is established, is insufficient to ascertain such an intention. However, factors such as the use of a language or a currency generally used in one or more Member States with the possibility of ordering services in that other language, or the mentioning of customers or users who are in the Union, may make it apparent that the digital service provider is planning to offer services within the Union. The representative should act on behalf of the digital service provider and it should be possible for competent authorities or the CSIRTs to contact the representative. The representative should be explicitly designated by a written mandate of the digital service provider to act on the latter’s behalf with regard to the latter’s obligations under this Directive, including incident reporting. (66) Standardisation of security requirements is a market-driven process. To ensure a convergent application of security standards, Member States should encourage compliance or conformity with specified standards so as to ensure a high level of security of network and information systems at Union level. ENISA should assist

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Member States through advice and guidelines. To this end, it might be helpful to draft harmonised standards, which should be done in accordance with Regulation (EU) No 1025/2012 of the European Parliament and of the Council (210). (67) Entities falling outside the scope of this Directive may experience incidents having a significant impact on the services they provide. Where those entities consider that it is in the public interest to notify the occurrence of such incidents, they should be able to do so on a voluntary basis. Such notifications should be processed by the competent authority or the CSIRT where such processing does not constitute a disproportionate or undue burden on the Member States concerned. (68) In order to ensure uniform conditions for the implementation of this Directive, implementing powers should be conferred on the Commission to lay down the procedural arrangements necessary for the functioning of the Cooperation Group and the security and notification requirements applicable to digital service providers. Those powers should be exercised in accordance with Regulation (EU) No  182/2011 of the European Parliament and of the Council (211). When adopting implementing acts related to the procedural arrangements necessary for the functioning of the Cooperation Group, the Commission should take the utmost account of the opinion of ENISA. (69) When adopting implementing acts on the security requirements for digital service providers, the Commission should take the utmost account of the opinion of ENISA and should consult interested stakeholders. Moreover, the Commission is encouraged to take into account the following examples: as regards security of systems and facilities: physical and environmental security, security of supplies, access control to network and information systems and integrity of network and information systems; as regards incident handling: incident-handling procedures, incident detection capability, incident reporting and communication; as regards business continuity management: service continuity strategy and contingency plans, disaster recovery capabilities; and as regards monitoring, auditing and testing: monitoring and logging policies, exercise contingency plans, network and information systems testing, security assessments and compliance monitoring. (70) In the implementation of this Directive, the Commission should liaise as appropriate with relevant sectoral committees and relevant bodies set up at Union level in the fields covered by this Directive. (71) The Commission should periodically review this Directive, in consultation with interested stakeholders, in particular with a view to determining the need for modification in the light of changes to societal, political, technological or market conditions. (72) The sharing of information on risks and incidents within the Cooperation Group and the CSIRTs network and the compliance with the requirements to notify incidents to the national competent authorities or the CSIRTs might require processing of personal data. Such processing should comply with Directive Regulation (EU) No 1025/2012 of the European Parliament and of the Council of 25 October 2012 on European standardisation, amending Council Directives 89/686/EEC and 93/15/EEC and Directives 94/9/ EC, 94/25/EC, 95/16/EC, 97/23/EC, 98/34/EC, 2004/22/EC, 2007/23/EC, 2009/23/EC and 2009/105/EC of the European Parliament and of the Council and repealing Council Decision 87/95/EEC and Decision No 1673/2006/EC of the European Parliament and of the Council (OJ L 316, 14.11.2012, p. 12). 211 Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13). 210



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95/46/EC of the European Parliament and the Council (212) and Regulation (EC) No 45/2001 of the European Parliament and of the Council213. In the application of this Directive, Regulation (EC) No 1049/2001 of the European Parliament and of the Council (214) should apply as appropriate. (73) The European Data Protection Supervisor was consulted in accordance with Article 28(2) of Regulation (EC) No 45/2001 and delivered an opinion on 14 June 2013 (215). (74) Since the objective of this Directive, namely to achieve a high common level of security of network and information systems in the Union, cannot be sufficiently achieved by the Member States but can rather, by reason of the effects of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective. (75) This Directive respects the fundamental rights, and observes the principles, recognised by the Charter of Fundamental Rights of the European Union, in particular the right to respect for private life and communications, the protection of personal data, the freedom to conduct a business, the right to property, the right to an effective remedy before a court and the right to be heard. This Directive should be implemented in accordance with those rights and principles, HAVE ADOPTED THIS DIRECTIVE: CHAPTER I GENERAL PROVISIONS Article 1 Subject matter and scope 1.

This Directive lays down measures with a view to achieving a high common level of security of network and information systems within the Union so as to improve the functioning of the internal market.

2.

To that end, this Directive: (a)

lays down obligations for all Member States to adopt a national strategy on the security of network and information systems;

(b) creates a Cooperation Group in order to support and facilitate strategic cooperation and the exchange of information among Member States and to develop trust and confidence amongst them; (c) creates a computer security incident response teams network (‘CSIRTs network’) in order to contribute to the development of trust and confidence between Member States and to promote swift and effective operational cooperation; Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31). 213 Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p. 1). 214 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p. 43). 215 OJ C 32, 4.2.2014, p. 19. 212

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(d) establishes security and notification requirements for operators of essential services and for digital service providers; (e) lays down obligations for Member States to designate national competent authorities, single points of contact and CSIRTs with tasks related to the security of network and information systems. 3.

The security and notification requirements provided for in this Directive shall not apply to undertakings which are subject to the requirements of Articles 13a and 13b of Directive 2002/21/EC, or to trust service providers which are subject to the requirements of Article 19 of Regulation (EU) No 910/2014.

4.

This Directive applies without prejudice to Council Directive 2008/114/EC (216) and Directives 2011/93/EU (217) and 2013/40/EU (218) of the European Parliament and of the Council.

5.

Without prejudice to Article 346 TFEU, information that is confidential pursuant to Union and national rules, such as rules on business confidentiality, shall be exchanged with the Commission and other relevant authorities only where such exchange is necessary for the application of this Directive. The information exchanged shall be limited to that which is relevant and proportionate to the purpose of such exchange. Such exchange of information shall preserve the confidentiality of that information and protect the security and commercial interests of operators of essential services and digital service providers.

6.

This Directive is without prejudice to the actions taken by Member States to safeguard their essential State functions, in particular to safeguard national security, including actions protecting information the disclosure of which Member States consider contrary to the essential interests of their security, and to maintain law and order, in particular to allow for the investigation, detection and prosecution of criminal offences.

7.

Where a sector-specific Union legal act requires operators of essential services or digital service providers either to ensure the security of their network and information systems or to notify incidents, provided that such requirements are at least equivalent in effect to the obligations laid down in this Directive, those provisions of that sector-specific Union legal act shall apply. Article 2 Processing of personal data

1.

Processing of personal data pursuant to this Directive shall be carried out in accordance with Directive 95/46/EC.

2.

Processing of personal data by Union institutions and bodies pursuant to this Directive shall be carried out in accordance with Regulation (EC) No 45/2001.

Council Directive 2008/114/EC of 8 December 2008 on the identification and designation of European critical infrastructures and the assessment of the need to improve their protection (OJ L 345, 23.12.2008, p. 75). 217 Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA (OJ L 335, 17.12.2011, p. 1). 218 Directive 2013/40/EU of the European Parliament and of the Council of 12 August 2013 on attacks against information systems and replacing Council Framework Decision 2005/222/JHA (OJ L 218, 14.8.2013, p. 8). 216



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Article 3 Minimum harmonisation Without prejudice to Article 16(10) and to their obligations under Union law, Member States may adopt or maintain provisions with a view to achieving a higher level of security of network and information systems. Article 4 Definitions For the purposes of this Directive, the following definitions apply: (1) ‘network and information system’ means: (a) an electronic communications network within the meaning of point (a) of Article 2 of Directive 2002/21/EC; (b) any device or group of interconnected or related devices, one or more of which, pursuant to a program, perform automatic processing of digital data; or (c)

digital data stored, processed, retrieved or transmitted by elements covered under points (a) and (b) for the purposes of their operation, use, protection and maintenance;

(2) ‘security of network and information systems’ means the ability of network and information systems to resist, at a given level of confidence, any action that compromises the availability, authenticity, integrity or confidentiality of stored or transmitted or processed data or the related services offered by, or accessible via, those network and information systems; (3) ‘national strategy on the security of network and information systems’ means a framework providing strategic objectives and priorities on the security of network and information systems at national level; (4) ‘operator of essential services’ means a public or private entity of a type referred to in Annex II, which meets the criteria laid down in Article 5(2); (5) ‘digital service’ means a service within the meaning of point (b) of Article 1(1) of Directive (EU) 2015/1535 of the European Parliament and of the Council (219) which is of a type listed in Annex III; (6) ‘digital service provider’ means any legal person that provides a digital service; (7) ‘incident’ means any event having an actual adverse effect on the security of network and information systems; (8) ‘incident handling’ means all procedures supporting the detection, analysis and containment of an incident and the response thereto; (9) ‘risk’ means any reasonably identifiable circumstance or event having a potential adverse effect on the security of network and information systems; (10) ‘representative’ means any natural or legal person established in the Union explicitly designated to act on behalf of a digital service provider not established in the Union, which may be addressed by a national competent authority or a

Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ L 241, 17.9.2015, p. 1).

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CSIRT instead of the digital service provider with regard to the obligations of that digital service provider under this Directive; (11) ‘standard’ means a standard within the meaning of point (1) of Article  2 of Regulation (EU) No 1025/2012; (12) ‘specification’ means a technical specification within the meaning of point (4) of Article 2 of Regulation (EU) No 1025/2012; (13) ‘internet exchange point (IXP)’ means a network facility which enables the interconnection of more than two independent autonomous systems, primarily for the purpose of facilitating the exchange of internet traffic; an IXP provides interconnection only for autonomous systems; an IXP does not require the internet traffic passing between any pair of participating autonomous systems to pass through any third autonomous system, nor does it alter or otherwise interfere with such traffic; (14) ‘domain name system (DNS)’ means a hierarchical distributed naming system in a network which refers queries for domain names; (15) ‘DNS service provider’ means an entity which provides DNS services on the internet; (16) ‘top-level domain name registry’ means an entity which administers and operates the registration of internet domain names under a specific top-level domain (TLD); (17) ‘online marketplace’ means a digital service that allows consumers and/or traders as respectively defined in point (a) and in point (b) of Article 4(1) of Directive 2013/11/EU of the European Parliament and of the Council (220) to conclude online sales or service contracts with traders either on the online marketplace’s website or on a trader’s website that uses computing services provided by the online marketplace; (18) ‘online search engine’ means a digital service that allows users to perform searches of, in principle, all websites or websites in a particular language on the basis of a query on any subject in the form of a keyword, phrase or other input, and returns links in which information related to the requested content can be found; (19) ‘cloud computing service’ means a digital service that enables access to a scalable and elastic pool of shareable computing resources. Article 5 Identification of operators of essential services 1.

By 9 November 2018, for each sector and subsector referred to in Annex II, Member States shall identify the operators of essential services with an establishment on their territory.

2.

The criteria for the identification of the operators of essential services, as referred to in point (4) of Article 4, shall be as follows: (a)

an entity provides a service which is essential for the maintenance of critical societal and/or economic activities;

(b) the provision of that service depends on network and information systems; and Directive 2013/11/EU of the European Parliament and of the Council of 21  May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No  2006/2004 and Directive 2009/22/EC (Directive on consumer ADR) (OJ L 165, 18.6.2013, p. 63).

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an incident would have significant disruptive effects on the provision of that service.

3.

For the purposes of paragraph 1, each Member State shall establish a list of the services referred to in point (a) of paragraph 2.

4.

For the purposes of paragraph 1, where an entity provides a service as referred to in point (a) of paragraph 2 in two or more Member States, those Member States shall engage in consultation with each other. That consultation shall take place before a decision on identification is taken.

5.

Member States shall, on a regular basis, and at least every two years after 9 May 2018, review and, where appropriate, update the list of identified operators of essential services.

6.

The role of the Cooperation Group shall be, in accordance with the tasks referred to in Article 11, to support Member States in taking a consistent approach in the process of identification of operators of essential services.

7.

For the purpose of the review referred to in Article 23 and by 9 November 2018, and every two years thereafter, Member States shall submit to the Commission the information necessary to enable the Commission to assess the implementation of this Directive, in particular the consistency of Member States’ approaches to the identification of operators of essential services. That information shall include at least: (a) national measures allowing for the identification of operators of essential services; (b) the list of services referred to in paragraph 3; (c) the number of operators of essential services identified for each sector referred to in Annex II and an indication of their importance in relation to that sector; (d) thresholds, where they exist, to determine the relevant supply level by reference to the number of users relying on that service as referred to in point (a) of Article 6(1) or to the importance of that particular operator of essential services as referred to in point (f) of Article 6(1). In order to contribute to the provision of comparable information, the Commission, taking the utmost account of the opinion of ENISA, may adopt appropriate technical guidelines on parameters for the information referred to in this paragraph. Article 6 Significant disruptive effect

1.

When determining the significance of a disruptive effect as referred to in point (c) of Article 5(2), Member States shall take into account at least the following crosssectoral factors: (a)

the number of users relying on the service provided by the entity concerned;

(b) the dependency of other sectors referred to in Annex II on the service provided by that entity; (c) the impact that incidents could have, in terms of degree and duration, on economic and societal activities or public safety; (d) the market share of that entity;

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(e) the geographic spread with regard to the area that could be affected by an incident; (f)

2.

the importance of the entity for maintaining a sufficient level of the service, taking into account the availability of alternative means for the provision of that service.

In order to determine whether an incident would have a significant disruptive effect, Member States shall also, where appropriate, take into account sectorspecific factors. CHAPTER II NATIONAL FRAMEWORKS ON THE SECURITY OF NETWORK AND INFORMATION SYSTEMS Article 7 National strategy on the security of network and information systems

1.

Each Member State shall adopt a national strategy on the security of network and information systems defining the strategic objectives and appropriate policy and regulatory measures with a view to achieving and maintaining a high level of security of network and information systems and covering at least the sectors referred to in Annex II and the services referred to in Annex III. The national strategy on the security of network and information systems shall address, in particular, the following issues: (a) the objectives and priorities of the national strategy on the security of network and information systems; (b)

a governance framework to achieve the objectives and priorities of the national strategy on the security of network and information systems, including roles and responsibilities of the government bodies and the other relevant actors;

(c) the identification of measures relating to preparedness, response and recovery, including cooperation between the public and private sectors; (d) an indication of the education, awareness-raising and training programmes relating to the national strategy on the security of network and information systems; (e)

an indication of the research and development plans relating to the national strategy on the security of network and information systems;

(f)

a risk assessment plan to identify risks;

(g) a list of the various actors involved in the implementation of the national strategy on the security of network and information systems. 2.

Member States may request the assistance of ENISA in developing national strategies on the security of network and information systems.

3.

Member States shall communicate their national strategies on the security of network and information systems to the Commission within three months from their adoption. In so doing, Member States may exclude elements of the strategy which relate to national security. Article 8 National competent authorities and single point of contact

1.

Each Member State shall designate one or more national competent authorities on the security of network and information systems (‘competent authority’), covering



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at least the sectors referred to in Annex II and the services referred to in Annex III. Member States may assign this role to an existing authority or authorities. 2.

The competent authorities shall monitor the application of this Directive at national level.

3.

Each Member State shall designate a national single point of contact on the security of network and information systems (‘single point of contact’). Member States may assign this role to an existing authority. Where a Member State designates only one competent authority, that competent authority shall also be the single point of contact.

4.

The single point of contact shall exercise a liaison function to ensure cross-border cooperation of Member State authorities and with the relevant authorities in other Member States and with the Cooperation Group referred to in Article 11 and the CSIRTs network referred to in Article 12.

5.

Member States shall ensure that the competent authorities and the single points of contact have adequate resources to carry out, in an effective and efficient manner, the tasks assigned to them and thereby to fulfil the objectives of this Directive. Member States shall ensure effective, efficient and secure cooperation of the designated representatives in the Cooperation Group.

6.

The competent authorities and single point of contact shall, whenever appropriate and in accordance with national law, consult and cooperate with the relevant national law enforcement authorities and national data protection authorities.

7.

Each Member State shall notify to the Commission without delay the designation of the competent authority and single point of contact, their tasks, and any subsequent change thereto. Each Member State shall make public its designation of the competent authority and single point of contact. The Commission shall publish the list of designated single points of contacts. Article 9 Computer security incident response teams (CSIRTs)

1.

Each Member State shall designate one or more CSIRTs which shall comply with the requirements set out in point (1) of Annex I, covering at least the sectors referred to in Annex II and the services referred to in Annex III, responsible for risk and incident handling in accordance with a well-defined process. A CSIRT may be established within a competent authority.

2.

Member States shall ensure that the CSIRTs have adequate resources to effectively carry out their tasks as set out in point (2) of Annex I. Member States shall ensure the effective, efficient and secure cooperation of their CSIRTs in the CSIRTs network referred to in Article 12.

3.

Member States shall ensure that their CSIRTs have access to an appropriate, secure, and resilient communication and information infrastructure at national level.

4.

Member States shall inform the Commission about the remit, as well as the main elements of the incident-handling process, of their CSIRTs.

5.

Member States may request the assistance of ENISA in developing national CSIRTs. Article 10 Cooperation at national level

1.

Where they are separate, the competent authority, the single point of contact and the CSIRT of the same Member State shall cooperate with regard to the fulfilment of the obligations laid down in this Directive.

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2.

Member States shall ensure that either the competent authorities or the CSIRTs receive incident notifications submitted pursuant to this Directive. Where a Member State decides that CSIRTs shall not receive notifications, the CSIRTs shall, to the extent necessary to fulfil their tasks, be granted access to data on incidents notified by operators of essential services, pursuant to Article 14(3) and (5), or by digital service providers, pursuant to Article 16(3) and (6).

3.

Member States shall ensure that the competent authorities or the CSIRTs inform the single points of contact about incident notifications submitted pursuant to this Directive. By 9 August 2018, and every year thereafter, the single point of contact shall submit a summary report to the Cooperation Group on the notifications received, including the number of notifications and the nature of notified incidents, and the actions taken in accordance with Article 14(3) and (5) and Article 16(3) and (6).

1.

CHAPTER III COOPERATION Article 11 Cooperation Group In order to support and facilitate strategic cooperation and the exchange of information among Member States and to develop trust and confidence, and with a view to achieving a high common level of security of network and information systems in the Union, a Cooperation Group is hereby established. The Cooperation Group shall carry out its tasks on the basis of biennial work programmes as referred to in the second subparagraph of paragraph 3.

2.

The Cooperation Group shall be composed of representatives of the Member States, the Commission and ENISA. Where appropriate, the Cooperation Group may invite representatives of the relevant stakeholders to participate in its work. The Commission shall provide the secretariat.

3.

The Cooperation Group shall have the following tasks: (a) providing strategic guidance for the activities of the CSIRTs network established under Article 12; (b) exchanging best practice on the exchange of information related to incident notification as referred to in Article 14(3) and (5) and Article 16(3) and (6); (c)

exchanging best practice between Member States and, in collaboration with ENISA, assisting Member States in building capacity to ensure the security of network and information systems;

(d) discussing capabilities and preparedness of the Member States, and, on a voluntary basis, evaluating national strategies on the security of network and information systems and the effectiveness of CSIRTs, and identifying best practice; (e)

exchanging information and best practice on awareness-raising and training;

(f) exchanging information and best practice on research and development relating to the security of network and information systems; (g) where relevant, exchanging experiences on matters concerning the security of network and information systems with relevant Union institutions, bodies, offices and agencies;



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(h) discussing the standards and specifications referred to in Article  19 with representatives from the relevant European standardisation organisations; (i)

collecting best practice information on risks and incidents;

(j)

examining, on an annual basis, the summary reports referred to in the second subparagraph of Article 10(3);

(k) discussing the work undertaken with regard to exercises relating to the security of network and information systems, education programmes and training, including the work done by ENISA; (l) with ENISA’s assistance, exchanging best practice with regard to the identification of operators of essential services by the Member States, including in relation to cross-border dependencies, regarding risks and incidents; (m) discussing modalities for reporting notifications of incidents as referred to in Articles 14 and 16. By 9 February 2018 and every two years thereafter, the Cooperation Group shall establish a work programme in respect of actions to be undertaken to implement its objectives and tasks, which shall be consistent with the objectives of this Directive. 4.

For the purpose of the review referred to in Article 23 and by 9 August 2018, and every year and a half thereafter, the Cooperation Group shall prepare a report assessing the experience gained with the strategic cooperation pursued under this Article.

5. The Commission shall adopt implementing acts laying down procedural arrangements necessary for the functioning of the Cooperation Group. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 22(2). For the purposes of the first subparagraph, the Commission shall submit the first draft implementing act to the committee referred to in Article  22(1) by 9 February 2017. Article 12 CSIRTs network 1.

In order to contribute to the development of confidence and trust between the Member States and to promote swift and effective operational cooperation, a network of the national CSIRTs is hereby established.

2.

The CSIRTs network shall be composed of representatives of the Member States’ CSIRTs and CERT-EU. The Commission shall participate in the CSIRTs network as an observer. ENISA shall provide the secretariat and shall actively support the cooperation among the CSIRTs.

3.

The CSIRTs network shall have the following tasks: (a) exchanging information on CSIRTs’ services, operations and cooperation capabilities; (b)

at the request of a representative of a CSIRT from a Member State potentially affected by an incident, exchanging and discussing non-commercially sensitive information related to that incident and associated risks; however, any Member State’s CSIRT may refuse to contribute to that discussion if there is a risk of prejudice to the investigation of the incident;

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(c) exchanging and making available on a voluntary basis non-confidential information concerning individual incidents; (d) at the request of a representative of a Member State’s CSIRT, discussing and, where possible, identifying a coordinated response to an incident that has been identified within the jurisdiction of that same Member State; (e)

providing Member States with support in addressing cross-border incidents on the basis of their voluntary mutual assistance;

(f) discussing, exploring and identifying further forms of operational cooperation, including in relation to: (i)

categories of risks and incidents;

(ii) early warnings; (iii) mutual assistance; (iv) principles and modalities for coordination, when Member States respond to cross-border risks and incidents; (g) informing the Cooperation Group of its activities and of the further forms of operational cooperation discussed pursuant to point (f), and requesting guidance in that regard; (h) discussing lessons learnt from exercises relating to the security of network and information systems, including from those organised by ENISA; (i) at the request of an individual CSIRT, discussing the capabilities and preparedness of that CSIRT; (j) issuing guidelines in order to facilitate the convergence of operational practices with regard to the application of the provisions of this Article concerning operational cooperation. 4.

For the purpose of the review referred to in Article  23 and by 9 August 2018, and every year and a half thereafter, the CSIRTs network shall produce a report assessing the experience gained with the operational cooperation, including conclusions and recommendations, pursued under this Article. That report shall also be submitted to the Cooperation Group.

5.

The CSIRTs network shall lay down its own rules of procedure.

Article 13 International cooperation The Union may conclude international agreements, in accordance with Article 218 TFEU, with third countries or international organisations, allowing and organising their participation in some activities of the Cooperation Group. Such agreements shall take into account the need to ensure adequate protection of data. CHAPTER IV SECURITY OF THE NETWORK AND INFORMATION SYSTEMS OF OPERATORS OF ESSENTIAL SERVICES Article 14 Security requirements and incident notification 1.

Member States shall ensure that operators of essential services take appropriate and proportionate technical and organisational measures to manage the risks posed to the security of network and information systems which they use in their



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operations. Having regard to the state of the art, those measures shall ensure a level of security of network and information systems appropriate to the risk posed. 2.

Member States shall ensure that operators of essential services take appropriate measures to prevent and minimise the impact of incidents affecting the security of the network and information systems used for the provision of such essential services, with a view to ensuring the continuity of those services.

3.

Member States shall ensure that operators of essential services notify, without undue delay, the competent authority or the CSIRT of incidents having a significant impact on the continuity of the essential services they provide. Notifications shall include information enabling the competent authority or the CSIRT to determine any cross-border impact of the incident. Notification shall not make the notifying party subject to increased liability.

4.

In order to determine the significance of the impact of an incident, the following parameters in particular shall be taken into account: (a)

the number of users affected by the disruption of the essential service;

(b) the duration of the incident; (c) 5.

the geographical spread with regard to the area affected by the incident.

On the basis of the information provided in the notification by the operator of essential services, the competent authority or the CSIRT shall inform the other affected Member State(s) if the incident has a significant impact on the continuity of essential services in that Member State. In so doing, the competent authority or the CSIRT shall, in accordance with Union law or national legislation that complies with Union law, preserve the security and commercial interests of the operator of essential services, as well as the confidentiality of the information provided in its notification. Where the circumstances allow, the competent authority or the CSIRT shall provide the notifying operator of essential services with relevant information regarding the follow-up of its notification, such as information that could support the effective incident handling. At the request of the competent authority or the CSIRT, the single point of contact shall forward notifications as referred to in the first subparagraph to single points of contact of other affected Member States.

6.

After consulting the notifying operator of essential services, the competent authority or the CSIRT may inform the public about individual incidents, where public awareness is necessary in order to prevent an incident or to deal with an ongoing incident.

7.

Competent authorities acting together within the Cooperation Group may develop and adopt guidelines concerning the circumstances in which operators of essential services are required to notify incidents, including on the parameters to determine the significance of the impact of an incident as referred to in paragraph 4. Article 15 Implementation and enforcement

1.

Member States shall ensure that the competent authorities have the necessary powers and means to assess the compliance of operators of essential services with their obligations under Article 14 and the effects thereof on the security of network and information systems.

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Member States shall ensure that the competent authorities have the powers and means to require operators of essential services to provide: (a) the information necessary to assess the security of their network and information systems, including documented security policies; (b) evidence of the effective implementation of security policies, such as the results of a security audit carried out by the competent authority or a qualified auditor and, in the latter case, to make the results thereof, including the underlying evidence, available to the competent authority. When requesting such information or evidence, the competent authority shall state the purpose of the request and specify what information is required.

3.

Following the assessment of information or results of security audits referred to in paragraph 2, the competent authority may issue binding instructions to the operators of essential services to remedy the deficiencies identified.

4.

The competent authority shall work in close cooperation with data protection authorities when addressing incidents resulting in personal data breaches. CHAPTER V SECURITY OF THE NETWORK AND INFORMATION SYSTEMS OF DIGITAL SERVICE PROVIDERS Article 16 Security requirements and incident notification

1.

Member States shall ensure that digital service providers identify and take appropriate and proportionate technical and organisational measures to manage the risks posed to the security of network and information systems which they use in the context of offering services referred to in Annex III within the Union. Having regard to the state of the art, those measures shall ensure a level of security of network and information systems appropriate to the risk posed, and shall take into account the following elements: (a) the security of systems and facilities; (b) incident handling; (c) business continuity management; (d) monitoring, auditing and testing; (e) compliance with international standards.

2.

Member States shall ensure that digital service providers take measures to prevent and minimise the impact of incidents affecting the security of their network and information systems on the services referred to in Annex III that are offered within the Union, with a view to ensuring the continuity of those services.

3.

Member States shall ensure that digital service providers notify the competent authority or the CSIRT without undue delay of any incident having a substantial impact on the provision of a service as referred to in Annex III that they offer within the Union. Notifications shall include information to enable the competent authority or the CSIRT to determine the significance of any cross-border impact. Notification shall not make the notifying party subject to increased liability.

4.

In order to determine whether the impact of an incident is substantial, the following parameters in particular shall be taken into account: (a) the number of users affected by the incident, in particular users relying on the service for the provision of their own services;



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(b) the duration of the incident; (c)

the geographical spread with regard to the area affected by the incident;

(d) the extent of the disruption of the functioning of the service; (e)

the extent of the impact on economic and societal activities.

The obligation to notify an incident shall only apply where the digital service provider has access to the information needed to assess the impact of an incident against the parameters referred to in the first subparagraph. 5.

Where an operator of essential services relies on a third-party digital service provider for the provision of a service which is essential for the maintenance of critical societal and economic activities, any significant impact on the continuity of the essential services due to an incident affecting the digital service provider shall be notified by that operator.

6.

Where appropriate, and in particular if the incident referred to in paragraph  3 concerns two or more Member States, the competent authority or the CSIRT shall inform the other affected Member States. In so doing, the competent authorities, CSIRTs and single points of contact shall, in accordance with Union law, or national legislation that complies with Union law, preserve the digital service provider’s security and commercial interests as well as the confidentiality of the information provided.

7.

After consulting the digital service provider concerned, the competent authority or the CSIRT and, where appropriate, the authorities or the CSIRTs of other Member States concerned may inform the public about individual incidents or require the digital service provider to do so, where public awareness is necessary in order to prevent an incident or to deal with an ongoing incident, or where disclosure of the incident is otherwise in the public interest.

8.

The Commission shall adopt implementing acts in order to specify further the elements referred to in paragraph 1 and the parameters listed in paragraph 4 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 22(2) by 9 August 2017.

9.

The Commission may adopt implementing acts laying down the formats and procedures applicable to notification requirements. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 22(2).

10. Without prejudice to Article  1(6), Member States shall not impose any further security or notification requirements on digital service providers. 11. Chapter V shall not apply to micro- and small enterprises as defined in Commission Recommendation 2003/361/EC (221). Article 17 Implementation and enforcement 1.

Member States shall ensure that the competent authorities take action, if necessary, through ex post supervisory measures, when provided with evidence that a digital service provider does not meet the requirements laid down in Article  16. Such

Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium–sized enterprises (OJ L 124, 20.5.2003, p. 36).

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evidence may be submitted by a competent authority of another Member State where the service is provided. 2.

For the purposes of paragraph 1, the competent authorities shall have the necessary powers and means to require digital service providers to: (a)

provide the information necessary to assess the security of their network and information systems, including documented security policies;

(b) remedy any failure to meet the requirements laid down in Article 16. 3.

If a digital service provider has its main establishment or a representative in a Member State, but its network and information systems are located in one or more other Member States, the competent authority of the Member State of the main establishment or of the representative and the competent authorities of those other Member States shall cooperate and assist each other as necessary. Such assistance and cooperation may cover information exchanges between the competent authorities concerned and requests to take the supervisory measures referred to in paragraph 2. Article 18 Jurisdiction and territoriality

1.

For the purposes of this Directive, a digital service provider shall be deemed to be under the jurisdiction of the Member State in which it has its main establishment. A  digital service provider shall be deemed to have its main establishment in a Member State when it has its head office in that Member State.

2.

A digital service provider that is not established in the Union, but offers services referred to in Annex III within the Union, shall designate a representative in the Union. The representative shall be established in one of those Member States where the services are offered. The digital service provider shall be deemed to be under the jurisdiction of the Member State where the representative is established.

3.

The designation of a representative by the digital service provider shall be without prejudice to legal actions which could be initiated against the digital service provider itself. CHAPTER VI STANDARDISATION AND VOLUNTARY NOTIFICATION Article 19 Standardisation

1.

In order to promote convergent implementation of Article  14(1) and (2) and Article 16(1) and (2), Member States shall, without imposing or discriminating in favour of the use of a particular type of technology, encourage the use of European or internationally accepted standards and specifications relevant to the security of network and information systems.

2.

ENISA, in collaboration with Member States, shall draw up advice and guidelines regarding the technical areas to be considered in relation to paragraph 1 as well as regarding already existing standards, including Member States’ national standards, which would allow for those areas to be covered. Article 20 Voluntary notification

1.

Without prejudice to Article 3, entities which have not been identified as operators of essential services and are not digital service providers may notify, on a voluntary



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basis, incidents having a significant impact on the continuity of the services which they provide. 2.

When processing notifications, Member States shall act in accordance with the procedure set out in Article 14. Member States may prioritise the processing of mandatory notifications over voluntary notifications. Voluntary notifications shall only be processed where such processing does not constitute a disproportionate or undue burden on Member States concerned. Voluntary notification shall not result in the imposition upon the notifying entity of any obligations to which it would not have been subject had it not given that notification.

CHAPTER VII FINAL PROVISIONS Article 21 Penalties Member States shall lay down the rules on penalties applicable to infringements of national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive. Member States shall, by 9 May 2018, notify the Commission of those rules and of those measures and shall notify it, without delay, of any subsequent amendment affecting them.

1.

2.

1.

2.

1.

Article 22 Committee procedure The Commission shall be assisted by the Network and Information Systems Security Committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011. Where reference is made to this paragraph, Article  5 of Regulation (EU) No 182/2011 shall apply. Article 23 Review By 9 May 2019, the Commission shall submit a report to the European Parliament and to Council, assessing the consistency of the approach taken by Member States in the identification of the operators of essential services. The Commission shall periodically review the functioning of this Directive and report to the European Parliament and to the Council. For this purpose and with a view to further advancing the strategic and operational cooperation, the Commission shall take into account the reports of the Cooperation Group and the CSIRTs network on the experience gained at a strategic and operational level. In its review, the Commission shall also assess the lists contained in Annexes II and III, and the consistency in the identification of operators of essential services and services in the sectors referred to in Annex II. The first report shall be submitted by 9 May 2021. Article 24 Transitional measures Without prejudice to Article  25 and with a view to providing Member States with additional possibilities for appropriate cooperation during the period of transposition, the Cooperation Group and the CSIRTs network shall begin to perform the tasks set out in Articles  11(3) and 12(3) respectively by 9 February 2017.

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For the period from 9 February 2017 to 9 November 2018, and for the purposes of supporting Member States in taking a consistent approach in the process of identification of operators of essential services, the Cooperation Group shall discuss the process, substance and type of national measures allowing for the identification of operators of essential services within a specific sector in accordance with the criteria set out in Articles 5 and 6. The Cooperation Group shall also discuss, at the request of a Member State, specific draft national measures of that Member State, allowing for the identification of operators of essential services within a specific sector in accordance with the criteria set out in Articles 5 and 6. By 9  February 2017 and for the purposes of this Article, Member States shall ensure appropriate representation in the Cooperation Group and the CSIRTs network. Article 25 Transposition

1.

Member States shall adopt and publish, by 9  May 2018, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall immediately inform the Commission thereof. They shall apply those measures from 10 May 2018. When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

2.

Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 26 Entry into force This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. Article 27 Addressees This Directive is addressed to the Member States. Done at Strasbourg, 6 July 2016. For the European Parliament The President M. SCHULZ

For the Council The President I. KORČOK

ANNEX I REQUIREMENTS AND TASKS OF COMPUTER SECURITY INCIDENT RESPONSE TEAMS (CSIRTs) The requirements and tasks of CSIRTs shall be adequately and clearly defined and supported by national policy and/or regulation. They shall include the following: (1) Requirements for CSIRTs: (a) CSIRTs shall ensure a high level of availability of their communications services by avoiding single points of failure, and shall have several means for being contacted and for contacting others at all times. Furthermore, the communication channels shall be clearly specified and well known to the constituency and cooperative partners.



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(b) CSIRTs’ premises and the supporting information systems shall be located in secure sites. (c) Business continuity: (i) CSIRTs shall be equipped with an appropriate system for managing and routing requests, in order to facilitate handovers. (ii) CSIRTs shall be adequately staffed to ensure availability at all times. (iii) CSIRTs shall rely on an infrastructure the continuity of which is ensured. To that end, redundant systems and backup working space shall be available. (d) CSIRTs shall have the possibility to participate, where they wish to do so, in international cooperation networks. (2) CSIRTs’ tasks: (a) CSIRTs’ tasks shall include at least the following: (i) monitoring incidents at a national level; (ii) providing early warning, alerts, announcements and dissemination of information to relevant stakeholders about risks and incidents; (iii) responding to incidents; (iv) providing dynamic risk and incident analysis and situational awareness; (v) participating in the CSIRTs network. (b) CSIRTs shall establish cooperation relationships with the private sector. (c) To facilitate cooperation, CSIRTs shall promote the adoption and use of common or standardised practices for: (i) incident and risk-handling procedures; (ii) incident, risk and information classification schemes. ANNEX II TYPES OF ENTITIES FOR THE PURPOSES OF POINT (4) OF ARTICLE 4 Sector 1. Energy

Subsector (a) Electricity

Type of entity — Electricity undertakings as defined in point (35) of Article 2 of Directive 2009/72/EC of the European Parliament and of the Council (222), which carry out the function of ‘supply’ as defined in point (19) of Article 2 of that Directive — Distribution system operators as defined in point (6) of Article 2 of Directive 2009/72/EC

(b) Oil

— Transmission system operators as defined in point (4) of Article 2 of Directive 2009/72/EC — Operators of oil transmission pipelines — Operators of oil production, refining and treatment facilities, storage and transmission

Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (OJ L 211, 14.8.2009, p. 55).

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Subsector (c) Gas

Type of entity — Supply undertakings as defined in point (8) of Article 2 of Directive 2009/73/EC of the European Parliament and of the Council (223) — Distribution system operators as defined in point (6) of Article 2 of Directive 2009/73/EC — Transmission system operators as defined in point (4) of Article 2 of Directive 2009/73/EC — Storage system operators as defined in point (10) of Article 2 of Directive 2009/73/EC — LNG system operators as defined in point (12) of Article 2 of Directive 2009/73/EC — Natural gas undertakings as defined in point (1) of Article 2 of Directive 2009/73/EC

2. Transport

(a) Air Transport

— Operators of natural gas refining and treatment facilities — Air carriers as defined in point (4) of Article 3 of Regulation (EC) No 300/2008 of the European Parliament and of the Council (224) — Airport managing bodies as defined in point (2) of Article 2 of Directive 2009/12/ EC of the European Parliament and of the Council (225), airports as defined in point (1) of Article 2 of that Directive, including the core airports listed in Section 2 of Annex II to Regulation (EU) No 1315/2013 of the European Parliament and of the Council (226), and entities operating ancillary installations contained within airports — Traffic management control operators providing air traffic control (ATC) services as defined in point (1) of Article 2 of Regulation (EC) No 549/2004 of the European Parliament and of the Council (227)

Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC (OJ L 211, 14.8.2009, p. 94). 224 Regulation (EC) No  300/2008 of the European Parliament and of the Council of 11  March 2008 on common rules in the field of civil aviation security and repealing Regulation (EC) No 2320/2002 (OJ L 97, 9.4.2008, p. 72). 225 Directive 2009/12/EC of the European Parliament and of the Council of 11 March 2009 on airport charges (OJ L 70, 14.3.2009, p. 11). 226 Regulation (EU) No 1315/2013 of the European Parliament and of the Council of 11 December 2013 on Union guidelines for the development of the trans–European transport network and repealing Decision No 661/2010/EU (OJ L 348, 20.12.2013, p. 1). 227 Regulation (EC) No 549/2004 of the European Parliament and of the Council of 10 March 2004 laying down the framework for the creation of the single European sky (the framework Regulation) (OJ L 96, 31.3.2004, p. 1). 223



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Subsector (b) Rail transport

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Type of entity — Infrastructure managers as defined in point (2) of Article 3 of Directive 2012/34/EU of the European Parliament and of the Council (228)

— Railway undertakings as defined in point (1) of Article 3 of Directive 2012/34/EU, including operators of service facilities as defined in point (12) of Article 3 of Directive 2012/34/EU (c) Water transport — Inland, sea and coastal passenger and freight water transport companies, as defined for maritime transport in Annex I to Regulation (EC) No 725/2004 of the European Parliament and of the Council (229), not including the individual vessels operated by those companies — Managing bodies of ports as defined in point (1) of Article 3 of Directive 2005/65/EC of the European Parliament and of the Council (230), including their port facilities as defined in point (11) of Article 2 of Regulation (EC) No 725/2004, and entities operating works and equipment contained within ports — Operators of vessel traffic services as defined in point (o) of Article 3 of Directive 2002/59/ EC of the European Parliament and of the Council (231) (d) Road Transport — Road authorities as defined in point (12) of Article 2 of Commission Delegated Regulation (EU) 2015/962 (232) responsible for traffic management control — Operators of Intelligent Transport Systems as defined in point (1) of Article 4 of Directive 2010/40/EU of the European Parliament and of the Council (233)

Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area (OJ L 343, 14.12.2012, p. 32). 229 Regulation (EC) No  725/2004 of the European Parliament and of the Council of 31  March 2004 on enhancing ship and port facility security (OJ L 129, 29.4.2004, p. 6). 230 Directive 2005/65/EC of the European Parliament and of the Council of 26 October 2005 on enhancing port security (OJ L 310, 25.11.2005, p. 28). 231 Directive 2002/59/EC of the European Parliament and of the Council of 27  June 2002 establishing a Community vessel traffic monitoring and information system and repealing Council Directive 93/75/EEC (OJ L 208, 5.8.2002, p. 10). 232 Commission Delegated Regulation (EU) 2015/962 of 18  December 2014 supplementing Directive 2010/40/EU of the European Parliament and of the Council with regard to the provision of EU–wide real–time traffic information services (OJ L 157, 23.6.2015, p. 21). 233 Directive 2014/65/EU of the European Parliament and of the Council of 15  May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (OJ  L  173, 12.6.2014, p. 349). 228

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Sector 3. Banking

Subsector

4. Financial market infrastructures

5.  Health sector

Health care settings (including hospitals and private clinics)

6. Drinking water supply and distribution

7. Digital Infrastructure

Type of entity Credit institutions as defined in point (1) of Article 4 of Regulation (EU) No 575/2013 of the European Parliament and of the Council (234) — Operators of trading venues as defined in point (24) of Article 4 of Directive 2014/65/EU of the European Parliament and of the Council (235) — Central counterparties (CCPs) as defined in point (1) of Article 2 of Regulation (EU) No 648/2012 of the European Parliament and of the Council (236) Healthcare providers as defined in point (g) of Article 3 of Directive 2011/24/EU of the European Parliament and of the Council (237) Suppliers and distributors of water intended for human consumption as defined in point (1)(a) of Article 2 of Council Directive 98/83/EC (238) but excluding distributors for whom distribution of water for human consumption is only part of their general activity of distributing other commodities and goods which are not considered essential services — IXPs — DNS service providers — TLD name registries

ANNEX III TYPES OF DIGITAL SERVICES FOR THE PURPOSES OF POINT (5) OF ARTICLE 4 1.

Online marketplace.

2.

Online search engine.

3.

Cloud computing service.

Directive 2014/65/EU of the European Parliament and of the Council of 15  May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (OJ  L  173, 12.6.2014, p. 349). 235 Directive 2014/65/EU of the European Parliament and of the Council of 15  May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (OJ  L  173, 12.6.2014, p. 349). 236 Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories (OJ L 201, 27.7.2012, p. 1). 237 Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross–border healthcare (OJ L 88, 4.4.2011, p. 45). 238 Council Directive 98/83/EC of 3 November 1998 on the quality of water intended for human consumption (OJ L 330, 5.12.1998, p. 32). 234



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DIRECTIVE (EU) 2019/770 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 20 May 2019 on certain aspects concerning contracts for the supply of digital content and digital services[239] (Text with EEA relevance) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, Having regard to the opinion of the European Economic and Social Committee (240), Acting in accordance with the ordinary legislative procedure (241), Whereas: (1)

The growth potential of e-commerce in the Union has not yet been fully exploited. The Digital Single Market Strategy for Europe tackles in a holistic manner the major obstacles to the development of cross-border e-commerce in the Union in order to unleash this potential. Ensuring better access for consumers to digital content and digital services, and making it easier for businesses to supply digital content and digital services, can contribute to boosting the Union’s digital economy and stimulating overall growth.

(2) Article  26(1) and (2) of the Treaty on the Functioning of the European Union (TFEU) provide that the Union is to adopt measures with the aim of establishing or ensuring the functioning of the internal market, which is to comprise an area without internal frontiers in which the free movement of goods and services is ensured. Article 169(1), and point (a) of Article 169(2), TFEU provide that the Union is to contribute to the attainment of a high level of consumer protection through measures adopted pursuant to Article  114  TFEU in the context of the completion of the internal market. This Directive aims to strike the right balance between achieving a high level of consumer protection and promoting the competitiveness of enterprises, while ensuring respect for the principle of subsidiarity. (3) Certain aspects concerning contracts for the supply of digital content or digital services should be harmonised, taking as a base a high level of consumer protection, in order to achieve a genuine digital single market, increase legal certainty and reduce transaction costs, in particular for small and medium-sized enterprises (‘SMEs’). (4)

Businesses, especially SMEs, often face additional costs, stemming from differences in national mandatory consumer contract law rules, and legal uncertainty when offering cross-border digital content or digital services. Businesses also face costs when adapting their contracts to specific mandatory rules for the supply of digital content or digital services, which are already being applied in several Member States, creating differences in scope and content between specific national rules governing such contracts.

OJ L 136, 22.5.2019, p. 1. OJ C 264, 20.7.2016, p. 57. 241 Position of the European Parliament of 26  March 2019 (not yet published in the Official Journal) and decision of the Council of 15 April 2019. 239 240

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(5) Consumers are not always confident when buying cross border and especially when it is done online. One of the major factors for consumers’ lack of confidence is uncertainty about their key contractual rights and the lack of a clear contractual framework for digital content or digital services. Many consumers experience problems related to the quality of, or access to, digital content or digital services. For instance, they receive wrong or faulty digital content or digital services, or they are not able to access the digital content or digital service in question. As a result, consumers suffer financial and non-financial detriment. (6) In order to remedy such problems, both businesses and consumers should be able to rely on fully harmonised contractual rights in certain core areas concerning the supply of digital content or digital services across the Union. Full harmonisation of some key regulatory aspects would considerably increase legal certainty for consumers and businesses. (7) Harmonised consumer contract law rules in all Member States would make it easier for businesses, especially SMEs, to supply digital content or digital services across the Union. They would provide businesses with a stable contract law environment when supplying digital content or digital services in other Member States. They would also prevent legal fragmentation that otherwise would arise from new national legislation regulating specifically digital content and digital services. (8)

Consumers should benefit from harmonised rights for the supply of digital content and digital services that provide a high level of protection. They should have clear mandatory rights when they receive or access digital content or digital services from anywhere in the Union. Having such rights should increase their confidence in acquiring digital content or digital services. It should also contribute to reducing the detriment consumers currently suffer, since there would be a set of clear rights that will enable them to address problems they face with digital content or digital services.

(9) This Directive should fully harmonise certain key rules that have, so far, not been regulated at Union or national level. (10) This Directive should define its scope in a clear and unequivocal manner and provide clear substantive rules for the digital content or digital services falling within its scope. Both the scope of this Directive and its substantive rules should be technologically neutral and future-proof. (11) This Directive should lay down common rules on certain requirements concerning contracts between traders and consumers for the supply of digital content or a digital service. For this purpose, rules on the conformity of digital content or a digital service with the contract, remedies in the event of a lack of such conformity or a failure to supply and the modalities for the exercise of those remedies, as well as on the modification of digital content or a digital service, should be fully harmonised. Fully harmonised rules on some essential elements of consumer contract law would make it easier for businesses, especially SMEs, to offer their products in other Member States. Consumers would benefit from a high level of consumer protection and welfare gains by fully harmonising key rules. Member States are precluded within the scope of this Directive from providing for any further formal or substantive requirements. For example, Member States should not provide for rules on the reversal of the burden of proof that are different from those provided for in this Directive, or for an obligation for the consumer to notify the trader of a lack of conformity within a specific period.



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(12) This Directive should not affect national law to the extent that the matters concerned are not regulated by this Directive, such as national rules on the formation, validity, nullity or effects of contracts or the legality of the digital content or the digital service. This Directive should also not determine the legal nature of contracts for the supply of digital content or a digital service, and the question of whether such contracts constitute, for instance, a sales, service, rental or sui generis contract, should be left to national law. This Directive should also not affect national rules that do not specifically concern consumer contracts and provide for specific remedies for certain types of defects that were not apparent at the time of conclusion of the contract, namely national provisions which may lay down specific rules for the trader’s liability for hidden defects. This Directive should also not affect national laws providing for non-contractual remedies for the consumer, in the event of lack of conformity of the digital content or digital service, against persons in previous links of the chain of transactions, or other persons that fulfil the obligations of such persons. (13) Member States also remain free, for example, to regulate liability claims of a consumer against a third party other than a trader that supplies or undertakes to supply the digital content or digital service, such as a developer which is not at the same time the trader under this Directive. (14) Member States should also remain free, for example, to regulate the consequences of a failure to supply, or of a lack of conformity of, digital content or a digital service, where such failure to supply or lack of conformity is due to an impediment beyond the control of the trader and where the trader could not be expected to have avoided or overcome the impediment or its consequences, such as in the event of force majeure. (15) Member States should also remain free, for example, to regulate the rights of parties to withhold the performance of their obligations or part thereof until the other party performs its obligations. For example, Member States should be free to regulate whether a consumer, in cases of a lack of conformity, is to be entitled to withhold payment of the price or part thereof until the trader has brought the digital content or digital service into conformity, or whether the trader is to be entitled to retain any reimbursement due to the consumer upon termination of the contract until the consumer complies with the obligation provided for in this Directive to return the tangible medium to the trader. (16) Member States should also remain free to extend the application of the rules of this Directive to contracts that are excluded from the scope of this Directive, or to otherwise regulate such contracts. For instance, Member States should remain free to extend the protection afforded to consumers by this Directive also to natural or legal persons that are not consumers within the meaning of this Directive, such as non-governmental organisations, start-ups or SMEs. (17) The definition of a consumer should cover natural persons who are acting outside their trade, business, craft or profession. However, Member States should also remain free to determine, in the case of dual purpose contracts, where the contract is concluded for purposes that are partly within and partly outside the person’s trade, and where the trade purpose is so limited as not to be predominant in the overall context of the contract, whether and under which conditions that person should also be considered a consumer. (18) This Directive should apply to any contract whereby the trader supplies or undertakes to supply digital content or digital service to the consumer. Platform

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providers could be considered to be traders under this Directive if they act for purposes relating to their own business and as the direct contractual partner of the consumer for the supply of digital content or a digital service. Member States should remain free to extend the application of this Directive to platform providers that do not fulfil the requirements for being considered a trader under this Directive. (19) The Directive should address problems across different categories of digital content, digital services, and their supply. In order to cater for fast technological developments and to maintain the future-proof nature of the notion of digital content or digital service, this Directive should cover, inter alia, computer programmes, applications, video files, audio files, music files, digital games, e-books or other e-publications, and also digital services which allow the creation of, processing of, accessing or storage of data in digital form, including software-as-a-service, such as video and audio sharing and other file hosting, word processing or games offered in the cloud computing environment and social media. As there are numerous ways for digital content or digital services to be supplied, such as transmission on a tangible medium, downloading by consumers on their devices, web-streaming, allowing access to storage capabilities of digital content or access to the use of social media, this Directive should apply independently of the medium used for the transmission of, or for giving access to, the digital content or digital service. However, this Directive should not apply to internet access services. (20) This Directive and Directive (EU) 2019/771 of the European Parliament and of the Council (242) should complement each other. While this Directive lays down rules on certain requirements concerning contracts for the supply of digital content or digital services, Directive (EU) 2019/771 lays down rules on certain requirements concerning contracts for the sale of goods. Accordingly, in order to meet the expectations of consumers and ensure a clear-cut and simple legal framework for traders of digital content, this Directive should also apply to digital content which is supplied on a tangible medium, such as DVDs, CDs, USB sticks and memory cards, as well as to the tangible medium itself, provided that the tangible medium serves exclusively as a carrier of the digital content. However, instead of the provisions of this Directive on the trader’s obligation to supply and on the consumer’s remedies for failure to supply, the provisions of Directive 2011/83/ EU of the European Parliament and of the Council (243) on obligations related to the delivery of goods and remedies in the event of the failure to deliver should apply. In addition, the provisions of Directive 2011/83/EU on, for example, the right of withdrawal and the nature of the contract under which those goods are supplied, should also continue to apply to such tangible media and the digital content supplied on it. This Directive is also without prejudice to the distribution right applicable to these goods under copyright law. (21) Directive (EU) 2019/771 should apply to contracts for the sale of goods, including goods with digital elements. The notion of goods with digital elements should refer to goods that incorporate or are inter-connected with digital content or a digital service in such a way that the absence of that digital content or digital Directive (EU) 2019/771 of the European Parliament and of the Council of 20 May 2019 (see page 28 of this Official Journal). 243 Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ L 304, 22.11.2011, p. 64). 242



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service would prevent the goods from performing their functions. Digital content or a digital service that is incorporated in or inter-connected with goods in that manner should fall within the scope of Directive (EU) 2019/771 if it is provided with the goods under a sales contract concerning those goods. Whether the supply of the incorporated or inter-connected digital content or digital service forms part of the sales contract with the seller should depend on the content of this contract. This should include incorporated or inter-connected digital content or digital services the supply of which is explicitly required by the contract. It should also include those sales contracts which can be understood as covering the supply of specific digital content or a specific digital service because they are normal for goods of the same type and the consumer could reasonably expect them given the nature of the goods and taking into account any public statement made by or on behalf of the seller or other persons in previous links of the chain of transactions, including the producer. If, for example, a smart TV were advertised as including a particular video application, that video application would be considered to be part of the sales contract. This should apply regardless of whether the digital content or digital service is pre-installed in the good itself or has to be downloaded subsequently on another device and is only inter-connected to the good. For example, a smart phone could come with a standardised pre-installed application provided under the sales contract, such as an alarm application or a camera application. Another possible example is that of a smart watch. In such a case, the watch itself would be considered to be the good with digital elements, which can perform its functions only with an application that is provided under the sales contract but has to be downloaded by the consumer onto a smart phone; the application would then be the inter-connected digital element. This should also apply if the incorporated or inter-connected digital content or digital service is not supplied by the seller itself but is supplied, under the sales contract, by a third party. In order to avoid uncertainty for both traders and consumers, in the event of doubt as to whether the supply of the digital content or the digital service forms part of the sales contract, Directive (EU) 2019/771 should apply. Furthermore, ascertaining a bilateral contractual relationship, between the seller and the consumer, of which the supply of the incorporated or inter-connected digital content or digital service forms part should not be affected by the mere fact that the consumer has to consent to a licensing agreement with a third party in order to benefit from the digital content or the digital service. (22) In contrast, if the absence of the incorporated or inter-connected digital content or digital service does not prevent the goods from performing their functions, or if the consumer concludes a contract for the supply of digital content or a digital service which does not form part of a sales contract concerning goods with digital elements, that contract should be considered to be separate from the contract for the sale of the goods, even if the seller acts as an intermediary of that second contract with the third-party supplier, and could fall within the scope of this Directive. For instance, if the consumer downloads a game application from an app store onto a smart phone, the contract for the supply of the game application is separate from the contract for the sale of the smart phone itself. Directive (EU) 2019/771 should therefore only apply to the sales contract concerning the smart phone, while the supply of the game application could fall under this Directive, if the conditions of this Directive are met. Another example would be where it is expressly agreed that the consumer buys a smart phone without a specific operating system and the consumer subsequently concludes a contract for the supply of an operating system from a third party. In such a case, the supply of the separately bought operating

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system would not form part of the sales contract and therefore would not fall within the scope of Directive (EU) 2019/771, but could fall within the scope of this Directive, if the conditions of this Directive are met. (23) Digital representations of value such as electronic vouchers or e-coupons are used by consumers to pay for different goods or services in the digital single market. Such digital representations of value are becoming important in relation to the supply of digital content or digital services, and should therefore be considered as a method of payment within the meaning of this Directive. Digital representations of value should also be understood to include virtual currencies, to the extent that they are recognised by national law. Differentiation depending on the methods of payment could be a cause of discrimination and provide an unjustified incentive for businesses to move towards supplying digital content or a digital service against digital representations of value. However, since digital representations of value have no other purpose than to serve as a method of payment, they themselves should not be considered digital content or a digital service within the meaning of this Directive. (24) Digital content or digital services are often supplied also where the consumer does not pay a price but provides personal data to the trader. Such business models are used in different forms in a considerable part of the market. While fully recognising that the protection of personal data is a fundamental right and that therefore personal data cannot be considered as a commodity, this Directive should ensure that consumers are, in the context of such business models, entitled to contractual remedies. This Directive should, therefore, apply to contracts where the trader supplies, or undertakes to supply, digital content or a digital service to the consumer, and the consumer provides, or undertakes to provide, personal data. The personal data could be provided to the trader either at the time when the contract is concluded or at a later time, such as when the consumer gives consent for the trader to use any personal data that the consumer might upload or create with the use of the digital content or digital service. Union law on the protection of personal data provides for an exhaustive list of legal grounds for the lawful processing of personal data. This Directive should apply to any contract where the consumer provides or undertakes to provide personal data to the trader. For example, this Directive should apply where the consumer opens a social media account and provides a name and email address that are used for purposes other than solely supplying the digital content or digital service, or other than complying with legal requirements. It should equally apply where the consumer gives consent for any material that constitutes personal data, such as photographs or posts that the consumer uploads, to be processed by the trader for marketing purposes. Member States should however remain free to determine whether the requirements for the formation, existence and validity of a contract under national law are fulfilled. (25) Where digital content and digital services are not supplied in exchange for a price, this Directive should not apply to situations where the trader collects personal data exclusively to supply digital content or a digital service, or for the sole purpose of meeting legal requirements. Such situations can include, for instance, cases where the registration of the consumer is required by applicable laws for security and identification purposes. This Directive should also not apply to situations where the trader only collects metadata, such as information concerning the consumer’s device or browsing history, except where this situation is considered to be a contract under national law. It should also not apply to situations where the consumer, without having concluded a contract with the trader, is exposed to



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advertisements exclusively in order to gain access to digital content or a digital service. However, Member States should remain free to extend the application of this Directive to such situations, or to otherwise regulate such situations, which are excluded from the scope of this Directive. (26) This Directive should apply to contracts for the development of digital content that is tailor-made to the specific requirements of the consumer including tailormade software. This Directive should also apply to the supply of electronic files required in the context of 3D printing of goods, to the extent that such files fall under the definition of digital content or digital services within the meaning of this Directive. However, this Directive should not regulate any rights or obligations related to goods produced with the use of 3D printing technology. (27) Given that this Directive should apply to contracts which have as their object the supply of digital content or a digital service to the consumer, it should not apply where the main subject matter of the contract is the provision of professional services, such as translation services, architectural services, legal services or other professional advice services, which are often performed personally by the trader, regardless of whether digital means are used by the trader in order to produce the output of the service or to deliver or transmit it to the consumer. Similarly, this Directive should not apply to public services, such as social security services or public registers, where the digital means are only used for transmitting or communicating the service to the consumer. This Directive should also not apply to authentic instruments and other notarial acts, regardless of whether they are performed, recorded, reproduced or transmitted by digital means. (28) The market for number-independent interpersonal communications services, which do not connect with publicly assigned numbering resources, is rapidly evolving. In recent years, the emergence of new digital services which allow interpersonal communications over the internet, such as web-based email and online messaging services, has led more consumers to use such services. For such reasons, it is necessary to provide effective consumer protection with respect to such services. This Directive should therefore also apply to number-independent interpersonal communications services. (29) This Directive should not apply to healthcare as defined in Directive 2011/24/EU of the European Parliament and of the Council (244). The exclusion of ‘healthcare’ from the scope of this Directive should also apply to any digital content or digital service that constitutes a medical device, as defined in Council Directive 93/42/ EEC (245) or 90/385/EEC (246) or Directive 98/79/EC of the European Parliament and of the Council (247), where such medical device is prescribed or provided by a health professional as defined in Directive 2011/24/EU. However, this Directive should apply to any digital content or digital service that constitutes a medical device, such as health applications, that can be obtained by the consumer without being prescribed or provided by a health professional.

Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcare (OJ L 88, 4.4.2011, p. 45). 245 Council Directive 93/42/EEC of 14 June 1993 concerning medical devices (OJ L 169, 12.7.1993, p. 1). 246 Council Directive 90/385/EEC of 20 June 1990 on the approximation of the laws of the Member States relating to active implantable medical devices (OJ L 189, 20.7.1990, p. 17). 247 Directive 98/79/EC of the European Parliament and of the Council of 27  October 1998 on in vitro diagnostic medical devices (OJ L 331, 7.12.1998, p. 1). 244

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(30) Union law relating to financial services contains numerous rules on consumer protection. Financial services, as defined by the law applicable to that sector, in particular in Directive 2002/65/EC of the European Parliament and of the Council (248), also cover digital content or digital services relating, or giving access, to financial services and are therefore covered by the protection of Union financial services law. Contracts relating to digital content or digital services that constitute a financial service should therefore be excluded from the scope of this Directive. (31) This Directive should not apply to digital content or a digital service that is provided to a public audience as part of an artistic performance or other event, such as a digital cinematographic projection or an audiovisual theatrical performance. However, this Directive should apply if digital content or a digital service is provided to a public audience by signal transmission such as digital television services. (32) Free and open source software, where the source code is openly shared and users can freely access, use, modify and redistribute the software or modified versions thereof, can contribute to research and innovation in the market for digital content and digital services. In order to avoid imposing obstacles to such market developments, this Directive should also not apply to free and open source software, provided that it is not supplied in exchange for a price and that the consumer’s personal data are exclusively used for improving the security, compatibility or interoperability of the software. (33) Digital content or digital services are often combined with the provision of goods or other services and offered to the consumer within the same contract comprising a bundle of different elements, such as the provision of digital television and the purchase of electronic equipment. In such cases, the contract between the consumer and the trader includes elements of a contract for the supply of digital content or a digital service, but also elements of other contract types, such as sale of goods or services contracts. This Directive should only apply to the elements of the overall contract that consist of the supply of digital content or digital services. The other elements of the contract should be governed by the rules applicable to those contracts under national law or, as applicable, other Union law governing a specific sector or subject matter. Likewise, any effects that the termination of one element of the bundle contract could have on the other elements of that bundle contract should be governed by national law. However, in order to ensure consistency with the sector-specific provisions of Directive (EU) 2018/1972 of the European Parliament and of the Council (249) regulating bundle contracts, where a trader offers, within the meaning of that Directive, digital content or a digital service in combination with a number-based interpersonal communications service or an internet access service, the provisions of this Directive on the modification of digital content should not apply to the digital content or digital service element of the bundle. The relevant provisions of Directive (EU) 2018/1972 should instead apply to all elements of the bundle, including the digital content or digital service. (34) The provisions of this Directive concerning bundle contracts should only apply to cases where the different elements of the bundle are offered by the same trader

Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC (OJ L 271, 9.10.2002, p. 16). 249 Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (OJ L 321, 17.12.2018, p. 36). 248



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to the same consumer under a single contract. This Directive should not affect national laws governing the conditions under which a contract for the supply of digital content or digital services can be considered to be linked with or ancillary to another contract that the consumer has concluded with the same or another trader, the remedies to be exercised under each contract or the effect that the termination of one contract would have on the other contract. (35) The commercial practice of bundling offers of digital content or digital services with the provision of goods or other services is subject to Directive 2005/29/EC of the European Parliament and of the Council (250) concerning unfair businessto-consumer commercial practices in the internal market. Such bundling is not in itself prohibited under Directive 2005/29/EC. However, it is prohibited where it is deemed unfair, following a case-by-case assessment pursuant to the criteria laid down in that Directive. Union law on competition also allows addressing tying and bundling practices, when they affect the competitive process and harm consumers. (36) This Directive should be without prejudice to other Union law governing a specific sector or subject matter, such as telecommunications, e-commerce and consumer protection. It should also be without prejudice to Union and national law on copyright and related rights, including the portability of online content services. (37) The pursuit of activities falling within the scope of this Directive could involve the processing of personal data. Union law provides a comprehensive framework on the protection of personal data. In particular, this Directive is without prejudice to Regulation (EU) 2016/679 (251) and Directive 2002/58/EC (252) of the European Parliament and of the Council. That framework applies to any personal data processed in connection with the contracts covered by this Directive. Consequently, personal data should only be collected or otherwise processed in accordance with Regulation (EU) 2016/679 and Directive 2002/58/EC. In the event of a conflict between this Directive and Union law on the protection of personal data, the latter should prevail. (38) This Directive should not regulate the conditions for the lawful processing of personal data, as this question is regulated, in particular, by Regulation (EU) 2016/679. As a consequence, any processing of personal data in connection with a contract falling within the scope of this Directive is lawful only if it is in conformity with the provisions of Regulation (EU) 2016/679 relating to the legal grounds for the processing of personal data. Where processing of personal data is based on consent, in particular pursuant to point (a) of Article  6(1) of Regulation (EU) 2016/679, the specific provisions of that Regulation including those concerning the conditions for assessing whether consent is freely given apply. This Directive Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/ EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No  2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ L 149, 11.6.2005, p. 22). 251 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27  April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1). 252 Directive 2002/58/EC 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 (Directive on privacy and electronic communications) (OJ L 201, 31.7.2002, p. 37). 250

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should not regulate the validity of the consent given. Regulation (EU) 2016/679 also contains comprehensive rights as to the erasure of data and data portability. This Directive should be without prejudice to those rights, which apply to any personal data provided by the consumer to the trader or collected by the trader in connection with any contract falling within the scope of this Directive, and when the consumer terminated the contract in accordance with this Directive. (39) The right to erasure and the consumer’s right to withdraw consent for the processing of personal data should apply fully also in connection with the contracts covered by this Directive. The right of the consumer to terminate the contract in accordance with this Directive should be without prejudice to the consumer’s right under Regulation (EU) 2016/679 to withdraw any consent given to the processing of the consumer’s personal data. (40) This Directive should not regulate the consequences for the contracts covered by this Directive in the event that the consumer withdraws the consent for the processing of the consumer’s personal data. Such consequences should remain a matter for national law. (41) There are various ways for the trader to supply digital content or digital services to consumers. It is opportune to set simple and clear rules as to the modalities and the time for performing that obligation to supply which is the main contractual obligation of the trader, by making the digital content or a digital service available or accessible to the consumer. The digital content or digital service should be considered to be made available or accessible to the consumer when the digital content or digital service, or any means suitable for accessing or downloading it, has reached the sphere of the consumer and no further action is required by the trader in order to enable the consumer to use the digital content or digital service in accordance with the contract. Considering that the trader is not in principle responsible for acts or omissions of a third party which operates a physical or virtual facility, for instance an electronic platform or a cloud storage facility, that the consumer selects for receiving or storing the digital content or digital service, it should be sufficient for the trader to supply the digital content or digital service to that third party. However, the physical or virtual facility cannot be considered to be chosen by the consumer if it is under the trader’s control or is contractually linked to the trader, or where the consumer selected that physical or virtual facility for receipt of the digital content or digital service but that choice was the only one offered by the trader to receive or access the digital content or digital service. Where the physical or virtual facility cannot be considered to have been chosen by the consumer, the obligation of the trader to supply the digital content or digital service should not be considered to have been fulfilled if the digital content or digital service is supplied to the physical or virtual facility but the consumer cannot receive or access the digital content or digital service in accordance with this Directive. In those cases, the consumer should have the same remedies as would apply if the trader had failed to supply the digital content or digital service. With regard to the time of supply, in line with market practices and technical possibilities, and in order to provide for a certain degree of flexibility, the digital content or digital service should be supplied without undue delay, unless the parties decide to agree otherwise in order to cater for other supply models. (42) The digital content or digital service should comply with the requirements agreed between the trader and the consumer in the contract. In particular, it should comply with the description, quantity, for example the number of music files that can be accessed, quality, for example the picture resolution, language and version agreed



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in the contract. It should also possess the security, functionality, compatibility, interoperability and other features, as required by the contract. The requirements of the contract should include those resulting from the pre-contractual information which, in accordance with Directive 2011/83/EU, forms an integral part of the contract. Those requirements could also be set out in a service level agreement, where, under the applicable national law, such type of agreement forms part of the contractual relationship between the consumer and the trader. (43) The notion of functionality should be understood to refer to the ways in which digital content or a digital service can be used. For instance, the absence or presence of any technical restrictions such as protection via Digital Rights Management or region coding could have an impact on the ability of the digital content or digital service to perform all its functions having regard to its purpose. The notion of interoperability relates to whether and to what extent digital content or a digital service is able to function with hardware or software that is different from those with which digital content or digital services of the same type are normally used. Successful functioning could include, for instance, the ability of the digital content or digital service to exchange information with such other software or hardware and to use the information exchanged. (44) Given that digital content and digital services are constantly developing, traders may agree with consumers to provide updates and features as they become available. The conformity of the digital content or digital service should, therefore, also be assessed in relation to whether the digital content or service is updated in the manner that has been stipulated in the contract. Failure to supply updates that had been agreed to in the contract should be considered a lack of conformity of the digital content or digital service. Moreover, defective or incomplete updates should also be considered a lack of conformity of the digital content or digital service, given that that would mean that such updates are not performed in the manner stipulated in the contract. (45) In order to be in conformity and to ensure that consumers are not deprived of their rights, for example in cases where the contract sets very low standards, the digital content or digital service should not only comply with the subjective requirements for conformity, but should in addition comply with the objective requirements for conformity set out in this Directive. Conformity should be assessed, inter alia, by considering the purpose for which digital content or digital services of the same type would normally be used. It should also possess the qualities and performance features which are normal for digital content or digital services of the same type and which consumers can reasonably expect, given the nature of the digital content or digital service, and taking into account any public statements on the specific characteristics of the digital content or digital service made by or on behalf of the trader or other persons in previous links of the chain of transactions. (46) The standard of reasonableness with regard to any reference in this Directive to what can be reasonably expected by a person should be objectively ascertained, having regard to the nature and purpose of the digital content or digital service, the circumstances of the case and to the usages and practices of the parties involved. In particular, what is considered to be a reasonable time for bringing the digital content or digital service into conformity should be objectively ascertained, having regard to the nature of the lack of conformity. (47) For the period of time that the consumer would reasonably expect, the trader should provide the consumer with updates, including security updates, in order to keep the digital content or digital service in conformity and secure. For instance,

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as regards digital content or digital services, the purpose of which is limited in time, the obligation to provide updates should be limited to that time, while for other types of digital content or digital service the period during which updates should be provided to the consumer could be equal to the liability period for lack of conformity or could extend beyond that period, which might be the case particularly with regard to security updates. The consumer should remain free to choose whether to install the updates provided. Where the consumer decides not to install the updates, the consumer should, however, not expect the digital content or digital service to remain in conformity. The trader should inform the consumer that the consumer’s decision not to install updates which are necessary for keeping the digital content or digital service in conformity, including security updates, will affect the trader’s liability for conformity of those features of the digital content or digital service which the relevant updates are supposed to maintain in conformity. This Directive should not affect obligations to provide security updates laid down in Union law or in national law. (48) Regulation (EU) 2016/679 or any other Union law on data protection should fully apply to the processing of personal data in connection with any contract falling within the scope of this Directive. In addition, this Directive should be without prejudice to the rights, obligations and non-contractual remedies provided for by Regulation (EU) 2016/679. Facts leading to a lack of compliance with requirements provided for by Regulation (EU) 2016/679, including core principles such as the requirements for data minimisation, data protection by design and data protection by default, may, depending on the circumstances of the case, also be considered to constitute a lack of conformity of the digital content or digital service with subjective or objective requirements for conformity provided for in this Directive. One example could be where a trader explicitly assumes an obligation in the contract, or the contract can be interpreted in that way, which is also linked to the trader’s obligations under Regulation (EU) 2016/679. In that case, such a contractual commitment can become part of the subjective requirements for conformity. A second example could be where non-compliance with the obligations under Regulation (EU) 2016/679 could, at the same time render the digital content or digital service unfit for its intended purpose and, therefore, constitute a lack of conformity with the objective requirement for conformity which requires the digital content or digital service to be fit for the purposes for which digital content or digital services of the same type would be normally used. This would be the case, for example, if the trader of data encryption software fails to implement appropriate measures as required by Regulation (EU) 2016/679 to ensure that by design personal data are not disclosed to unauthorised recipients, thus rendering the encryption software unfit for its intended purpose which is the secure transferring of data by the consumer to their intended recipient. Finally, there could be cases where the trader’s non-compliance with its obligations under Regulation (EU) 2016/679 can also constitute a lack of conformity of the digital content or digital service with the objective requirement for conformity which requires the digital content or digital service to possess the features which are normal for digital content or digital services of the same type and which the consumer can reasonably expect. For instance, if the trader of an online shopping application fails to take the measures provided for in Regulation (EU) 2016/679 for the security of processing of the consumer’s personal data and as a result the consumer’s credit card information is exposed to malware or spyware, that failure could also constitute a lack of conformity of the digital content or digital service



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within the meaning of this Directive, as the consumer would reasonably expect that an application of this type would normally possess features preventing the disclosure of payment details. Where the facts leading to non-compliance with requirements under Regulation (EU) 2016/679 also constitute a lack of conformity of the digital content or digital service with subjective or objective requirements for conformity as provided for in this Directive, the consumer should be entitled to the remedies for the lack of conformity provided for by this Directive, unless the contract is already void or voidable under national law. (49) In order to ensure sufficient flexibility, it should be possible for the parties to deviate from the objective requirements for conformity. Such a deviation should only be possible if the consumer was specifically informed about it and if the consumer accepts it separately from other statements or agreements and by way of active and unequivocal conduct. Both conditions could, for instance, be fulfilled by ticking a box, pressing a button or activating a similar function. (50) When applying the rules of this Directive, traders should make use of standards, open technical specifications, good practices and codes of conduct, including in relation to the commonly used and machine-readable format for retrieving the content other than personal data, which was provided or created by the consumer when using the digital content or digital service, and including on the security of information systems and digital environments, whether established at international level, Union level or at the level of a specific industry sector. In this context, the Commission could call for the development of international and Union standards and the drawing up of a code of conduct by trade associations and other representative organisations that could support the uniform implementation of this Directive. (51) Many types of digital content or digital services are supplied continuously over a period of time, such as access to cloud services. It is therefore necessary to ensure that the digital content or digital service is in conformity throughout the duration of the contract. Short-term interruptions of the supply of digital content or a digital service should be treated as instances of lack of conformity where those interruptions are more than negligible or recur. Moreover, given the frequent improvement of digital content and digital services, in particular by updates, the version of digital content or of a digital service supplied to the consumer should be the most recent one available at the time of the conclusion of the contract, unless the parties have agreed otherwise. (52) In order to work properly, the digital content or digital service needs to be correctly integrated into the consumer’s hardware and software environment. A  lack of conformity of the digital content or digital service that results from an incorrect integration should be regarded as a lack of conformity of the digital content or digital service itself, where it was integrated by the trader or under its control, or by the consumer following the trader’s instructions for integration, and the incorrect integration was due to shortcomings in the required integration instructions, such as incompleteness or a lack of clarity making the integration instructions difficult to use for the average consumer. (53) Restrictions of the consumer’s use of the digital content or digital service in accordance with this Directive could result from limitations imposed by the holder of intellectual property rights in accordance with intellectual property law. Such restrictions can arise from the end-user license agreement under which the digital content or digital service is supplied to the consumer. This can be the case when, for instance, an end-user licence agreement prohibits the consumer from making

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use of certain features related to the functionality of the digital content or digital service. Such a restriction could render the digital content or digital service in breach of the objective requirements for conformity laid down in this Directive, if it concerned features which are usually found in digital content or digital services of the same type and which the consumer can reasonably expect. In such cases, the consumer should be able to claim the remedies provided for in this Directive for the lack of conformity against the trader who supplied the digital content or digital service. The trader should only be able to avoid such liability by fulfilling the conditions for derogating from the objective requirements for conformity as laid down in this Directive, namely only if the trader specifically informs the consumer before the conclusion of the contract that a particular characteristic of the digital content or digital service deviates from the objective requirements for conformity and the consumer has expressly and separately accepted that deviation. (54) Legal defects are a particularly important issue in relation to digital content or digital services, which are subject to intellectual property rights. Restrictions on the consumer’s use of digital content or a digital service in accordance with this Directive could be a result of a violation of third-party rights. Such violation might effectively bar the consumer from enjoying the digital content or digital service or some of its features, for instance when the consumer cannot access the digital content or digital service at all or cannot do so lawfully. That might be due to the fact that the third party rightfully compels the trader to stop infringing those rights and to discontinue offering the digital content or digital service in question or that the consumer cannot use the digital content or digital service without infringing the law. In the event of a violation of third-party rights that results in a restriction that prevents or limits the use of the digital content or digital service in accordance with the subjective and objective requirements for conformity, the consumer should be entitled to the remedies for the lack of conformity, unless national law provides for the nullity of the contract, or for its rescission, for example for breach of legal warranty against eviction. (55) The trader should be liable to the consumer in the event of a lack of conformity of the digital content or digital service, and for any failure to supply the digital content or digital service. As digital content or digital services can be supplied to consumers through one or more individual acts of supply or continuously over a period of time, it is appropriate that the relevant time for the purpose of establishing conformity of the digital content or digital service be determined in the light of those different types of supply. (56) Digital content or digital services can be supplied to consumers through a single act of supply, for instance when consumers download an e-book and store it on their personal device. Similarly, the supply can consist of a series of such individual acts, for instance where consumers receive a link to download a new e-book every week. The distinctive element of this category of digital content or digital service is the fact that consumers thereafter have the possibility to access and use the digital content or digital service indefinitely. In such cases, the conformity of the digital content or digital service should be assessed at the time of supply, and therefore the trader should only be liable for any lack of conformity which exists at the time when the single act of supply or each individual act of supply takes place. In order to ensure legal certainty, traders and consumers should be able to rely on a harmonised minimum period during which the trader should be held liable for a lack of conformity. In relation to contracts which provide for a single act of supply or a series of individual acts of supply of the digital content or digital service, Member States should ensure that traders are liable for not less than two



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years from the time of supply, if under their respective national law the trader is only liable for any lack of conformity that becomes apparent within a period of time after supply. (57) Digital content or digital services could also be supplied to consumers in a continuous manner over a period of time. Continuous supply can include cases whereby the trader makes a digital service available to consumers for a fixed or an indefinite period of time, such as a two-year cloud storage contract or an indefinite social media platform membership. The distinctive element of this category is the fact that the digital content or digital service is available or accessible to consumers only for the fixed duration of the contract or for as long as the indefinite contract is in force. Therefore, it is justified that the trader, in such cases, should only be liable for a lack of conformity which appears during that period of time. The element of continuous supply should not necessarily require a long-term supply. Cases such as web-streaming of a video clip should be considered continuous supply over a period of time, regardless of the actual duration of the audio-visual file. Cases where specific elements of the digital content or digital service are made available periodically or on several instances during the fixed duration of the contract, or for as long as the indefinite contract is in force, should also be considered a continuous supply over a period of time, for instance where the contract stipulates that a copy of anti-virus software can be used for a year and will be automatically updated on the first day of each month of this period, or that the trader will issue updates whenever new features of a digital game become available, and the digital content or digital service is available or accessible to consumers only for the fixed duration of the contract or for as long as the indefinite contract is in force. (58) Member States should remain free to regulate national limitation periods. However, such limitation periods should not prevent consumers from exercising their rights throughout the period of time during which the trader is liable for a lack of conformity. While this Directive should therefore not harmonise the starting point of national limitation periods, it should nevertheless ensure that such periods still allow consumers to exercise their remedies for any lack of conformity that becomes apparent at least during the period during which the trader is liable for a lack of conformity. (59) Due to the specific nature and high complexity of digital content and digital services, as well as the trader’s better knowledge and access to know-how, technical information and high-tech assistance, the trader is likely to be in a better position than the consumer to know why the digital content or digital service is not supplied or is not in conformity. The trader is also likely to be in a better position to assess whether the failure to supply or the lack of conformity is due to the incompatibility of the consumer’s digital environment with the technical requirements for the digital content or digital service. Therefore in the event of a dispute, while it is for the consumer to provide evidence that the digital content or digital service is not in conformity, the consumer should not have to prove that the lack of conformity existed at the time of supply of the digital content or digital service or, in the event of continuous supply, during the duration of the contract. Instead, it should be for the trader to prove that the digital content or digital service was in conformity at that time or during that period. That burden of proof should be on the trader for a lack of conformity which becomes apparent within one year from the time of supply where the contract provides for a single act of supply or a series of individual acts of supply, and for the duration of the contract where the contract provides for continuous supply over a period of time. However,

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where the trader proves that the consumer’s digital environment is not compatible with the technical requirements, of which the trader informed the consumer in a clear and comprehensible manner before the conclusion of the contract, the consumer should have the burden of proving that the lack of conformity of the digital content or digital service existed at the time of supply of the digital content or digital service where the contract provides for a single act of supply or a series of individual acts of supply or, where the contract provides for continuous supply over a period of time, for the duration of the contract. (60) Without prejudice to the fundamental right to the protection of private life, including confidentiality of communications, and to the protection of personal data of the consumer, the consumer should cooperate with the trader in order for the trader to ascertain whether the cause of the lack of conformity lies in the consumer’s digital environment using the technically available means which are least intrusive for the consumer. This can often be done for instance by providing the trader with automatically generated incident reports or with details of the consumer’s internet connection. Only in exceptional and duly justified circumstances where, despite the best use of all other means, there is no other way possible, consumers may need to allow virtual access to their digital environment. However, where the consumer does not cooperate with the trader and the consumer had been informed of the consequences of non-cooperation, it should be for the consumer to prove not only that the digital content or digital service is not in conformity, but also that the digital content or digital service was not in conformity at the time of supply of the digital content or digital service where the contract provides for a single act of supply or a series of individual acts of supply or, where the contract provides for continuous supply over a period of time, for the duration of the contract. (61) Where the trader has failed to supply the digital content or digital service, the consumer should call upon the trader to supply the digital content or digital service. In such cases, the trader should act without undue delay, or within an additional period of time as expressly agreed to by the parties. Considering that digital content or a digital service is supplied in digital form, the supply should not require, in the majority of situations, any additional time to make the digital content or digital service available to the consumer. Therefore, in such cases, the obligation of the trader to supply the digital content or digital service without undue delay should mean having to supply it immediately. If the trader then fails to supply the digital content or digital service, the consumer should be entitled to terminate the contract. In specific circumstances, such as where it is clear that the trader will not supply the digital content or digital service or where a specific time for the supply is essential for the consumer, the consumer should be entitled to terminate the contract without first calling upon the trader to supply the digital content or digital service. (62) In the case of lack of conformity, consumers should be entitled to have the digital content or digital service brought into conformity, to have a proportionate reduction in the price, or to terminate the contract. (63) Depending on the technical characteristics of the digital content or digital service, the trader should be allowed to select a specific way of bringing the digital content or digital service into conformity, for example by issuing updates or making a new copy of the digital content or digital service available to the consumer. (64) Given the diversity of digital content and digital services, it is not appropriate to set fixed deadlines for the exercise of rights or the fulfilling of obligations related to digital content or digital services. Such deadlines would not take account of



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such diversity and could be either too short or too long, depending on the case. It is therefore more appropriate to require that digital content and digital services be brought into conformity within a reasonable time. Such requirement should not prevent the parties from agreeing on a specific time for bringing the digital content or digital service into conformity. The digital content or digital service should be brought into conformity free of any charge. In particular, the consumer should not incur any costs associated with the development of an update for the digital content or digital service. (65) Where bringing digital content or a digital service into conformity is legally or factually impossible or where the trader refuses to bring the digital content or digital service into conformity because to do so would impose disproportionate costs on the trader, or where the trader has failed to bring the digital content or digital service into conformity within a reasonable time, free of charge and without causing significant inconvenience to the consumer, the consumer should be entitled to the remedies of price reduction or termination of the contract. In certain situations, it is justified that the consumer should be entitled to have the price reduced or the contract terminated immediately, for instance where the trader previously failed to successfully bring the digital content or digital service into conformity or where the consumer cannot be expected to maintain confidence in the ability of the trader to bring the digital content or digital service into conformity due to the serious nature of the lack of conformity. For example, the consumer should be entitled to directly request a price reduction or the termination of the contract where the consumer is supplied with anti-virus software which is itself infected with viruses and would constitute an instance of lack of conformity of such a serious nature. The same should apply where it is clear that the trader will not bring the digital content or digital service into conformity within a reasonable time or without significant inconvenience for the consumer. (66) In a situation where the consumer is entitled to a reduction of the price paid for the digital content or digital service which is supplied over a period of time, the calculation of the price reduction should take into consideration the decrease of value of the digital content or digital service due both to the lack of conformity and to the time during which the consumer was unable to enjoy the digital content or digital service in conformity. (67) Where the digital content or digital service is supplied in exchange for a price, the consumer should be able to terminate the contract only if the lack of conformity is not minor. However, where the digital content or digital service is not supplied in exchange for a price but personal data are provided by the consumer, the consumer should be entitled to terminate the contract also in cases where the lack of conformity is minor, since the remedy of price reduction is not available to the consumer. In cases where the consumer pays a price and provides personal data, the consumer should be entitled to all available remedies in the event of a lack of conformity. In particular, provided all other conditions are met, the consumer should be entitled to have the digital content or digital service brought into conformity, to have the price reduced in relation to the money paid for the digital content or digital service or to have the contract terminated. (68) Where the consumer terminates the contract, the trader should reimburse the price paid by the consumer. However, there is a need to balance the legitimate interests of consumers and traders where the digital content or digital service is supplied over a period of time and the digital content or digital service was in conformity only for part of that period. Therefore, upon termination, the consumer should

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only be entitled to the part of the price paid that corresponds and is in proportion to the length of time during which the digital content or digital service was not in conformity. The consumer should also be entitled to any part of the price paid in advance for any period that would have remained after the contract was terminated. (69) Where personal data are provided by the consumer to the trader, the trader should comply with the obligations under Regulation (EU) 2016/679. Such obligations should also be complied with in cases where the consumer pays a price and provides personal data. Upon termination of the contract, the trader should also refrain from using any content other than personal data, which was provided or created by the consumer when using the digital content or digital service supplied by the trader. Such content could include digital images, video and audio files and content created on mobile devices. However, the trader should be entitled to continue to use the content provided or created by the consumer in cases where such content either has no utility outside the context of the digital content or digital service supplied by the trader, only relates to the consumer’s activity, has been aggregated with other data by the trader and cannot be disaggregated or only with disproportionate efforts, or has been generated jointly by the consumer and others, and other consumers can continue to make use of it. (70) The consumer could be discouraged from exercising remedies for a lack of conformity of digital content or a digital service if the consumer is deprived of access to content other than personal data, which the consumer provided or created through the use of the digital content or digital service. In order to ensure that the consumer benefits from effective protection in relation to the right to terminate the contract, the trader should therefore, at the request of the consumer, make such content available to the consumer following the termination of the contract. (71) The consumer should be entitled to retrieve the content within a reasonable time, without hindrance from the trader, in a commonly used machine-readable format and free of charge, with the exception of costs generated by the consumer’s own digital environment, for instance the costs of a network connection as those costs are not specifically linked to the retrieval of the content. However, the obligation of the trader to make available such content should not apply where the content only has utility within the context of using the digital content or digital service, or relates only to the consumer’s activity when using the digital content or digital service or has been aggregated with other data by the trader and cannot be disaggregated or only with disproportionate efforts. In such cases, the content does not have significant practical use or interest for the consumer while taking into account also the interests of the trader. Moreover, the obligation of the trader to make available to the consumer, upon termination of the contract, any content that is not personal data and has been provided or created by the consumer should be without prejudice to the trader’s right not to disclose certain content in accordance with applicable law. (72) Where the contract is terminated, the consumer should not be required to pay for the use of the digital content or digital service for any period during which the digital content or a digital service was not in conformity because that would deprive the consumer of effective protection. However, the consumer should also refrain from using the digital content or digital service and from making it available to third parties, for instance by deleting the digital content or any usable copy or rendering the digital content or digital service otherwise inaccessible. (73) The principle of the liability of the trader for damages is an essential element of contracts for the supply of digital content or digital services. Therefore, the



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consumer should be entitled to claim compensation for detriment caused by a lack of conformity or a failure to supply the digital content or digital service. The compensation should put the consumer as much as possible into the position in which the consumer would have been had the digital content or digital service been duly supplied and been in conformity. As such a right to damages already exists in all Member States, this Directive should be without prejudice to national rules on the compensation of consumers for harm resulting from infringement of those rules. (74) This Directive should also address modifications, such as updates and upgrades, which are carried out by traders on the digital content or digital service which is supplied or made accessible to the consumer over a period of time. Considering the fast-evolving character of digital content and digital services, such updates, upgrades or similar modifications may be necessary and are often advantageous for the consumer. Some modifications, for instance those stipulated as updates in the contract, may form part of the contractual commitment. Other modifications can be required to fulfil the objective requirements for conformity of the digital content or digital service as set out in this Directive. Yet other modifications, which would deviate from the objective requirements for conformity and which are foreseeable at the time of conclusion of the contract, would have to be expressly agreed to by the consumer when concluding the contract. (75) In addition to modifications aimed at maintaining conformity, the trader should be allowed under certain conditions to modify features of the digital content or digital service, provided that the contract gives a valid reason for such a modification. Such valid reasons could encompass cases where the modification is necessary to adapt the digital content or digital service to a new technical environment or to an increased number of users or for other important operational reasons. Such modifications are often to the advantage of the consumer as they improve the digital content or digital service. Consequently, the parties to the contract should be able to include clauses in the contract which allow the trader to undertake modifications. In order to balance consumer and business interests, such a possibility for the trader should be coupled with a right for the consumer to terminate the contract where such modifications negatively impact the use of or access to the digital content or digital service in more than only a minor manner. The extent to which modifications negatively impact the use of or access to the digital content or digital service by the consumer should be objectively ascertained having regard to the nature and purpose of the digital content or digital service and to the quality, functionality, compatibility and other main features which are normal for digital content or digital services of the same type. The rules provided for in this Directive concerning such updates, upgrades or similar modifications should however not concern situations where the parties conclude a new contract for the supply of the digital content or digital service, for instance as a consequence of distributing a new version of the digital content or digital service. (76) Consumers should be informed of modifications in a clear and comprehensible manner. Where a modification negatively impacts, in more than a minor manner, the access to or use of digital content or a digital service by the consumer, the consumer should be informed in a way that allows the information to be stored on a durable medium. A durable medium should enable the consumer to store the information for as long as is necessary to protect the interests of the consumer arising from the consumer’s relationship with the trader. Such media should include, in particular, paper, DVDs, CDs, USB sticks, memory cards or hard disks as well as emails.

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(77) Where a modification negatively impacts, in more than a minor manner, the access or use of the digital content or digital service by the consumer, the consumer should enjoy as a result of such a modification the right to terminate the contract free of any charge. Alternatively, the trader can decide to enable the consumer to maintain access to the digital content or digital service at no additional cost, without the modification and in conformity, in which case the consumer should not be entitled to terminate the contract. However, if the digital content or digital service that the trader enabled the consumer to maintain is no longer in conformity with the subjective and the objective requirements for conformity, the consumer should be able to rely on the remedies for a lack of conformity as provided for under this Directive. Where the requirements for such a modification as laid down in this Directive are not satisfied and the modification results in a lack of conformity, the consumer’s right to bring the digital content or digital service into conformity, have the price reduced or the contract terminated, as provided for under this Directive, should remain unaffected. Similarly, where, subsequent to a modification, a lack of conformity of the digital content or digital service that has not been caused by the modification arises, the consumer should continue to be entitled to rely on remedies as provided for under this Directive for the lack of conformity in relation to this digital content or digital service. (78) The lack of conformity of the digital content or digital service as supplied to the consumer is often due to one of the transactions in a chain that links the original designer to the final trader. While the final trader should be liable towards the consumer in the event of a lack of conformity, it is important to ensure that the trader has appropriate rights vis-à-vis different persons in the chain of transactions in order to be able to cover the liability towards the consumer. Such rights should be limited to commercial transactions and they should therefore not cover situations where the trader is liable towards the consumer for the lack of conformity of digital content or a digital service that is composed of or built upon software which was supplied without the payment of a price under a free and open-source licence by a person in previous links of the chain of transactions. However, it should be for the Member States under their applicable national law to identify the persons in the chain of transactions against which the final trader can turn and the modalities and conditions of such actions. (79) Persons or organisations regarded under national law as having a legitimate interest in protecting consumer contractual and data protection rights should be afforded the right to initiate proceedings to ensure that the national provisions transposing this Directive are applied, either before a court or before an administrative authority which is competent to decide upon complaints, or to initiate appropriate legal proceedings. (80) Nothing in this Directive should prejudice the application of the rules of private international law, in particular Regulations (EC) No  593/2008 (253) and (EU) No 1215/2012 (254) of the European Parliament and of the Council.

Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ L 177, 4.7.2008, p. 6). 254 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 351, 20.12.2012, p. 1). 253



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(81) The Annex to Regulation (EU) 2017/2394 of the European Parliament and of the Council (255) should be amended to include a reference to this Directive so as to facilitate cross-border cooperation on enforcement of this Directive. (82) Annex I to Directive 2009/22/EC of the European Parliament and of the Council (256) should be amended to include a reference to this Directive so as to ensure that the collective interests of consumers laid down in this Directive are protected. (83) Consumers should be able to benefit from their rights under this Directive as soon as the corresponding national transposition measures begin to apply. Those national transposition measures should, therefore, also apply to contracts of an indefinite or fixed duration which were concluded before the application date and provide for the supply of digital content or digital services over a period of time, either continuously or through a series of individual acts of supply, but only as regards digital content or a digital service that is supplied from the date of application of the national transposition measures. However, in order to ensure a balance between the legitimate interests of consumers and traders, the national measures transposing the provisions of this Directive on the modification of the digital content or digital service and the right to redress should only apply to contracts concluded after the application date pursuant to this Directive. (84) In accordance with the Joint Political Declaration of 28  September 2011 of Member States and the Commission on explanatory documents (257), Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified. (85) The European Data Protection Supervisor was consulted in accordance with Regulation (EC) No 45/2001 of the European Parliament and of the Council (258) and delivered an opinion on 14 March 2017 (259). (86) Since the objectives of this Directive, namely to contribute to the functioning of the internal market by tackling in a consistent manner contract law related obstacles for the supply of digital content or digital services while preventing legal fragmentation, cannot be sufficiently achieved by the Member States but can rather, by reasons of ensuring the overall coherence of the national laws through harmonised contract law rules which would also facilitate coordinated enforcement actions, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.

Regulation (EU) 2017/2394 of the European Parliament and of the Council of 12  December 2017 on cooperation between national authorities responsible for the enforcement of consumer protection laws and repealing Regulation (EC) No 2006/2004 (OJ L 345, 27.12.2017, p. 1). 256 Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers’ interests (OJ L 110, 1.5.2009, p. 30). 257 OJ C 369, 17.12.2011, p. 14. 258 Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p. 1). 259 OJ C 200, 23.6.2017, p. 10. 255

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(87) This Directive respects the fundamental rights and freedoms and observes the principles recognised, in particular, by the Charter of Fundamental Rights of the European Union, including those enshrined in Articles 16, 38 and 47 thereof, HAVE ADOPTED THIS DIRECTIVE: Article 1 Subject matter and purpose The purpose of this Directive is to contribute to the proper functioning of the internal market while providing for a high level of consumer protection, by laying down common rules on certain requirements concerning contracts between traders and consumers for the supply of digital content or digital services, in particular, rules on: •

the conformity of digital content or a digital service with the contract,

•

remedies in the event of a lack of such conformity or a failure to supply, and the modalities for the exercise of those remedies, and

•

the modification of digital content or a digital service.

Article 2 Definitions For the purposes of this Directive, the following definitions apply: (1) ‘digital content’ means data which are produced and supplied in digital form; (2) ‘digital service’ means: (a)

a service that allows the consumer to create, process, store or access data in digital form; or

(b) a service that allows the sharing of or any other interaction with data in digital form uploaded or created by the consumer or other users of that service; (3) ‘goods with digital elements’ means any tangible movable items that incorporate, or are inter-connected with, digital content or a digital service in such a way that the absence of that digital content or digital service would prevent the goods from performing their functions; (4) ‘integration’ means the linking and incorporation of digital content or a digital service with the components of the consumer’s digital environment in order for the digital content or digital service to be used in accordance with the requirements for conformity provided for by this Directive; (5) ‘trader’ means any natural or legal person, irrespective of whether privately or publicly owned, that is acting, including through any other person acting in that natural or legal person’s name or on that person’s behalf, for purposes relating to that person’s trade, business, craft, or profession, in relation to contracts covered by this Directive; (6)

‘consumer’ means any natural person who, in relation to contracts covered by this Directive, is acting for purposes which are outside that person’s trade, business, craft, or profession;

(7)

‘price’ means money or a digital representation of value that is due in exchange for the supply of digital content or a digital service;

(8) ‘personal data’ means personal data as defined in point (1) of Article  4 of Regulation (EU) 2016/679;



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‘digital environment’ means hardware, software and any network connection used by the consumer to access or make use of digital content or a digital service;

(10) ‘compatibility’ means the ability of the digital content or digital service to function with hardware or software with which digital content or digital services of the same type are normally used, without the need to convert the digital content or digital service; (11) ‘functionality’ means the ability of the digital content or digital service to perform its functions having regard to its purpose; (12) ‘interoperability’ means the ability of the digital content or digital service to function with hardware or software different from those with which digital content or digital services of the same type are normally used; (13) ‘durable medium’ means any instrument which enables the consumer or the trader to store information addressed personally to that person in a way that is accessible for future reference, for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored. Article 3 Scope 1.

This Directive shall apply to any contract where the trader supplies or undertakes to supply digital content or a digital service to the consumer and the consumer pays or undertakes to pay a price. This Directive shall also apply where the trader supplies or undertakes to supply digital content or a digital service to the consumer, and the consumer provides or undertakes to provide personal data to the trader, except where the personal data provided by the consumer are exclusively processed by the trader for the purpose of supplying the digital content or digital service in accordance with this Directive or for allowing the trader to comply with legal requirements to which the trader is subject, and the trader does not process those data for any other purpose.

2.

This Directive shall also apply where the digital content or digital service is developed in accordance with the consumer’s specifications.

3.

With the exception of Articles  5 and 13, this Directive shall also apply to any tangible medium which serves exclusively as a carrier of digital content.

4.

This Directive shall not apply to digital content or digital services which are incorporated in or inter-connected with goods within the meaning of point (3) of Article 2, and which are provided with the goods under a sales contract concerning those goods, irrespective of whether such digital content or digital service is supplied by the seller or by a third party. In the event of doubt as to whether the supply of incorporated or inter-connected digital content or an incorporated or inter-connected digital service forms part of the sales contract, the digital content or digital service shall be presumed to be covered by the sales contract.

5.

This Directive shall not apply to contracts regarding: (a) the provision of services other than digital services, regardless of whether digital forms or means are used by the trader to produce the output of the service or to deliver or transmit it to the consumer; (b) electronic communications services as defined in point (4) of Article  2 of Directive (EU) 2018/1972, with the exception of number-independent

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interpersonal communications services as defined in point (7) of Article 2 of that Directive; (c)

healthcare as defined in point (a) of Article 3 of Directive 2011/24/EU;

(d) gambling services, namely, services that involve wagering a stake with pecuniary value in games of chance, including those with an element of skill, such as lotteries, casino games, poker games and betting transactions, by electronic means or any other technology for facilitating communication and at the individual request of a recipient of such services; (e) financial services as defined in point (b) of Article 2 of Directive 2002/65/ EC; (f) software offered by the trader under a free and open-source licence, where the consumer does not pay a price and the personal data provided by the consumer are exclusively processed by the trader for the purpose of improving the security, compatibility or interoperability of that specific software; (g)

the supply of digital content where the digital content is made available to the general public other than by signal transmission as a part of a performance or event, such as digital cinematographic projections;

(h) digital content provided in accordance with Directive 2003/98/EC of the European Parliament and of the Council (260) by public sector bodies of the Member States. 6.

Without prejudice to paragraph 4 of this Article, where a single contract between the same trader and the same consumer includes in a bundle elements of supply of digital content or a digital service and elements of the provision of other services or goods, this Directive shall only apply to the elements of the contract concerning the digital content or digital service. Article 19 of this Directive shall not apply where a bundle within the meaning of Directive (EU) 2018/1972 includes elements of an internet access service as defined in point (2) of Article 2 of Regulation (EU) 2015/2120 of the European Parliament and of the Council (261) or a number-based interpersonal communications service as defined in point (6) of Article 2 of Directive (EU) 2018/1972. Without prejudice to Article  107(2) of Directive (EU) 2018/1972, the effects that the termination of one element of a bundle contract may have on the other elements of the bundle contract shall be governed by national law.

7.

If any provision of this Directive conflicts with a provision of another Union act governing a specific sector or subject matter, the provision of that other Union act shall take precedence over this Directive.

8.

Union law on the protection of personal data shall apply to any personal data processed in connection with contracts referred to in paragraph 1.

Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information (OJ L 345, 31.12.2003, p. 90). 261 Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 laying down measures concerning open internet access and retail charges for regulated intra-EU communications and amending Directive 2002/22/EC and Regulation (EU) No 531/2012 (OJ L 310, 26.11.2015, p. 1). 260



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In particular, this Directive shall be without prejudice to Regulation (EU) 2016/679 and Directive 2002/58/EC. In the event of conflict between the provisions of this Directive and Union law on the protection of personal data, the latter prevails. 9.

This Directive shall be without prejudice to Union and national law on copyright and related rights, including Directive 2001/29/EC of the European Parliament and of the Council (262).

10. This Directive shall not affect the freedom of Member States to regulate aspects of general contract law, such as rules on the formation, validity, nullity or effects of contracts, including the consequences of the termination of a contract in so far as they are not regulated in this Directive, or the right to damages. Article 4 Level of harmonisation Member States shall not maintain or introduce, in their national law, provisions diverging from those laid down in this Directive, including more, or less, stringent provisions to ensure a different level of consumer protection, unless otherwise provided for in this Directive. Article 5 Supply of the digital content or digital service 1.

The trader shall supply the digital content or digital service to the consumer. Unless the parties have agreed otherwise, the trader shall supply the digital content or digital service without undue delay after the conclusion of the contract.

2.

The trader shall have complied with the obligation to supply when: (a) the digital content or any means suitable for accessing or downloading the digital content is made available or accessible to the consumer, or to a physical or virtual facility chosen by the consumer for that purpose; (b) the digital service is made accessible to the consumer or to a physical or virtual facility chosen by the consumer for that purpose.

Article 6 Conformity of the digital content or digital service The trader shall supply to the consumer digital content or a digital service that meets the requirements set out in Articles 7, 8 and 9, where applicable, without prejudice to Article 10. Article 7 Subjective requirements for conformity In order to conform with the contract, the digital content or digital service shall, in particular, where applicable: (a) be of the description, quantity and quality, and possess the functionality, compatibility, interoperability and other features, as required by the contract; (b) be fit for any particular purpose for which the consumer requires it and which the consumer made known to the trader at the latest at the time of the conclusion of the contract, and in respect of which the trader has given acceptance;

Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ L 167, 22.6.2001, p. 10).

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(c) be supplied with all accessories, instructions, including on installation, and customer assistance as required by the contract; and (d) be updated as stipulated by the contract. Article 8 Objective requirements for conformity 1.

In addition to complying with any subjective requirement for conformity, the digital content or digital service shall: (a)

be fit for the purposes for which digital content or digital services of the same type would normally be used, taking into account, where applicable, any existing Union and national law, technical standards or, in the absence of such technical standards, applicable sector-specific industry codes of conduct;

(b) be of the quantity and possess the qualities and performance features, including in relation to functionality, compatibility, accessibility, continuity and security, normal for digital content or digital services of the same type and which the consumer may reasonably expect, given the nature of the digital content or digital service and taking into account any public statement made by or on behalf of the trader, or other persons in previous links of the chain of transactions, particularly in advertising or on labelling unless the trader shows that: (i)

the trader was not, and could not reasonably have been, aware of the public statement in question;

(ii) by the time of conclusion of the contract, the public statement had been corrected in the same way as, or in a way comparable to how, it had been made; or (iii) the decision to acquire the digital content or digital service could not have been influenced by the public statement; (c) where applicable, be supplied along with any accessories and instructions which the consumer may reasonably expect to receive; and (d) comply with any trial version or preview of the digital content or digital service, made available by the trader before the conclusion of the contract. 2.

3.

The trader shall ensure that the consumer is informed of and supplied with updates, including security updates, that are necessary to keep the digital content or digital service in conformity, for the period of time: (a)

during which the digital content or digital service is to be supplied under the contract, where the contract provides for a continuous supply over a period of time; or

(b)

that the consumer may reasonably expect, given the type and purpose of the digital content or digital service and taking into account the circumstances and nature of the contract, where the contract provides for a single act of supply or a series of individual acts of supply.

Where the consumer fails to install, within a reasonable time, updates supplied by the trader in accordance with paragraph 2, the trader shall not be liable for any lack of conformity resulting solely from the lack of the relevant update, provided that: (a)

the trader informed the consumer about the availability of the update and the consequences of the failure of the consumer to install it; and



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(b) the failure of the consumer to install or the incorrect installation by the consumer of the update was not due to shortcomings in the installation instructions provided by the trader. 4.

Where the contract provides for a continuous supply of digital content or digital service over a period of time, the digital content or digital service shall be in conformity throughout the duration of that period.

5.

There shall be no lack of conformity within the meaning of paragraph 1 or 2 if, at the time of the conclusion of the contract, the consumer was specifically informed that a particular characteristic of the digital content or digital service was deviating from the objective requirements for conformity laid down in paragraph 1 or 2 and the consumer expressly and separately accepted that deviation when concluding the contract.

6.

Unless the parties have agreed otherwise, digital content or a digital service shall be supplied in the most recent version available at the time of the conclusion of the contract.

Article 9 Incorrect integration of the digital content or digital service Any lack of conformity resulting from the incorrect integration of the digital content or digital service into the consumer’s digital environment shall be regarded as lack of conformity of the digital content or digital service if: (a) the digital content or digital service was integrated by the trader or under the trader’s responsibility; or (b)

the digital content or digital service was intended to be integrated by the consumer and the incorrect integration was due to shortcomings in the integration instructions provided by the trader.

Article 10 Third-party rights Where a restriction resulting from a violation of any right of a third party, in particular intellectual property rights, prevents or limits the use of the digital content or digital service in accordance with Articles  7 and 8, Member States shall ensure that the consumer is entitled to the remedies for lack of conformity provided for in Article 14, unless national law provides for the nullity or rescission of the contract for the supply of the digital content or digital service in such cases. Article 11 Liability of the trader 1.

The trader shall be liable for any failure to supply the digital content or digital service in accordance with Article 5.

2.

Where a contract provides for a single act of supply or a series of individual acts of supply, the trader shall be liable for any lack of conformity under Articles 7, 8 and 9 which exists at the time of supply, without prejudice to point (b) of Article 8(2).



If, under national law, the trader is only liable for a lack of conformity that becomes apparent within a period of time after supply, that period shall not be less than two years from the time of supply, without prejudice to point (b) of Article 8(2).



If, under national law, the rights laid down in Article 14 are also subject or only subject to a limitation period, Member States shall ensure that such limitation period allows the consumer to exercise the remedies laid down in Article 14 for

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any lack of conformity that exists at the time indicated in the first subparagraph and becomes apparent within the period of time indicated in the second subparagraph. 3.

Where the contract provides for continuous supply over a period of time, the trader shall be liable for a lack of conformity under Articles 7, 8 and 9, that occurs or becomes apparent within the period of time during which the digital content or digital service is to be supplied under the contract.



If, under national law, the rights laid down in Article 14 are also subject or only subject to a limitation period, Member States shall ensure that such limitation period allows the consumer to exercise the remedies laid down in Article 14 for any lack of conformity that occurs or becomes apparent during the period of time referred to in the first subparagraph. Article 12 Burden of proof

1.

The burden of proof with regard to whether the digital content or digital service was supplied in accordance with Article 5 shall be on the trader.

2.

In cases referred to in Article 11(2), the burden of proof with regard to whether the supplied digital content or digital service was in conformity at the time of supply shall be on the trader for a lack of conformity which becomes apparent within a period of one year from the time when the digital content or digital service was supplied.

3.

In cases referred to in Article 11(3), the burden of proof with regard to whether the digital content or digital service was in conformity within the period of time during which the digital content or digital service is to be supplied under the contract shall be on the trader for a lack of conformity which becomes apparent within that period.

4.

Paragraphs 2 and 3 shall not apply where the trader demonstrates that the digital environment of the consumer is not compatible with the technical requirements of the digital content or digital service and where the trader informed the consumer of such requirements in a clear and comprehensible manner before the conclusion of the contract.

5.

The consumer shall cooperate with the trader, to the extent reasonably possible and necessary, to ascertain whether the cause of the lack of conformity of the digital content or digital service at the time specified in Article 11(2) or (3), as applicable, lay in the consumer’s digital environment. The obligation to cooperate shall be limited to the technically available means which are least intrusive for the consumer. Where the consumer fails to cooperate, and where the trader informed the consumer of such requirement in a clear and comprehensible manner before the conclusion of the contract, the burden of proof with regard to whether the lack of conformity existed at the time specified in Article 11(2) or (3), as applicable, shall be on the consumer. Article 13 Remedy for the failure to supply

1.

Where the trader has failed to supply the digital content or digital service in accordance with Article 5, the consumer shall call upon the trader to supply the digital content or digital service. If the trader then fails to supply the digital content or digital service without undue delay, or within an additional period of time, as expressly agreed to by the parties, the consumer shall be entitled to terminate the contract.



2.

3.

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Paragraph 1 shall not apply, and the consumer shall be entitled to terminate the contract immediately, where: (a)

the trader has declared, or it is equally clear from the circumstances, that the trader will not supply the digital content or digital service;

(b)

the consumer and the trader have agreed, or it is clear from the circumstances attending the conclusion of the contract, that a specific time for the supply is essential for the consumer and the trader fails to supply the digital content or digital service by or at that time.

Where the consumer terminates the contract under paragraph 1 or 2 of this Article, Articles 15 to 18 shall apply accordingly. Article 14 Remedies for lack of conformity

1.

In the case of a lack of conformity, the consumer shall be entitled to have the digital content or digital service brought into conformity, to receive a proportionate reduction in the price, or to terminate the contract, under the conditions set out in this Article.

2.

The consumer shall be entitled to have the digital content or digital service brought into conformity, unless this would be impossible or would impose costs on the trader that would be disproportionate, taking into account all the circumstances of the case including: (a) the value the digital content or digital service would have if there were no lack of conformity; and (b) the significance of the lack of conformity.

3.

The trader shall bring the digital content or digital service into conformity pursuant to paragraph 2 within a reasonable time from the time the trader has been informed by the consumer about the lack of conformity, free of charge and without any significant inconvenience to the consumer, taking account of the nature of the digital content or digital service and the purpose for which the consumer required the digital content or digital service.

4.

The consumer shall be entitled to either a proportionate reduction of the price in accordance with paragraph  5 where the digital content or digital service is supplied in exchange for a payment of a price, or the termination of the contract in accordance with paragraph 6, in any of the following cases: (a)

the remedy to bring the digital content or digital service into conformity is impossible or disproportionate in accordance with paragraph 2;

(b)

the trader has not brought the digital content or digital service into conformity in accordance with paragraph 3;

(c)

a lack of conformity appears despite the trader’s attempt to bring the digital content or digital service into conformity;

(d) the lack of conformity is of such a serious nature as to justify an immediate price reduction or termination of the contract; or (e)

the trader has declared, or it is clear from the circumstances, that the trader will not bring the digital content or digital service into conformity within a reasonable time, or without significant inconvenience for the consumer.

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The reduction in price shall be proportionate to the decrease in the value of the digital content or digital service which was supplied to the consumer compared to the value that the digital content or digital service would have if it were in conformity. Where the contract stipulates that the digital content or digital service shall be supplied over a period of time in exchange for the payment of a price, the reduction in price shall apply to the period of time during which the digital content or digital service was not in conformity.

6.

Where the digital content or digital service is supplied in exchange for the payment of a price, the consumer shall be entitled to terminate the contract only if the lack of conformity is not minor. The burden of proof with regard to whether the lack of conformity is minor shall be on the trader.

Article 15 Exercise of the right of termination The consumer shall exercise the right to terminate the contract by means of a statement to the trader expressing the decision to terminate the contract. Article 16 Obligations of the trader in the event of termination 1.

In the event of termination of the contract, the trader shall reimburse the consumer for all sums paid under the contract. However, in cases where the contract provides for the supply of the digital content or digital service in exchange for a payment of a price and over a period of time, and the digital content or digital service had been in conformity for a period of time prior to the termination of the contract, the trader shall reimburse the consumer only for the proportionate part of the price paid corresponding to the period of time during which the digital content or digital service was not in conformity, and any part of the price paid by the consumer in advance for any period of the contract that would have remained had the contract not been terminated.

2.

In respect of personal data of the consumer, the trader shall comply with the obligations applicable under Regulation (EU) 2016/679.

3.

The trader shall refrain from using any content other than personal data, which was provided or created by the consumer when using the digital content or digital service supplied by the trader, except where such content: (a) has no utility outside the context of the digital content or digital service supplied by the trader; (b) only relates to the consumer’s activity when using the digital content or digital service supplied by the trader;

4.

(c)

has been aggregated with other data by the trader and cannot be disaggregated or only with disproportionate efforts; or

(d)

has been generated jointly by the consumer and others, and other consumers are able to continue to make use of the content.

Except in the situations referred to in point (a), (b) or (c) of paragraph 3, the trader shall, at the request of the consumer, make available to the consumer any content other than personal data, which was provided or created by the consumer when using the digital content or digital service supplied by the trader.



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The consumer shall be entitled to retrieve that digital content free of charge, without hindrance from the trader, within a reasonable time and in a commonly used and machine-readable format. 5.

The trader may prevent any further use of the digital content or digital service by the consumer, in particular by making the digital content or digital service inaccessible to the consumer or disabling the user account of the consumer, without prejudice to paragraph 4. Article 17 Obligations of the consumer in the event of termination

1.

After the termination of the contract, the consumer shall refrain from using the digital content or digital service and from making it available to third parties.

2.

Where the digital content was supplied on a tangible medium, the consumer shall, at the request and at the expense of the trader, return the tangible medium to the trader without undue delay. If the trader decides to request the return of the tangible medium, that request shall be made within 14 days of the day on which the trader is informed of the consumer’s decision to terminate the contract.

3.

The consumer shall not be liable to pay for any use made of the digital content or digital service in the period, prior to the termination of the contract, during which the digital content or the digital service was not in conformity. Article 18 Time limits and means of reimbursement by the trader

1.

Any reimbursement that is owed to the consumer by the trader, pursuant to Article  14(4) and (5) or 16(1), due to a price reduction or termination of the contract shall be carried out without undue delay and, in any event, within 14 days of the date on which the trader is informed of the consumer’s decision to invoke the consumer’s right for a price reduction or to terminate the contract.

2.

The trader shall carry out the reimbursement using the same means of payment as the consumer used to pay for the digital content or digital service, unless the consumer expressly agrees otherwise, and provided that the consumer does not incur any fees as a result of such reimbursement.

3.

The trader shall not impose any fee on the consumer in respect of the reimbursement. Article 19 Modification of the digital content or digital service

1.

Where the contract provides that the digital content or digital service is to be supplied or made accessible to the consumer over a period of time, the trader may modify the digital content or digital service beyond what is necessary to maintain the digital content or digital service in conformity in accordance with Articles 7 and 8, if the following conditions are met: (a)

the contract allows, and provides a valid reason for, such a modification;

(b) such a modification is made without additional cost to the consumer; (c) the consumer is informed in a clear and comprehensible manner of the modification; and (d)

in the cases referred to in paragraph 2, the consumer is informed reasonably in advance on a durable medium of the features and time of the modification and of the right to terminate the contract in accordance with paragraph 2, or

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of the possibility to maintain the digital content or digital service without such a modification in accordance with paragraph 4. 2.

The consumer shall be entitled to terminate the contract if the modification negatively impacts the consumer’s access to or use of the digital content or digital service, unless such negative impact is only minor. In that case, the consumer shall be entitled to terminate the contract free of charge within 30 days of the receipt of the information or of the time when the digital content or digital service has been modified by the trader, whichever is later.

3.

Where the consumer terminates the contract in accordance with paragraph 2 of this Article, Articles 15 to 18 shall apply accordingly.

4.

Paragraphs 2 and 3 of this Article shall not apply if the trader has enabled the consumer to maintain without additional cost the digital content or digital service without the modification, and the digital content or digital service remains in conformity. Article 20 Right of redress Where the trader is liable to the consumer because of any failure to supply the digital content or digital service, or because of a lack of conformity resulting from an act or omission by a person in previous links of the chain of transactions, the trader shall be entitled to pursue remedies against the person or persons liable in the chain of commercial transactions. The person against whom the trader may pursue remedies, and the relevant actions and conditions of exercise, shall be determined by national law. Article 21 Enforcement 1.

Member States shall ensure that adequate and effective means exist to ensure compliance with this Directive.

2.

The means referred to in paragraph  1 shall include provisions whereby one or more of the following bodies, as determined by national law, may take action under national law before the courts or before the competent administrative bodies to ensure that the national provisions transposing this Directive are applied: (a)

public bodies or their representatives;

(b)

consumer organisations having a legitimate interest in protecting consumers;

(c)

professional organisations having a legitimate interest in acting;

(d) not-for-profit bodies, organisations or associations, active in the field of the protection of data subjects’ rights and freedoms as defined in Article 80 of Regulation (EU) 2016/679. Article 22 Mandatory nature 1.

Unless otherwise provided for in this Directive, any contractual term which, to the detriment of the consumer, excludes the application of the national measures transposing this Directive, derogates from them or varies their effects before the failure to supply or the lack of conformity is brought to the trader’s attention by the consumer, or before the modification of the digital content or digital service in accordance with Article 19 is brought to the consumer’s attention by the trader, shall not be binding on the consumer.

2.

This Directive shall not prevent the trader from offering the consumer contractual arrangements that go beyond the protection provided for in this Directive.



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Article 23 Amendments to Regulation (EU) 2017/2394 and Directive 2009/22/EC (1) In the Annex to Regulation (EU) 2017/2394, the following point is added: ‘28. Directive (EU) 2019/770 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the supply of digital content and digital services (OJ L 136, 22.5.2019, p. 1)’. (2) In Annex I to Directive 2009/22/EC, the following point is added: ‘17. Directive (EU) 2019/770 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the supply of digital content and digital services (OJ L 136, 22.5.2019, p. 1)’. Article 24 Transposition 1.

By 1 July 2021 Member States shall adopt and publish the measures necessary to comply with this Directive. They shall immediately inform the Commission thereof. They shall apply those measures from 1 January 2022. When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States. Member States shall communicate to the Commission the text of the provisions of national law which they adopt in the field covered by this Directive.

2.

The provisions of this Directive shall apply to the supply of digital content or digital services which occurs from 1 January 2022 with the exception of Articles 19 and 20 of this Directive which shall only apply to contracts concluded from that date.

Article 25 Review The Commission shall, not later than 12  June 2024 review the application of this Directive and submit a report to the European Parliament, to the Council and to the European Economic and Social Committee. The report shall examine, inter alia, the case for harmonisation of rules applicable to contracts for the supply of digital content or digital services other than that covered by this Directive, including supplied against advertisements. Article 26 Entry into force This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. Article 27 Addressees This Directive is addressed to the Member States. Done at Brussels, 20 May 2019. For the European Parliament The President A. TAJANI

For the Council The President G. CIAMBA

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DIRECTIVE (EU) 2019/882 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 17 April 2019 on the accessibility requirements for products and services[263] (Text with EEA relevance) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, Having regard to the opinion of the European Economic and Social Committee (264), Acting in accordance with the ordinary legislative procedure (265), Whereas: (1) The purpose of this Directive is to contribute to the proper functioning of the internal market by approximating laws, regulations and administrative provisions of the Member States as regards accessibility requirements for certain products and services by, in particular, eliminating and preventing barriers to the free movement of certain accessible products and services arising from divergent accessibility requirements in the Member States. This would increase the availability of accessible products and services in the internal market and improve the accessibility of relevant information. (2)

The demand for accessible products and services is high and the number of persons with disabilities is projected to increase significantly. An environment where products and services are more accessible allows for a more inclusive society and facilitates independent living for persons with disabilities. In this context, it should be borne in mind that the prevalence of disability in the Union is higher among women than among men.

(3) This Directive defines persons with disabilities in line with the United Nations Convention on the Rights of Persons with Disabilities, adopted on 13 December 2006 (UN CRPD), to which the Union has been a Party since 21 January 2011 and which all Member States have ratified. The UN CRPD states that persons with disabilities ‘include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others’. This Directive promotes full and effective equal participation by improving access to mainstream products and services that, through their initial design or subsequent adaptation, address the particular needs of persons with disabilities. (4) Other persons who experience functional limitations, such as elderly persons, pregnant women or persons travelling with luggage, would also benefit from this Directive. The concept of ‘persons with functional limitations’, as referred to in this Directive, includes persons who have any physical, mental, intellectual or sensory impairments, age related impairments, or other human body performance related causes, permanent or temporary, which, in interaction with various barriers,

OJ L 151, 7.6.2019, p. 70. OJ C 303, 19.8.2016, p. 103. 265 Position of the European Parliament of 13  March 2019 (not yet published in the Official Journal) and decision of the Council of 9 April 2019. 263 264



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result in their reduced access to products and services, leading to a situation that requires those products and services to be adapted to their particular needs. (5) The disparities between the laws, regulations and administrative provisions of Member States concerning the accessibility of products and services for persons with disabilities, create barriers to the free movement of products and services and distort effective competition in the internal market. For some products and services, those disparities are likely to increase in the Union after the entry into force of the UN CRPD. Economic operators, in particular small and mediumsized enterprises (SMEs), are particularly affected by those barriers. (6) Due to the differences in national accessibility requirements, individual professionals, SMEs and microenterprises in particular are discouraged from entering into business ventures outside their own domestic markets. The national, or even regional or local, accessibility requirements that Member States have put in place currently differ as regards both coverage and level of detail. Those differences negatively affect competitiveness and growth, due to the additional costs incurred in the development and marketing of accessible products and services for each national market. (7) Consumers of accessible products and services and of assistive technologies, are faced with high prices due to limited competition among suppliers. Fragmentation among national regulations reduces potential benefits derived from sharing with national and international peers experiences concerning responding to societal and technological developments. (8) The approximation of national measures at Union level is therefore necessary for the proper functioning of the internal market in order to put an end to fragmentation in the market of accessible products and services, to create economies of scale, to facilitate cross-border trade and mobility, as well as to help economic operators to concentrate resources on innovation instead of using those resources to cover expenses arising from fragmented legislation across the Union. (9) The benefits of harmonising accessibility requirements for the internal market have been demonstrated by the application of Directive 2014/33/EU of the European Parliament and of the Council (266) regarding lifts and Regulation (EC) No 661/2009 of the European Parliament and of the Council (267) in the area of transport. (10) In Declaration No 22, regarding persons with a disability, annexed to the Treaty of Amsterdam, the Conference of the Representatives of the Governments of the Member States agreed that, in drawing up measures under Article 114 of the Treaty on the Functioning of the European Union (TFEU), the institutions of the Union are to take account of the needs of persons with disabilities. (11) The overall aim of the communication of the Commission of 6 May 2015’A Digital Single Market Strategy for Europe’, is to deliver sustainable economic and social benefits from a connected digital single market, thereby facilitating trade and promoting employment within the Union. Union consumers still do not enjoy the full Directive 2014/33/EU of the European Parliament and of the Council of 26  February 2014 on the harmonisation of the laws of the Member States relating to lifts and safety components for lifts (OJ L 96, 29.3.2014, p. 251). 267 Regulation (EC) No 661/2009 of the European Parliament and of the Council of 13 July 2009 concerning type-approval requirements for the general safety of motor vehicles, their trailers and systems, components and separate technical units intended therefor (OJ L 200, 31.7.2009, p. 1). 266

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benefits of prices and choice that the single market can offer, because cross-border online transactions are still very limited. Fragmentation also limits demand for crossborder e-commerce transactions. There is also a need for concerted action to ensure that electronic content, electronic communications services and access to audiovisual media services are fully available to persons with disabilities. It is therefore necessary to harmonise accessibility requirements across the digital single market and to ensure that all Union citizens, regardless of their abilities, can enjoy its benefits. (12) Since the Union became a Party to the UN CRPD, its provisions have become an integral part of the Union legal order and are binding upon the institutions of the Union and on its Member States. (13) The UN CRPD requires its Parties to take appropriate measures to ensure that persons with disabilities have access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas. The United Nations Committee on the Rights of Persons with Disabilities has identified the need to create a legislative framework with concrete, enforceable and timebound benchmarks for monitoring the gradual implementation of accessibility. (14) The UN CRPD calls on its Parties to undertake or promote research and development of, and to promote the availability and use of, new technologies, including information and communications technologies, mobility aids, devices and assistive technologies, suitable for persons with disabilities. The UN CRPD also calls for priority to be given to affordable technologies. (15) The entry into force of the UN CRPD in the Member States’ legal orders entails the need to adopt additional national provisions on accessibility of products and services. Without Union action, those provisions would further increase disparities between the laws, regulations and administrative provisions of the Member States. (16) It is therefore necessary to facilitate the implementation in the Union of the UN CRPD by providing common Union rules. This Directive also supports Member States in their efforts to fulfil their national commitments, as well as their obligations under the UN CRPD regarding accessibility in a harmonised manner. (17) The communication of the Commission of 15 November 2010’European Disability Strategy 2010-2020 – A Renewed Commitment to a Barrier-Free Europe’ – in line with the UN CRPD, identifies accessibility as one of the eight areas of action, indicates that it is a basic precondition for participation in society, and aims to ensure the accessibility of products and services. (18) The determination of the products and services falling within the scope of this Directive is based on a screening exercise which was carried out during the preparation of the Impact Assessment that identified relevant products and services for persons with disabilities, and for which Member States have adopted or are likely to adopt diverging national accessibility requirements disruptive to the functioning of the internal market. (19) In order to ensure the accessibility of the services falling within the scope of this Directive, products used in the provision of those services with which the consumer interacts should also be required to comply with the applicable accessibility requirements of this Directive. (20) Even if a service, or part of a service, is subcontracted to a third party, the accessibility of that service should not be compromised and the service providers



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should comply with the obligations of this Directive. Service providers should also ensure proper and continuous training of their personnel in order to ensure that they are knowledgeable about how to use accessible products and services. That training should cover issues such as information provision, advice and advertising. (21) Accessibility requirements should be introduced in the manner that is least burdensome for the economic operators and the Member States. (22) It is necessary to specify accessibility requirements for the placing on the market of products and services which fall within the scope of this Directive, in order to ensure their free movement in the internal market. (23) This Directive should make functional accessibility requirements compulsory and they should be formulated in terms of general objectives. Those requirements should be precise enough to create legally binding obligations and sufficiently detailed so as to make it possible to assess conformity in order to ensure the good functioning of the internal market for the products and services covered by this Directive, as well as leave a certain degree of flexibility in order to allow for innovation. (24) This Directive contains a number of functional performance criteria related to modes of operations of products and services. Those criteria are not meant as a general alternative to the accessibility requirements of this Directive but should be used in very specific circumstances only. Those criteria should apply to specific functions or features of the products or services, to make them accessible, when the accessibility requirements of this Directive do not address one or more of those specific functions or features. In addition, in the event that an accessibility requirement contains specific technical requirements, and an alternative technical solution for those technical requirements is provided in the product or service, this alternative technical solution should still comply with the related accessibility requirements, and should result in equivalent or increased accessibility, by applying the relevant functional performance criteria. (25) This Directive should cover consumer general purpose computer hardware systems. For those systems to perform in an accessible manner, their operating systems should also be accessible. Such computer hardware systems are characterised by their multipurpose nature and their ability to perform, with the appropriate software, the most common computing tasks requested by consumers and are intended to be operated by consumers. Personal computers, including desktops, notebooks, smartphones and tablets are examples of such computer hardware systems. Specialised computers embedded in consumer electronics products do not constitute consumer general purpose computer hardware systems. This Directive should not cover, on an individual basis, single components with specific functions, such as a mainboard or a memory chip, that are used or that might be used in such a system. (26) This Directive should also cover payment terminals, including both their hardware and software, and certain interactive self-service terminals, including both their hardware and software, dedicated to be used for the provision of services covered by this Directive: for example automated teller machines; ticketing machines issuing physical tickets granting access to services such as travel ticket dispensers; bank office queuing ticket machines; check-in machines; and interactive self-service terminals providing information, including interactive information screens. (27) However, certain interactive self-service terminals providing information installed as integrated parts of vehicles, aircrafts, ships or rolling stock should be excluded

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from the scope of this Directive, since these form part of those vehicles, aircrafts, ships or rolling stock which are not covered by this Directive. (28) This Directive should also cover electronic communications services including emergency communications as defined in Directive (EU) 2018/1972 of the European Parliament and of the Council (268). At present, the measures taken by Member States to provide access to persons with disabilities are divergent and are not harmonised throughout the internal market. Ensuring that the same accessibility requirements apply throughout the Union will lead to economies of scale for economic operators active in more than one Member State and facilitate the effective access for persons with disabilities, both in their own Member State and when travelling between Member States. For electronic communications services including emergency communications to be accessible, providers should, in addition to voice, provide real time text, and total conversation services where video is provided by them, ensuring the synchronisation of all those communication means. Member States should, in addition to the requirements of this Directive, in accordance with Directive (EU) 2018/1972, be able to determine a relay service provider that could be used by persons with disabilities. (29) This Directive harmonises accessibility requirements for electronic communications services and related products and complements Directive (EU) 2018/1972 which sets requirements on equivalent access and choice for endusers with disabilities. Directive (EU) 2018/1972 also sets requirements under universal service obligations on the affordability of internet access and voice communications and on the affordability and availability of related terminal equipment, specific equipment and services for consumers with disabilities. (30) This Directive should also cover consumer terminal equipment with interactive computing capability foreseeably to be primarily used to access electronic communications services. For the purposes of this Directive that equipment should be deemed to include equipment used as part of the setup in accessing electronic communications services such as a router or a modem. (31) For the purposes of this Directive, access to audiovisual media services should mean that the access to audiovisual content is accessible, as well as mechanisms that allow users with disabilities to use their assistive technologies. Services providing access to audiovisual media services could include websites, online applications, set-top box-based applications, downloadable applications, mobile device-based services including mobile applications and related media players as well as connected television services. Accessibility of audiovisual media services is regulated in Directive 2010/13/EU of the European Parliament and of the Council (269), with the exception of the accessibility of electronic programme guides (EPGs) which are included in the definition of services providing access to audiovisual media services to which this Directive applies. (32) In the context of air, bus, rail and waterborne passenger transport services this Directive should cover, inter alia, the delivery of transport service information including real-time travel information through websites, mobile device-based services, interactive information screens and interactive self-service terminals, Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (OJ L 321, 17.12.2018, p. 36). 269 Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (OJ L 95, 15.4.2010, p. 1). 268



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required by passengers with disabilities in order to travel. This could include information about the service provider’s passenger transport products and services, pre-journey information, information during the journey and information provided when a service is cancelled or its departure is delayed. Other elements of information could also include information on prices and promotions. (33) This Directive should also cover websites, mobile device-based services including mobile applications developed or made available by operators of passenger transport services within the scope of this Directive or on their behalf, electronic ticketing services, electronic tickets and interactive self-service terminals. (34) The determination of the scope of this Directive with regard to air, bus, rail and waterborne passenger transport services should be based on the existing sectorial legislation relating to passenger rights. Where this Directive does not apply to certain types of transport services, Member States should encourage service providers to apply the relevant accessibility requirements of this Directive. (35) Directive (EU) 2016/2102 of the European Parliament and of the Council (270) already lays down obligations for public sector bodies providing transport services, including urban and suburban transport services and regional transport services, to make their websites accessible. This Directive contains exemptions for microenterprises providing services, including urban and suburban transport services and regional transport services. In addition, this Directive includes obligations to ensure that e-commerce websites are accessible. Since this Directive contains obligations for the large majority of private transport service providers to make their websites accessible, when selling tickets online, it is not necessary to introduce in this Directive further requirements for the websites of urban and suburban transport service providers and regional transport service providers. (36) Certain elements of the accessibility requirements, in particular in relation to the provision of information as set out in this Directive, are already covered by existing Union law in the field of passenger transport. This includes elements of Regulation (EC) No 261/2004 of the European Parliament and of the Council (271), Regulation (EC) No 1107/2006 of the European Parliament and of the Council (272), Regulation (EC) No  1371/2007 of the European Parliament and of the Council (273), Regulation (EU) No 1177/2010 of the European Parliament and of the Council (274) and Regulation (EU) No 181/2011 of the European Parliament and of the Council (275). This includes also relevant acts adopted on the basis of

Directive (EU) 2016/2102 of the European Parliament and of the Council of 26  October 2016 on the accessibility of the websites and mobile applications of public sector bodies (OJ L 327, 2.12.2016, p. 1). 271 Regulation (EC) No  261/2004 of the European Parliament and of the Council of 11  February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ L 46, 17.2.2004, p. 1). 272 Regulation (EC) No 1107/2006 of the European Parliament and of the Council of 5 July 2006 concerning the rights of disabled persons and persons with reduced mobility when travelling by air (OJ  L  204, 26.7.2006, p. 1). 273 Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations (OJ L 315, 3.12.2007, p. 14). 274 Regulation (EU) No  1177/2010 of the European Parliament and of the Council of 24  November 2010 concerning the rights of passengers when travelling by sea and inland waterway and amending Regulation (EC) No 2006/2004 (OJ L 334, 17.12.2010, p. 1). 275 Regulation (EU) No  181/2011 of the European Parliament and of the Council of 16  February 2011 concerning the rights of passengers in bus and coach transport and amending Regulation (EC) No 2006/2004 (OJ L 55, 28.2.2011, p. 1). 270

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Directive 2008/57/EC of the European Parliament and of the Council (276). To ensure regulatory consistency, the accessibility requirements set out in those Regulations and those acts should continue to apply as before. However, additional requirements of this Directive would supplement the existing requirements, improving the functioning of the internal market in the area of transport and benefiting persons with disabilities. (37) Certain elements of transport services should not be covered by this Directive when provided outside the territory of the Member States even where the service has been directed towards the Union market. With regard to those elements, a passenger transport service operator should only be obliged to ensure that the requirements of this Directive are met with regard to the part of the service offered within the territory of the Union. However, in the case of air transport, Union air carriers should ensure that the applicable requirements of this Directive are also satisfied on flights departing from an airport situated in a third country and flying to an airport situated within the territory of a Member State. Furthermore, all air carriers, including those which are not licenced in the Union, should ensure that the applicable requirements of this Directive are satisfied in cases where the flights depart from a Union territory to a third country territory. (38) Urban authorities should be encouraged to integrate barrier-free accessibility to urban transport services in their Sustainable Urban Mobility Plans (SUMPs), as well as to regularly publish lists of best practices regarding barrier-free accessibility to urban public transport and mobility. (39) Union law on banking and financial services aims to protect and provide information to consumers of those services across the Union but does not include accessibility requirements. With a view to enabling persons with disabilities to use those services throughout the Union, including where provided through websites and mobile device-based services including mobile applications, to make wellinformed decisions, and to feel confident that they are adequately protected on an equal basis with other consumers, as well as ensure a level playing field for service providers, this Directive should establish common accessibility requirements for certain banking and financial services provided to consumers. (40) The appropriate accessibility requirements should also apply to identification methods, electronic signature and payment services, since they are necessary for concluding consumer banking transactions. (41) E-book files are based on a electronic computer coding that enables the circulation and consultation of a mostly textual and graphical intellectual work. The degree of precision of this coding determines the accessibility of e-book files, in particular regarding the qualification of the different constitutive elements of the work and the standardised description of its structure. The interoperability in terms of accessibility should optimise the compatibility of those files with the user agents and with current and future assistive technologies. Specific features of special volumes like comics, children’s books and art books should be considered in the light of all applicable accessibility requirements. Divergent accessibility requirements in Member States would make it difficult for publishers and other economic operators to benefit from the advantages of the internal market, could create interoperability problems with e-readers and would limit the access for

Directive 2008/57/EC of the European Parliament and of the Council of 17 June 2008 on the interoperability of the rail system within the Community (OJ L 191, 18.7.2008, p. 1).

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consumers with disabilities. In the context of e-books, the concept of a service provider could include publishers and other economic operators involved in their distribution. It is recognised that persons with disabilities continue to face barriers to accessing content which is protected by copyright and related rights, and that certain measures have already been taken to address this situation for example through the adoption of Directive (EU) 2017/1564 of the European Parliament and of the Council (277) and Regulation (EU) 2017/1563 of the European Parliament and of the Council (278), and that further Union measures could be taken in this respect in the future. (42) This Directive defines e-commerce services as a service provided at a distance, through websites and mobile device-based services, by electronic means and at the individual request of a consumer, with a view to concluding a consumer contract. For the purposes of that definition ‘at a distance’ means that the service is provided without the parties being simultaneously present; ‘by electronic means’ means that the service is initially sent and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and transmitted, conveyed and received in its entirety by wire, by radio, by optical means or by other electromagnetic means; ‘at the individual request of a consumer’ means that the service is provided on individual request. Given the increased relevance of e-commerce services and their high technological nature, it is important to have harmonised requirements for their accessibility. (43) The e-commerce services accessibility obligations of this Directive should apply to the online sale of any product or service and should therefore also apply to the sale of a product or service covered in its own right under this Directive. (44) The measures related to the accessibility of the answering of emergency communications should be adopted without prejudice to, and should have no impact on, the organisation of emergency services, which remains in the exclusive competence of Member States. (45) In accordance with Directive (EU) 2018/1972, Member States are to ensure that access for end-users with disabilities to emergency services is available through emergency communications and is equivalent to that enjoyed by other end-users, in accordance with Union law harmonising accessibility requirements for products and services. The Commission and the national regulatory or other competent authorities are to take appropriate measures to ensure that, whilst travelling in another Member State, end-users with disabilities can access emergency services on an equivalent basis with other end-users, where feasible without any pre-registration. Those measures seek to ensure interoperability across Member States and are to be based, to the greatest extent possible, on European standards or specifications laid down in accordance with Article 39 of

Directive (EU) 2017/1564 of the European Parliament and of the Council of 13 September 2017 on certain permitted uses of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print-disabled and amending Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (OJ L 242, 20.9.2017, p. 6). 278 Regulation (EU) 2017/1563 of the European Parliament and of the Council of 13 September 2017 on the cross-border exchange between the Union and third countries of accessible format copies of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print-disabled (OJ L 242, 20.9.2017, p. 1). 277

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Directive (EU) 2018/1972. Such measures do not prevent Member States from adopting additional requirements in order to pursue the objectives set out in that Directive. As an alternative to fulfilling the accessibility requirements with regard to the answering of emergency communications for users with disabilities set out in this Directive, Member States should be able to determine a third party relay service provider to be used by persons with disabilities to communicate with the public safety answering point, until those public safety answering points are capable of using electronic communications services through internet protocols for ensuring accessibility of answering the emergency communications. In any case, obligations of this Directive should not be understood to restrict or lower any obligations for the benefit of end-users with disabilities, including equivalent access to electronic communications services and emergency services as well as accessibility obligations as set out in Directive (EU) 2018/1972. (46) Directive (EU) 2016/2102 defines accessibility requirements for websites and mobile applications of public sector bodies and other related aspects, in particular requirements relating to the compliance of the relevant websites and mobile applications. However, that Directive contains a specific list of exceptions. Similar exceptions are relevant for this Directive. Some activities that take place via websites and mobile applications of public sector bodies, such as passenger transport services or e-commerce services, which fall within the scope of this Directive, should in addition comply with the applicable accessibility requirements of this Directive in order to ensure that the online sale of products and services is accessible for persons with disabilities irrespective whether the seller is a public or private economic operator. The accessibility requirements of this Directive should be aligned to the requirements of Directive (EU) 2016/2102, despite differences, for example, in monitoring, reporting and enforcement. (47) The four principles of accessibility of websites and mobile applications, as used in Directive (EU) 2016/2102, are: perceivability, meaning that information and user interface components must be presentable to users in ways they can perceive; operability, meaning that user interface components and navigation must be operable; understandability, meaning that information and the operation of the user interface must be understandable; and robustness, meaning that content must be robust enough to be interpreted reliably by a wide variety of user agents, including assistive technologies. Those principles are also relevant for this Directive. (48) Member States should take all appropriate measures to ensure that, where the products and services covered by this Directive comply with the applicable accessibility requirements, their free movement within the Union is not impeded for reasons related to accessibility requirements. (49) In some situations, common accessibility requirements of the built environment would facilitate the free movement of the related services and of persons with disabilities. Therefore, this Directive should enable Member States to include the built environment used in the provision of the services under the scope of this Directive, ensuring compliance with the accessibility requirements set out in Annex III. (50) Accessibility should be achieved by the systematic removal and prevention of barriers, preferably through a universal design or ‘design for all’ approach, which contributes to ensuring access for persons with disabilities on an equal basis with others. According to the UN CRPD, that approach ‘means the design of products, environments, programmes and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design’. In line



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with the UN CRPD, ‘’universal design’ shall not exclude assistive devices for particular groups of persons with disabilities where this is needed’. Furthermore, accessibility should not exclude the provision of reasonable accommodation when required by Union law or national law. Accessibility and universal design should be interpreted in line with General Comment No 2(2014) – Article 9: Accessibility as written by the Committee on the Rights of Persons with Disabilities. (51) Products and services falling within the scope of this Directive do not automatically fall within the scope of Council Directive 93/42/EEC (279). However, some assistive technologies which are medical devices, might fall within the scope of that Directive. (52) Most jobs in the Union are provided by SMEs and microenterprises. They have a crucial importance for future growth, but very often face hurdles and obstacles in developing their products or services, in particular in the cross-border context. It is therefore necessary to facilitate the work of the SMEs and microenterprises by harmonising the national provisions on accessibility while maintaining the necessary safeguards. (53) For microenterprises and SMEs to benefit from this Directive they must genuinely fulfil the requirements of Commission Recommendation 2003/361/EC (280), and the relevant case law, aimed at preventing the circumvention of its rules. (54) In order to ensure the consistency of Union law, this Directive should be based on Decision No 768/2008/EC of the European Parliament and of the Council (281), since it concerns products already subject to other Union acts, while recognising the specific features of the accessibility requirements of this Directive. (55) All economic operators falling within the scope of this Directive and intervening in the supply and distribution chain should ensure that they make available on the market only products which are in conformity with this Directive. The same should apply to economic operators providing services. It is necessary to provide for a clear and proportionate distribution of obligations which correspond to the role of each economic operator in the supply and distribution process. (56) Economic operators should be responsible for the compliance of products and services, in relation to their respective roles in the supply chain, so as to ensure a high level of protection of accessibility and to guarantee fair competition on the Union market. (57) The obligations of this Directive should apply equally to economic operators from the public and private sectors. (58) The manufacturer having detailed knowledge of the design and production process is best placed to carry out the complete conformity assessment. While the responsibility for the conformity of products rests with the manufacturer, market surveillance authorities should play a crucial role in checking whether products made available in the Union are manufactured in accordance with Union law.

Council Directive 93/42/EEC of 14 June 1993 concerning medical devices (OJ L 169, 12.7.1993, p. 1). Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ L 124, 20.5.2003, p. 36). 281 Decision No 768/2008/EC of the European Parliament and of the Council of 9 July 2008 on a common framework for the marketing of products, and repealing Council Decision 93/465/EEC (OJ  L  218, 13.8.2008, p. 82 279 280

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(59) Importers and distributors and should be involved in market surveillance tasks carried out by national authorities, and should participate actively, providing the competent authorities with all necessary information relating to the product concerned. (60) Importers should ensure that products from third countries entering the Union market comply with this Directive and in particular that appropriate conformity assessment procedures have been carried out by manufacturers with regard to those products. (61) When placing a product on the market, importers should indicate, on the product, their name, registered trade name or registered trade mark and the address at which they can be contacted. (62) Distributors should ensure that their handling of the product does not adversely affect the compliance of the product with the accessibility requirements of this Directive. (63) Any economic operator that either places a product on the market under its name or trademark or modifies a product already placed on the market in such a way that compliance with applicable requirements might be affected should be considered to be the manufacturer and should assume the obligations of the manufacturer. (64) For reasons of proportionality, accessibility requirements should only apply to the extent that they do not impose a disproportionate burden on the economic operator concerned, or to the extent that they do not require a significant change in the products and services which would result in their fundamental alteration in the light of this Directive. Control mechanisms should nevertheless be in place in order to verify entitlement to exceptions to the applicability of accessibility requirements. (65) This Directive should follow the principle of ‘think small first’ and should take account of the administrative burdens that SMEs are faced with. It should set light rules in terms of conformity assessment and should establish safeguard clauses for economic operators, rather than providing for general exceptions and derogations for those enterprises. Consequently, when setting up the rules for the selection and implementation of the most appropriate conformity assessment procedures, the situation of SMEs should be taken into account and the obligations to assess conformity of accessibility requirements should be limited to the extent that they do not impose a disproportionate burden on SMEs. In addition, market surveillance authorities should operate in a proportionate manner in relation to the size of undertakings and to the small serial or non-serial nature of the production concerned, without creating unnecessary obstacles for SMEs and without compromising the protection of public interest. (66) In exceptional cases, where the compliance with accessibility requirements of this Directive would impose a disproportionate burden on economic operators, economic operators should only be required to comply with those requirements to the extent that they do not impose a disproportionate burden. In such duly justified cases, it would not be reasonably possible for an economic operator to fully apply one or more of the accessibility requirements of this Directive. However, the economic operator should make a service or a product that falls within the scope of this Directive as accessible as possible by applying those requirements to the extent that they do not impose a disproportionate burden. Those accessibility requirements which were not considered by the economic operator to impose a disproportionate burden should apply fully. Exceptions to compliance with



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one or more accessibility requirements due to the disproportionate burden that they impose should not go beyond what is strictly necessary in order to limit that burden with respect to the particular product or service concerned in each individual case. Measures that would impose a disproportionate burden should be understood as measures that would impose an additional excessive organisational or financial burden on the economic operator, while taking into account the likely resulting benefit for persons with disabilities in line with the criteria set out in this Directive. Criteria based on these considerations should be defined in order to enable both economic operators and relevant authorities to compare different situations and to assess in a systematic way whether a disproportionate burden exists. Only legitimate reasons should be taken into account in any assessment of the extent to which the accessibility requirements cannot be met because they would impose a disproportionate burden. Lack of priority, time or knowledge should not be considered to be legitimate reasons. (67) The overall assessment of a disproportionate burden should be done using the criteria set out in Annex VI. The assessment of disproportionate burden should be documented by the economic operator taking into account the relevant criteria. Service providers should renew their assessment of a disproportionate burden at least every five years. (68) The economic operator should inform the relevant authorities that it has relied on the provisions of this Directive related to fundamental alteration and/or disproportionate burden. Only upon a request from the relevant authorities should the economic operator provide a copy of the assessment explaining why its product or service is not fully accessible and providing evidence of the disproportionate burden or fundamental alteration, or both. (69) If on the basis of the required assessment, a service provider concludes that it would constitute a disproportionate burden to require that all self-service terminals, used in the provision of services covered by this Directive, comply with the accessibility requirements of this Directive, the service provider should still apply those requirements to the extent that those requirements do not impose such a disproportionate burden on it. Consequently, the service providers should assess the extent to which a limited level of accessibility in all self-service terminals or a limited number of fully accessible self-service terminals would enable them to avoid a disproportionate burden that would otherwise be imposed on them, and should be required to comply with the accessibility requirements of this Directive only to that extent. (70) Microenterprises are distinguished from all other undertakings by their limited human resources, annual turnover or annual balance sheet. The burden of complying with the accessibility requirements for microenterprises therefore, in general, takes a greater share of their financial and human resources than for other undertakings and is more likely to represent a disproportionate share of the costs. A significant proportion of cost for microenterprises comes from completing or keeping paperwork and records to demonstrate compliance with the different requirements set out in Union law. While all economic operators covered by this Directive should be able to assess the proportionality of complying with the accessibility requirements of this Directive and should only comply with them to the extent they are not disproportionate, demanding such an assessment from microenterprises providing services would in itself constitute a disproportionate burden. The requirements and obligations of this Directive should therefore not apply to microenterprises providing services within the scope of this Directive.

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(71) For microenterprises dealing with products falling within the scope of this Directive the requirements and obligations of this Directive should be lighter in order to reduce the administrative burden. (72) While some microenterprises are exempted from the obligations of this Directive, all microenterprises should be encouraged to manufacture, import or distribute products and to provide services that comply with the accessibility requirements of this Directive, in order to increase their competitiveness as well as their growth potential in the internal market. Member States should, therefore, provide guidelines and tools to microenterprises to facilitate the application of national measures transposing this Directive. (73) All economic operators should act responsibly and in full accordance with the legal requirements applicable when placing or making products available on the market or providing services on the market. (74) In order to facilitate the assessment of conformity with the applicable accessibility requirements it is necessary to provide for a presumption of conformity for products and services which are in conformity with voluntary harmonised standards that are adopted in accordance with Regulation (EU) No 1025/2012 of the European Parliament and of the Council (282) for the purpose of drawing up detailed technical specifications of those requirements. The Commission has already issued a number of standardisation requests to the European standardisation organisations on accessibility, such as standardisation mandates M/376, M/473 and M/420, which would be relevant for the preparation of harmonised standards. (75) Regulation (EU) No 1025/2012 provides for a procedure for formal objections to harmonised standards that are considered not to comply with the requirements of this Directive. (76) European standards should be market-driven, take into account the public interest, as well as the policy objectives clearly stated in the Commission’s request to one or more European standardisation organisations to draft harmonised standards, and be based on consensus. In the absence of harmonised standards and where needed for internal market harmonisation purposes, the Commission should be able to adopt in certain cases implementing acts establishing technical specifications for the accessibility requirements of this Directive. Recourse to technical specifications should be limited to such cases. The Commission should be able to adopt technical specifications for instance when the standardisation process is blocked due to a lack of consensus between stakeholders or there are undue delays in the establishment of a harmonised standard, for example because the required quality is not reached. The Commission should leave enough time between the adoption of a request to one or more European standardisation organisations to draft harmonised standards and the adoption of a technical specification related to the same accessibility requirement. The Commission should not be allowed to adopt a technical specification if it has not previously tried to have the accessibility requirements covered through the European standardisation system, except where the Commission can demonstrate that the technical specifications respect the requirements laid down in Annex II of Regulation (EU) No 1025/2012. Regulation (EU) No 1025/2012 of 25 October 2012 of the European Parliament and of the Council on European standardisation, amending Council Directives 89/686/EEC and 93/15/EEC and Directives 94/9/ EC, 94/25/EC, 95/16/EC, 97/23/EC, 98/34/EC, 2004/22/EC, 2007/23/EC, 2009/23/EC and 2009/105/EC of the European Parliament and of the Council and repealing Council Decision 87/95/EEC and Decision No 1673/2006/EC of the European Parliament and of the Council (OJ L 316, 14.11.2012, p. 12).

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(77) With a view to establishing, in the most efficient way, harmonised standards and technical specifications that meet the accessibility requirements of this Directive for products and services, the Commission should, where this is feasible, involve European umbrella organisations of persons with disabilities and all other relevant stakeholders in the process. (78) To ensure effective access to information for market surveillance purposes, the information required to declare compliance with all applicable Union acts should be made available in a single EU declaration of conformity. In order to reduce the administrative burden on economic operators, they should be able to include in the single EU declaration of conformity all relevant individual declarations of conformity. (79) For conformity assessment of products, this Directive should use the Internal production control of ‘Module A’, set out in Annex II to Decision No 768/2008/ EC, as it enables economic operators to demonstrate, and the competent authorities to ensure, that products made available on the market conform to the accessibility requirements while not imposing an undue burden. (80) When carrying out market surveillance of products and checking compliance of services, authorities should also check the conformity assessments, including whether the relevant assessment of fundamental alteration or disproportionate burden was properly carried out. When carrying out their duties authorities should also do so in cooperation with persons with disabilities and the organisations that represent them and their interests. (81) For services, the information necessary to assess conformity with the accessibility requirements of this Directive should be provided in the general terms and conditions, or in an equivalent document, without prejudice to Directive 2011/83/ EU of the European Parliament and of the Council (283). (82) The CE marking, indicating the conformity of a product with the accessibility requirements of this Directive, is the visible consequence of a whole process comprising conformity assessment in a broad sense. This Directive should follow the general principles governing the CE marking of Regulation (EC) No 765/2008 of the European Parliament and of the Council (284) setting out the requirements for accreditation and market surveillance relating to the marketing of products. In addition to making the EU declaration of conformity, the manufacturer should inform consumers in a cost-effective manner about the accessibility of their products. (83) In accordance with Regulation (EC) No  765/2008, by affixing the CE marking to a product, the manufacturer declares that the product is in conformity with all applicable accessibility requirements and that the manufacturer takes full responsibility therefor. (84) In accordance with Decision No 768/2008/EC, Member States are responsible for ensuring strong and efficient market surveillance of products in their territories Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ L 304, 22.11.2011, p. 64). 284 Regulation (EC) No 765/2008 of the European Parliament and of the Council of 9 July 2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93 (OJ L 218, 13.8.2008, p. 30). 283

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and should allocate sufficient powers and resources to their market surveillance authorities. (85) Member States should check the compliance of services with the obligations of this Directive and should follow up complaints or reports related to non-compliance in order to ensure that corrective action has been taken. (86) Where appropriate the Commission, in consultation with stakeholders, could adopt non-binding guidelines to support coordination among market surveillance authorities and authorities responsible for checking compliance of services. The Commission and Member States should be able to set up initiatives for the purpose of sharing the resources and expertise of authorities. (87) Member States should ensure that market surveillance authorities and authorities responsible for checking compliance of services check the compliance of the economic operators with the criteria set out in Annex VI in accordance with Chapters VIII and IX. Member States should be able to designate a specialised body for carrying out the obligations of market surveillance authorities or authorities responsible for checking compliance of services under this Directive. Member States should be able to decide that the competences of such a specialised body should be limited to the scope of this Directive or certain parts thereof, without prejudice to the Member States’ obligations under Regulation (EC) No 765/2008. (88) A  safeguard procedure should be set up to apply in the event of disagreement between Member States over measures taken by a Member State under which interested parties are informed of measures intended to be taken with regard to products not complying with the accessibility requirements of this Directive. The safeguard procedure should allow market surveillance authorities, in cooperation with the relevant economic operators, to act at an earlier stage in respect of such products. (89) Where the Member States and the Commission agree that a measure taken by a Member State is justified, no further involvement of the Commission should be required, except where non-compliance can be attributed to shortcomings in the harmonised standards or in the technical specifications. (90) Directives 2014/24/EU (285) and 2014/25/EU (286) of the European Parliament and of the Council on public procurement, defining procedures for the procurement of public contracts and design contests for certain supplies (products), services and works, establish that, for all procurement which is intended for use by natural persons, whether general public or staff of the contracting authority or entity, the technical specifications are, except in duly justified cases, to be drawn up so as to take into account accessibility criteria for persons with disabilities or design for all users. Furthermore, those Directives require that, where mandatory accessibility requirements are adopted by a legal act of the Union, technical specifications are, as far as accessibility for persons with disabilities or design for all users are concerned, to be established by reference thereto. This Directive should establish mandatory accessibility requirements for products and services covered by it. For products and services not falling under the scope of this Directive,

Directive 2014/24/EU of the European Parliament and of the Council of 26  February 2014 on public procurement and repealing Directive 2004/18/EC (OJ L 94, 28.3.2014, p. 65). 286 Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (OJ L 94, 28.3.2014, p. 243). 285



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the accessibility requirements of this Directive are not binding. However, the use of those accessibility requirements to fulfil the relevant obligations set out in Union acts other than this Directive would facilitate the implementation of accessibility and contribute to the legal certainty and to the approximation of accessibility requirements across the Union. Authorities should not be prevented from establishing accessibility requirements that go beyond the accessibility requirements set out in Annex I to this Directive. (91) This Directive should not change the compulsory or voluntary nature of the provisions related to accessibility in other Union acts. (92) This Directive should only apply to procurement procedures for which the call for competition has been sent or, in cases where a call for competition is not foreseen, where the contracting authority or contracting entity has commenced the procurement procedure after the date of application of this Directive. (93) In order to ensure the proper application of this Directive, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of: further specifying the accessibility requirements that, by their very nature, cannot produce their intended effect unless they are further specified in binding legal acts of the Union; changing the period during which economic operators are to be able to identify any other economic operator who has supplied them with a product or to whom they have supplied a product; and further specifying the relevant criteria that are to be taken into account by the economic operator for the assessment of whether compliance with the accessibility requirements would impose a disproportionate burden. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making (287). In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts. (94) In order to ensure uniform conditions for the implementation of this Directive, implementing powers should be conferred on the Commission with regard to the technical specifications. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (288). (95) Member States should ensure that adequate and effective means exist to ensure compliance with this Directive and should therefore establish appropriate control mechanisms, such as a posteriori control by the market surveillance authorities, in order to verify that the exemption from the accessibility requirements application is justified. When dealing with complaints related to accessibility, Member States should comply with the general principle of good administration, and in particular with the obligation of officials to ensure that a decision on each complaint is taken within a reasonable time-limit.

OJ L 123, 12.5.2016, p. 1. Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by the Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).

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(96) In order to facilitate the uniform implementation of this Directive, the Commission should establish a working group consisting of relevant authorities and stakeholders to facilitate exchange of information and of best practices and to provide advice. Cooperation should be fostered between authorities and relevant stakeholders, including persons with disabilities and organisations that represent them, inter alia, to improve coherence in the application of provisions of this Directive concerning accessibility requirements and to monitor implementation of its provisions on fundamental alteration and disproportionate burden. (97) Given the existing legal framework concerning remedies in the areas covered by Directives 2014/24/EU and 2014/25/EU, the provisions of this Directive relating to enforcement and penalties should not be applicable to the procurement procedures subject to the obligations imposed by this Directive. Such exclusion is without prejudice to the obligations of Member States under the Treaties to take all measures necessary to guarantee the application and effectiveness of Union law. (98) Penalties should be adequate in relation to the character of the infringements and to the circumstances so as not to serve as an alternative to the fulfilment by economic operators of their obligations to make their products or services accessible. (99) Member States should ensure that, in accordance with existing Union law, alternative dispute resolutions mechanisms are in place that allow the resolution of any alleged non-compliance with this Directive prior to an action being brought before courts or competent administrative bodies. (100) In accordance with the Joint Political Declaration of 28  September 2011 of Member States and the Commission on explanatory documents (289), Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a Directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified. (101) In order to allow service providers sufficient time to adapt to the requirements of this Directive, it is necessary to provide for a transitional period of five years after the date of application of this Directive, during which products used for the provision of a service which were placed on the market before that date do not need to comply with the accessibility requirements of this Directive unless they are replaced by the service providers during the transitional period. Given the cost and long life-cycle of self-service terminals, it is appropriate to provide that, when such terminals are used in the provision of services, they may continue to be used until the end of their economic life, as long as they are not replaced during that period, but not for longer than 20 years. (102) The accessibility requirements of this Directive should apply to products placed on the market and services provided after the date of application of the national measures transposing this Directive, including used and second-hand products imported from a third country and placed on the market after that date. (103) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union (‘the Charter’). In particular, this Directive seeks to ensure full respect for the rights of persons with disabilities to benefit from measures designed to ensure OJ C 369, 17.12.2011, p. 14.

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their independence, social and occupational integration and participation in the life of the community and to promote the application of Articles 21, 25 and 26 of the Charter. (104) Since the objective of this Directive, namely, the elimination of barriers to the free movement of certain accessible products and services, in order to contribute to the proper functioning of the internal market, cannot be sufficiently achieved by the Member States because it requires the harmonisation of different rules currently existing in their respective legal systems, but can rather, by defining common accessibility requirements and rules for the functioning of the internal market, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective, HAVE ADOPTED THIS DIRECTIVE: CHAPTER I General provisions Article 1 Subject matter The purpose of this Directive is to contribute to the proper functioning of the internal market by approximating the laws, regulations and administrative provisions of the Member States as regards accessibility requirements for certain products and services by, in particular, eliminating and preventing barriers to the free movement of products and services covered by this Directive arising from divergent accessibility requirements in the Member States. Article 2 Scope 1.

This Directive applies to the following products placed on the market after 28 June 2025: (a) consumer general purpose computer hardware systems and operating systems for those hardware systems; (b) the following self-service terminals: (i)

payment terminals;

(ii) the following self-service terminals dedicated to the provision of services covered by this Directive: —

automated teller machines;

—

ticketing machines;

—

check-in machines;

— interactive self-service terminals providing information, excluding terminals installed as integrated parts of vehicles, aircrafts, ships or rolling stock; (c) consumer terminal equipment with interactive computing capability, used for electronic communications services; (d) consumer terminal equipment with interactive computing capability, used for accessing audiovisual media services; and (e) e-readers.

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Without prejudice to Article 32, this Directive applies to the following services provided to consumers after 28 June 2025: (a) electronic communications services with the exception of transmission services used for the provision of machine-to-machine services; (b) services providing access to audiovisual media services; (c) the following elements of air, bus, rail and waterborne passenger transport services, except for urban, suburban and regional transport services for which only the elements under point (v) apply: (i) websites; (ii) mobile device-based services including mobile applications; (iii) electronic tickets and electronic ticketing services; (iv) delivery of transport service information, including real-time travel information; this shall, with regard to information screens, be limited to interactive screens located within the territory of the Union; and (v) interactive self-service terminals located within the territory of the Union, except those installed as integrated parts of vehicles, aircrafts, ships and rolling stock used in the provision of any part of such passenger transport services; (d) consumer banking services; (e)

e-books and dedicated software; and

(f)

e-commerce services.

3.

This Directive applies to answering emergency communications to the single European emergency number ‘112’.

4.

This Directive does not apply to the following content of websites and mobile applications: (a)

pre-recorded time-based media published before 28 June 2025;

(b) office file formats published before 28 June 2025;

5.

(c)

online maps and mapping services, if essential information is provided in an accessible digital manner for maps intended for navigational use;

(d)

third-party content that is neither funded, developed by, or under the control of, the economic operator concerned;

(e)

content of websites and mobile applications qualifying as archives, meaning that they only contain content that is not updated or edited after 28 June 2025.

This Directive shall be without prejudice to Directive (EU) 2017/1564 and Regulation (EU) 2017/1563.

Article 3 Definitions For the purposes of this Directive, the following definitions apply: (1) ‘persons with disabilities’ means persons who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others;



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(2) ‘product’ means a substance, preparation, or good produced through a manufacturing process, other than food, feed, living plants and animals, products of human origin and products of plants and animals relating directly to their future reproduction; (3) ‘service’ means a service as defined in point 1 of Article 4 of Directive 2006/123/ EC of the European Parliament and of the Council (290); (4) ‘service provider’ means any natural or legal person who provides a service on the Union market or makes offers to provide such a service to consumers in the Union; (5) ‘audiovisual media services’ means services as defined in point (a) of Article 1(1) of Directive 2010/13/EU; (6) ‘services providing access to audiovisual media services’ means services transmitted by electronic communications networks which are used to identify, select, receive information on, and view audiovisual media services and any provided features, such as subtitles for the deaf and hard of hearing, audio description, spoken subtitles and sign language interpretation, which result from the implementation of measures to make services accessible as referred to in Article  7 of Directive 2010/13/EU; and includes electronic programme guides (EPGs); (7) ‘consumer terminal equipment with interactive computing capability, used for accessing audiovisual media services’ means any equipment the main purpose of which is to provide access to audiovisual media services; (8) ‘electronic communications service’ means electronic communications service as defined in point 4 of Article 2 of Directive (EU) 2018/1972; (9)

‘total conversation service’ means total conversation service as defined in point 35 of Article 2 of Directive (EU) 2018/1972;

(10) ‘public safety answering point’ or ‘PSAP’ means public safety answering point or PSAP as defined in point 36 of Article 2 of Directive (EU) 2018/1972; (11) ‘most appropriate PSAP’ means most appropriate PSAP as defined in point 37 of Article 2 of Directive (EU) 2018/1972; (12) ‘emergency communication’ means emergency communication as defined in point 38 of Article 2 of Directive (EU) 2018/1972; (13) ‘emergency service’ means emergency service as defined in point 39 of Article 2 of Directive (EU) 2018/1972; (14) ‘real time text’ means a form of text conversation in point to point situations or in multipoint conferencing where the text being entered is sent in such a way that the communication is perceived by the user as being continuous on a character-bycharacter basis; (15) ‘making available on the market’ means any supply of a product for distribution, consumption or use on the Union market in the course of a commercial activity, whether in return for payment or free of charge;

Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ L 376, 27.12.2006, p. 36).

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(16) ‘placing on the market’ means the first making available of a product on the Union market; (17) ‘manufacturer’ means any natural or legal person who manufactures a product or has a product designed or manufactured, and markets that product under its name or trademark; (18) ‘authorised representative’ means any natural or legal person established within the Union who has received a written mandate from a manufacturer to act on its behalf in relation to specified tasks; (19) ‘importer’ means any natural or legal person established within the Union who places a product from a third country on the Union market; (20) ‘distributor’ means any natural or legal person in the supply chain, other than the manufacturer or the importer, who makes a product available on the market; (21) ‘economic operator’ means the manufacturer, the authorised representative, the importer, the distributor or the service provider; (22) ‘consumer’ means any natural person who purchases the relevant product or is a recipient of the relevant service for purposes which are outside his trade, business, craft or profession; (23) ‘microenterprise’ means an enterprise which employs fewer than 10 persons and which has an annual turnover not exceeding EUR 2 million or an annual balance sheet total not exceeding EUR 2 million; (24) ‘small and medium-sized enterprises’ or ‘SMEs’ means enterprises which employ fewer than 250 persons and which have an annual turnover not exceeding EUR 50 million, or an annual balance sheet total not exceeding EUR  43 million, but excludes microenterprises; (25) ‘harmonised standard’ means a harmonised standard as defined in point 1(c) of Article 2 of Regulation (EU) No 1025/2012; (26) ‘technical specification’ means a technical specification as defined in point 4 of Article 2 of Regulation (EU) No 1025/2012 that provides a means to comply with the accessibility requirements applicable to a product or service; (27) ‘withdrawal’ means any measure aimed at preventing a product in the supply chain from being made available on the market; (28) ‘consumer banking services’ means the provision to consumers of the following banking and financial services: (a) credit agreements covered by Directive 2008/48/EC of the European Parliament and of the Council (291) or Directive 2014/17/EU of the European Parliament and of the Council (292);

Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit agreements for consumers and repealing Council Directive 87/102/EEC (OJ L 133, 22.5.2008, p. 66). 292 Directive 2014/17/EU of the European Parliament and of the Council of 4  February 2014 on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48/ EC and 2013/36/EU and Regulation (EU) No 1093/2010 (OJ L 60, 28.2.2014, p. 34). 291



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(b) services as defined in points 1, 2, 4 and 5 in Section A and points 1, 2, 4 and 5 in Section B  of Annex I  to Directive 2014/65/EU of the European Parliament and of the Council (293); (c) payment services as defined in point 3 of Article  4 of Directive (EU) 2015/2366 of the European Parliament and of the Council (294); (d) services linked to the payment account as defined in point 6 of Article 2 of Directive 2014/92/EU of the European Parliament and of the Council (295); and (e) electronic money as defined in point 2 of Article 2 of Directive 2009/110/ EC of the European Parliament and of the Council (296); (29) ‘payment terminal’ means a device the main purpose of which is to allow payments to be made by using payment instruments as defined in point 14 of Article  4 of Directive (EU) 2015/2366 at a physical point of sale but not in a virtual environment; (30) ‘e-commerce services’ means services provided at a distance, through websites and mobile device-based services by electronic means and at the individual request of a consumer with a view to concluding a consumer contract; (31) ‘air passenger transport services’ means commercial passenger air services, as defined in point (l) of Article 2 of Regulation (EC) No 1107/2006, on departure from, on transit through, or on arrival at an airport, when the airport is situated in the territory of a Member State, including flights departing from an airport situated in a third country to an airport situated in the territory of a Member State where the services are operated by Union air carriers; (32) ‘bus passenger transport services’ means services covered by Article 2(1) and (2) of Regulation (EU) No 181/2011; (33) ‘rail passenger transport services’ means all rail passenger services as referred to in Article 2(1) of Regulation (EC) No 1371/2007, with the exception of services referred to in Article 2(2) thereof; (34) ‘waterborne passenger transport services’ means passenger services covered by Article  2(1) of Regulation (EU) No  1177/2010, with the exception of services referred to in Article 2(2) of that Regulation; (35) ‘urban and suburban transport services’ means urban and suburban services as defined in point 6 of Article 3 of Directive 2012/34/EU of the European Parliament

Directive 2014/65/EU of the European Parliament and of the Council of 15  May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (OJ  L  173, 12.6.2014, p. 349). 294 Directive (EU) 2015/2366 of the European Parliament and of the Council of 25  November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC (OJ L 337, 23.12.2015, p. 35). 295 Directive 2014/92/EU of the European Parliament and of the Council of 23 July 2014 on the comparability of fees related to payment accounts, payment account switching and access to payment accounts with basic features (OJ L 257, 28.8.2014, p. 214). 296 Directive 2009/110/EC of the European Parliament and of the Council of 16  September 2009 on the taking up, pursuit and prudential supervision of the business of electronic money institutions amending Directives 2005/60/EC and 2006/48/EC and repealing Directive 2000/46/EC (OJ L 267, 10.10.2009, p. 7). 293

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and of the Council (297); but for the purposes of this Directive, it includes only the following modes of transport: rail, bus and coach, metro, tram and trolley bus; (36) ‘regional transport services’ means regional services as defined in point 7 of Article  3 of Directive 2012/34/EU; but for the purposes of this Directive, it includes only the following modes of transport: rail, bus and coach, metro, tram and trolley bus; (37) ‘assistive technology’ means any item, piece of equipment, service or product system including software that is used to increase, maintain, substitute or improve functional capabilities of persons with disabilities or for, alleviation and compensation of impairments, activity limitations or participation restrictions; (38) ‘operating system’ means software, which, inter alia, handles the interface to peripheral hardware, schedules tasks, allocates storage, and presents a default interface to the user when no application program is running including a graphical user interface, regardless of whether such software is an integral part of consumer general purpose computer hardware, or constitutes free-standing software intended to be run on consumer general purpose computer hardware, but excluding an operating system loader, basic input/output system, or other firmware required at boot time or when installing the operating system; (39) ‘consumer general purpose computer hardware system’ means the combination of hardware which forms a complete computer, characterised by its multipurpose nature, its ability to perform, with the appropriate software, most common computing tasks requested by consumers and intended to be operated by consumers, including personal computers, in particular desktops, notebooks, smartphones and tablets; (40) ‘interactive computing capability’ means functionality supporting human-device interaction allowing for processing and transmission of data, voice or video or any combination thereof; (41) ‘e-book and dedicated software’ means a service, consisting of the provision of digital files that convey an electronic version of a book, that can be accessed, navigated, read and used and the software including mobile device-based services including mobile applications dedicated to the accessing, navigation, reading and use of those digital files, and it excludes software covered under the definition in point (42); (42) ‘e-reader’ means dedicated equipment, including both hardware and software, used to access, navigate, read and use e-book files; (43) ‘electronic tickets’ means any system in which an entitlement to travel, in the form of single or multiple travel tickets, travel subscriptions or travel credit, is stored electronically on a physical transport pass or other device, instead of being printed on a paper ticket; (44) ‘electronic ticketing services’ means any system in which passenger transport tickets are purchased including online using a device with interactive computing capability, and delivered to the purchaser in electronic form, to enable them to be printed in paper form or displayed using a mobile device with interactive computing capability when travelling.

Directive 2012/34/EU of the European Parliament and of the Council of 21 November 2012 establishing a single European railway area (OJ L 343, 14.12.2012, p. 32).

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CHAPTER II Accessibility requirements and free movement Article 4 Accessibility requirements 1.

Member States shall ensure, in accordance with paragraphs 2, 3 and 5 of this Article and subject to Article 14, that economic operators only place on the market products and only provide services that comply with the accessibility requirements set out in Annex I.

2.

All products shall comply with the accessibility requirements set out in Section I of Annex I. All products, except for self-service terminals, shall comply with the accessibility requirements set out in Section II of Annex I.

3.

Without prejudice to paragraph 5 of this Article, all services, except for urban and suburban transport services and regional transport services, shall comply with the accessibility requirements set out in Section III of Annex I. Without prejudice to paragraph 5 of this Article, all services shall comply with the accessibility requirements set out in Section IV of Annex I.

4.

Member States may decide, in the light of national conditions, that the built environment used by clients of services covered by this Directive shall comply with the accessibility requirements set out in Annex III, in order to maximise their use by persons with disabilities.

5.

Microenterprises providing services shall be exempt from complying with the accessibility requirements referred to in paragraph  3 of this Article and any obligations relating to the compliance with those requirements.

6.

Member States shall provide guidelines and tools to microenterprises to facilitate the application of the national measures transposing this Directive. Member States shall develop those tools in consultation with relevant stakeholders.

7.

Member States may inform economic operators of the indicative examples, contained in Annex II, of possible solutions that contribute to meeting the accessibility requirements in Annex I.

8.

Member States shall ensure that the answering of emergency communications to the single European emergency number ‘112’ by the most appropriate PSAP, shall comply with the specific accessibility requirements set out in Section V of Annex I in the manner best suited to the national organisation of emergency systems.

9.

The Commission is empowered to adopt delegated acts in accordance with Article  26 to supplement Annex I  by further specifying the accessibility requirements that, by their very nature, cannot produce their intended effect unless they are further specified in binding legal acts of the Union, such as requirements related to interoperability.

Article 5 Existing Union law in the field of passenger transport Services complying with the requirements on the provision of accessible information and of information on accessibility laid down in Regulations (EC) No 261/2004, (EC) No 1107/2006, (EC) No 1371/2007, (EU) No 1177/2010, and (EU) No 181/2011 and relevant acts adopted on the basis of Directive 2008/57/EC shall be deemed to comply with the corresponding requirements of this Directive. Where this Directive provides

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for requirements additional to those provided in those Regulations and those acts, the additional requirements shall apply in full. Article 6 Free movement Member States shall not impede, for reasons related to accessibility requirements, the making available on the market in their territory of products or the provision of services in their territory that comply with this Directive. CHAPTER III Obligations of economic operators dealing with products Article 7 Obligations of manufacturers 1.

When placing their products on the market, manufacturers shall ensure that the products have been designed and manufactured in accordance with the applicable accessibility requirements of this Directive.

2.

Manufacturers shall draw up the technical documentation in accordance with Annex IV and carry out the conformity assessment procedure set out in that Annex or have it carried out. Where compliance of a product with the applicable accessibility requirements has been demonstrated by that procedure, manufacturers shall draw up an EU declaration of conformity and affix the CE marking.

3.

Manufacturers shall keep the technical documentation and the EU declaration of conformity for five years after the product has been placed on the market.

4.

Manufacturers shall ensure that procedures are in place for series production to remain in conformity with this Directive. Changes in product design or characteristics and changes in the harmonised standards, or in technical specifications, by reference to which conformity of a product is declared shall be adequately taken into account.

5.

Manufacturers shall ensure that their products bear a type, batch or serial number or other element allowing their identification, or, where the size or nature of the product does not allow it, that the required information is provided on the packaging or in a document accompanying the product.

6.

Manufacturers shall indicate their name, registered trade name or registered trade mark and the address at which they can be contacted on the product or, where that is not possible, on its packaging or in a document accompanying the product. The address must indicate a single point at which the manufacturer can be contacted. The contact details shall be in a language easily understood by end-users and market surveillance authorities.

7.

Manufacturers shall ensure that the product is accompanied by instructions and safety information in a language which can be easily understood by consumers and other end-users, as determined by the Member State concerned. Such instructions and information, as well as any labelling, shall be clear, understandable and intelligible.

8.

Manufacturers who consider or have reason to believe that a product which they have placed on the market is not in conformity with this Directive shall immediately take the corrective measures necessary to bring that product into conformity, or, if appropriate, to withdraw it. Furthermore, where the product does not comply with the accessibility requirements of this Directive, manufacturers shall immediately



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inform the competent national authorities of the Member States in which they made the product available to that effect, giving details, in particular, of the noncompliance and of any corrective measures taken. In such cases, manufacturers shall keep a register of products which do not comply with applicable accessibility requirements and of the related complaints. 9.

Manufacturers shall, further to a reasoned request from a competent national authority, provide it with all the information and documentation necessary to demonstrate the conformity of the product, in a language which can be easily understood by that authority. They shall cooperate with that authority, at its request, on any action taken to eliminate the non-compliance with the applicable accessibility requirements of products which they have placed on the market, in particular bringing the products into compliance with the applicable accessibility requirements. Article 8 Authorised representatives

1.

A manufacturer may, by a written mandate, appoint an authorised representative. The obligations laid down in Article  7(1) and the drawing up of technical documentation shall not form part of the authorised representative’s mandate.

2.

An authorised representative shall perform the tasks specified in the mandate received from the manufacturer. The mandate shall allow the authorised representative to do at least the following: (a) keep the EU declaration of conformity and the technical documentation at the disposal of market surveillance authorities for five years; (b) further to a reasoned request from a competent national authority, provide that authority with all the information and documentation necessary to demonstrate the conformity of a product; (c) cooperate with the competent national authorities, at their request, on any action taken to eliminate the non-compliance with the applicable accessibility requirements of products covered by their mandate. Article 9 Obligations of importers

1.

Importers shall place only compliant products on the market.

2.

Before placing a product on the market, importers shall ensure that the conformity assessment procedure set out in Annex IV has been carried out by the manufacturer. They shall ensure that the manufacturer has drawn up the technical documentation required by that Annex, that the product bears the CE marking and is accompanied by the required documents and that the manufacturer has complied with the requirements set out in Article 7(5) and (6).

3.

Where an importer considers or has reason to believe that a product is not in conformity with the applicable accessibility requirements of this Directive, the importer shall not place the product on the market until it has been brought into conformity. Furthermore, where the product does not comply with the applicable accessibility requirements, the importer shall inform the manufacturer and the market surveillance authorities to that effect.

4.

Importers shall indicate their name, registered trade name or registered trade mark and the address at which they can be contacted on the product or, where that is

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not possible, on its packaging or in a document accompanying the product. The contact details shall be in a language easily understood by end-users and market surveillance authorities. 5.

Importers shall ensure that the product is accompanied by instructions and safety information in a language which can be easily understood by consumers and other end-users, as determined by the Member State concerned.

6.

Importers shall ensure that, while a product is under their responsibility, storage or transport conditions do not jeopardise its compliance with the applicable accessibility requirements.

7.

Importers shall, for a period of five years keep a copy of the EU declaration of conformity at the disposal of the market surveillance authorities and shall ensure that the technical documentation can be made available to those authorities upon request.

8.

Importers who consider or have reason to believe that a product which they have placed on the market is not in conformity with this Directive shall immediately take the corrective measures necessary to bring that product into conformity, or, if appropriate, to withdraw it. Furthermore, where the product does not comply with the applicable accessibility requirements, importers shall immediately inform the competent national authorities of the Member States in which they made the product available to that effect, giving details, in particular, of the non-compliance and of any corrective measures taken. In such cases, importers shall keep a register of products which do not comply with applicable accessibility requirements, and of the related complaints.

9.

Importers shall, further to a reasoned request from a competent national authority, provide it with all the information and documentation necessary to demonstrate the conformity of a product in a language which can be easily understood by that authority. They shall cooperate with that authority, at its request, on any action taken to eliminate the non-compliance with the applicable accessibility requirements of products which they have placed on the market. Article 10 Obligations of distributors

1.

When making a product available on the market distributors shall act with due care in relation to the requirements of this Directive.

2.

Before making a product available on the market distributors shall verify that the product bears the CE marking, that it is accompanied by the required documents and by instructions and safety information in a language which can be easily understood by consumers and other end-users in the Member State in which the product is to be made available on the market and that the manufacturer and the importer have complied with the requirements set out in Article 7(5) and (6) and Article 9(4) respectively.

3.

Where a distributor considers or has reason to believe that a product is not in conformity with the applicable accessibility requirements of this Directive, the distributor shall not make the product available on the market until it has been brought into conformity. Furthermore, where the product does not comply with the applicable accessibility requirements, the distributor shall inform the manufacturer or the importer and the market surveillance authorities to that effect.

4.

Distributors shall ensure that, while a product is under their responsibility, storage or transport conditions do not jeopardise its compliance with the applicable accessibility requirements.



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5.

Distributors who consider or have reason to believe that a product which they have made available on the market is not in conformity with this Directive shall make sure that the corrective measures necessary to bring that product into conformity, or, if appropriate, to withdraw it, are taken. Furthermore, where the product, does not comply with the applicable accessibility requirements, distributors shall immediately inform the competent national authorities of the Member States in which they made the product available to that effect, giving details, in particular, of the non-compliance and of any corrective measures taken.

6.

Distributors shall, further to a reasoned request from a competent national authority, provide it with all the information and documentation necessary to demonstrate the conformity of a product. They shall cooperate with that authority, at its request, on any action taken to eliminate the non-compliance with the applicable accessibility requirements of products which they have made available on the market.

Article 11 Cases in which obligations of manufacturers apply to importers and distributors An importer or distributor shall be considered a manufacturer for the purposes of this Directive and shall be subject to the obligations of the manufacturer under Article 7, where it places a product on the market under its name or trademark or modifies a product already placed on the market in such a way that compliance with the requirements of this Directive may be affected. Article 12 Identification of economic operators dealing with products 1.

Economic operators referred to in Articles 7 to 10 shall, upon request, identify to the market surveillance authorities, the following: (a)

any other economic operator who has supplied them with a product;

(b) any other economic operator to whom they have supplied a product. 2.

Economic operators referred to in Articles  7 to 10 shall be able to present the information referred to in paragraph 1 of this Article for a period of five years after they have been supplied with the product and for a period of five years after they have supplied the product.

3.

The Commission is empowered to adopt delegated acts in accordance with Article  26 to amend this Directive in order to change the period referred to in paragraph  2 of this Article for specific products. That amended period shall be longer than five years, and shall be in proportion to the economically useful life of the product concerned. CHAPTER IV Obligations of service providers Article 13 Obligations of service providers

1.

Service providers shall ensure that they design and provide services in accordance with the accessibility requirements of this Directive.

2.

Service providers shall prepare the necessary information in accordance with Annex V and shall explain how the services meet the applicable accessibility requirements. The information shall be made available to the public in written and oral format, including in a manner which is accessible to persons with disabilities. Service providers shall keep that information for as long as the service is in operation.

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3.

Without prejudice to Article 32, service providers shall ensure that procedures are in place so that the provision of services remains in conformity with the applicable accessibility requirements. Changes in the characteristics of the provision of the service, changes in applicable accessibility requirements and changes in the harmonised standards or in technical specifications by reference to which a service is declared to meet the accessibility requirements shall be adequately taken into account by the service providers.

4.

In the case of non-conformity, service providers shall take the corrective measures necessary to bring the service into conformity with the applicable accessibility requirements. Furthermore, where the service is not compliant with applicable accessibility requirements, service providers shall immediately inform the competent national authorities of the Member States in which the service is provided, to that effect, giving details, in particular, of the non-compliance and of any corrective measures taken.

5.

Service providers shall, further to a reasoned request from a competent authority, provide it with all information necessary to demonstrate the conformity of the service with the applicable accessibility requirements. They shall cooperate with that authority, at the request of that authority, on any action taken to bring the service into compliance with those requirements. CHAPTER V Fundamental alteration of products or services and disproportionate burden to economic operators Article 14 Fundamental alteration and disproportionate burden

1.

The accessibility requirements referred to in Article  4 shall apply only to the extent that compliance: (a) does not require a significant change in a product or service that results in the fundamental alteration of its basic nature; and (b) does not result in the imposition of a disproportionate burden on the economic operators concerned.

2.

Economic operators shall carry out an assessment of whether compliance with the accessibility requirements referred to in Article 4 would introduce a fundamental alteration or, based on the relevant criteria set out in Annex VI, impose a disproportionate burden, as provided for in paragraph 1 of this Article.

3.

Economic operators shall document the assessment referred to in paragraph  2. Economic operators shall keep all relevant results for a period of five years to be calculated from the last making available of a product on the market or after a service was last provided, as applicable. Upon a request from the market surveillance authorities or from the authorities responsible for checking compliance of services, as applicable, the economic operators shall provide the authorities with a copy of the assessment referred to in paragraph 2.

4.

By way of derogation from paragraph 3, microenterprises dealing with products shall be exempted from the requirement to document their assessment. However, if a market surveillance authority so requests, microenterprises dealing with products and which have chosen to rely on paragraph 1 shall provide the authority with the facts relevant to the assessment referred to in paragraph 2.

5.

Service providers relying on point (b) of paragraph 1 shall, with regard to each category or type of service, renew their assessment of whether the burden is disproportionate:



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when the service offered is altered; or

(b) when requested to do so by the authorities responsible for checking compliance of services; and (c)

in any event, at least every five years.

6.

Where economic operators receive funding from other sources than the economic operator’s own resources, whether public or private, that is provided for the purpose of improving accessibility, they shall not be entitled to rely on point (b) of paragraph 1.

7.

The Commission is empowered to adopt delegated acts in accordance with Article  26 to supplement Annex VI by further specifying the relevant criteria that are to be taken into account by the economic operator for the assessment referred to in paragraph 2 of this Article. When further specifying those criteria, the Commission shall take into account not only the potential benefits for persons with disabilities, but also those for persons with functional limitations. When necessary, the Commission shall adopt the first such delegated act by 28 June 2020. Such act shall start to apply, at the earliest, in 28 June 2025.

8.

Where economic operators rely on paragraph 1 for a specific product or service they shall send information to that effect to the relevant market surveillance authorities, or authorities responsible for checking the compliance of services, of the Member State where the specific product is placed on the market or the specific service is provided. The first subparagraph shall not apply to microenterprises. CHAPTER VI Harmonised standards and technical specifications of products and services Article 15 Presumption of conformity

1.

Products and services which are in conformity with harmonised standards or parts thereof the references of which have been published in the Official Journal of the European Union, shall be presumed to be in conformity with the accessibility requirements of this Directive in so far as those standards or parts thereof cover those requirements.

2.

The Commission shall, in accordance with Article  10 of Regulation (EU) No  1025/2012, request one or more European standardisation organisations to draft harmonised standards for the product accessibility requirements set out in Annex I. The Commission shall submit the first such draft request to the relevant committee by 28 June 2021.

3. The Commission may adopt implementing acts establishing technical specifications that meet the accessibility requirements of this Directive where the following conditions have been fulfilled: (a)

no reference to harmonised standards is published in the Official Journal of the European Union in accordance with Regulation (EU) No  1025/2012; and

(b) either: (i)

the Commission has requested one or more European standardisation organisations to draft a harmonised standard and there are undue

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delays in the standardisation procedure or the request has not been accepted by any European standardisation organisations; or (ii) the Commission can demonstrate that a technical specification respects the requirements laid down in Annex II of Regulation (EU) No  1025/2012, except for the requirement that the technical specifications should have been developed by a non-profit making organisation. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 27(2). 4.

Products and services which are in conformity with the technical specifications or parts thereof shall be presumed to be in conformity with the accessibility requirements of this Directive in so far as those technical specifications or parts thereof cover those requirements. CHAPTER VII Conformity of products and CE marking Article 16 EU declaration of conformity of products

1.

The EU declaration of conformity shall state that the fulfilment of the applicable accessibility requirements has been demonstrated. Where as an exception, Article  14 has been used, the EU declaration of conformity shall state which accessibility requirements are subject to that exception.

2.

The EU declaration of conformity shall have the model structure set out in Annex III to Decision No 768/2008/EC. It shall contain the elements specified in Annex IV to this Directive and shall be continuously updated. The requirements concerning the technical documentation shall avoid imposing any undue burden for microenterprises and SMEs. It shall be translated into the language or languages required by the Member State in which the product is placed or made available on the market.

3.

Where a product is subject to more than one Union act requiring an EU declaration of conformity, a single EU declaration of conformity shall be drawn up in respect of all such Union acts. That declaration shall contain the identification of the acts concerned including the publication references.

4.

By drawing up the EU declaration of conformity, the manufacturer shall assume responsibility for the compliance of the product with the requirements of this Directive.

Article 17 General principles of the CE marking of products The CE marking shall be subject to the general principles set out in Article  30 of Regulation (EC) No 765/2008. Article 18 Rules and conditions for affixing the CE marking 1.

The CE marking shall be affixed visibly, legibly and indelibly to the product or to its data plate. Where that is not possible, or not warranted, on account of the nature of the product, it shall be affixed to the packaging and to the accompanying documents.

2.

The CE marking shall be affixed before the product is placed on the market.



3.

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Member States shall build upon existing mechanisms to ensure correct application of the regime governing the CE marking and shall take appropriate action in the event of improper use of that marking. CHAPTER VIII Market surveillance of products and Union safeguard procedure Article 19 Market surveillance of products

1.

Article 15(3), Articles 16 to 19, Article 21, Articles 23 to 28 and Article 29(2) and (3) of Regulation (EC) No 765/2008 shall apply to products.

2. When carrying out market surveillance of products, the relevant market surveillance authorities shall, when the economic operator has relied on Article 14 of this Directive: (a) check that the assessment referred to in Article 14 has been conducted by the economic operator; (b) review that assessment and its results, including the correct use of the criteria set out in Annex VI; and (c) 3.

check compliance with the applicable accessibility requirements.

Member States shall ensure that information held by market surveillance authorities concerning the compliance of economic operators with the applicable accessibility requirements of this Directive and the assessment provided for in Article 14, is made available to consumers upon request and in an accessible format, except where that information cannot be provided for reasons of confidentiality as provided for in Article 19(5) of Regulation (EC) No 765/2008. Article 20 Procedure at national level for dealing with products not complying with the applicable accessibility requirements

1.

Where the market surveillance authorities of one Member State have sufficient reason to believe that a product covered by this Directive does not comply with the applicable accessibility requirements, they shall carry out an evaluation in relation to the product concerned covering all requirements laid down in this Directive. The relevant economic operators shall fully cooperate with the market surveillance authorities for that purpose. Where, in the course of the evaluation referred to in the first subparagraph, the market surveillance authorities find that the product does not comply with the requirements laid down in this Directive, they shall without delay require the relevant economic operator to take all appropriate corrective action to bring the product into compliance with those requirements within a reasonable period, commensurate with the nature of the non-compliance, as they may prescribe. Market surveillance authorities shall require the relevant economic operator to withdraw the product from the market, within an additional reasonable period, only if the relevant economic operator has failed to take adequate corrective action within the period referred to in the second subparagraph. Article 21 of Regulation (EC) No 765/2008 shall apply to the measures referred to in the second and third subparagraphs of this paragraph.

2.

Where the market surveillance authorities consider that non-compliance is not restricted to their national territory, they shall inform the Commission and the

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other Member States of the results of the evaluation and of the actions which they have required the economic operator to take. 3.

The economic operator shall ensure that all appropriate corrective action is taken in respect of all the products concerned that it has made available on the market throughout the Union.

4.

Where the relevant economic operator does not take adequate corrective action within the period referred to in the third subparagraph of paragraph 1, the market surveillance authorities shall take all appropriate provisional measures to prohibit or restrict the product’s being made available on their national markets or to withdraw the product from that market. The market surveillance authorities shall inform the Commission and the other Member States, without delay, of those measures.

5.

The information referred to in the second subparagraph of paragraph  4 shall include all available details, in particular the data necessary for the identification of the non-compliant product, the origin of the product, the nature of the noncompliance alleged and the accessibility requirements with which the product does not comply, the nature and duration of the national measures taken and the arguments put forward by the relevant economic operator. In particular, the market surveillance authorities shall indicate whether the non-compliance is due to either: (a)

the failure of the product to meet the applicable accessibility requirements; or

(b)

the shortcomings in the harmonised standards or in the technical specifications referred to in Article 15 conferring a presumption of conformity.

6.

Member States other than the Member State initiating the procedure under this Article shall without delay inform the Commission and the other Member States of any measures adopted and of any additional information at their disposal relating to the non-compliance of the product concerned, and, in the event of disagreement with the notified national measure, of their objections.

7.

Where, within three months of receipt of the information referred to in the second subparagraph of paragraph 4, no objection has been raised by either a Member State or the Commission in respect of a provisional measure taken by a Member State, that measure shall be deemed justified.

8.

Member States shall ensure that appropriate restrictive measures, such as withdrawal of the product from their market, are taken in respect of the product concerned without delay. Article 21 Union safeguard procedure

1.

Where, on completion of the procedure set out in Article 20(3) and (4), objections are raised against a measure taken by a Member State, or where the Commission has reasonable evidence to suggest that a national measure is contrary to Union law, the Commission shall without delay enter into consultation with the Member States and the relevant economic operator or operators and shall evaluate the national measure. On the basis of the results of that evaluation, the Commission shall decide whether the national measure is justified or not. The Commission shall address its decision to all Member States and shall immediately communicate it to them and the relevant economic operator or operators.



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2.

Where the national measure referred to in paragraph 1 is considered justified, all Member States shall take the measures necessary to ensure that the non-compliant product is withdrawn from their market, and shall inform the Commission accordingly. Where the national measure is considered unjustified, the Member State concerned shall withdraw the measure.

3.

Where the national measure referred to in paragraph 1 of this Article is considered justified and the non-compliance of the product is attributed to shortcomings in the harmonised standards referred to in point (b) of Article 20(5), the Commission shall apply the procedure provided for in Article 11 of Regulation (EU) No 1025/2012.

4.

Where the national measure referred to in paragraph 1 of this Article is considered justified and the non-compliance of the product is attributed to shortcomings in the technical specifications referred to in point (b) of Article 20(5), the Commission shall, without delay, adopt implementing acts amending or repealing the technical specification concerned. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 27(2). Article 22 Formal non-compliance

1.

Without prejudice to Article 20, where a Member State makes one of the following findings, it shall require the relevant economic operator to put an end to the noncompliance concerned: (a) the CE marking has been affixed in violation of Article  30 of Regulation (EC) No 765/2008 or of Article 18 of this Directive; (b) the CE marking has not been affixed; (c) the EU declaration of conformity has not been drawn up; (d) the EU declaration of conformity has not been drawn up correctly; (e) technical documentation is either not available or not complete; (f) the information referred to in Article 7(6) or Article 9(4) is absent, false or incomplete; (g) any other administrative requirement provided for in Article 7 or Article 9 is not fulfilled.

2.

Where the non-compliance referred to in paragraph 1 persists, the Member State concerned shall take all appropriate measures to restrict or prohibit the product being made available on the market or to ensure that it is withdrawn from the market. CHAPTER IX Compliance of services Article 23 Compliance of services

1.

Member States shall establish, implement and periodically update adequate procedures in order to: (a) check the compliance of services with the requirements of this Directive, including the assessment referred to in Article 14 for which Article 19(2) shall apply mutatis mutandis; (b) follow up complaints or reports on issues relating to non-compliance of services with the accessibility requirements of this Directive; (c)

verify that the economic operator has taken the necessary corrective action.

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Member States shall designate the authorities responsible for the implementation of the procedures referred to in paragraph  1 with respect to the compliance of services. Member States shall ensure that the public is informed of the existence, responsibilities, identity, work and decisions of the authorities referred to in the first subparagraph. Those authorities shall make that information available in accessible formats upon request. CHAPTER X Accessibility requirements in other Union acts Article 24 Accessibility under other Union acts

1.

As regards the products and services referred to in Article 2 of this Directive, the accessibility requirements set out in Annex I thereto shall constitute mandatory accessibility requirements within the meaning of Article  42(1) of Directive 2014/24/EU and of Article 60(1) of Directive 2014/25/EU.

2.

Any product or service, the features, elements or functions of which comply with the accessibility requirements set out in Annex I to this Directive in accordance with Section VI thereof shall be presumed to fulfil the relevant obligations set out in Union acts other than this Directive, as regards accessibility, for those features, elements or functions, unless otherwise provided in those other acts.

Article 25 Harmonised standards and technical specifications for other Union acts Conformity with harmonised standards and technical specifications or parts thereof which are adopted in accordance with Article  15, shall create a presumption of compliance with Article 24 in so far as those standards and technical specifications or parts thereof meet the accessibility requirements of this Directive. CHAPTER XI Delegated acts, implementing powers and final provisions Article 26 Exercise of the delegation 1.

The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

2.

The power to adopt delegated acts referred to in Article 4(9) shall be conferred on the Commission for an indeterminate period of time from 27 June 2019. The power to adopt delegated acts referred to in Article 12(3) and Article 14(7) shall be conferred on the Commission for a period of five years from 27 June 2019. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.

3.

The delegation of power referred to in Article 4(9), Article 12(3) and Article 14(7) may be revoked at any time by the European Parliament or by the Council. A  decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect on the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.



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4.

Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making.

5.

As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

6.

A delegated act adopted pursuant to Article 4(9), Article 12(3) and Article 14(7) shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.

1. 2.

Article 27 Committee procedure The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011. Where reference is made to this paragraph, Article  5 of Regulation (EU) No 182/2011 shall apply.

Article 28 Working Group The Commission shall establish a working group consisting of representatives of market surveillance authorities, authorities responsible for compliance of services and relevant stakeholders, including representatives of persons with disabilities organisations. The working group shall: (a)

facilitate the exchange of information and best practices among the authorities and relevant stakeholders;

(b) foster cooperation between authorities and relevant stakeholders on matters relating to the implementation of this Directive to improve coherence in the application of the accessibility requirements of this Directive and to monitor closely the implementation of Article 14; and (c)

provide advice, in particular to the Commission, notably on the implementation of Article 4 and Article 14. Article 29 Enforcement

1.

Member States shall ensure that adequate and effective means exist to ensure compliance with this Directive.

2.

The means referred to in paragraph 1 shall include: (a)

provisions whereby a consumer may take action under national law before the courts or before the competent administrative bodies to ensure that the national provisions transposing this Directive are complied with;

(b) provisions whereby public bodies or private associations, organisations or other legal entities which have a legitimate interest, in ensuring that this Directive is complied with, may engage under national law before the courts or before the competent administrative bodies either on behalf or in support of the complainant, with his or her approval, in any judicial or administrative procedure provided for the enforcement of obligations under this Directive.

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This Article shall not apply to procurement procedures which are subject to Directive 2014/24/EU or Directive 2014/25/EU. Article 30 Penalties

1.

Member States shall lay down the rules on penalties applicable to infringements of national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented.

2.

The penalties provided for shall be effective, proportionate and dissuasive. Those penalties shall also be accompanied by effective remedial action in case of noncompliance of the economic operator.

3.

Member States shall, without delay, notify the Commission of those rules and of those measures and shall notify it, without delay, of any subsequent amendment affecting them.

4.

Penalties shall take into account the extent of the non-compliance, including its seriousness, and the number of units of non-complying products or services concerned, as well as the number of persons affected.

5.

This Article shall not apply to procurement procedures which are subject to Directive 2014/24/EU or Directive 2014/25/EU. Article 31 Transposition

1.

Member States shall adopt and publish, by 28 June 2022, the laws, regulations and administrative provisions necessary to comply with this Directive. They shall immediately communicate the text of those measures to the Commission.

2.

They shall apply those measures from 28 June 2025.

3.

By way of derogation from paragraph 2 of this Article, Member States may decide to apply the measures regarding the obligations set out in Article 4(8) at the latest from 28 June 2027.

4.

When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

5.

Member States shall communicate to the Commission the text of the main measures of national law which they adopt in the field covered by this Directive.

6.

Member States using the possibility provided for in Article 4(4) shall communicate to the Commission the text of the main measures of national law which they adopt to that end and shall report to the Commission on the progress made in their implementation. Article 32 Transitional measures

1.

Without prejudice to paragraph 2 of this Article, Member States shall provide for a transitional period ending on 28 June 2030 during which service providers may continue to provide their services using products which were lawfully used by them to provide similar services before that date. Service contracts agreed before 28  June 2025 may continue without alteration until they expire, but no longer than five years from that date.



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Member States may provide that self-service terminals lawfully used by service providers for the provision of services before 28 June 2025 may continue to be used in the provision of similar services until the end of their economically useful life, but no longer than 20 years after their entry into use. Article 33 Report and review

1.

By 28 June 2030, and every five years thereafter, the Commission shall submit to the European Parliament, to the Council, to the European Economic and Social Committee and to the Committee of the Regions a report on the application of this Directive.

2.

The reports shall, inter alia, address in the light of social, economic and technological developments the evolution of the accessibility of products and services, possible technology lock in or barriers to innovation and the impact of this Directive on economic operators and on persons with disabilities. The reports shall also assess whether the application of Article 4(4) has contributed to approximate diverging accessibility requirements of the built environment of passenger transport services, consumer banking services and customer service centres of shops of electronic communications service providers, where possible, with a view to allowing their progressive alignment to the accessibility requirements set out in Annex III. The reports shall also assess if the application of this Directive, in particular its voluntary provisions, has contributed to approximate accessibility requirements of the built environment constituting works falling within the scope of Directive 2014/23/EU of the European Parliament and of the Council (298), Directive 2014/24/EU and Directive 2014/25/EU. The reports shall also address the effects to the functioning of the internal market of the application of Article 14 of this Directive, including, where available, on the basis of information received in accordance with Article 14(8), as well as the exemptions for microenterprises. The reports shall conclude whether this Directive has achieved its objectives and whether it would be appropriate to include new products and services, or to exclude certain products or services from the scope of this Directive and they shall identify, where possible, areas for burden reduction with a view to a possible revision of this Directive. The Commission shall, if necessary, propose appropriate measures which could include legislative measures.

3.

Member States shall communicate to the Commission in due time all the information necessary for the Commission to draw up such reports.

4.

The Commission’s reports shall take into account the views of the economic stakeholders and relevant non-governmental organisations, including organisations of persons with disabilities.

Article 34 This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Directive 2014/23/EU of the European Parliament and of the Council of 26 February 2014 on the award of concession contracts (OJ L 94, 28.3.2014, p. 1).

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Article 35 This Directive is addressed to the Member States. Done at Strasbourg, 17 April 2019. For the European Parliament The President A. TAJANI

For the Council The President G. CIAMBA

ANNEX I ACCESSIBILITY REQUIREMENTS FOR PRODUCTS AND SERVICES Section I General accessibility requirements related to all products covered by this directive in accordance with Article 2(1) Products must be designed and produced in such a way as to maximise their foreseeable use by persons with disabilities and shall be accompanied where possible in or on the product by accessible information on their functioning and on their accessibility features. 1. Requirements on the provision of information: (a)

the information on the use of the product provided on the product itself (labelling, instructions and warning) shall be: (i)

made available via more than one sensory channel;

(ii) presented in an understandable way; (iii) presented to users in ways they can perceive; (iv) presented in fonts of adequate size and suitable shape, taking into account foreseeable conditions of use, and using sufficient contrast, as well as adjustable spacing between letters, lines and paragraphs; (b) the instructions for use of a product, where not provided on the product itself but made available through the use of the product or through other means such as a website, including the accessibility functions of the product, how to activate them and their interoperability with assistive solutions shall be publicly available when the product is placed on the market and shall: (i)

be made available via more than one sensory channel;

(ii) be presented in an understandable way; (iii) be presented to users in ways they can perceive; (iv) be presented in fonts of adequate size and suitable shape, taking into account foreseeable conditions of use and using sufficient contrast, as well as adjustable spacing between letters, lines and paragraphs; (v)

with regard to content, be made available in text formats that can be used for generating alternative assistive formats to be presented in different ways and via more than one sensory channel;

(vi) be accompanied by an alternative presentation of any non-textual content; (vii) include a description of the user interface of the product (handling, control and feedback, input and output) which is provided in accordance with point 2; the description shall indicate for each of the points in point 2 whether the product provides those features; (viii) include a description of the functionality of the product which is provided by functions aiming to address the needs of persons with disabilities in



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accordance with point 2; the description shall indicate for each of the points in point 2 whether the product provides those features; (ix) include a description of the software and hardware interfacing of the product with assistive devices; the description shall include a list of those assistive devices which have been tested together with the product. 2. User interface and functionality design: The product, including its user interface, shall contain features, elements and functions, that allow persons with disabilities to access, perceive, operate, understand and control the product by ensuring that: (a) when the product provides for communication, including interpersonal communication, operation, information, control and orientation, it shall do so via more than one sensory channel; this shall include providing alternatives to vision, auditory, speech and tactile elements; (b) when the product uses speech it shall provide alternatives to speech and vocal input for communication, operation control and orientation; (c)

when the product uses visual elements it shall provide for flexible magnification, brightness and contrast for communication, information and operation, as well as ensure interoperability with programmes and assistive devices to navigate the interface;

(d) when the product uses colour to convey information, indicate an action, require a response or identify elements, it shall provide an alternative to colour; (e) when the product uses audible signals to convey information, indicate an action, require a response or identify elements, it shall provide an alternative to audible signals; (f) when the product uses visual elements it shall provide for flexible ways of improving vision clarity; (g)

when the product uses audio it shall provide for user control of volume and speed, and enhanced audio features including the reduction of interfering audio signals from surrounding products and audio clarity;

(h) when the product requires manual operation and control, it shall provide for sequential control and alternatives to fine motor control, avoiding the need for simultaneous controls for manipulation, and shall use tactile discernible parts; (i)

the product shall avoid modes of operation requiring extensive reach and great strength;

(j)

the product shall avoid triggering photosensitive seizures;

(k) the product shall protect the user’s privacy when he or she uses the accessibility features; (l)

the product shall provide an alternative to biometrics identification and control;

(m) the product shall ensure the consistency of the functionality and shall provide enough, and flexible amounts of, time for interaction; (n) the product shall provide software and hardware for interfacing with the assistive technologies; (o) the product shall comply with the following sector-specific requirements:

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(i)

self-service terminals: –

shall provide for text-to-speech technology;

–

shall allow for the use of personal headsets;

–

where a timed response is required, shall alert the user via more than one sensory channel;

–

shall give the possibility to extend the time given;

–

shall have an adequate contrast and tactilely discernible keys and controls when keys and controls are available;

–

shall not require an accessibility feature to be activated in order to enable a user who needs the feature to turn it on;

–

when the product uses audio or audible signals, it shall be compatible with assistive devices and technologies available at Union level, including hearing technologies such as hearing aids, telecoils, cochlear implants and assistive listening devices;

(ii) e-readers shall provide for text-to-speech technology; (iii) consumer terminal equipment with interactive computing capability, used for the provision of electronic communications services: –

shall, when such products have text capability in addition to voice, provide for the handling of real time text and support high fidelity audio;

–

shall, when they have video capabilities in addition to or in combination with text and voice, provide for the handling of total conversation including synchronised voice, real time text, and video with a resolution enabling sign language communication;

–

shall ensure effective wireless coupling to hearing technologies;

–

shall avoid interferences with assistive devices;

(iv) consumer terminal equipment with interactive computing capability, used for accessing audio visual media services shall make available to persons with disabilities the accessibility components provided by the audiovisual media service provider, for user access, selection, control, and personalisation and for transmission to assistive devices. 3. Support services: Where available, support services (help desks, call centres, technical support, relay services and training services) shall provide information on the accessibility of the product and its compatibility with assistive technologies, in accessible modes of communication. Section II Accessibility requirements related to products in Article 2(1), except for the selfservice terminals referred to in Article 2(1)(b) In addition to the requirements of Section I, the packaging and instructions of products covered by this Section shall be made accessible, in order to maximise their foreseeable use by persons with disabilities. This means that: (a)

the packaging of the product including the information provided in it (e.g. about opening, closing, use, disposal), including, when provided, information about the



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accessibility characteristics of the product, shall be made accessible; and, when feasible, that accessible information shall be provided on the package; (b) the instructions for the installation and maintenance, storage and disposal of the product not provided on the product itself but made available through other means, such as a website, shall be publicly available when the product is placed on the market and shall comply with the following requirements: (i) be available via more than one sensory channel; (ii) be presented in an understandable way; (iii) be presented to users in ways they can perceive; (iv) be presented in fonts of adequate size and suitable shape, taking into account foreseeable conditions of use, and using sufficient contrast, as well as adjustable spacing between letters, lines and paragraphs; (v) content of instructions shall be made available in text formats that can be used for generating alternative assistive formats to be presented in different ways and via more than one sensory channel; and (vi) instructions containing any non-textual content shall be accompanied by an alternative presentation of that content. Section III General accessibility requirements related to all services covered by this Directive in accordance with Article 2(2) The provision of services in order to maximise their foreseeable use by persons with disabilities, shall be achieved by: (a) ensuring the accessibility of the products used in the provision of the service, in accordance with Section I of this Annex and, where applicable, Section II thereof; (b)

providing information about the functioning of the service, and where products are used in the provision of the service, its link to these products as well as information about their accessibility characteristics and interoperability with assistive devices and facilities: (i)

making the information available via more than one sensory channel;

(ii) presenting the information in an understandable way; (iii) presenting the information to users in ways they can perceive; (iv) making the information content available in text formats that can be used to generate alternative assistive formats to be presented in different ways by the users and via more than one sensory channel; (v) presenting in fonts of adequate size and suitable shape, taking into account foreseeable conditions of use and using sufficient contrast, as well as adjustable spacing between letters, lines and paragraphs; (vi) supplementing any non-textual content with an alternative presentation of that content; and (vii) providing electronic information needed in the provision of the service in a consistent and adequate way by making it perceivable, operable, understandable and robust; (c) making websites, including the related online applications, and mobile devicebased services, including mobile applications, accessible in a consistent and adequate way by making them perceivable, operable, understandable and robust;

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where available, support services (help desks, call centres, technical support, relay services and training services) providing information on the accessibility of the service and its compatibility with assistive technologies, in accessible modes of communication.

Section IV Additional accessibility requirements related to specific services The provision of services in order to maximise their foreseeable use by persons with disabilities, shall be achieved by including functions, practices, policies and procedures and alterations in the operation of the service targeted to address the needs of persons with disabilities and ensure interoperability with assistive technologies: (a) Electronic communications services, including emergency communications referred to in Article 109(2) of Directive (EU) 2018/1972: (i)

providing real time text in addition to voice communication;

(ii) providing total conversation where video is provided in addition to voice communication; (iii) ensuring that emergency communications using voice, text (including real time text) is synchronised and where video is provided is also synchronised as total conversation and is transmitted by the electronic communications service providers to the most appropriate PSAP. (b) Services providing access to audiovisual media services: (i) providing electronic programme guides (EPGs) which are perceivable, operable, understandable and robust and provide information about the availability of accessibility; (ii) ensuring that the accessibility components (access services) of the audiovisual media services such as subtitles for the deaf and hard of hearing, audio description, spoken subtitles and sign language interpretation are fully transmitted with adequate quality for accurate display, and synchronised with sound and video, while allowing for user control of their display and use. (c) Air, bus, rail and waterborne passenger transport services except for urban and suburban transport services and regional transport services: (i)

ensuring the provision of information on the accessibility of vehicles, the surrounding infrastructure and the built environment and on assistance for persons with disabilities;

(ii) ensuring the provision of information about smart ticketing (electronic reservation, booking of tickets, etc.), real-time travel information (timetables, information about traffic disruptions, connecting services, onwards travel with other transport modes, etc.), and additional service information (e.g. staffing of stations, lifts that are out of order or services that are temporarily unavailable). (d) Urban and suburban transport services and regional transport services: ensuring the accessibility of self-service terminals used in the provision of the service in accordance with Section I of this Annex. (e)

Consumer banking services: (i)

providing identification methods, electronic signatures, security, and payment services which are perceivable, operable, understandable and robust;



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(ii) ensuring that the information is understandable, without exceeding a level of complexity superior to level B2 (upper intermediate) of the Council of Europe’s Common European Framework of Reference for Languages. (f) E-books: (i)

ensuring that, when an e-book contains audio in addition to text, it then provides synchronised text and audio;

(ii) ensuring that e-book digital files do not prevent assistive technology from operating properly; (iii) ensuring access to the content, the navigation of the file content and layout including dynamic layout, the provision of the structure, flexibility and choice in the presentation of the content; (iv) allowing alternative renditions of the content and its interoperability with a variety of assistive technologies, in such a way that it is perceivable, understandable, operable and robust; (v) making them discoverable by providing information through metadata about their accessibility features; (vi) ensuring that digital rights management measures do not block accessibility features. (g) E-Commerce services: (i) providing the information concerning accessibility of the products and services being sold when this information is provided by the responsible economic operator; (ii) ensuring the accessibility of the functionality for identification, security and payment when delivered as part of a service instead of a product by making it perceivable, operable, understandable and robust; (iii) providing identification methods, electronic signatures, and payment services which are perceivable, operable, understandable and robust. Section V Specific accessibility requirements related to the answering of emergency communications to the single European emergency number ‘112’ by the most appropriate PSAP In order to maximise their foreseeable use by persons with disabilities, the answering of emergency communications to the single European emergency number ‘112’ by the most appropriate PSAP, shall be achieved by including functions, practices, policies and procedures and alterations targeted to address the needs of persons with disabilities. Emergency communications to the single European emergency number ‘112’ shall be appropriately answered, in the manner best suited to the national organisation of emergency systems, by the most appropriate PSAP using the same communication means as received, namely by using synchronised voice and text (including real time text), or, where video is provided, voice, text (including real time text) and video synchronised as total conversation. Section VI Accessibility requirements for features, elements or functions of products and services in accordance with Article 24(2) The presumption to fulfil the relevant obligations set out in other Union acts concerning features, elements or functions of products and services requires the following:

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1. Products: (a) the accessibility of the information concerning the functioning and accessibility features related to products complies with the corresponding elements set out in point 1 of Section I of this Annex, namely information on the use of the product provided on the product itself and the instructions for use of a product, not provided in the product itself but made available through the use of the product or other means such as a website; (b) the accessibility of features, elements and functions of the user interface and the functionality design of products complies with the corresponding accessibility requirements of such user interface or functionality design set out in point 2 of Section I of this Annex; (c) the accessibility of the packaging, including the information provided in it and instructions for the installation and maintenance, storage and disposal of the product not provided in the product itself but made available through other means such as a website, except for self-service terminals complies with the corresponding accessibility requirements set out in Section II of this Annex. 2. Services: the accessibility of the features, elements and functions of services complies with the corresponding accessibility requirements for those features, elements and functions set out in the services-related Sections of this Annex. Section VII Functional performance criteria In order to maximise the foreseeable use by persons with disabilities, when the accessibility requirements, set out in Sections I to VI of this Annex, do not address one or more functions of the design and production of products or the provision of services those functions or means shall be accessible by complying with the related functional performance criteria. Those functional performance criteria may only be used as an alternative to one or more specific technical requirements, when these are referred to in the accessibility requirements, if and only if the application of the relevant functional performance criteria complies with the accessibility requirements and it determines that the design and production of products and the provision of services results in equivalent or increased accessibility for the foreseable use by persons with disabilities. (a)

Usage without vision Where the product or service provides visual modes of operation, it shall provide at least one mode of operation that does not require vision.

(b) Usage with limited vision Where the product or service provides visual modes of operation, it shall provide at least one mode of operation that enables users to operate the product with limited vision. (c)

Usage without perception of colour Where the product or service provides visual modes of operation, it shall provide at least one mode of operation that does not require user perception of colour.

(d) Usage without hearing Where the product or service provides auditory modes of operation, it shall provide at least one mode of operation that does not require hearing.



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(e)

Usage with limited hearing Where the product or service provides auditory modes of operation, it shall provide at least one mode of operation with enhanced audio features that enables users with limited hearing to operate the product. (f) Usage without vocal capability Where the product or service requires vocal input from users, it shall provide at least one mode of operation that does not require vocal input. Vocal input includes any orally-generated sounds like speech, whistles or clicks. (g) Usage with limited manipulation or strength Where the product or service requires manual actions, it shall provide at least one mode of operation that enables users to make use of the product through alternative actions not requiring fine motor control and manipulation, hand strength or operation of more than one control at the same time. (h) Usage with limited reach The operational elements of products shall be within reach of all users. Where the product or service provides a manual mode of operation, it shall provide at least one mode of operation that is operable with limited reach and limited strength. (i) Minimising the risk of triggering photosensitive seizures Where the product provides visual modes of operation, it shall avoid modes of operation that trigger photosensitive seizures. (j)

Usage with limited cognition The product or service shall provide at least one mode of operation incorporating features that make it simpler and easier to use. (k) Privacy Where the product or service incorporates features that are provided for accessibility, it shall provide at least one mode of operation that maintains privacy when using those features that are provided for accessibility. ANNEX II INDICATIVE NON-BINDING EXAMPLES OF POSSIBLE SOLUTIONS THAT CONTRIBUTE TO MEETING THE ACCESSIBILITY REQUIREMENTS IN ANNEX I SECTION I: EXAMPLES RELATED TO GENERAL ACCESSIBILITY REQUIREMENTS FOR ALL PRODUCTS COVERED BY THIS DIRECTIVE IN ACCORDANCE WITH ARTICLE 2(1) REQUIREMENTS EXAMPLES IN SECTION I OF ANNEX I 1. The provision of information (a) (i) Providing visual and tactile information or visual and auditory information indicating the place where to introduce a card in a self-service terminal so that blind persons and deaf persons can use the terminal.

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(ii)

(iii) (iv)

Using the same words in a consistent manner, or in a clear and logical structure, so that persons with intellectual disabilities can better understand it. Providing tactile relief format or sound in addition to a text warning so that blind persons can perceive it. Allowing that text can be read by persons who are visually impaired.

(b) (i)

2.

Providing electronic files which can be read by a computer using screen readers so that blind persons can use the information. (ii) Using the same words in a consistent manner, or in a clear and logical structure, so that persons with intellectual disabilities can better understand them. (iii) Providing subtitles when video instructions are provided. (iv) Allowing that the text can be read by persons who are visually impaired. (v) Printing in Braille, so that a blind person can use them. (vi) Accompanying a diagram with a text description identifying the main elements or describing key actions. (vii) No example provided (viii) No example provided (ix) Including a socket and software in automated teller machines which will allow the plugging of a headphone which will receive the text on the screen in the form of sound. User interface and functionality design (a) Providing instructions in the form of voice and text, or by incorporating tactile signs in a keypad, so that persons who are blind or hard of hearing can interact with the product. (b) Offering in a self-service terminal in addition to the spoken instructions, for example, instructions in the form of text or images so that deaf persons can also perform the action required (c) Allowing users to enlarge a text, to zoom in on a particular pictogram or to increase the contrast, so that persons who are visually impaired can perceive the information. (d) In addition of giving a choice to press the green or the red button for selecting an option, providing in written on the buttons what the options are, in order to allow person who are colour blind to make the choice. (e) When a computer gives an error signal, providing a written text or an image indicating the error, so as to allow deaf persons to apprehend that an error is occurring. (f) Allowing for additional contrast in foreground images so that persons who have low vision can see them.



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(g)

3.

Allowing the user of a telephone to select the volume of the sound and reduce the interference with hearing aids so that persons who are hard of hearing can use the telephone. (h) Making touch screen buttons bigger and well separated so that persons with tremor can press them. (i) Ensuring that buttons to be pressed do not require much force so that persons who have motor impairments can use them. (j) Avoiding flickering images so that persons who get seizures are not at risk. (k) Allowing the use of headphones when spoken information is provided by automated teller machines. (l) As an alternative to fingerprint recognition, allowing users who cannot use their hands to select a password for locking and unlocking a phone. (m) Ensuring that the software reacts in a predictable way when a particular action is performed and providing enough time to enter a password so that is easy to use for persons with intellectual disabilities. (n) Offering a connection with a refreshable Braille display so that blind persons can use the computer. (o) Examples of sector-specific requirements (i) No example provided (ii) No example provided (iii) Providing that a mobile phone should be able to handle real First time text conversations so that persons who are hard of hearing indent can exchange information in an interactive way. (iii) Allowing the simultaneous use of video to display sign Fourth language and text to write a message, so that two deaf persons indent can communicate with each other or with a hearing person. (iv) Ensuring that subtitles are transmitted through the set top box for their use by deaf persons. Support services: No example provided

SECTION II: EXAMPLES RELATED TO ACCESSIBILITY REQUIREMENTS FOR PRODUCTS IN ARTICLE 2(1), EXCEPT FOR THE SELF-SERVICE TERMINALS REFERRED TO IN ARTICLE 2(1)(b) REQUIREMENTS EXAMPLES IN SECTION II OF ANNEX I Packaging and instructions of products (a) Indicating in the packaging that the phone contains accessibility features for persons with disabilities. (b) (i) Providing electronic files which can be read by a computer using screen readers so that blind persons can use the information.

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(ii)

(iii) (iv) (v) (vi)

Using the same words in a consistent manner, or in a clear and logical structure, so that persons with intellectual disabilities can better understand it. Providing tactile relief format or sound when a text warning is present so that blind persons receive the warning. Providing that the text can be read by persons who are visually impaired. Printing in Braille, so that a blind person can read it. Supplementing a diagram with a text description identifying the main elements or describing key actions.

SECTION III: EXAMPLES RELATED TO GENERAL ACCESSIBILITY REQUIREMENTS FOR ALL SERVICES COVERED BY THIS DIRECTIVE IN ACCORDANCE WITH ARTICLE 2(2) REQUIREMENTS EXAMPLES IN SECTION III OF ANNEX I The provision of services (a) No example provided (b) (i)

(ii)

(iii) (iv) (v) (vi) (vii)

(c)

(d)

Providing electronic files which can be read by a computer using screen readers so that blind persons can use the information. Using the same words in a consistent manner or in a clear and logical structure so that persons with intellectual disabilities can better understand it. Including subtitles when a video with instructions is provided. Providing that a blind person can use a file by printing it in Braille. Providing that the text can be read by persons who are visually impaired. Supplementing a diagram with a text description identifying the main elements or describing key actions. When a service provider offers a USB-key containing information about the service, providing that information is accessible. Providing text description of pictures, making all functionality available from a keyboard, giving users enough time to read, making content appear and operate in a predictable way, and providing compatibility with assistive technologies, so that persons with diverse disabilities can read and interact with a website. No example provided



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SECTION IV: EXAMPLES RELATED TO ADDITIONAL ACCESSIBILITY REQUIREMENTS FOR SPECIFIC SERVICES REQUIREMENTS EXAMPLES IN SECTION IV OF ANNEX I Specific services (a) (i) Providing that persons who are hard of hearing could write and receive text in an interactive manner and in real time. (ii) Providing that deaf persons can use sign language to communicate among themselves. (iii) Providing that a person who has speech and hearing impairments and chooses to use a combination of text, voice and video, knows that the communication is transmitted through the network to an emergency service. (b) (i) Providing that a blind person can select programmes on the television. (ii) Supporting the possibility to select, personalise and display ‘access services’ such as subtitles for deaf persons or persons who are hard of hearing, audio description, spoken subtitles and sign language interpretation, by providing means for effective wireless coupling to hearing technologies or by providing user controls to activate ‘access services’ for audiovisual media services at the same level of prominence as the primary media controls. (c) (i) No example provided (ii) No example provided (d) No example provided (e) (i) (ii)

Making the identification dialogues on a screen readable by screen readers so that blind persons can use them. No example provided

(f) (i) (ii) (iii) (iv)

Providing that a person with dyslexia can read and hear the text at the same time. Enabling synchronized text and audio output or by enabling a refreshable Braille transcript. Providing that a blind person can access the index or change chapters. No example provided

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(v)

(vi)

Ensuring that information on their accessibility features is available in the electronic file so that persons with disabilities can be informed. Ensuring that there is no blocking, for example that technical protection measures, rights management information or interoperability issues do not prevent the text from being read aloud by the assistive devices, so that blind users can read the book.

(g) (i) (ii) (iii)

Ensuring that available information on the accessibility features of a product is not deleted. Making the payment service user interface available by voice so that blind persons can make online purchases independently. Making the identification dialogues on a screen readable by screen readers so that blind persons can use them.

ANNEX III ACCESSIBILITY REQUIREMENTS FOR THE PURPOSE OF ARTICLE 4(4) CONCERNING THE BUILT ENVIRONMENT WHERE THE SERVICES UNDER THE SCOPE OF THIS DIRECTIVE ARE PROVIDED In order to maximise the foreseeable use in an independent manner by persons with disabilities of the built environment in which a service is provided and which is under the responsibility of the service provider, as referred to in Article 4(4), the accessibility of areas intended for public access shall include the following aspects: (a)

use of related outdoor areas and facilities;

(b) approaches to buildings; (c)

use of entrances;

(d) use of paths in horizontal circulation; (e)

use of paths in vertical circulation;

(f)

use of rooms by the public;

(g) use of equipment and facilities used in the provision of the service; (h) use of toilets and sanitary facilities; (i)

use of exits, evacuation routes and concepts for emergency planning;

(j)

communication and orientation via more than one sensory channel;

(k) use of facilities and buildings for their foreseeable purpose; (l)

protection from hazards in the environment indoors and outdoors.

ANNEX IV CONFORMITY ASSESSMENT PROCEDURE – PRODUCTS 1. Internal production control Internal production control is the conformity assessment procedure whereby the manufacturer fulfils the obligations laid down in points 2, 3 and 4 of this Annex, and ensures and declares on its sole responsibility that the product concerned satisfy the appropriate requirements of this Directive.



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2. Technical documentation The manufacturer shall establish the technical documentation. The technical documentation shall make it possible to assess the conformity of the product to the relevant accessibility requirements referred to in Article 4 and, in case the manufacturer relied on Article  14, to demonstrate that relevant accessibility requirements would introduce a fundamental alteration or impose a disproportionate burden. The technical documentation shall specify only the applicable requirements and cover, as far as relevant for the assessment, the design, manufacture and operation of the product. The technical documentation shall, wherever applicable, contain at least the following elements: (a)

a general description of the product;

(b) a list of the harmonised standards and technical specifications the references of which have been published in the Official Journal of the European Union, applied in full or in part, and descriptions of the solutions adopted to meet the relevant accessibility requirements referred to in Article  4 where those harmonised standards or technical specifications have not been applied; in the event of partly applied harmonised standards or technical specifications, the technical documentation shall specify the parts which have been applied. 3. Manufacturing The manufacturer shall take all measures necessary so that the manufacturing process and its monitoring ensure compliance of the products with the technical documentation referred to in point 2 of this Annex and with the accessibility requirements of this Directive. 4. CE marking and EU declaration of conformity 4.1. The manufacturer shall affix the CE marking referred to in this Directive to each individual product that satisfies the applicable requirements of this Directive. 4.2. The manufacturer shall draw up a written EU declaration of conformity for a product model. The EU declaration of conformity shall identify the product for which it has been drawn up. A  copy of the EU declaration of conformity shall be made available to the relevant authorities upon request. 5. Authorised representative The manufacturer’s obligations set out in point 4 may be fulfilled by its authorised representative, on its behalf and under its responsibility, provided that they are specified in the mandate. ANNEX V INFORMATION ON SERVICES MEETING ACCESSIBILITY REQUIREMENTS 1. The service provider shall include the information assessing how the service meets the accessibility requirements referred to in Article 4 in the general terms and conditions, or equivalent document. The information shall describe the applicable requirements and cover, as far as relevant for the assessment the design and the operation of the service. In addition to the consumer information requirements of Directive 2011/83/EU, the information shall, where applicable, contain the following elements: (a)

a general description of the service in accessible formats;

(b) descriptions and explanations necessary for the understanding of the operation of the service;

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(c)

a description of how the relevant accessibility requirements set out in Annex I are met by the service. 2. To comply with point 1 of this Annex the service provider may apply in full or in part the harmonised standards and technical specifications, for which references have been published in the Official Journal of the European Union. 3. The service provider shall provide information demonstrating that the service delivery process and its monitoring ensure compliance of the service with point 1 of this Annex and with the applicable requirements of this Directive. ANNEX VI CRITERIA FOR ASSESSMENT OF DISPROPORTIONATE BURDEN Criteria to carry out and document the assessment: 1. Ratio of the net costs of compliance with accessibility requirements to the overall costs (operating and capital expenditures) of manufacturing, distributing or importing the product or providing the service for the economic operators. Elements to use to assess the net costs of compliance with accessibility requirements: (a)

criteria related to one-off organisational costs to take into account in the assessment: (i)

costs related to additional human resources with accessibility expertise;

(ii) costs related to training human resources and acquiring competences on accessibility; (iii) costs of development of a new process for including accessibility in the product development or service provision; (iv) costs related to development of guidance material on accessibility; (v) one-off costs of understanding the legislation on accessibility; (b)

criteria related to on-going production and development costs to take into account in the assessment: (i)

costs related to the design of the accessibility features of the product or service;

(ii) costs incurred in the manufacturing processes; (iii) costs related to testing the product or service for accessibility; (iv) costs related to establishing documentation. 2. The estimated costs and benefits for the economic operators, including production processes and investments, in relation to the estimated benefit for persons with disabilities, taking into account the amount and frequency of use of the specific product or service. 3. Ratio of the net costs of compliance with accessibility requirements to the net turnover of the economic operator. Elements to use to assess the net costs of compliance with accessibility requirements: (a)

criteria related to one-off organisational costs to take into account in the assessment: (i)

costs related to additional human resources with accessibility expertise;

(ii) costs related to training human resources and acquiring competences on accessibility; (iii) costs of development of a new process for including accessibility in the product development or service provision; (iv) costs related to development of guidance material on accessibility;



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(v) one off costs of understanding the legislation on accessibility; (b)

criteria related to on-going production and development costs to take into account in the assessment: (i)

costs related to the design of the accessibility features of the product or service;

(ii) costs incurred in the manufacturing processes; (iii) costs related to testing the product or service for accessibility; (iv) costs related to establishing documentation.

Chapter 4

Related Decisions

Contents Decision No 676/2002/EC (Radio Spectrum Decision)

1077

Commission Decision of 11 December 2006 (Electronic communications standards and specifications)

1086

Commission Decision of 15 February 2007 (reserving numbering range beginning with 116)

1098

Decision No 243/2012/EU (Radio Spectrum Policy Programme)

1102

Decision (EU) 2017/899 (470–490 MHz frequency band)

1118

Commission Decision of 11 June 2019 (Radio Spectrum Policy Group)

1126

DECISION NO 676/2002/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 7 March 2002 on a regulatory framework for radio spectrum policy in the European Community (Radio Spectrum Decision)[1] 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 (2), Having regard to the opinion of the Economic and Social Committee (3), Acting in accordance with the procedure laid down in Article 251 of the Treaty (4). Whereas: (1) On 10  November 1999 the Commission presented a communication to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions proposing the next steps in radio spectrum policy on the basis of the results of the public consultation on the Green Paper on radio spectrum policy in the context of European Community policies such as telecommunications, broadcasting, transport and research and development (R & D). This Communication was welcomed by the European Parliament in a

3 4 1 2

OJ L 108, 24.4.2002, p. 1. OJ C 365 E, 19.12.2000, p. 256 and OJ C 25 E, 29.1.2002, p. 468. OJ C 123, 25.4.2001, p. 61. Opinion of the European Parliament of 5 July 2001 (not yet published in the Official Journal), Council Common Position of 16 October 2001 (OJ C 9, 11.1.2002, p. 7) and Decision of the European Parliament of 12 December 2001 (not yet published in the Official Journal). Council Decision of 14 February 2002.

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Resolution of 18 May 2000 (5). It should be emphasised that a certain degree of further harmonisation of Community policy on the radio spectrum is desirable for services and applications, in particular for services and applications with Community or European coverage, and that it is necessary to ensure that the Member States make applicable in the required manner certain decisions of the European Conference of Postal and Telecommunications Administrations (CEPT). (2) A  policy and legal framework therefore needs to be created in the Community in order to ensure coordination of policy approaches and, where appropriate, harmonised conditions with regard to the availability and efficient use of radio spectrum necessary for the establishment and functioning of the internal market in Community policy areas, such as electronic communications, transport and R  & D. The policy approach with regard to the use of radio spectrum should be coordinated and, where appropriate, harmonised at Community level, in order to fulfil Community policy objectives efficiently. Community coordination and harmonisation may also help achieving harmonisation and coordination of the use of the radio spectrum at global level in certain cases. At the same time, appropriate technical support can be provided at national level. (3) Radio spectrum policy in the Community should contribute to freedom of expression, including freedom of opinion and freedom to receive and disseminate information and ideas, irrespective of borders, as well as freedom and plurality of the media. (4) This Decision is based on the principle that, where the European Parliament and the Council have agreed on a Community policy which depends on radio spectrum, committee procedures should be used for the adoption of accompanying technical implementing measures. Technical implementing measures should specifically address harmonised conditions with regard to the availability and efficient use of radio spectrum, as well as the availability of information related to the use of radio spectrum. The measures necessary for the implementation of this Decision should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (6). (5)

Any new Community policy initiative depending on radio spectrum should be agreed by the European Parliament and the Council as appropriate, on the basis of a proposal from the Commission. Without prejudice to the right of initiative of the Commission, this proposal should include, inter alia, information on the impact of the envisaged policy on existing spectrum user communities as well as indications regarding any general radio frequency reallocation that this new policy would require.

(6) For the development and adoption of technical implementing measures and with a view to contributing to the formulation, preparation and implementation of Community radio spectrum policy, the Commission should be assisted by a committee, to be called the Radio Spectrum Committee, composed of representatives of the Member States and chaired by a representative of the Commission. The Committee should consider proposals for technical implementing measures related to radio spectrum. These may be drafted on the basis of discussions in the Committee and may in specific cases require technical preparatory work by national authorities responsible for radio spectrum

OJ C 59, 23.2.2001, p. 245. OJ L 184, 17.7.1999, p. 23.

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management. Where committee procedures are used for the adoption of technical implementing measures, the Committee should also take into account the views of the industry and of all users involved, both commercial and non-commercial, as well as of other interested parties, on technological, market and regulatory developments which may affect the use of radio spectrum. Radio spectrum users should be free to provide all input they believe is necessary. The Committee may decide to hear representatives of radio spectrum user communities at its meetings where necessary to illustrate the situation in a particular sector. (7) Where it is necessary to adopt harmonisation measures for the implementation of Community policies which go beyond technical implementing measures, the Commission may submit to the European Parliament and to the Council a proposal on the basis of the Treaty. (8)

Radio spectrum policy cannot be based only on technical parameters but also needs to take into account economic, political, cultural, health and social considerations. Moreover, the ever increasing demand for the finite supply of available radio spectrum will lead to conflicting pressures to accommodate the various groups of radio spectrum users in sectors such as telecommunications, broadcasting, transport, law enforcement, military and the scientific community. Therefore, radio spectrum policy should take into account all sectors and balance the respective needs.

(9) This Decision should not affect the right of Member States to impose restrictions necessary for public order and public security purposes and defence. Where a technical implementing measure would affect inter alia radio frequency bands used by a Member State exclusively and directly for its public security and defence purposes, the Commission may, if the Member State requests it on the basis of justified reasons, agree to transitional periods and/or sharing mechanisms, in order to facilitate the full implementation of that measure. In this regard, Member States may also notify the Commission of their national radio frequency bands used exclusively and directly to pursue public security and defence purposes. (10) In order to take into account the views of Member States, Community institutions, industry and of all users involved, both commercial and non-commercial, as well as of other interested parties on technological, market and regulatory developments which may affect the use of radio spectrum, the Commission may organise consultations outside the framework of this Decision. (11) Radio spectrum technical management includes the harmonisation and allocation of radio spectrum. Such harmonisation should reflect the requirements of general policy principles identified at Community level. However, radio spectrum technical management does not cover assignment and licensing procedures, nor the decision whether to use competitive selection procedures for the assignment of radio frequencies. (12) With a view to the adoption of technical implementing measures addressing the harmonisation of radio frequency allocation and of information availability, the Committee should cooperate with radio spectrum experts from national authorities responsible for radio spectrum management. Building on the experience of mandating procedures gained in specific sectors, for example as a result of the application of Decision No  710/97/EC of the European Parliament and of the Council of 24 March 1997 on a coordinated authorisation approach in the field of satellite personal-communication services in the Community (7) and Decision OJ L 105, 23.4.1997, p. 4. Decision as amended by Decision No 1215/2000/EC (OJ L 139, 10.6.2000, p. 1).

7

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No 128/1999/EC of the European Parliament and of the Council of 14 December 1998 on the coordinated introduction of a third generation mobile and wireless communications system (UMTS) in the Community (8), technical implementing measures should be adopted as a result of mandates to the CEPT. Where it is necessary to adopt harmonised measures for the implementation of Community policies which do not fall within the remit of CEPT, the Commission could adopt implementation measures with the assistance of the Radio Spectrum Committee. (13) The CEPT comprises 44 European countries. It drafts technical harmonisation measures with the objective of harmonising the use of radio spectrum beyond the Community borders, which is particularly important for those Member States where the use of radio spectrum may be affected by that of the non-EU members of CEPT. Decisions and measures taken in accordance with this Decision should take account of the specific situation of Member States with external frontiers. Where necessary, the Commission should be able to make the results of mandates issued to CEPT compulsory for Member States, and where the results of such mandates are not available or deemed not acceptable, to take appropriate alternative action. This will in particular provide for the harmonisation of use of radio frequencies across the Community, in line with 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) (9) and taking into account the provisions of Directive 2002/20/EC of the European Parliament and the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (10). (14) The coordinated and timely provision to the public of appropriate information concerning the allocation, availability and use of radio spectrum in the Community is an essential element for investments and policy making. So are technological developments which will give rise to new radio spectrum allocation and management techniques and radio frequency assignment methods. Development of long-term strategic aspects require proper understanding of the implications of how technology evolves. Such information should therefore be made accessible in the Community, without prejudice to confidential business and personal information protection under Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector (11). The implementation of a cross-sectoral radio spectrum policy makes the availability of information on the whole radio spectrum necessary. In view of the general purpose of harmonising radio spectrum use in the Community and elsewhere in Europe, the availability of such information needs to be harmonised at European level in a user-friendly manner. (15) It is therefore necessary to complement existing Community and international requirements for publication of information on use of radio spectrum. At international level, the reference paper on regulatory principles negotiated in the context of the World Trade Organisation by the Group on Basic Telecommunications also requires that the existing state of allocated radio frequency bands be made publicly available. Commission Directive 96/2/EC of 16 January 1996 amending

OJ L 17, 22.1.1999, p. 1. See page 33 of this Official Journal. 10 See page 21 of this Official Journal. 11 OJ L 24, 30.1.1998, p. 1. 8 9



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Directive 90/388/EEC with regard to mobile and personal communications (12) required Member States to publish every year or make available on request the allocation scheme of radio frequencies, including plans for future extension of such frequencies, but covered only mobile and personal communications services. Moreover, Directive 1999/5/EC of the European Parliament and of the Council of 9 March 1999 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity (13), as well as Directive 98/34/ EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on information society services (14), require Member States to notify the Commission of the interfaces which they have regulated so as to assess their compatibility with Community law. (16) Directive 96/2/EC was at the origin of the adoption of a first set of measures by CEPT such as European Radiocommunications Committee Decision (ERC/DEC/ (97)01) on the publication of national tables of radio spectrum allocations. It is necessary to ensure that CEPT solutions reflect the needs of Community policy and are given the appropriate legal basis so as to be implemented in the Community. For that purpose, specific measures have to be adopted in the Community both on procedure and substance. (17) Community undertakings should obtain fair and non-discriminatory treatment on access to radio spectrum in third countries. As access to radio spectrum is a key factor for business development and public interest activities, it is also necessary to ensure that Community requirements for radio spectrum are reflected in international planning. (18) Implementation of Community policies may require coordination of radio spectrum use, in particular with regard to the provision of communications services including Community-wide roaming facilities. Moreover, certain types of radio spectrum use entail a geographical coverage which goes beyond the borders of a Member State and allow for transborder services without requiring the movement of persons, such as satellite communications services. The Community should therefore be adequately represented in the activities of all relevant international organisations and conferences related to radio spectrum management matters, such as within the International Telecommunication Union (ITU) and its World Radiocommunications Conferences. (19) The existing preparation and negotiation mechanisms for ITU  World Radiocommunication Conferences have generated excellent results due to willing cooperation within the CEPT, and the Community’s interests have been taken into account in the preparations. In international negotiations, Member States and the Community should develop a common action and closely cooperate during the whole negotiations process so as to safeguard the unity of the international representation of the Community in line with the procedures which had been agreed in the Council conclusions of 3 February 1992 for the World Administrative Radio Conference and as confirmed by the Council conclusions of 22 September 1997 and 2 May 2000. For such international negotiations, the Commission should inform the European Parliament and the Council whether Community policies are affected, with a view to obtaining endorsement by the Council on the Community OJ L 20, 26.1.1996, p. 59. OJ L 91, 7.4.1999, p. 10. 14 OJ L 204, 21.7.1998, p. 37. Directive as amended by Directive 98/48/EC (OJ L 217, 5.8.1998, p. 18). 12 13

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policy objectives to be achieved and on the positions to be taken by Member States at international level. In order to ensure that such positions also appropriately address the technical dimension related to radio spectrum management, the Commission may issue mandates to the CEPT for this purpose. Member States should accompany any act of acceptance of any agreement or regulation within international fora in charge of, or concerned with, radio spectrum management by a joint declaration stating that they will apply such agreement or regulation in accordance with their obligations under the Treaty. (20) In addition to international negotiations specifically addressing radio spectrum, there are other international agreements involving the Community and third countries which may affect radio frequency bands usage and sharing plans and which may address issues such as trade and market access, including in the World Trade Organisation framework, free circulation and use of equipment, communications systems of regional or global coverage such as satellites, safety and distress operations, transportation systems, broadcasting technologies, and research applications such as radio astronomy and earth observation. It is therefore important to ensure compatibility between the Community’s arrangements for negotiating trade and market access issues with the radio spectrum policy objectives to be pursued under this Decision. (21) It is necessary, due to the potential commercial sensitivity of information which may be obtained by national authorities in the course of their action relating to radio spectrum policy and management, that the national authorities apply common principles in the field of confidentiality laid down in this Decision. (22) Since the objective of the proposed action, namely to establish a common framework for radio spectrum policy, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of the action, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality as set out in that Article, this Decision does not go beyond what is necessary in order to achieve that objective. (23) Member States should implement this common framework for radio spectrum policy in particular through their national authorities and provide the Commission with the relevant information required to assess its proper implementation throughout the Community, taking into account international trade obligations of the Community and its Member States. (24) Decisions No 710/97/EC and No 128/1999/EC remain in force. (25) The Commission should report annually to the European Parliament and the Council on the results achieved under this Decision, as well as on planned future actions. This may allow the European Parliament and the Council to express their political support, where appropriate, HAVE ADOPTED THIS DECISION: Article 1 Aim and scope 1.

The aim of this Decision is to establish a policy and legal framework in the Community in order to ensure the coordination of policy approaches and, where appropriate, harmonised conditions with regard to the availability and efficient use of the radio spectrum necessary for the establishment and functioning of the internal market in Community policy areas such as electronic communications, transport and research and development (R & D).



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2.

In order to meet this aim, this Decision establishes procedures in order to: (a) facilitate policy making with regard to the strategic planning and harmonisation of the use of radio spectrum in the Community taking into consideration inter alia economic, safety, health, public interest, freedom of expression, cultural, scientific, social and technical aspects of Community policies as well as the various interests of radio spectrum user communities with the aim of optimising the use of radio spectrum and of avoiding harmful interference; (b) ensure the effective implementation of radio spectrum policy in the Community, and in particular establish a general methodology to ensure harmonised conditions for the availability and efficient use of radio spectrum; (c) ensure the coordinated and timely provision of information concerning the allocation, availability and use of radio spectrum in the Community; (d) ensure the effective coordination of Community interests in international negotiations where radio spectrum use affects Community policies.

3.

Activities pursued under this Decision shall take due account of the work of international organisations related to radio spectrum management, e.g. the International Telecommunication Union (ITU) and the European Conference of Postal and Telecommunications Administrations (CEPT).

4.

This Decision is without prejudice to measures taken at Community or national level, in compliance with Community law, to pursue general interest objectives, in particular relating to content regulation and audio-visual policy, to the provisions of Directive 1999/5/EC and to the right of Member States to organise and use their radio spectrum for public order and public security purposes and defence.

Article 2 Definition For the purposes of this Decision, “radio spectrum” includes radio waves in frequencies between 9 kHz and 3000 GHz; radio waves are electromagnetic waves propagated in space without artificial guide. Article 3 Committee procedure 1.

The Commission shall be assisted by a committee (“the Radio Spectrum Committee”).

2.

Where reference is made to this paragraph, Articles 3 and 7 of Decision 1999/468/ EC shall apply, having regard to the provisions of Article 8 thereof.

3.

Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/ EC shall apply, having regard to the provisions of Article 8 thereof. The period provided for in Article 5(6) of Decision 1999/468/EC shall be set at three months.

4.

The Committee shall adopt its rules of procedure. Article 4 Function of the Radio Spectrum Committee

1.

In order to meet the aim set out in Article 1, the Commission shall submit to the Radio Spectrum Committee, in accordance with the procedures set out in this Article, appropriate technical implementing measures with a view to ensuring harmonised conditions for the availability and efficient use of radio spectrum, as well as the availability of information related to the use of radio spectrum, as referred to in Article 5.

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2.

For the development of technical implementing measures referred to in paragraph 1 which fall within the remit of the CEPT, such as the harmonisation of radio frequency allocation and of information availability, the Commission shall issue mandates to the CEPT, setting out the tasks to be performed and the timetable therefor. The Commission shall act in accordance with the procedure referred to in Article 3(2).

3.

On the basis of the work completed pursuant to paragraph  2, the Commission shall decide whether the results of the work carried out pursuant to the mandates shall apply in the Community and on the deadline for their implementation by the Member States. These decisions shall be published in the Official Journal of the European Communities. For the purpose of this paragraph, the Commission shall act in accordance with the procedure referred to in Article 3(3).

4.

Notwithstanding paragraph 3, if the Commission or any Member State considers that the work carried out on the basis of a mandate issued pursuant to paragraph 2 is not progressing satisfactorily having regard to the set timetable or if the results of the mandate are not acceptable, the Commission may adopt, acting in accordance with the procedure referred to in Article 3(3), measures to achieve the objectives of the mandate.

5.

The measures referred to in paragraphs 3 and 4 may, where appropriate, provide the possibility for transitional periods and/or radio spectrum sharing arrangements in a Member State to be approved by the Commission, where justified, taking into account the specific situation in the Member State, on the basis of a reasoned request by the Member State concerned and provided such exception would not unduly defer implementation or create undue differences in the competitive or regulatory situations between Member States.

6.

To achieve the aim set out in Article 1, the Commission may also adopt technical implementing measures referred to in paragraph  1 which are not covered by paragraph 2, acting in accordance with the procedure referred to in Article 3(3).

7.

With a view to contributing to the formulation, preparation and implementation of Community radio spectrum policy, and without prejudice to the procedures set out in this Article, the Commission shall consult the Radio Spectrum Committee periodically on the matters covered by Article 1.

Article 5 Availability of information Member States shall ensure that their national radio frequency allocation table and information on rights, conditions, procedures, charges and fees concerning the use of radio spectrum, shall be published if relevant in order to meet the aim set out in Article 1. They shall keep this information up to date and shall take measures to develop appropriate databases in order to make such information available to the public, where applicable in accordance with the relevant harmonisation measures taken under Article 4. Article 6 Relations with third countries and international organisations 1.

The Commission shall monitor developments regarding radio spectrum in third countries and in international organisations, which may have implications for the implementation of this Decision.

2.

Member States shall inform the Commission of any difficulties created, de jure or de facto, by third countries or international organisations for the implementation of this Decision.



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3.

The Commission shall report regularly on the results of the application of paragraphs 1 and 2 to the European Parliament and the Council and may propose measures with the aim of securing the implementation of the principles and objectives of this Decision, where appropriate. When necessary to meet the aim set out in Article 1, common policy objectives shall be agreed to ensure Community coordination among Member States. 4. Measures taken pursuant to this Article shall be without prejudice to the Community’s and Member States’ rights and obligations under relevant international agreements. Article 7 Notification Member States shall give the Commission all information necessary for the purpose of verifying the implementation of this Decision. In particular, Member States shall immediately inform the Commission of the implementation of the results of the mandates pursuant to Article 4(3). Article 8 Confidentiality 1. Member States shall not disclose information covered by the obligation of business confidentiality, in particular information about undertakings, their business relations or their cost components. 2. Paragraph  1 shall be without prejudice to the right of relevant authorities to undertake disclosure where it is essential for the purposes of fulfilling their duties, in which case such disclosure shall be proportionate and shall have regard to the legitimate interests of undertakings in the protection of their business secrets. 3. Paragraph 1 shall not preclude publication of information on conditions linked to the granting of rights to use radio spectrum which does not include information of a confidential nature. Article 9 Report The Commission shall report on an annual basis to the European Parliament and the Council on the activities developed and the measures adopted pursuant to this Decision, as well as on future actions envisaged pursuant to this Decision. Article 10 Implementation Member States shall take all measures necessary, by laws, regulations and administrative provisions, for the implementation of this Decision and all resulting measures. Article 11 Entry into force This Decision shall enter into force on the day of its publication in the Official Journal of the European Communities. Article 12 Addressees This Decision is addressed to the Member States. Done at Brussels, 7 March 2002. For the European Parliament The President P COX

For the Council The President JC APARICIO

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COMMISSION DECISION of 11 December 2006 establishing a list of standards and/or specifications for electronic communications networks, services and associated facilities and services and replacing all previous versions[15] (notified under document number C(2006) 6364) (Text with EEA relevance) (2007/176/EC) THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, Having regard to 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) (16) and in particular Article 17(1) thereof, Having consulted the Communications Committee, Whereas: (1)

An interim ‘List of standards and/or specifications for encouraging the harmonised provision of electronic communications networks, electronic communications services and associated facilities and services’ has been published in the Official Journal of the European Communities (17)

(2) The interim list of standards referred to both the regulatory framework under Council Directive 90/387/EEC (18) and the regulatory framework in force, under Directive 2002/21/EC. Additions and modifications to that list were made in March 2006 (19). (3)

It is therefore necessary to move beyond the interim list and to draw up and publish a list of standards to replace the abovementioned publications.

(4) The revised list of standards has been drawn up in cooperation with experts from Member States and the European Telecommunication Standards Institute (ETSI), HAS ADOPTED THIS DECISION: Article 1 List of Standards 1.

The List of Standards and/or specifications for electronic communications networks, services and associated facilities and services is established. It shall replace the previous versions of the List of Standards published on 31 December 2002 and 23 March 2006. This publication is in addition to the list of standards for the minimum set of leased lines published in the Official Journal of the European Union on 25 July 2003.

2.

The List of Standards, as set out in the Annex, shall be published in the Official Journal of the European Union.

Article 2 Addressees This Decision is addressed to the Member States. OJ  L  86, 27.3.2007, p. 11. Incorporating amendments as per the consolidated version of 4 April 2008 (amended by Commission Decision of 17 March 2008). 16 OJ L 108, 24.4.2002, p. 33. 17 OJ C 331, 31.12.2002, p. 32. 18 OJ L 192, 24.7.1990, p. 1. Directive repealed by Directive 2002/21/EC. 19 OJ C 71, 23.3.2006, p. 9. 15



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ANNEX EXPLANATORY NOTE CONCERNING THIS ISSUE OF THE LIST OF STANDARDS AND/OR SPECIFICATIONS FOR ELECTRONIC COMMUNICATIONS NETWORKS, SERVICES AND ASSOCIATED FACILITIES AND SERVICES In accordance with Article  17(1) of the Framework Directive (2002/21/EC) the Commission draws up and publishes in the Official Journal of the European Communities a list of standards and/or specifications which serve as a basis for encouraging the harmonised provision of electronic communications networks, electronic communications services and associated facilities and services, to ensure interoperability of services and to improve freedom of choice for users. This publication replaces the former interim List of Standards (2002/C 331/04) which referred to both the ‘old’ regulatory framework (i.e. Article  5 of Directive 90/387/ EEC as amended by Directive 97/51/EC) and the current regulatory framework (i.e. Article 17 of the Framework Directive 2002/21/EC). This publication also replaces the ‘interactive digital television’ amendment to the List of Standards (2006/C  71/04) of 23 March 2006 (20).The minimum set of leased lines with harmonised characteristics and associated standards referred to in Article 18 of Directive 2002/22/EC (Universal Service Directive), published in Commission Decision (2003/548/EC) of 24 July 2003 (21) is not affected by publication of this List of Standards. In accordance with Art 17(2) of the Framework Directive, in the absence of standards and/or specifications in this list, Member States must encourage the implementation of standards and/or specifications adopted by European standards organisations and, in the absence of such standards and/or specifications, encourage the implementation of international standards or recommendations adopted by the International Telecommunications Union (ITU), the International Organisation for Standardisation (ISO) or the International Electro technical Commission (IEC). The present publication is a selective list of standards and/or specifications in the areas concerned. Compared to the interim list of standards (2002/C  331/04), fewer standards and/or specifications have been included, recognising that Article 17(2) of the Framework Directive already requires Member States to encourage the use of standards or specifications adopted by the European Standardisation Organisations other than those published in the List of Standards. This list of standards has been produced taking into account following criteria. These criteria were drawn up in cooperation with Member States in the Communications Committee and subsequently validated via a public consultation. The revised list should include standards and/or specifications: •

For interconnection of, or access to, electronic communications networks and/ or interoperability of electronic communications services, to the extent strictly necessary to ensure end-to-end user interoperability and freedom of choice for users;

•

Whose implementation does not represent an undue expense as compared with the expected benefits (i.e. proportionality);

•

and that fulfil one or both of the following criteria:

•

Standards and/or specifications for key interfaces representing the boundaries between systems owned and operated by different parties, including cross-border

OJ C 71, 23.3.2006, p. 9. OJ L 186, 25.7.2003, p. 43.

20 21

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aspects, in particular standards and/or specifications solving severe and likely cases of non-interoperability or a lack of freedom of choice; •

Standards and/or specifications which are relevant in today’s marketplace, which are still evolving and have some future life span. The revised list should not include: •

Standards and/or specifications for well established networks and services that are no longer subject to evolution;

•

Standards and/or specifications for networks and services that are currently in an early phase of their development;

•

By implication of paragraph (1)(c) standards and/or specifications where achieving interoperability and freedom of choice can be left to the market because it will be secured through consumer demand or industry interest. Notwithstanding the criteria in (1) and (2) above, special attention should be given to: •

Standards and/or specifications currently in use for regulation at national or European level, where the impact of their elimination should be first assessed.

•

Standards and/or specifications that are needed to provide specific public interest obligations, according to national or Community law, that operators do not have a commercial incentive to implement. PREFACE

1. General The standards and/or specifications listed hereafter constitute the ’List of Standards and/ or specifications’ referred to in Art.1 of the Commission Decision C(2006)6364 of 11/ XII/2006. Pursuant to Article  17(1) of the Framework Directive (2002/21/EC) the Commission draws up and publishes in the Official Journal of the European Communities a list of standards and/or specifications to serve as a basis for encouraging the harmonised provision of electronic communications networks, electronic communications services and associated facilities and services. If the standards and/or specifications referred to in the paragraph above have not been adequately implemented so that interoperability of services in one or more Member States cannot be ensured, the implementation of such standards and/or specifications may be made compulsory under the procedure laid down in paragraph 4 of Article 17 of the Framework Directive. The List of Standards will be revised on a regular basis to take account of requirements resulting from new technologies and market changes. Interested parties are encouraged to comment on this issue. The Communications Committee (22) has been consulted insofar as the list relates to Article 17 of the Framework Directive. Standards agreed under the R&TTE Directive (1999/5/EC) and published in the Official Journal of the European Union are outside the scope of this document. 2. Structure of the list of standards •

Chapter I: Compulsory standards and/or specifications

•

Chapter II: Transparent transmission capacity

•

Chapter III: Publicly offered user interfaces.

Established under Article 22 of the Framework Directive.

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•

Chapter IV: Interconnection and access

•

Chapter V: Services and features

•

Chapter VI: Numbering and addressing

•

Chapter VII: Quality of Service

•

Chapter VIII: Broadcasting Services

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3. Status of the standards and/or specifications in the list The status of standards and/or specifications is different for the standards and/or specifications in Chapter I and other chapters of the document. Standards and/or specifications listed in Chapter I  are compulsory to use. Standards and/or specifications can be made compulsory by following the procedure set out in Article 17(4) of the Framework Directive. According to Article 17(4) of the Framework Directive, ‘where the Commission intends to make the implementation of certain standards and/or specifications compulsory, it shall publish a notice in the Official Journal of the European Communities and invite public comment by all parties concerned’. The Commission acting in accordance with the procedure referred to in Article  22(3) of the Framework Directive, shall make implementation of the relevant standards and/or specifications compulsory by making reference to them as compulsory standards and/or specifications in the List of Standards published in the Official Journal of the European Communities. The use of standards and/or specifications listed in Chapters II to VIII is encouraged but there is no legal obligation to implement them. According to Article 17(2) of the Framework Directive, ‘Member States shall encourage the use of the standards and/ or specifications referred to (…) for the provision of services, technical interfaces and/or network functions, to the extent strictly necessary to ensure interoperability of services and to improve freedom of choice for users’. In this context, the list of recommended standards and/or specifications should be seen as candidates to become compulsory standards and/or specifications as soon as the authorities detect effects of market distortion, associated to the insufficient respect of recommended standards and/ or specifications. In accordance with Article 17 of the Framework Directive, the purpose of this list is ‘to serve as a basis for encouraging the harmonised provision of electronic communications networks, electronic communications services and associated facilities and services’ (first paragraph), ‘to ensure interoperability of services and to improve freedom of choice for users.’ (second paragraph). This should be kept in mind when implementing standards and/or specifications which contain alternatives or optional clauses. According to Article 17(5) and (6) of the Framework Directive, ‘where the Commission considers that standards and/or specifications (…) no longer contribute to the provision of harmonised electronic communications services, or that they no longer meet consumers’ needs or are hampering technological development, it shall (…) remove them from the list of standards and/or specifications (…).’. Apart from the standards and/or specifications mentioned in Chapter I of this list, other legislative measures within the regulatory framework for electronic communications networks and services may result in the use of certain standards and/or specifications being made compulsory for some undertakings. 4. Standard and/or specification version When no version number of the standard and/or specification is quoted, the version referred to in this list is the version valid at the time that the list is published. Unless otherwise specified, when referring to a multipart standard and/or specification, all the parts and subparts of the standard and/or specification are relevant. In some cases,

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where clearly specified, only certain parts of a standard and/or specification are included in the list. 5. Technical standards and/or specifications Most of the standards and specifications mentioned in this list are ETSI deliverables under both the previous and current ETSI nomenclature. Definitions of the different type of ETSI deliverables can be found under ‘ETSI Directives’ available on: http://portal. etsi.org/directives/ The most relevant of these deliverables are: Deliverables under the current ETSI nomenclature: Technical Specification, TS, contains mainly normative provisions, approved by a Technical Body. Technical Report, TR, contains mainly informative elements, approved by a Technical Body. Standard, ES, contains mainly normative provisions, approved by ETSI Membership. Guide, EG, contains mainly informative elements, approved by ETSI Membership. Special Report, SR, contains information made publicly available for reference purposes. European Standard (telecommunications series), EN, contains normative provisions, approved by the National Standards Organizations and/or National Delegations with implications concerning Standstill and National transposition. Harmonized Standard, an EN (telecommunications series) the drafting of which has been entrusted to ETSI by a mandate from the European Commission under European Directives 98/34/EC and 98/48/EC and has been drafted taking into account the applicable essential requirements of the ‘New Approach’ Directive and whose reference has subsequently been announced in the Official Journal of the European Communities. Deliverables under the previous ETSI nomenclature to which reference is made in the list: European Telecommunication Standard, ETS, contains normative provisions approved by the National Standards Organizations and/or National Delegations with implications concerning standstill and national transposition. ETSI Technical Report, ETR, contains informative elements approved by a Technical Committee. 6. Addresses where documents referenced can be obtained ETSI Publications Office postal address: ETSI 650 Route des Lucioles F-06921 Sophia Antipolis Cedex France tel. (33 -4) 92 94 42 41 fax (33 -4) 93 95 81 33 e-mail: [email protected] website: http://www.etsi.org/services_products/freestandard/home.htm Direct download of ETSI deliverables can be obtained on: http://pda.etsi.org/pda/ queryform.asp ITU Sales and Marketing Service (For ITU-T documents) postal address: ITU Place des Nations CH-1211 Geneva 20 Switzerland



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tel.:(41 -22) 730 61 41 (English) (41 -22) 730 61 42 (French) (41 -22) 730 61 43 (Spanish) fax (41 -22) 730 51 94 e-mail: [email protected] website: http://www.itu.int 7. References to EU legislation The list refers to the following legislative documents which may be found at http:// europa.eu.int/information_society/topics/telecoms/regulatory/index_en.htm Directive 2002/21/EC (Framework Directive) of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services (OJ L 108, 24.4.2002, p. 33). Directive 2002/19/EC (Access Directive) of the European Parliament and of the Council on access to, and interconnection of, electronic communications networks and services and associated facilities (OJ L 108, 24.4.2002, p. 7). Directive 2002/22/EC (Universal Service Directive) of the European Parliament and of the Council on Universal service and users’ rights relating to electronic communications networks and services (OJ L 108, 24.4.2002, p. 51). Directive 2002/58/EC (Directive on privacy and electronic communications) of the European Parliament and of the Council on the processing of personal data and the protection of privacy in the electronic communications sector (OJ  L  201, 31.7.2002, p. 27). Directive 2002/20/EC (Authorisation Directive) of the European Parliament and of the Council on the authorisation of electronic communications networks and services (OJ L 108, 24.4.2002, p. 21). Recommendation 2000/417/EC of the Commission on unbundled access to the local loop (OJ L 156, 29.6.2000, p. 44). Regulation EC/2887/2000 of the European Parliament and of the Council on unbundled access to the local loop (OJ L 336, 30.12.2000, p. 4). Commission Recommendation (2005/57/EC) of 21  January 2005 on the provision of leased lines in the European Union (Part 1 — Major supply conditions for wholesale leased lines) (notified under document number C  (2005) 103). (OJ  L  24, 27.1.2005, p. 27) Commission Recommendation (2005/268/EC) of 29  March 2005 on the provision of leased lines in the European Union — Part 2 — pricing aspects of wholesale leased lines part circuits (notified under document number C(2005) 951). (OJ  L  083, 01.04.2005 p. 52) Commission Recommendation 2003/558/EC of 25 July 2003 on the processing of caller location information in electronic communication networks for the purpose of locationenhanced emergency call services. (OJ L 189, 29.7.2003, p. 49) Directive 1999/5/EC of the European Parliament and of the Council of 9 March 1999 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity. (R&TTE Directive) (OJ L 91, 7.4.1999, p. 10) Council Decision 2001/792/EC of 23  October 2001 establishing a Community mechanism to facilitate reinforced cooperation in civil protection assistance interventions. (OJ L 297, 15.11.2001, p. 7) Decision No 676/2002/EC of the European Parliament and of the Council of 7 March 2002 on a regulatory framework for radio spectrum policy in the European Community (Radio Spectrum Decision). (OJ L 108, 24.4.2002, p. 1) Directive 98/34/EC of the European Parliament and of the Council laying down a procedure for the provision of information in the field of technical standards and

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regulations and of rules on information society services, as modified by Directive 98/48/ EC. (OJ L 204, 21.7.1998 p. 37) COM(2004)541 ‘Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions on interoperability of digital interactive television services’ of 30 July 2004. COM(2006)37 ‘Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions on reviewing the interoperability of digital interactive television services’ of 2 February 2006, pursuant to communication COM(2004)541 of 30 July 2004. 8. Definitions and abbreviations Definitions The definitions in the relevant EU legislation listed in section 7 apply. Abbreviations For the purposes of the present document, the following abbreviations apply: 3GPP 3rdGeneration Partnership Project API Application Program Interface DAB Digital Audio Broadcasting DVB Digital Video Broadcasting ETSI European Telecommunications Standards Institute GSM Global System for Mobile communications ISDN Integrated Service Digital Network IP Internet Protocol IPAT Internet Protocol Access Terminal ITU International Telecommunications Union MHEG Multimedia and Hypermedia Experts Group MHP Multimedia Home Platform NGN Next Generation Networks NTP Network Termination Point OSA Opens Service Access PoI Point of Interconnection PSTN Public Switched Telephone Network QoS Quality of Service ULL Unbundled Local Loop UMTS Universal Mobile Telecommunications System WML Wireless Mark-up Language WTVML Wireless TeleVision Mark-up Language, also designated WTML LIST OF STANDARDS AND/OR SPECIFICATIONS FOR ELECTRONIC NETWORKS, SERVICES AND ASSOCIATED Facilities and services The purpose of publishing standards and/or specifications in the list is to encourage the provision of harmonised electronic communications services to the benefit of users throughout the Community, to ensure interoperability and to support the implementation of the regulatory framework. The main guiding principle to include standards and/or specifications is to focus on standards and/or specifications related to the provisions in the Directives. The criteria used to include standards and/or specifications in this list, have been explained in the explanatory note.



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CHAPTER I 1. Compulsory Standards There are no compulsory standards in the present document. Standards can be made compulsory by following the procedure set out in Article 17(4) of the Framework Directive. Where the Commission intends to make the implementation of certain standards and/or specifications compulsory, it shall publish a notice in the Official Journal of the European Communities and invite public comment by all parties concerned. CHAPTER II 2. Transparent transmission capacity 2.1. Local Loop access to third parties Technical interfaces and/or service features Spectral management on metallic access networks; Part 1: Definitions and signal library

Reference

Notes

ETSI TR 101 830-1 (V.1.1.1)

CHAPTER III 3. Publicly offered user interfaces (NTP) Under certain market conditions (23) a National Regulatory Authority may impose obligations on operators to meet reasonable requests for access to, and use of, specific network elements and associated facilities. No standard and/or specification is included in the present List of Standards, as none were currently seen to be satisfying the criteria set out in the explanatory note. CHAPTER IV 4. Interconnection and access Under the provisions of the Access Directive, providers of Electronic Communication Networks and Services may have particular interconnection and/or access obligations. ULL and bitstream standards and/or specifications are included in Chapter II. 4.1. Application Program Interfaces Technical interfaces and/or service features Open Service Access (OSA); Application Programming Interface (API/Parlay 3) Open Service Access (OSA); Application Programming Interface (API/Parlay 4) Open Service Access (OSA); Application Programming Interface (API/Parlay 5)

See Article 8.2 of the Access Directive.

23

Reference ETSI ES 201 915 series

ETSI ES 202 915 series

ETSI ES 203 915 series

Notes

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UMTS Customized Applications ETSI TS 129 078 for Mobile network Enhanced Logic (CAMEL) Phase 3; CAMEL Application Part (CAP) specification UMTS Open Service Access ETSI TS 129 198-1 (OSA); Application Programming Interface (API); Part 1: Overview UMTS Open Services ETSI TR 129 998 Architecture Application Programming Interface — Part 2 4.2. Access to network facilities and services No standard and/or specification is included in the present List of Standards, as none were currently seen to be satisfying the criteria set out in the explanatory note. 4.3. Interconnection Technical interfaces and/or service features IPCablecom; Part 12: Internet Signalling Transport Protocol (ISTP)

Reference ETSI TS 101 909-12

IPCablecom; Part 23: Internet ETSI TS 101 909-23 Protocol Access Terminal — Line Control Signalling (IPAT — LCS)

5. Services and features 5.1. Caller Location Technical interfaces and/or service features Emergency location protocols Location Services (LCS); Functional description; Stage 2 (UMTS)

Notes defines the SS7 interface to the Signalling Gateway of an IPCablecom network identifies the V5.2 signalling interface to the IPAT of an IPCablecom network

CHAPTER V

Reference

Notes

ETSI TS 102 164 ETSI TS 123 171

5.2. Broadcasting aspects Broadcast standards and/or specifications found relevant are included in Chapter VIII. 5.3. Advice of charge (AoC) No standard and/or specification is included in the present List of Standards, as none were currently seen to be satisfying the criteria set out in the explanatory note.



Related Decisions

1095

5.4. Directory Enquiry Services Technical interfaces and/or service features Computerized directory assistance

Reference ITU-T Recommendation E.115 (02/95)

International public directory services

ITU-T Recommendation F.510

Unified Directory Specification

ITU-T Recommendation F.515

Notes Is currently used to implement international public directory services Also suitable for interconnecting national directory databases.

5.5. Anonymous Call Rejected (ACR) Although ACR was standardized for PSTN/ISDN networks, only some of the current implementations do partly comply with the standards and/or specifications and ACR was not standardized for GSM networks. No standard and/or specification is included in the present List of Standards, as none were currently seen to be satisfying the criteria set out in the explanatory note. CHAPTER VI 6. Numbering and addressing 6.1. Carrier selection and carrier pre-selection No standard and/or specification is included in the present List of Standards, as none were currently seen to be satisfying the criteria set out in the explanatory note. 6.2. Number portability No standard and/or specification is included in the present List of Standards, as none were currently seen to be satisfying the criteria set out in the explanatory note. 7. Quality of service (QoS) Technical interfaces and/or service features User related QoS parameter definitions and measurements Quality of telecom services;

Performance parameter definitions for quality of speech and other voice band applications utilising IP networks

CHAPTER VII Reference ETSI EG 202 057 series (parts 1 to 4) ETSI EG 202 009 series (parts 1 to 3)

Notes

Parameters relevant to the users

ITU-T Recommendation G.1020 (Including annex A)

Note. Under Articles 11 and 22 of the Universal Service Directive, national regulatory authorities may in specified circumstances require the use of certain standards and/ or specifications for supply-time and quality-of-service parameters, definitions and measurement methods. These standards and/or specifications are listed in Annex III of the Directive.

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7.1. Grade of Service Technical interfaces and/or service features End-user multimedia QoS categories

Reference

Notes

ITU-T Recommendation G.1010 (11/01)

7.2. Network performance objectives The present List of Standards only includes standards and/or specifications relevant to IP based services. Technical interfaces and/or service features Network performance objectives for IP-based services

Quality of Service (QoS) concept and architecture

Reference ITU-T Recommendation Y.1541 (including Appendix X and Amendments 1 and 2) ETSI TS 123 107 (3GPP TS 23.107)

Notes Some technologies may need special treatment on tolerances. Mapping between ITU-T Recommendation Y.1541 and TS 123107 QoS Classes

CHAPTER VIII 8. Broadcasting Services 8.1. Application Program Interfaces Technical interfaces and/or service features Digital Video Broadcasting (DVB); Multimedia Home Platform (MHP) Specification 1.1.1 Digital Video Broadcasting (DVB); Multimedia Home Platform (MHP) Specification 1.0.3 MHEG-5 Broadcast Profile

Reference

Notes

ETSI TS 102 812

version 1.2.1

ETSI ES 201 812

version 1.1.1 previously TS 101812 v. 1.3.1

ETSI ES 202 184

version 1.1.1

8.2. Standards and/or specifications for the realisation of interactive television content Technical interfaces and/or service features WTVML, Specification for a Lightweight Microbrowser for interactive TV applications, based on and compatible with WML

Reference ETSI TS 102322

Notes version 1.1.1



Related Decisions

1097

8.3. Digital Broadcasting Technical interfaces and/or service features Digital Audio Broadcasting (DAB); A Virtual Machine: DAB Java Specification Digital Video Broadcasting (Handheld) DVB-H

Reference

Notes

ETSI TS 101993

ETSI EN 302 304

Version 1.1.1

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COMMISSION DECISION of 15 February 2007 on reserving the national numbering range beginning with ‘116’ for harmonised numbers for harmonised services of social value[24] (notified under document number C(2007) 249) (Text with EEA relevance) (2007/116/EC) THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, Having regard to the 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 (the Framework Directive) (25), and in particular Article  10(4) thereof, Whereas: (1) It is desirable for citizens of the Member States, including travellers and disabled users, to be able to reach certain services that have a social value by using the same recognisable numbers in all Member States. At present there is a patchwork of numbering and dialling schemes in the Member States and no common numbering scheme is in operation to reserve the same telephone numbers for such services in the Community. Community action is therefore required for that purpose. (2) The harmonisation of numbering resources is necessary to allow these services provided in different Member States to be accessed by end-users using the same number. The combination ‘same number — same service’ will ensure that a specific service in which ever Member State it is provided is always associated with a specific number within the Community. This will provide the service with a pan-European identity to the benefit of the European citizen who will know that the same number dialled will give access to the same type of service in different Member States. This measure will encourage pan-European services to develop. (3) In order to reflect the social function of the services in question, the harmonised numbers should be freephone numbers, without this meaning that operators would be obliged to carry calls to 116 numbers at their own expense. The freephone nature of the numbers is therefore an essential component of the harmonisation being carried out. (4) It is necessary to attach conditions closely related to controlling the nature of the service provided to ensure that the harmonised numbers are used for the provision of the particular type of service covered by the Decision. (5) It may be necessary that specific conditions are attached to the right of use for a specific harmonised number, for example, that the associated service should be provided 24 hours a day and 7 days a week. (6) In accordance with the Framework Directive, national regulatory authorities are responsible for the management of national numbering plans and for controlling the assignment of national numbering resources to specific undertakings. In accordance with Article 6 and Article 10 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic

OJ L 49, 17.2.2007, p. 30. Incorporating amendments as per the consolidated version of 3 December 2009 (amended by Commission Decision of 29 October 2007 and Commission Decision of 30 November 2009). 25 OJ L 108, 24.4.2002, p. 33 24



Related Decisions

1099

communications networks and services (Authorisation Directive) (26), conditions may be attached to the use of numbers and penalties may be applied in case of non compliance with those conditions. (7) The list of specific numbers in the numbering range beginning with ‘116’ should be regularly updated in accordance with the procedure in Article  22(3) of the Framework Directive. Member States should make known the existence of such numbers in a manner that is accessible to all interested parties, for example, via their websites. (8) The Commission will consider revision or further adaptation of the present Decision in the light of experience gained, based on reports provided to the Commission by the Member States, in particular whether a specific service for which a number has been reserved has developed on a pan-European basis. (9) The measures provided for in this Decision are in accordance with the opinion of the Communications Committee, HAS ADOPTED THIS DECISION: Article 1 Subject matter and scope The numbering range beginning with ‘116’ shall be reserved in national numbering plans for harmonised numbers for harmonised services of social value. The specific numbers within this numbering range and the services for which each number is reserved are listed in the Annex. Article 2 Harmonised service of social value ‘Harmonised service of social value’ is a service meeting a common description to be accessed by individuals via a freephone number, which is potentially of value to visitors from other countries and which answers a specific social need, in particular which contributes to the well-being or safety of citizens, or particular groups of citizens, or helps citizens in difficulty. Article 3 Reservation of specific numbers within the ‘116’ numbering range Member States shall ensure that: (a) numbers listed in the Annex are used only for the services for which they have been reserved; (b) numbers within the ‘116’ numbering range that are not listed in the Annex are not used; (c)

the number 116112 is neither assigned nor used for any service.

Article 4 Conditions attached to the right of use for harmonised numbers Member States shall attach the following conditions to the right of use of harmonised numbers for the provision of harmonised services of social value: (a) the service provides information, or assistance, or a reporting tool to citizens, or any combination thereof;

OJ L 108, 24.4.2002, p. 21.

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(b) the service is open to all citizens without any requirement of prior registration; (c)

the service is not time-limited;

(d)

there is no payment, or payment commitment as a pre-requisite to use the service;

(e)

the following activities are excluded during a call: advertisement, entertainment, marketing and selling, using the call for the future selling of commercial services. In addition, Member States shall attach specific conditions to the right of use of harmonised numbers as set out in the Annex. Article 5 Assignment of harmonised numbers 1.

Member States shall take all necessary measures to ensure that as from the 31  August 2007 the competent National Regulatory Authority can assign the numbers referred to in the Annex.

2.

The listing of a specific number and the associated harmonised service of social value does not carry an obligation for Member States to ensure that the service in question is provided within their territory.

3.

Once a number has been listed in the Annex, Member States shall make known at national level that the specific number is available for the provision of the associated harmonised service of social value, and that applications for the rights of use for this specific number may be submitted.

4.

Member States shall ensure that a register of all harmonised numbers, with their associated harmonised services of social value, available in their territory is maintained. The register shall be easily accessible to the public.

Article 6 Monitoring Member States shall report periodically to the Commission on the actual use of numbers listed in the Annex for the provision of the related services within their territory. Article 7 Addressees This Decision is addressed to the Member States. ANNEX List of numbers reserved for harmonised services of social value Number 116 000

Service for which this number is reserved Name of service: Hotline for missing children Description: The service (a) takes calls reporting missing children and passes them on to the Police; (b) offers guidance to and supports the persons responsible for the missing child; (c) supports the investigation.

Specific conditions attached to the right of use for this number Service continuously available (i.e. 24 hours a day, 7 days a week, nation-wide).



Related Decisions

116 006

116 111

116 117

116 123

Name of the service: Helpline for victims of crime Description: The service enables victims of crime to get emotional support in such circumstances, to be informed about their rights and about ways to claim their rights, and to be referred to the relevant organisations. In particular, it provides information about (a) local police and criminal justice proceedings; (b) possibilities of compensation and insurance matters. It also provides support in finding other sources of help relevant to the victims of crime. Name of the service: Child helplines Description: The service helps children in need of care and protection and links them to services and resources; it provides children with an opportunity to express their concerns, talk about issues directly affecting them and contact someone in an emergency situation. Name of the service: Nonemergency medical on-call service Description: The service directs callers to the medical assistance appropriate to their needs, which are urgent but non-life-threatening, especially, but not exclusively, outside normal office hours, over the weekend and on public holidays. It connects the caller to a skilled and supported call-handler, or connects the caller directly to a qualified medical practitioner or clinician. Name of the service: Emotional support helplines Description: The service enables the caller to benefit from a genuine human relationship based on nonjudgmental listening. It offers emotional support to callers suffering from loneliness, in a state of psychological crisis, or contemplating suicide.

1101

Where the service is not continuously available (i.e. 24 hours a day, 7 days a week, nationwide), the service provider must ensure that information about availability is made publicly available in an easily accessible form, and that, during periods of unavailability, callers to the service are advised when the service will next become available.

Where the service is not continuously available (i.e. 24 hours a day, 7 days a week, nationwide), the service provider must ensure that information about availability is made publicly available in an easily accessible form, and that, during periods of unavailability, callers to the service are advised when the service will next become available. Where the service is not continuously available (i.e. 24 hours a day, 7 days a week, nationwide), the service provider must ensure that information about availability is made publicly available in an easily accessible form, and that, during periods of unavailability, callers to the service are advised when the service will next become available.

Where the service is not continuously available (i.e. 24 hours a day, 7 days a week, nation-wide), the service provider must ensure that information about availability is made publicly available in an easily accessible form, and that, during periods of unavailability, callers to the service are advised when the service will next become available.

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DECISION NO 243/2012/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF 14 March 2012 establishing a multiannual radio spectrum policy programme[27] (Text with EEA relevance) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, Having regard to the opinion of the European Economic and Social Committee (28), After consulting the Committee of the Regions, Acting in accordance with the ordinary legislative procedure (29), Whereas: (1) In accordance with 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) (30), the Commission may submit legislative proposals to the European Parliament and the Council for establishing multiannual radio spectrum policy programmes. Those programmes should set out policy orientations and objectives for the strategic planning and harmonisation of the use of spectrum in accordance with the directives applicable to electronic communications networks and services. Those policy orientations and objectives should refer to the availability and efficient use of the spectrum necessary for the establishment and functioning of the internal market. The Radio Spectrum Policy Programme (hereinafter ‘the Programme’) should support the goals and key actions outlined in the Commission Communication of 3  March 2010 on the Europe 2020 Strategy and the Commission Communication of 26 August 2010 on ‘A  Digital Agenda for Europe’, and is included among the 50 priority actions of the Commission Communication of 11  November 2010, ‘Towards a Single Market Act’. (2) This Decision should be without prejudice to existing Union law, in particular Directive 1999/5/EC of the European Parliament and of the Council of 9 March 1999 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity (31), Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) (32), Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (33), Directive 2002/21/EC as well as Decision

OJ L 81, 21.3.2012, p. 7. Incorporating amendments as per the consolidated version of 21 December 2020 (amended by Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018). 28 OJ C 107, 6.4.2011, p. 53. 29 Position of the European Parliament of 11 May 2011 (not yet published in the Official Journal) and position of the Council at first reading of 13 December 2011 (OJ C 46 E, 17.2.2012, p. 1). Position of the European Parliament of 15 February 2012 (not yet published in the Official Journal). 30 OJ L 108, 24.4.2002, p. 33. 31 OJ L 91, 7.4.1999, p. 10. 32 OJ L 108, 24.4.2002, p. 7. 33 OJ L 108, 24.4.2002, p. 21. 27



Related Decisions

1103

No 676/2002/EC of the European Parliament and of the Council of 7 March 2002 on a regulatory framework for radio spectrum policy in the European Community (Radio Spectrum Decision) (34). This Decision should also be without prejudice to measures taken at national level, in compliance with Union law, that pursue general interest objectives, in particular relating to content regulation and audiovisual policy, and to the right of Member States to organise and use their spectrum for public order and public security purposes and for defence. (3) Spectrum is a key public resource for essential sectors and services, including mobile, wireless broadband and satellite communications, television and radio broadcasting, transport, radiolocation, and applications such as alarms, remote controls, hearing aids, microphones, and medical equipment. It supports public services, such as security and safety services including civil protection, and scientific activities, such as meteorology, Earth observation, radio astronomy and space research. Easy access to spectrum also plays a role in the provision of electronic communications, in particular for citizens and businesses located in remote and sparsely populated areas, such as rural areas or islands. Regulatory measures on spectrum therefore have economic, safety, health, public interest, cultural, scientific, social, environmental and technical implications. (4) A  renewed economic and social approach with regard to the management, allocation and use of spectrum should be adopted. That approach should have a particular focus directed towards spectrum policy, with the aim to ensure greater spectrum efficiency, better frequency planning and safeguards against anticompetitive behaviour. (5) The strategic planning and harmonisation of spectrum use at Union level should enhance the internal market for wireless electronic communications services and equipment as well as other Union policies requiring spectrum use, thus creating new opportunities for innovation and employment creation, and simultaneously contributing to economic recovery and social integration across the Union, while at the same time respecting the important social, cultural and economic value of spectrum. (6)

The harmonisation of appropriate spectrum use can also be beneficial to the quality of the services provided through electronic communications, and is essential in order to create economies of scale, lowering both the cost of deploying wireless networks and the cost of wireless devices for consumers. To that end, the Union needs a policy programme that covers the internal market in all Union policy areas involving the use of spectrum, such as electronic communications, research, technological development and space, transport, energy and audiovisual policies.

(7) The Programme should promote competition and contribute to laying the foundation for a genuine single digital market. (8) The Programme should, in particular, support the Europe 2020 Strategy, given the huge potential of wireless services to promote a knowledge-based economy, develop and assist sectors relying on information and communications technologies and overcome the digital divide. The growing use of, in particular, audiovisual media services and online content is increasing demand for speed and coverage. It is also a key action in the Digital Agenda for Europe, which aims to deliver fast broadband internet in the future network- and knowledge-based economy, with an ambitious target for universal broadband coverage. Providing the highest possible OJ L 108, 24.4.2002, p. 1.

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wired and wireless broadband speeds and capacity contributes to achieving the target of access to broadband at a speed of not less than 30 Mbps for all by 2020 with at least half of Union households having access to broadband at a speed of at least 100 Mbps, and is important for fostering economic growth and global competitiveness, and necessary to achieve the sustainable economic and social benefits of a single digital market. It should also support and promote other Union sectoral policies such as a sustainable environment and economic and social inclusion for all Union citizens. Given the importance of wireless applications for innovation, the Programme is also a key initiative in support of Union policies on innovation. (9)

The Programme should lay the foundations for a development whereby the Union can take the lead regarding wireless broadband speeds, mobility, coverage and capacity. Such leadership is essential in order to establish a competitive single digital market working to open up the internal market for all Union citizens.

(10) The Programme should specify guiding principles and objectives up to 2015 for Member States and institutions of the Union, and set out specific implementation initiatives. While spectrum management is still largely a national competence, it should be exercised in compliance with existing Union law and allow for action to pursue Union policies. (11) The Programme should also take into account Decision No 676/2002/EC and the technical expertise of the European Conference of Postal and Telecommunications Administrations (hereinafter ‘CEPT’) so that Union policies which rely on spectrum and have been agreed by the European Parliament and the Council can be implemented by technical implementing measures, noting that such measures can be taken whenever necessary to implement already existing Union policies. (12) Easy access to spectrum may require innovative types of authorisation such as collective use of spectrum, or infrastructure sharing, the application of which in the Union could be facilitated by identifying best practices and encouraging information sharing, as well as by defining certain common or converging conditions for the use of spectrum. General authorisations, which are the least onerous type of authorisation, are of particular interest where interference does not risk hampering the development of other services. (13) While technologically still in development, so-called ‘cognitive technologies’ should already be further explored, including by facilitating sharing based on geolocalisation. (14) Spectrum rights trading combined with flexible usage conditions could substantially benefit economic growth. Therefore, bands where flexible use has already been introduced by Union law should immediately be made tradable pursuant to Directive 2002/21/EC. The sharing of best practices on authorisation conditions and procedures for such bands and common measures to prevent accumulation of rights of use of spectrum which may create dominant positions, as well as undue failure to use such rights, would facilitate the coordinated introduction by all Member States of these measures and facilitate acquisition of such rights anywhere in the Union. Collective (or shared) use of spectrum — as an undetermined number of independent users and/or devices to access spectrum in the same range of frequencies at the same time and in a particular geographic area under a well-defined set of conditions — should be fostered where applicable, without prejudice to the provisions of Directive 2002/20/EC with regard to electronic communications networks and services.



Related Decisions

1105

(15) As underlined in the Digital Agenda for Europe, wireless broadband is an important means to boost competition, consumer choice and access in rural and other areas where deployment of wired broadband is difficult or not economically viable. However, spectrum management may affect competition by changing the role and power of market players, for example if existing users receive undue competitive advantages. Limited spectrum access, in particular when appropriate spectrum becomes scarcer, can create a barrier to entry for new services or applications and hamper innovation and competition. Acquisition of new rights of use of spectrum, including through spectrum transfer or leasing or other transactions between users, and the introduction of new flexible criteria for spectrum use can have an impact on the existing competitive situation. Member States should therefore take appropriate ex ante or ex post regulatory measures (such as action to amend existing rights, to prohibit certain acquisitions of rights of use of spectrum, to impose conditions on spectrum hoarding and efficient use such as those referred to in Directive 2002/21/EC, to limit the amount of spectrum available for each undertaking, or to avoid excessive accumulation of rights of use of spectrum) to avoid distortions of competition in line with the principles underpinning Directive 2002/20/EC and Council Directive 87/372/EEC of 25 June 1987 on the frequency bands to be reserved for the coordinated introduction of public pan-European cellular digital land-based mobile communications in the Community (35) (the ‘GSM’ Directive). (16) The establishment of an inventory of existing spectrum use together with an analysis of technology trends, future needs and demand for spectrum, in particular between 400 MHz and 6 GHz, should allow the identification of frequency bands in which efficiency could be improved, and of spectrum-sharing opportunities, to the benefit of both the commercial and public sectors. The methodology for establishing and maintaining an inventory of existing uses of spectrum should take due account of the administrative burden placed on the administrations and should aim to minimise that burden. Therefore, the information provided by the Member States pursuant to Commission Decision 2007/344/EC of 16  May 2007 on harmonised availability of information regarding spectrum use within the Community (36) should be taken fully into account when developing the methodology for establishing an inventory of existing uses of spectrum. (17) Harmonised standards under Directive 1999/5/EC are essential to achieve efficient use of spectrum and should take account of legally defined sharing conditions. European standards for non-radio electric and electronic equipment and networks should also avoid disturbance to spectrum use. The cumulative impact of the increasing volume and density of wireless devices and applications combined with the diversity of spectrum use presents a challenge to current approaches to interference management. These should therefore be examined and reassessed together with receiver characteristics and more sophisticated interference avoidance mechanisms. (18) Member States should be allowed, where appropriate, to introduce compensatory measures relating to migration costs. (19) In line with the objectives of the Digital Agenda for Europe, wireless broadband could contribute substantially to economic recovery and growth if sufficient spectrum were made available, rights of use of spectrum were awarded quickly, OJ L 196, 17.7.1987, p. 85. OJ L 129, 17.5.2007, p. 67.

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and trading were allowed to adapt to market evolution. The Digital Agenda for Europe calls for all Union citizens to have access to broadband at a speed of at least 30 Mbps by 2020. Therefore, the spectrum that has already been covered by existing Commission Decisions should be made available under the terms and conditions of those Decisions. Subject to market demand, the authorisation process should be carried out in accordance with Directive 2002/20/EC by 31 December 2012 for terrestrial communications, to ensure easy access to wireless broadband for all, in particular within frequency bands designated by Commission Decisions 2008/411/EC (37), 2008/477/EC (38), and 2009/766/EC (39). In order to complement terrestrial broadband services and ensure the coverage of most remote Union areas, satellite broadband access could be a fast and feasible solution. (20) More flexible arrangements governing the use of spectrum should be introduced, where appropriate, in order to foster innovation and high-speed broadband connections, which enable firms to reduce their costs and increase their competitiveness and make it possible to develop new interactive online services, for example in the fields of education, health and services of general interest. (21) Having nearly 500 million people connected to high-speed broadband in Europe would contribute to the development of the internal market, creating a globally unique critical mass of users exposing all regions to new opportunities, giving each user increased value and giving the Union the capacity to be a world-leading knowledge-based economy. The rapid deployment of broadband is therefore crucial for the development of European productivity and for the emergence of new and small enterprises that can be leaders in different sectors, for example healthcare, manufacturing, and the services industry. (22) In 2006, the International Telecommunication Union (ITU) estimated that the future spectrum bandwidth requirements for the development of International Mobile Telecommunications-2000 (IMT-2000) and IMT-advanced systems (i.e. 3G and 4G mobile communications) would be between 1 280 and 1 720 MHz in 2020 for the commercial mobile industry for each ITU region including Europe. It should be noted that the lower figure (1 280 MHz) is higher than the requirements for some countries. In addition, there are some countries in which the requirement is larger than the higher figure (1 720 MHz). Both these figures include the spectrum already in use, or planned to be used, for Pre-IMT systems, IMT-2000 and its enhancements. Without freeing up the spectrum required, preferably in a harmonised way at global level, new services and economic growth will be hindered by capacity constraints in mobile networks. (23) The 800 MHz band (790-862 MHz) is optimal for the coverage of large areas by wireless broadband services. Building on the harmonisation of technical conditions under Decision 2010/267/EU, and on the Commission Recommendation of 28 October 2009 facilitating the release of the digital dividend in the European

Commission Decision 2008/411/EC of 21  May 2008 on the harmonisation of the 3 400-3 800 MHz frequency band for terrestrial systems capable of providing electronic communications services in the Community (OJ L 144, 4.6.2008, p. 77). 38 Commission Decision 2008/477/EC of 13  June 2008 on the harmonisation of the 2 500-2 690 MHz frequency band for terrestrial systems capable of providing electronic communications services in the Community (OJ L 163, 24.6.2008, p. 37). 39 Commission Decision 2009/766/EC of 16  October 2009 on the harmonisation of the 900 MHz and 1 800 MHz frequency bands for terrestrial systems capable of providing pan-European electronic communications services in the Community (OJ L 274, 20.10.2009, p. 32). 37



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Union (40) calling for analogue broadcasting to be switched off by 1 January 2012, and given rapid national regulatory developments, that band should in principle be made available for electronic communications services in the Union by 2013. In the longer term, additional spectrum could also be envisaged in the light of the results of an analysis of technology trends, future needs and demand for spectrum. Considering the capacity of the 800 MHz band to transmit over large areas, coverage obligations could be attached to rights, where appropriate. (24) Increased wireless broadband opportunities are crucial to provide the cultural sector with new distribution platforms, thereby paving the way for the successful future development of that sector. (25) Wireless access systems, including radio local area networks, may outgrow their current allocations on an unlicensed basis. The need for and feasibility of extending the allocations of unlicensed spectrum for wireless access systems, including radio local area networks, at 2,4 GHz and 5 GHz, should be assessed in relation to the inventory of existing uses of, and emerging needs for, spectrum, and depending on the use of spectrum for other purposes. (26) While broadcasting will remain an important platform for distributing content as it is still the most economical platform for mass-distribution, wired or wireless broadband and other new services provide new opportunities for the cultural sector to diversify its range of distribution platforms, to deliver on-demand services and to tap into the economic potential of the major increase in data traffic. (27) In order to focus on the priorities of the multiannual Programme, Member States and the Commission should cooperate to support and achieve the objective of enabling the Union to take the lead in wireless electronic communication broadband services by freeing up sufficient spectrum in cost-efficient bands for those services to be widely available. (28) Since a common approach and economies of scale are key to developing broadband communications throughout the Union and to preventing competition distortion and market fragmentation among Member States, certain best practices on authorisation conditions and procedures should be identified in concerted action among Member States and with the Commission. Such conditions and procedures could include coverage obligations, spectrum block size, the timing of granting rights, access to mobile virtual network operators and the duration of rights of use of spectrum. Reflecting the importance of spectrum trading for increasing efficient use of spectrum and developing the internal market for wireless equipment and services, those conditions and procedures should apply to frequency bands that are allocated to wireless communications, and for which rights of use may be transferred or leased. (29) Additional spectrum might be needed by other sectors such as transport (for safety, information and management systems), research and development (R&D), e-health, e-inclusion and, if necessary, public protection and disaster relief (PPDR), in view of their increased use of video and data transmission for a quick and efficient service. Optimising synergies between spectrum policy and R&D activities and carrying out studies of radio compatibility between different spectrum users should help innovation. Moreover, results of research under the Seventh Framework Programme for Research, Technological Development and Demonstration Activities (2007 to 2013) require the examination of the spectrum OJ L 308, 24.11.2009, p. 24.

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needs of projects that might have a large economic or investment potential, in particular for SMEs, such as cognitive radio or e-health. Adequate protection against harmful interference should also be ensured to sustain R&D and scientific activities. (30) The Europe 2020 Strategy sets environmental objectives for a sustainable, energyefficient and competitive economy, for example by improving energy efficiency by 20 % by 2020. The information and communication technology sector has a key role to play, as stressed in the Digital Agenda for Europe. Proposed actions include acceleration of the Union-wide deployment of intelligent energy management systems (smart grids and smart metering) using communication capabilities to reduce energy consumption, and the development of intelligent transport systems and intelligent traffic management to reduce carbon dioxide emissions by the transport sector. Efficient use of spectrum technologies could also help reduce energy consumption by radio equipment and limit the environmental impact in rural and remote areas. (31) A  coherent approach to spectrum authorisation in the Union should take full account of the protection of public health against electromagnetic fields which is essential for citizens’ well-being. While observing Council Recommendation 1999/519/EC of 12 July 1999 on the limitation of exposure of the general public to electromagnetic fields (0 Hz to 300 GHz) (41), it is essential to ensure constant monitoring of the ionising and non-ionising effects of spectrum use on health, including the real-life cumulative effects of spectrum use in various frequencies by an increasing number of equipment types. (32) Essential general interest objectives such as the safety of life call for coordinated technical solutions for the interworking of safety and emergency services between Member States. Sufficient spectrum should be made available on a coherent basis for the development and free movement of safety services and devices and the development of innovative pan-European or interoperable safety and emergency solutions. Studies have indicated the need for additional harmonised spectrum below 1 GHz to deliver mobile broadband services for PPDR across the Union in the next five to ten years. (33) Spectrum regulation has strong cross-border or international dimensions, due to propagation characteristics, the international nature of markets dependent on radiobased services, and the need to avoid harmful interference between countries. (34) According to the relevant case law of the Court of Justice of the European Union, where the subject matter of an international agreement falls partly within the competence of the Union and partly within the competence of the Member States, it is essential to ensure close cooperation between the Member States and the institutions of the Union. That obligation to cooperate, as clarified in well established case law, flows from the principle of unity in the international representation of the Union and its Member States. (35) Member States might also need support on frequency coordination in bilateral negotiations with countries neighbouring the Union, including candidate and acceding countries, to meet their obligations under Union law on frequency coordination issues. This should also help avoid harmful interference and improve spectrum efficiency and convergence in spectrum use even beyond Union borders.

OJ L 199, 30.7.1999, p. 59.

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(36) To realise the objectives of this Decision it is important to enhance the current institutional framework for the coordination of spectrum policy and management at the level of the Union, including in matters directly affecting two or more Member States, while taking full account of the competence and expertise of national administrations. Cooperation and coordination are also essential between standardisation bodies, research institutions and CEPT. (37) In order to ensure uniform conditions for the implementation of this Decision, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No  182/2011 of the European Parliament and of the Council of 16  February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (42). (38) Since the objective of this Decision, namely to establish a multiannual radio spectrum policy programme, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale of the proposed action, be better achieved at the level of the Union, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Decision does not go beyond what is necessary in order to achieve that objective. (39) The Commission should report to the European Parliament and the Council on the results achieved under this Decision, as well as on planned future actions. (40) In drawing up its proposal the Commission has taken utmost account of the opinion of the Radio Spectrum Policy Group established by Commission Decision 2002/622/EC (43), HAVE ADOPTED THIS DECISION: Article 1 Aim and scope 1.

This Decision establishes a multiannual radio spectrum policy programme for the strategic planning and harmonisation of the use of spectrum to ensure the functioning of the internal market in the Union policy areas involving the use of spectrum, such as electronic communications, research, technological development and space, transport, energy and audiovisual policies. This Decision shall not affect the sufficient availability of spectrum for other Union policy areas such as civil protection and disaster relief, and the Common Security and Defence Policy.

2.

This Decision is without prejudice to existing Union law, in particular to Directives 1999/5/EC, 2002/20/EC and 2002/21/EC, and subject to Article 6 of this Decision, to Decision No  676/2002/EC, and to measures taken at national level, in compliance with Union law.

3.

This Decision is without prejudice to measures taken at national level in full compliance with Union law, which pursue objectives of general interest, in particular those relating to content regulation and audiovisual policy. This Decision is without prejudice to the right of Member States to organise and use their spectrum for public order and public security purposes and for defence.

OJ L 55, 28.2.2011, p. 13. OJ L 198, 27.7.2002, p. 49.

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Where this Decision or measures adopted thereunder in the frequency bands specified in Article  6 affect spectrum used by a Member State exclusively and directly for its public security or defence purposes, the Member State may, to the extent necessary, continue to use that frequency band for public security and defence purposes until the systems existing in the band at the date of the entry into force of this Decision or of a measure adopted thereunder, respectively, are phased out. That Member State shall duly notify the Commission of its decision. Article 2 General regulatory principles 1.

Member States shall cooperate with each other and with the Commission in a transparent manner, in order to ensure the consistent application of the following general regulatory principles across the Union: (a) applying the most appropriate and least onerous authorisation system possible in such a way as to maximise flexibility and efficiency in spectrum use. Such an authorisation system shall be based on objective, transparent, non-discriminatory and proportionate criteria; (b) fostering development of the internal market by promoting the emergence of future Union-wide digital services and by fostering effective competition; (c)

promoting competition and innovation, taking account of the need to avoid harmful interference and of the need to ensure technical quality of service in order to facilitate the availability of broadband services and to respond effectively to increased wireless data traffic;

(d) defining the technical conditions of the use of spectrum, taking full account of relevant Union law, including on the limitation of the exposure of the general public to electromagnetic fields; (e) 2.

promoting technology and service neutrality in the rights of use of spectrum, where possible.

For electronic communications, in addition to the general regulatory principles defined in paragraph 1 of this Article, the following specific principles shall apply, in accordance with Articles 8a, 9, 9a and 9b of Directive 2002/21/EC and with Decision No 676/2002/EC: (a)

applying technology and service neutrality in the rights of use of spectrum for electronic communications networks and services and the transfer or lease of individual rights of use of radio frequencies;

(b) promoting the harmonisation of use of radio frequencies across the Union, consistent with the need to ensure effective and efficient use thereof; (c)

facilitating increased wireless data traffic and broadband services, in particular by fostering flexibility, and promoting innovation, taking account of the need to avoid harmful interference and ensure the technical quality of service.

Article 3 Policy objectives In order to focus on the priorities of this Decision, Member States and the Commission shall cooperate to support and achieve the following policy objectives: (a)

encourage efficient management and use of spectrum to best meet the increasing demand for use of frequencies reflecting the important social, cultural and economic value of spectrum;



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(b) seek to allocate sufficient and appropriate spectrum in a timely manner to support Union policy objectives and to best meet the increasing demand for wireless data traffic, thereby allowing the development of commercial and public services, while taking into account important general interest objectives such as cultural diversity and media pluralism; to that end, every effort should be made to identify, based on the inventory established pursuant to Article 9, at least 1 200 MHz of suitable spectrum by 2015. That figure includes spectrum already in use; (c)

bridge the digital divide and contribute to the objectives of the Digital Agenda for Europe, fostering access to broadband at a speed of not less than 30 Mbps by 2020 for all Union citizens and making it possible for the Union to have the highest possible broadband speed and capacity;

(d)

enable the Union to take the lead in wireless electronic communication broadband services by freeing up sufficient spectrum in cost-efficient bands for those services to be widely available;

(e)

secure opportunities for both the commercial as well as public sectors by means of increased mobile broadband capacities;

(f) promote innovation and investment through enhanced flexibility in the use of spectrum, through a consistent application across the Union of the principles of technology and service neutrality between the technological solutions that may be adopted and through adequate regulatory predictability as provided for, inter alia, in the regulatory framework for electronic communications through the freeing up of harmonised spectrum for new advanced technologies, and through the possibility of trading rights of use of spectrum, thereby creating opportunities for future Union-wide digital services to be developed; (g) facilitate easy access to spectrum by harnessing the benefits of general authorisations for electronic communications in accordance with Article  5 of Directive 2002/20/EC; (h) encourage passive infrastructure sharing where this would be proportionate and non-discriminatory, as envisaged in Article 12 of Directive 2002/21/EC; (i) maintain and develop effective competition, in particular in electronic communication services, by seeking to avoid, through ex ante measures or ex post remedies, the excessive accumulation of rights of use of radio frequencies by certain undertakings which results in significant harm to competition; (j)

reduce the fragmentation and fully exploit the potential of the internal market in order to foster economic growth and economies of scale at the level of the Union by enhancing the coordination and harmonisation of technical conditions for the use and availability of spectrum, as appropriate;

(k) avoid harmful interference or disturbance by other radio or non-radio devices, inter alia, by facilitating the development of standards which contribute to the efficient use of spectrum, and by increasing immunity of receivers to interference, taking particular account of the cumulative impact of the increasing volumes and density of radio devices and applications; (l)

foster the accessibility of new consumer products and technologies so as to secure consumer endorsement for the transition to digital technology and to secure efficient use of the digital dividend;

(m) reduce the Union’s carbon footprint by enhancing the technical efficiency and energy efficiency of wireless communication networks and equipment.

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Article 4 Enhanced efficiency and flexibility 1.

Member States, in cooperation with the Commission, shall, where appropriate, foster the collective use of spectrum as well as shared use of spectrum. Member States shall also foster the development of current and new technologies, for example, in cognitive radio, including those using ‘white spaces’.

2.

Member States and the Commission shall cooperate to enhance flexibility in the use of spectrum, in order to promote innovation and investment, through the possibility of using new technologies and through the transfer or lease of rights of use of spectrum.

3.

Member States and the Commission shall cooperate to foster the development and harmonisation of standards for radio equipment and telecommunications terminals as well as for electric and electronic equipment and networks based, where necessary, upon standardisation mandates from the Commission to the relevant standardisation bodies. Special attention shall also be given to standards for equipment to be used by disabled people.

4.

Member States shall foster R&D activities in new technologies such as cognitive technologies and geolocation databases.

5.

Member States shall put in place, where appropriate, selection criteria and procedures for granting rights of use of spectrum that promote competition, investment and the efficient use of spectrum as a public good, as well as promoting coexistence between new and existing services and devices. Member States shall promote the ongoing efficient use of spectrum for networks, devices and applications.

6.

Where necessary in order to ensure the effective use of rights of use of spectrum and avoid spectrum hoarding, Member States may consider taking appropriate measures, such as financial penalties, incentive fees tools or the withdrawal of rights. Such measures shall be established and applied in a transparent, nondiscriminatory and proportionate manner.

7.

For electronic communications services, Member States shall, by 1 January 2013, adopt allocation and authorisation measures appropriate for the development of broadband services, in conformity with Directive 2002/20/EC, with the aim of achieving the highest possible capacity and broadband speeds.

8.

In order to avoid the possible fragmentation of the internal market due to divergent selection criteria and procedures for harmonised spectrum allocated to electronic communication services and made tradable in all Member States pursuant to Article 9b of Directive 2002/21/EC, the Commission shall, in cooperation with Member States and in accordance with the principle of subsidiarity, facilitate the identification and sharing of best practices on authorisation conditions and procedures and encourage sharing of information for such spectrum to increase consistency across the Union, achieved in line with the principles of technology and service neutrality. ——————————— Article 6 Spectrum needs for wireless broadband communications 1.

Member States shall, in cooperation with the Commission, take all steps necessary to ensure that sufficient spectrum for coverage and capacity purposes is available



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within the Union, in order to enable the Union to have the fastest broadband speeds in the world, thereby making it possible for wireless applications and European leadership in new services to contribute effectively to economic growth, and to achieving the target for all citizens to have access to broadband speeds of not less than 30 Mbps by 2020. 2.

In order to promote wider availability of wireless broadband services for the benefit of citizens and consumers in the Union, Member States shall make the bands covered by Decisions 2008/411/EC (3,4-3,8 GHz), 2008/477/EC (2,5-2,69 GHz), and 2009/766/EC (900-1 800 MHz) available under terms and conditions described in those decisions. Subject to market demand, Member States shall carry out the authorisation process by 31 December 2012 without prejudice to the existing deployment of services, and under conditions that allow consumers easy access to wireless broadband services.

3.

Member States shall foster the ongoing upgrade, by providers of electronic communications, of their networks to the latest, most efficient technology, in order to create their own spectrum dividends in line with the principles of service and technology neutrality.

4.

By 1  January 2013, Member States shall carry out the authorisation process in order to allow the use of the 800 MHz band for electronic communications services. The Commission shall grant specific derogations until 31  December 2015 for Member States in which exceptional national or local circumstances or cross-border frequency coordination problems would prevent the availability of the band, acting upon a duly substantiated application from the Member State concerned. If a Member State’s substantiated cross-border frequency coordination problems with one or more countries, including candidate or acceding countries, persist after 31 December 2015 and prevent the availability of the 800 MHz band, the Commission shall grant exceptional derogations on an annual basis until such problems are overcome. Member States to which a derogation has been granted under the first or second subparagraph shall ensure that the use of the 800 MHz band does not prevent the availability of that band for electronic communications services other than broadcasting in neighbouring Member States. This paragraph shall also apply to the spectrum coordination problems in the Republic of Cyprus arising from the fact that the Government of Cyprus is prevented from exercising effective control in part of its territory.

5.

Member States shall, in cooperation with the Commission, continuously monitor the capacity requirements for wireless broadband services. On the basis of the results of the analysis referred to in Article 9(4), the Commission shall assess and report to the European Parliament and the Council by 1 January 2015 on whether there is a need for action to harmonise additional frequency bands. Member States may, where appropriate and in conformity with Union law, ensure that the direct cost of migration or reallocation of spectrum usage is adequately compensated in accordance with national law.

6.

Member States shall, in cooperation with the Commission, promote access to broadband services using the 800 MHz band in remote and sparsely populated areas, where appropriate. In doing so, Member States shall examine ways and, where appropriate, take technical and regulatory measures, to ensure that the

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freeing of the 800 MHz band does not adversely affect programme making and special events (PMSE) users. 7.

The Commission shall, in cooperation with Member States, assess the justification and feasibility of extending the allocations of unlicensed spectrum for wireless access systems, including radio local area networks.

8.

Member States shall allow the transfer or leasing of rights of use of spectrum in the harmonised bands 790-862 MHz, 880-915 MHz, 925-960 MHz, 1 710-1 785 MHz, 1 805-1 880 MHz, 1 900-1 980 MHz, 2 010-2 025 MHz, 2 110-2 170 MHz, 2,5-2,69 GHz, and 3,4-3,8 GHz.

9.

In order to ensure that all citizens have access to advanced digital services including broadband, in particular in remote and sparsely populated areas, Member States and the Commission may explore the availability of sufficient spectrum for the provision of broadband satellite services enabling internet access.

10. Member States shall, in cooperation with the Commission, examine the possibility of spreading the availability and use of picocells and femtocells. They shall take full account of the potential of those cellular base stations and of the shared and unlicensed use of spectrum to provide the basis for wireless mesh networks, which can play a key role in bridging the digital divide. Article 7 Spectrum needs for other wireless communication policies In order to support the further development of innovative audiovisual media and other services to Union citizens, taking into account the economic and social benefits of a single digital market, Member States shall, in cooperation with the Commission, aim at ensuring there is sufficient spectrum available for satellite and terrestrial provision of such services, if the need is clearly substantiated. Article 8 Spectrum needs for other specific Union policies 1.

Member States and the Commission shall ensure spectrum availability and protect the radio frequencies necessary for monitoring the Earth’s atmosphere and surface, allowing the development and exploitation of space applications and improving transport systems, in particular for the global civil navigation satellite system established under the Galileo programme (44), for the European Earth monitoring programme (GMES) (45), and for intelligent transport safety and transport management systems.

2.

The Commission shall, in cooperation with the Member States, conduct studies on saving energy in the use of spectrum in order to contribute to a low-carbon policy, and shall consider making spectrum available for wireless technologies with a potential for improving energy saving and efficiency of other distribution networks such as water supply, including smart energy grids and smart metering systems.

Regulation (EC) No  683/2008 of the European Parliament and of the Council of 9  July 2008 on the further implementation of the European satellite navigation programmes (EGNOS and Galileo) (OJ L 196, 24.7.2008, p. 1). 45 Regulation (EU) No 911/2010 of the European Parliament and of the Council of 22 September 2010 on the European Earth monitoring programme (GMES) and its initial operations (2011 to 2013) (OJ L 276, 20.10.2010, p. 1). 44



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3.

The Commission shall, in cooperation with the Member States, seek to ensure that sufficient spectrum is made available under harmonised conditions to support the development of safety services and the free circulation of related devices as well as the development of innovative interoperable solutions for public safety and protection, civil protection and disaster relief.

4.

Member States and the Commission shall collaborate with the scientific and academic community to identify a number of research and development initiatives and innovative applications that may have a major socio-economic impact and/or potential for investment and consider the spectrum needs of such applications and, where necessary, consider the allocation of sufficient spectrum to such applications under harmonised technical conditions and with the least onerous administrative burden.

5.

Member States shall, in cooperation with the Commission, seek to ensure the necessary frequency bands for PMSE, in accordance with the Union’s objectives to improve the integration of the internal market and access to culture.

6.

Member States and the Commission shall seek to ensure spectrum availability for radio-frequency identification (RFID) and other ‘Internet of Things’ (IoT) wireless communication technologies and shall cooperate to foster the development of standards and the harmonisation of spectrum allocation for IoT communication across Member States. Article 9 Inventory

1.

An inventory of existing uses of spectrum, for both commercial and public purposes is hereby established. The objectives of the inventory shall be: (a) to allow the identification of frequency bands in which the efficiency of existing spectrum uses could be improved; (b) to help identify frequency bands that could be suitable for reallocation and spectrum-sharing opportunities in order to support Union policies set out in this Decision, while taking into account future needs for spectrum based, inter alia, on consumers’ and operators’ demand, and of the possibility to meet such needs; (c)

to help analyse the various types of use of the spectrum by both private and public users;

(d) to help identify frequency bands that could be allocated or reallocated in order to improve their efficient use, promote innovation and enhance competition in the internal market, to explore new ways for sharing spectrum, to the benefit of both private and public users, while taking into account the potential positive and negative impact of allocation or reallocation of such bands and of adjacent bands on existing users. 2.

For the purposes of ensuring the uniform implementation of paragraph  1 of this Article, the Commission, taking utmost account of the views of the Radio Spectrum Policy Group, shall adopt implementing acts by 1 July 2013: (a) to develop practical arrangements and uniform formats for the collection and provision of data by the Member States to the Commission on the existing uses of spectrum, provided that the business confidentiality rules

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under Article 8 of Decision No 676/2002/EC and the right of Member States to withhold confidential information are observed, taking into account the aim of minimising the administrative burden and existing obligations on the Member States under other Union law, in particular obligations to provide specific information; (b)

to develop a methodology for the analysis of technology trends, future needs and demand for spectrum in Union policy areas covered by this Decision, in particular for those services which could operate in the frequency range from 400 MHz to 6 GHz, in order to identify developing and potential significant uses of spectrum;

Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 13(2). 3.

The Commission shall administer the inventory referred to in paragraph  1 in accordance with the implementing acts referred to in paragraph 2.

4.

The Commission shall conduct the analysis of technology trends, future needs and demand for spectrum in accordance with the implementing acts referred to in point (b) of paragraph 2. The Commission shall submit to the European Parliament and to the Council a report on the results of that analysis. Article 10 International negotiations

1.

In international negotiations relating to spectrum matters, the following principles shall apply: (a) if the subject matter of the international negotiations falls within the competence of the Union, the Union position shall be established in accordance with Union law; (b) if the subject matter of the international negotiations falls partly within the competence of the Union and partly within the competence of the Member States, the Union and the Member States shall seek to establish a common position in accordance with the requirements of the principle of sincere cooperation. For the purpose of applying point (b) of the first subparagraph, the Union and the Member States shall cooperate in accordance with the principle of unity in the international representation of the Union and its Member States.

2.

The Union shall, upon request, assist Member States with legal, political and technical support to resolve spectrum coordination issues with countries neighbouring the Union, including candidate and acceding countries, in such a way that the Member States concerned can observe their obligations under Union law. In the provision of such assistance, the Union shall use all its legal and political powers to promote the implementation of Union policies. The Union shall also support efforts by third countries to implement spectrum management that is compatible with that of the Union, so as to safeguard the spectrum policy objectives of the Union.

3.

When negotiating bilaterally or multilaterally with third countries, Member States shall be bound by their obligations under Union law. When signing or otherwise accepting any international obligations regarding spectrum, Member States shall accompany their signature or any other act of acceptance by a joint declaration stating that they will implement such international agreements or commitments



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in accordance with their obligations under the Treaty on European Union and the Treaty on the Functioning of the European Union. Article 11 Cooperation among various bodies 1.

The Commission and the Member States shall cooperate to enhance the current institutional setting, in order to foster coordination at the level of the Union of the management of spectrum, including in matters directly affecting two or more Member States, with a view to developing the internal market and ensuring that the Union’s spectrum policy objectives are fully achieved.

2.

The Commission and Member States shall encourage standardisation bodies, CEPT, the Commission’s Joint Research Centre and all relevant parties to cooperate closely in technical issues to promote the efficient use of spectrum. To that end, they shall maintain a coherent link between spectrum management and standardisation in such a way as to enhance the internal market.

Article 12 Public consultation Wherever appropriate, the Commission shall organise public consultations to collect the views of all interested parties as well as the views of the public in general on the use of spectrum in the Union. Article 13 Committee procedure 1.

The Commission shall be assisted by the Radio Spectrum Committee established by Decision No 676/2002/EC. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

2.

Where reference is made to this paragraph, Article  5 of Regulation (EU) No  182/2011 shall apply. Where the committee delivers no opinion, the Commission shall not adopt the draft implementing act, and the third subparagraph of Article 5(4) of Regulation (EU) No 182/2011 shall apply.

Article 14 Compliance with policy orientations and objectives Member States shall apply the policy orientations and objectives set out in this Decision by 1 July 2015 unless otherwise specified herein. Article 15 Reporting and review By 10 April 2014, the Commission shall report to the European Parliament and the Council on the activities developed and the measures adopted pursuant to this Decision. Member States shall provide the Commission with all information necessary for the purpose of reviewing the application of this Decision. By 31 December 2015, the Commission shall conduct a review of the application of this Decision. Article 16 Entry into force This Decision shall enter into force on the 20th day following its publication in the Official Journal of the European Union. Article 17 Addressees This Decision is addressed to the Member States.

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DECISION (EU) 2017/899 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 17 May 2017 on the use of the 470-790 MHz frequency band in the Union[46] THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, Having regard to the opinion of the European Economic and Social Committee (47), After consulting the Committee of the Regions, Acting in accordance with the ordinary legislative procedure (48), Whereas: (1) In the multiannual radio spectrum policy programme (‘RSPP’), established by Decision No 243/2012/EU (49), the European Parliament and the Council set the objectives of identifying at least 1 200 MHz of spectrum suitable for wireless broadband electronic communications services in the Union by 2015, of supporting the further development of innovative broadcasting services by ensuring sufficient spectrum for the satellite and terrestrial provision of such services if the need is clearly substantiated, and of ensuring sufficient spectrum for programme-making and special events (‘PMSE’). (2) In its Communication of 6 May 2015 entitled ‘A Digital Single Market Strategy for Europe’, the Commission highlighted the importance of the 694-790 MHz (‘700 MHz’) frequency band for ensuring the provision of broadband services in rural areas in order to ensure access and connectivity, and stressed the need for a coordinated release of that frequency band while accommodating the specific needs of broadcasting services distribution. Reducing the digital divide, in coverage as well as in knowledge, is an important aspect that has to be a priority, without creating new divides when users take up new technologies. (3) Effective management of spectrum is a condition for the industrial shift to 5G, which would put the Union at the centre of innovation and create a favourable environment for electronic communications networks and services to develop, thus maximising the growth potential of the digital economy. The Union economy will increasingly have digital society at its core, which requires ubiquitous network coverage to develop services relating to the Internet of Things, e-commerce and European cloud services, and to reap the full benefits of Industry 4.0 across the Union. (4) The 700 MHz frequency band represents an opportunity for globally harmonised and coordinated spectrum for wireless broadband that offers economies of scale. It should allow new innovative digital services to be developed in urban and in rural or remote areas, such as eHealth and mHealth, supported by mobile phones,

OJ L 138, 25.5.2017, p. 131. OJ C 303, 19.8.2016, p. 127. 48 Position of the European Parliament of 15  March 2017 (not yet published in the Official Journal) and decision of the Council of 25 April 2017. 49 Decision No 243/2012/EU of the European Parliament and of the Council of 14 March 2012 establishing a multiannual radio spectrum policy programme (OJ L 81, 21.3.2012, p. 7). 46 47



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patient-monitoring devices and other wireless devices, as well as smart energy grids. (5) In its resolution of 19  January 2016 entitled ‘Towards a Digital Single Market Act’, the European Parliament reminded the Member States of their commitment to reach full deployment of at least minimum target speeds of 30 Mbps by 2020, highlighted that radio spectrum is a critical resource for the internal market for wireless broadband communications, as well as broadcasting, and is essential for the future competitiveness of the Union and called as a priority for a harmonised and pro-competitive framework for spectrum allocation and for effective spectrum management. (6) Spectrum is a public good. It is, in the 470-790 MHz frequency band, a valuable asset for the cost-efficient deployment of wireless networks with universal indoor and outdoor coverage. That spectrum is currently used across the Union for digital terrestrial television (‘DTT’) and wireless audio PMSE. It is thus a prerequisite for access to and dissemination of cultural content and of information and ideas. It supports, in parallel to new forms of distribution, the development of the media, and of the creative, cultural and research sectors, which rely extensively on it for the wireless provision of content to end users. (7) The assignment of the 700 MHz frequency band should be structured in a way that facilitates competition and should be carried out in a manner that does not undermine existing competition. (8) For Region 1, which includes the Union, the International Telecommunication Union’s Radio Regulations, adopted by the World Radiocommunication Conference in 2015, provide for the allocation of the 700 MHz frequency band to the broadcasting and mobile (except aeronautical mobile) services on a co-primary basis. The 470-694 MHz (‘sub-700 MHz’) frequency band remains exclusively allocated to the broadcasting services on a primary basis and to wireless audio PMSE use on a secondary basis. (9) Rapidly growing wireless broadband traffic and the increasing economic, industrial and social importance of the digital economy make enhanced wireless network capacity a necessity. Spectrum in the 700 MHz frequency band provides both additional capacity and universal coverage, in particular for the economically challenging rural, mountainous and insular areas as well as other remote areas, predetermined in accordance with areas that are a national priority, including along major terrestrial transport paths, and for indoor use and for wide-range machine-type communications. In that context, coherent and coordinated measures for high-quality terrestrial wireless coverage across the Union, building on best national practices for operators’ licence obligations, should aim to meet the RSPP objective that all citizens throughout the Union should have access both indoors and outdoors, to the fastest broadband speeds of not less than 30 Mbps by 2020, and should aim to achieve an ambitious vision for a gigabit society in the Union. Such measures will promote innovative digital services and ensure longterm socioeconomic benefits. (10) 5G will have a major impact not only on the digital sector, but on economies as a whole. Especially against the backdrop of the slow deployment of 4G and corresponding services, the successful launch of 5G in the Union will be crucial for economic development and for the competitiveness and productivity of the Union’s economy. The Union therefore needs to take the lead by securing enough spectrum for the successful launch and development of 5G. In addition, when

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authorising the use of the 700 MHz frequency band, Member States should take account of the opportunity to ensure that mobile virtual network operators are able to increase their geographical coverage. Where a Member State so requests, the Commission should, where feasible, facilitate the option of jointly organised auctions, thus contributing to pan-European structures. (11) Spectrum-sharing within a common frequency band between bidirectional wireless broadband use for wide-area use (uplink and downlink), on the one hand, and unidirectional television broadcasting or wireless audio PMSE use, on the other, is technically problematic where their coverage areas overlap or are close. This means that repurposing the 700 MHz frequency band for bidirectional terrestrial wireless broadband electronic communications services would deprive DTT and wireless audio PMSE users of part of their spectrum resources. The DTT and PMSE sectors therefore need long-term regulatory predictability with regard to the availability of sufficient spectrum, so that they can safeguard the sustainable provision and development of their services, in particular free-to-view television, while ensuring an appropriate environment for investments, so that Union and national audiovisual policy objectives such as social cohesion, media pluralism and cultural diversity are met. It is possible that measures will be needed at Union and national level to ensure additional spectrum resource for wireless audio PMSE use outside the 470-790 MHz frequency band. (12) In his report to the Commission, Pascal Lamy, the Chairman of the high-level group on the future use of the UHF band (470-790 MHz), recommended that the 700 MHz frequency band be made available for wireless broadband by 2020 (+/two years). Such a release would help achieve the goal of long-term regulatory predictability for DTT by making the sub-700 MHz frequency band available until 2030, although this would have to be reviewed by 2025. (13) The Radio Spectrum Policy Group recommended in its opinion on a long-term strategy on the future use of the UHF band (470-790 MHz) in the European Union of 19  February 2015 that a coordinated approach be adopted across the Union to make the 700 MHz frequency band available for effective use for wireless broadband electronic communications services by the end of 2020, noting that Member States are able to decide on the basis of duly justified reasons to delay the availability of the band for up to two years. In addition, the availability of the sub-700 MHz frequency band for the provision of broadcasting services should be ensured until 2030. (14) Some Member States have already launched or completed a national process to authorise the use of the 700 MHz frequency band for bidirectional terrestrial wireless broadband electronic communications services. A coordinated approach is needed with regard to the future use of the 700 MHz frequency band, which should also provide regulatory predictability, balance Member State diversity with digital single market objectives and promote European leadership with regard to international technology developments. In that context, Member States should be required to repurpose the 700 MHz frequency band in a timely manner in accordance with Union and national law. (15) Member States should be able to delay, on the basis of duly justified reasons, allowing the use of the 700 MHz frequency band for terrestrial systems capable of providing wireless broadband electronic communications services beyond a common Union deadline of 2020 for up to two years. The reasons for such a delay should be limited to unresolved cross-border coordination issues resulting in harmful interferences, the need to ensure, and the complexity of ensuring, the



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technical migration of a large amount of the population to advanced broadcasting standards, the financial costs of transition exceeding the expected revenue generated by award procedures and force majeure. Member States should take all necessary steps to minimise resulting harmful interference in the affected Member States. In the event that Member States delay allowing the use of the 700 MHz frequency band, they should inform the other Member States and the Commission accordingly and include the duly justified reasons therefor in their national roadmaps. Such Member States and any Member States affected by the delay should cooperate with a view to coordinating the process of releasing the 700 MHz frequency band and should include information on such coordination in their national roadmaps. (16) The use of the 700 MHz frequency band by other applications in third countries, as allowed by international agreements or in parts of national territory outside the effective control of the Member State authorities, could limit the use of the 700 MHz frequency band for terrestrial wireless broadband electronic communications services in some Member States. This would prevent those Member States from complying with the common schedule set at Union level. The Member States concerned should take all necessary steps to minimise the duration and geographical extent of those limitations and seek the assistance of the Union, where necessary, under Article 10(2) of Decision No 243/2012/EU. They should also notify the Commission of such limitations pursuant to Article  6(2) and Article 7 of Decision No 676/2002/EC of the European Parliament and of the Council (50), and the information should be published in accordance with Article 5 of Decision No 676/2002/EC. (17) This Decision should be without prejudice to measures taken at national level, in accordance with Union law, that pursue general-interest objectives relating to the right of Member States to organise and use their spectrum for the purposes of public order, public security and defence. (18) The use of the 700 MHz frequency band for terrestrial wireless broadband electronic communications services should be subject to a flexible authorisation regime as soon as possible. This should include the possibility for holders of rights of use of spectrum to transfer and lease their existing rights in the context of the application of Articles  9, 9a and 9b of Directive 2002/21/EC of the European Parliament and of the Council (51), taking into account the obligation to promote effective competition without distortions of competition in the internal market for electronic communications services under Article 5 of Decision No 243/2012/EU. During their respective assessments when licensing spectrum, the Member States should take into consideration the duration of licences, the business plan of the operators and its contribution to meeting the Digital Agenda objectives, and the promotion of innovative digital services and long-term socioeconomic benefits. (19) It is important to achieve long-term regulatory predictability for DTT with regard to access to the sub-700 MHz frequency band, taking into account the outcome of the World Radiocommunication Conference in 2015. In line with Articles 9 and 9a

Decision No 676/2002/EC of the European Parliament and of the Council of 7 March 2002 on a regulatory framework for radio spectrum policy in the European Community (Radio Spectrum Decision) (OJ L 108, 24.4.2002, p. 1). 51 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) (OJ L 108, 24.4.2002, p. 33). 50

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of Directive 2002/21/EC, Member States should apply a flexible approach where possible and should be able to allow the introduction of alternative uses such as terrestrial wireless broadband electronic communications services in the sub-700 MHz frequency band according to national needs for distribution of broadcasting services, including for innovative user-driven initiatives. Such alternative uses should guarantee continued access to spectrum for broadcasting as the primary user, subject to national demand. To that end, Member States should promote cooperation between broadcasters, broadcasting operators and mobile operators in order to facilitate the convergence of audiovisual and internet platforms and shared spectrum use. When allowing use within the sub-700 MHz frequency band for terrestrial wireless broadband electronic communications services, Member States should ensure that such use does not cause harmful interference to digital terrestrial broadcasting in neighbouring Member States, as provided for in the agreement reached at the Regional Radiocommunication Conference of 2006. (20) Member States should adopt coherent national roadmaps to facilitate the use of the 700 MHz frequency band for terrestrial wireless broadband electronic communications services while ensuring continuity for the television broadcasting services that vacate the band. Once such national roadmaps have been adopted, Member States should make them available in a transparent manner within the Union. The national roadmaps should cover activities and timescales for frequency replanning, technical developments for network and end-user equipment, coexistence between radio and non-radio equipment, existing and new authorisation regimes, mechanisms to avoid harmful interference with spectrum users in adjacent bands and information on the possibility of compensation for migration costs, where such costs would arise, in order to avoid, inter alia, costs for end users or broadcasters. Where Member States intend to maintain DTT, the national roadmaps should consider the option of facilitating upgrades of broadcasting equipment to more spectrum-efficient technologies, such as advanced video formats (e.g. HEVC) or signal transmission technologies (e.g. DVB-T2). (21) The scope of and mechanism for possible compensation for completing the transition in spectrum use, in particular for end users, should be analysed in accordance with the relevant national provisions, as provided for by Article  14 of Directive 2002/20/EC of the European Parliament and of the Council (52), and should be consistent with Articles 107 and 108 of the Treaty on the Functioning of the European Union in order, for example, to facilitate the transition to more spectrum-efficient technologies. The Commission should be able to provide guidance to a Member State, on its request, to facilitate the transition in spectrum use. (22) The Commission should, in cooperation with the Member States, report to the European Parliament and to the Council on developments in the use of the sub-700 MHz frequency band, with a view to ensuring efficient use of spectrum, pursuant to the applicable Union law. The Commission should take into account the social, economic, cultural and international aspects affecting the use of the sub-700 MHz frequency band, further technological developments, changes in consumer

Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (OJ L 108, 24.4.2002, p. 21).

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behaviour and the requirements in connectivity to foster growth and innovation in the Union. (23) Since the objective of this Decision, namely to ensure a coordinated approach to the use of the 470-790 MHz frequency band in the Union in accordance with common objectives, cannot be sufficiently achieved by the Member States but can rather, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Decision does not go beyond what is necessary in order to achieve that objective, HAVE ADOPTED THIS DECISION: 1.

2.

3.

4.

Article 1 By 30 June 2020, Member States shall allow the use of the 694-790 MHz (‘700 MHz’) frequency band for terrestrial systems capable of providing wireless broadband electronic communications services only under harmonised technical conditions established by the Commission pursuant to Article  4 of Decision No 676/2002/EC. Member States may, however, delay allowing the use of the 700 MHz frequency band for up to two years on the basis of one or more of the duly justified reasons set out in the Annex to this Decision. In the case of such a delay, the Member State concerned shall inform the other Member States and the Commission accordingly and shall include those duly justified reasons in the national roadmap adopted pursuant to Article 5 of this Decision. Where necessary, Member States shall carry out the authorisation process or amend relevant existing rights to use the spectrum in accordance with Directive 2002/20/EC, in order to allow such use. A  Member State that delays allowing the use of the 700 MHz frequency band under the second subparagraph and the Member States affected by that delay shall cooperate with each other with a view to coordinating the process of releasing the 700 MHz frequency band for wireless broadband electronic communications services and shall include information on such coordination in the national roadmaps adopted pursuant to Article 5. In order to allow the use of the 700 MHz frequency band in accordance with paragraph  1, Member States shall, by 31  December 2017, conclude all the necessary cross-border frequency-coordination agreements within the Union. Member States shall not be bound by the obligations laid down in paragraphs 1 and 2 in geographical areas where frequency coordination with third countries remains unresolved, provided that Member States make all practicable efforts to minimise the duration and geographical scope of such unresolved coordination and report the results to the Commission, on an annual basis, until the outstanding coordination issues have been resolved. The first subparagraph shall apply to the spectrum coordination problems in the Republic of Cyprus arising from the fact that the Government of Cyprus is prevented from exercising effective control in part of its territory. This Decision is without prejudice to the right of Member States to organise and use their spectrum for the purposes of public order, public security and defence.

Article 2 Upon the granting of the rights of use in the 700 MHz frequency band for terrestrial systems capable of providing wireless broadband electronic communications services,

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Member States shall allow the transfer or leasing of such rights in accordance with open and transparent procedures pursuant to the applicable Union law. Article 3 1.

When Member States authorise the use of or amend existing rights to use the 700 MHz frequency band, they shall take due account of the need to achieve the target speed and quality objectives set out in Article 6(1) of Decision No 243/2012/EU, including coverage in predetermined national priority areas where necessary, such as along major terrestrial transport paths, for the purpose of allowing wireless applications and European leadership in new digital services to contribute effectively to Union economic growth. Such measures may include conditions to facilitate or encourage the sharing of network infrastructure or spectrum in accordance with Union law.

2.

In applying paragraph 1, Member States shall assess the need to attach conditions to the rights of use for frequencies within the 700 MHz frequency band and, where appropriate, shall consult relevant stakeholders in that regard.

Article 4 Member States shall ensure availability at least until 2030 of the 470-694 MHz (‘sub-700 MHz’) frequency band for the terrestrial provision of broadcasting services, including free television, and for use by wireless audio PMSE on the basis of national needs, while taking into account the principle of technological neutrality. Member States shall ensure that any other use of the sub-700 MHz frequency band on their territory is compatible with the national broadcasting needs in the relevant Member State and does not cause harmful interference to, or claim protection from, the terrestrial provision of broadcasting services in a neighbouring Member State. Such use shall be without prejudice to obligations resulting from international agreements, such as cross-border frequency-coordination agreements. Article 5 1.

As soon as possible and no later than 30 June 2018, Member States shall adopt and make public their national plan and schedule (‘national roadmap’), including detailed steps for fulfilling their obligations under Articles 1 and 4. Member States shall draw up their national roadmaps after consulting all relevant stakeholders.

2.

In order to ensure that the use of the 700 MHz frequency band is in accordance with Article 1(1), Member States shall include in their national roadmaps, where appropriate, information on measures, including any support measures, to limit the impact of the forthcoming transition process on the public and on wireless audio PMSE use and to facilitate the timely availability of interoperable television broadcasting network equipment and receivers in the internal market.

Article 6 Member States may, where appropriate and in accordance with Union law, ensure that adequate compensation for the direct cost, in particular for end users, of the migration or reallocation of spectrum use is provided promptly and in a transparent manner in order to, inter alia, facilitate transition to more spectrum-efficient technologies. At the request of the Member State concerned, the Commission may provide guidance on such compensation in order to facilitate the transition in spectrum use. Article 7 The Commission shall, in cooperation with the Member States, report to the European Parliament and to the Council on developments in the use of the sub-700 MHz frequency band, with a view to ensuring efficient use of spectrum, pursuant to the applicable



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Union law. The Commission shall take into account the social, economic, cultural and international aspects affecting the use of the sub-700 MHz frequency band pursuant to Articles 1 and 4, further technological developments, changes in consumer behaviour and the requirements in connectivity to foster growth and innovation in the Union. Article 8 This Decision shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. Article 9 This Decision is addressed to the Member States. Done at Strasbourg, 17 May 2017. For the European Parliament The President A. TAJANI

For the Council The President C. ABELA

ANNEX Justified reasons for a delay in allowing the use of 700 MHz frequency band for terrestrial systems capable of providing wireless broadband electronic communications services later than 30 June 2020 (Article 1(1)): (1) unresolved cross-border coordination issues resulting in harmful interferences; (2) the need to ensure, and the complexity of ensuring, the technical migration of a large amount of the population to advanced broadcasting standards; (3) the financial costs of transition exceeding the expected revenue generated by award procedures; (4) force majeure.

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COMMISSION DECISION of 11 June 2019 setting up the Radio Spectrum Policy Group and repealing Decision 2002/622/ EC[53] (Text with EEA relevance) (2019/C 196/08) THE EUROPEAN COMMISSION, Having regard to the Treaty on the Functioning of the European Union, Whereas: (1) Decision No  676/2002/EC of the European Parliament and of the Council of 7  March 2002 on a regulatory framework for radio spectrum policy in the European Community (54) establishes a legal framework for radio spectrum policy in the Union. This ensures that policy approaches are coordinated and, where appropriate, that there are harmonised conditions for the availability and efficient use of the radio spectrum necessary for the establishment and functioning of the internal market in Union policy areas such as electronic communications, transport and research and development. (2) Decision No  676/2002/EC provides that the Commission may organise consultations in order to take into account the views of Member States, Union institutions, and industry, as well as of all radio spectrum users involved (commercial and non-commercial), and other parties with an interest in technological, market and regulatory developments that may relate to the use of radio spectrum. (3) An advisory group called the Radio Spectrum Policy Group (‘the Group’) has been established by Commission Decision 2002/622/EC (55) in order to assist and advise the Commission on radio spectrum policy issues. Those include radio spectrum availability, harmonisation and allocation of radio spectrum, provision of information concerning allocation, availability and use of radio spectrum, methods for granting rights to use spectrum, refarming, relocation, valuation and efficient use of radio spectrum and the protection of human health. (4) In December 2018, the European Parliament and Council adopted Directive (EU) 2018/1972 (56), which recast and revised the Union’s regulatory framework for electronic communications, including conferring new tasks on the Group. (5) The Group should further contribute to the development of a radio spectrum policy in the Union that takes into account not only technical parameters but also economic, political, cultural, strategic, health and social considerations, as well as the various potentially conflicting needs of radio spectrum users with a view to ensuring that a fair, non-discriminatory and proportionate balance is achieved. (6) The Group should include high-level governmental experts from the Member States. The Group might also include observers and invite other persons to attend meetings as appropriate, including regulators, competition authorities, market participants, and user or consumer groups.

OJ C 196, 12.6.2019, p. 16. Decision No 676/2002/EC of the European Parliament and of the Council of 7 March 2002 on a regulatory framework for radio spectrum policy in the European Community (OJ L 108, 24.4.2002, p. 1). 55 Commission Decision 2002/622/EC of 26  July 2002 establishing a Radio Spectrum Policy Group (OJ L 198, 27.7.2002, p. 49). 56 Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (OJ L 321, 17.12.2018, p. 36). 53 54



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(7) As the focal point for addressing radio spectrum policy issues in the context of all relevant Union policies, close operational links should be maintained between the Group and specific groups or committees set up for the purpose of implementing sectoral Union policies including transport policy, internal market policy for radio equipment, audiovisual policy, space policy, and communications. (8) While different national government bodies have responsibility over different parts of the radio spectrum, in order to ensure that discussions are effective, each national delegation that attends a meeting of the Group should have a consolidated and coordinated national view of all policies which affect the use of radio spectrum in that Member State in relation not only to the internal market but also to public order, public security, civil protection and defence policies as the use of radio spectrum for such policies may influence the organisation of radio spectrum as a whole. (9) The Group should consult the relevant radio spectrum users, both for commercial use and non-commercial use, as well as any other interested parties on technological, market and regulatory developments relating to the use of radio spectrum. The Group should ensure that those consultations are extensive and carried out in a forward-looking manner. (10) As the use of radio spectrum does not stop at borders, the Group should be opened to participation of observers from acceding countries and from European Economic Area countries. (11) The European Conference of Postal and Telecommunications administrations (CEPT) should be invited as an observer of the Group’s work considering that the activities of the Group have a significant impact on radio spectrum at panEuropean level and that CEPT and its affiliate bodies have extensive technical expertise in radio spectrum management. Drawing on CEPT’s expertise is also appropriate based on mandates granted thereto pursuant to the Radio Spectrum Decision in order to develop technical implementing measures in the areas of radio spectrum allocation and information availability. In view of the importance of European standardisation for the development of equipment using radio spectrum, it is likewise important to associate as observer the European Telecommunications Standardisation Institute (ETSI). (12) Following the entry into force of Directive (EU) 2018/1972 and of Regulation (EU) 2018/1971 of the European Parliament and of the Council (57), the tasks of the Group should be adapted to that new regulatory framework and the role of the Group should be strengthened accordingly. This should facilitate the shaping of Union spectrum policy in various areas of the European electronic communications market, in particular wireless broadband, further improve the strategic orientation and transparency of spectrum policy and support the strategic planning and coordination of radio spectrum policy approaches at the Union level. (13) In line with the new tasks conferred on the Group by Directive (EU) 2018/1972, the Group should provide advice to the European Parliament and to the Council upon their request on matters of radio spectrum. Furthermore, this decision should provide the basis for the Group to become the forum for the coordination of Regulation (EU) 2018/1971 of the European Parliament and of the Council of 11  December 2018 establishing the Body of European Regulators for Electronic Communications (BEREC) and the Agency for Support for BEREC (BEREC Office) amending Regulation (EU) 2015/2120 and repealing Regulation (EC) No 1211/2009 (OJ L 321, 17.12.2018, p. 1).

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implementation by Member States of their obligations related to radio spectrum under that Directive, including through a peer review process, and to play a central role in fields essential for the internal market such as cross-border radio spectrum coordination and standardisation. (14) Considering the number of amendments that are necessary as a result of the entry into force of Directive (EU) 2018/1972, for the sake of clarity, Decision 2002/622/ EC should be repealed and replaced. (15) Rules on disclosure of information by members of the group should also be laid down in line with Regulation (EC) No  1049/2001 of the European Parliament and of the Council (58) and personal data should be processed in accordance with Regulation (EU) 2018/1725 of the European Parliament and of the Council (59). (16) This Decision should be in line with the horizontal rules defined by the Commission on the creation and operation of Commission expert groups (60) in particular regarding membership of the group, observers, participation of invited experts and meeting expenses, HAS DECIDED AS FOLLOWS: Article 1 Subject matter An advisory group on radio spectrum policy, called the Radio Spectrum Policy Group (‘the Group’), is established. Article 2 Tasks (1) The Group shall assist and advise the Commission: (a)

on strategic radio spectrum policy issues in the Union;

(b) on the coordination of radio spectrum policy approaches in the Union; (c) by issuing opinions concerning legislative proposals for multiannual radio spectrum policy programmes and for the purpose of releasing harmonised spectrum for shared use or for use not subject to individual rights; (d) by issuing opinions in relation to Commission recommendations regarding the harmonised application of the provisions of the regulatory framework for electronic communications in the field of radio spectrum, without prejudice to the role of the Body of European Regulators for Electronic Communications (‘BEREC’); (e)

on coordination and cooperation between the Commission, Member States and relevant competent authorities in relation to the implementation of existing radio spectrum Union legislation, programmes and policies;

(f)

where appropriate, on harmonised conditions with regard to the availability and efficient use of radio spectrum, necessary for the establishment and functioning of the internal market.

Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ L 145, 31.5.2001, p. 43). 59 Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39). 60 Commission Decision of 30  May 2016 establishing horizontal rules on the creation and operation of Commission expert groups, C(2016)3301 final. 58



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(2) The Group shall assist Member States in cooperating with each other and with the Commission and, upon their request with the Council and the European Parliament, in support of the strategic planning and coordination of radio spectrum policy approaches in the Union, by: (a)

developing best practices on radio spectrum related matters, with a view to implementing Union law;

(b)

facilitating coordination between Member States with a view to implementing Union law and to contributing to the development of the internal market;

(c)

coordinating Member States’ approaches to the assignment and authorisation of radio spectrum use and publishing reports and opinions on radio spectrum related matters.

(3) The Group shall assist Member States in the cross-border coordination of radio spectrum use to ensure that the use of radio spectrum on their territory is organised in a way that ensures that no other Member State is prevented from allowing the use of radio spectrum on its territory, in particular harmonised radio spectrum, in accordance with Union law, especially due to cross-border harmful interference between Member States. For this purpose, at the request of any affected Member State, the Group shall provide its good offices to resolve any problem or dispute between Member States, as well as with third countries, in relation to cross-border coordination or cross-border harmful interference which prevent Member States from using radio spectrum in their territory. As regards harmonised radio spectrum, the Group may issue an opinion to propose a coordinated solution to such a problem or dispute between Member States. (4) The Group shall assist the Commission in its preparatory work on proposals to the Council for the adoption of decisions in accordance with Article 218(9) of the Treaty on the Functioning of the European Union establishing the positions to be adopted on the Union’s behalf in international organisations competent in radio spectrum matters. (5)

The Group may organise meetings to allow national regulatory or other competent authorities, upon their request, to discuss and exchange views and experiences relating to the authorisation processes and conditions of the use of radio spectrum.

(6) Without prejudice to paragraph  5, from 21  December 2020, the Group shall convene, for the purposes of Article 35 of Directive (EU) 2018/1972, peer review forum meetings in relation to radio spectrum for which harmonised conditions have been set by technical implementing measures in accordance with Decision 676/2002/EC in order to enable the use of radio spectrum for wireless broadband networks and services, at the request of the national regulatory authority or other competent authority of the Member State concerned or, in exceptional cases as referred to in Article 35(2) of the Code at the initiative of the Group. Article 3 Membership The members of the Group shall be Member States’ authorities. Each Member State shall appoint a high-level representative with overall responsibility for strategic radio spectrum policy. The Commission shall participate in all meetings of the Group, at the appropriate level, and provide the secretariat to the Group.

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Article 4 Operation (1) At the Commission’s request or on its own initiative, the Group shall adopt opinions and reports addressed to the Commission. The opinions and reports shall be based on consensus or, if that is not possible, on a simple majority, with each member having one vote. Members who have voted against shall have the right to have a statement summarising the reasons for their position annexed to the opinions or reports. (2) Following a European Parliament or Council request for an opinion or a report of the Group on radio spectrum policy issues relating to electronic communications, the Group shall adopt such an opinion or report in accordance with the rules set out in paragraph 1. The Group shall submit its opinion and report to the institution that requested it and to the Commission. Where appropriate, the opinion or report may be in the form of an oral presentation to the European Parliament or the Council by the chairperson of the Group or a member nominated by the Group. (3) The Group shall elect a chairperson from among its members. The Commission may set up sub-groups for the purpose of examining specific questions based on terms of reference defined by the Commission. Sub-groups shall operate in compliance with the horizontal rules defined by the Commission on the creation and operation of Commission expert groups (61) and shall report to the Group. The sub-groups shall be dissolved as soon as their mandate is fulfilled. (4) The Commission may convene the meetings of the Group on any matter within its competence through the secretariat in agreement with the chairperson. The Commission shall do so where necessary for the application of Article 2(2) of this Decision. (5)

The Group shall adopt its rules of procedure upon a proposal from the Commission, by consensus or, in the absence of consensus, by a simple majority vote, with one vote expressed per Member State. The rules of procedure shall be subject to the approval of the Commission.

(6) The Group may invite observers, including those from European Economic Area countries and those countries that are candidates for accession to the Union, from the CEPT and ETSI to attend its meetings; it may also hear experts and interested parties. The observers shall nominate their representatives. The observers and their representatives may be permitted by the chairperson to take part in discussions and share their expertise. However, the observers shall not have voting rights and shall not participate in the formulation of the Group’s recommendations or advice. Where the Group considers it appropriate to collect evidence in preparing an opinion or a report, it may invite relevant representatives from the industry to present positions at its meetings. (7) Where the Group considers it appropriate, it may invite experts from national regulatory or other competent authorities and from BEREC to participate in its meetings. For the purposes of Article 35 of Directive (EU) 2018/1972, the Group shall allow the participation of experts from national regulatory or other competent authorities referred to by Directive (EU) 2018/1972 and from BEREC. Commission Decision of 30  May 2016 establishing horizontal rules on the creation and operation of Commission expert groups, C(2016)3301 final.

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Subject to detailed rules to be agreed with BEREC and with the Commission, the Group shall allow BEREC to participate in its activities on issues relating to market regulation and competition related to radio spectrum that fall within BEREC competence. Article 5 Relationship with the European Parliament Without prejudice to Articles 2 and 4, as regards information to be transmitted to the European Parliament and participation of European Parliament experts in the meetings of the Group, point 15, Annex I and Annex II of the Framework Agreement on relations between the European Parliament and the European Commission (62) shall apply. Article 6 Consultation The Group shall consult extensively and at an early stage with market participants, consumers and end-users in an open and transparent manner. Article 7 Confidentiality Where the Commission states that the opinion requested or the question raised is of a confidential nature, members of the Group as well as observers and any other person attending a Group meeting shall be under an obligation not to disclose information which has come to their knowledge through the work of the Group, its subgroups or expert working groups. In such cases, the Commission may decide that members of the Group only may attend meetings. Article 8 Professional secrecy and handling of classified information The members of the group and their representatives, as well as invited experts and observers, are subject to the obligation of professional secrecy, which by virtue of the Treaties and the rules implementing them applies to all members of the institutions and their staff, as well as to the Commission’s rules on security regarding the protection of Union classified information, laid down in Commission Decisions (EU, Euratom) 2015/443 (63) and (EU, Euratom) 2015/444 (64). Should they fail to respect these obligations, the Commission may take all appropriate measures. Article 9 Transparency (1) The group and sub-groups shall be registered in the Register of expert groups. (2) As concerns the group composition, the following data shall be published on the Register of expert groups: (a)

the name of observers;

(b) the name of Member States’ authorities; (c)

the name of third countries’ authorities.

(3) All relevant documents, including the agendas, the minutes and the participants’ submissions, shall be made available either on the Register of expert groups or OJ L 304, 20.11.2010, p. 47. Commission Decision (EU, Euratom) 2015/443 of 13  March 2015 on Security in the Commission (OJ L 72, 17.3.2015, p. 41). 64 Commission Decision (EU, Euratom) 2015/444 of 13 March 2015 on the security rules for protecting EU classified information (OJ L 72, 17.3.2015, p. 53). 62 63

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via a link from the Register to a dedicated website, where this information can be found. Access to dedicated websites shall not be submitted to user registration or any other restriction. In particular, the agenda and other relevant background documents shall be published in due time ahead of the meeting, followed by timely publication of minutes. Exceptions to publication shall only be foreseen where it is deemed that disclosure of a document would undermine the protection of a public or private interest as defined in Article 4 of Regulation (EC) No 1049/2001. (4) In agreement with the Commission, the Group may, by simple majority of its members, decide that deliberations shall be public. Article 10 Meeting expenses (1)

Participants in the activities of the Group and sub-groups shall not be remunerated for the services they offer.

(2) For the meetings of the Group, the reimbursement of travel expenses by the Commission is limited to one person per Member State delegation. Travel expenses of observers and experts or other interested parties covered by Article 4(6) shall not be reimbursed by the Commission, nor expenses involved where the Group, its Chairperson or his representatives meet interested parties. (3) The costs involved in the organisation of meetings of the Group shall be covered by the Commission in so far as such meetings take place in Brussels. For meetings of the Group held outside Brussels in the European Union, only travel expenses shall be covered by the Commission. (4) The Commission may order external studies to support the work of the Group. In this case, the Commission shall have the right to decide on the need for the study, shall cover the costs involved and shall be responsible for the management of such studies. (5) The costs involved in the establishment and maintenance of the Group’s website shall be covered by the Commission.

Decision 2002/622/EC is repealed. Done at Brussels, 11 June 2019.

Article 11 Repeal

For the Commission Mariya GABRIEL Member of the Commission

Chapter 5

Related Recommendations and Guidelines Contents Council Recommendation 1999/519/EC (Limitation of exposure of the general public to electromagnetic fields (0 Hz to 300 GHz)) Commission Recommendation of 20 March 2003 (Harmonisation of public R-LAN access) Commission Recommendation 2005/698/EC (Accounting separation and cost accounting systems) Commission Recommendation of 19 March 2010 (MCV services) 2010/572/EU Commission Recommendation of 20 September 2010 Commission Recommendation 2013/466/EU (Boosting competition and encouraging investment in NGA networks) SMP Guidelines for electronic communications networks and services Commission Recommendation (EU) 2020/2245 (Relevant product and service markets within the electronic communications sector) Commission Recommendation (EU) 2021/554 (Notifications under Article 32 EECC) Guidelines on the application of the competition rules to access agreements in the telecommunications sector Notice on the application of the competition rules to access agreements in the telecommunications sector (Framework, relevant markets and principles)

1133 1145 1148 1155 1160 1178 1204 1224 1233 1247 1280

COUNCIL RECOMMENDATION OF 12 JULY 1999 ON THE LIMITATION OF EXPOSURE OF THE GENERAL PUBLIC TO ELECTROMAGNETIC FIELDS (0 HZ TO 300 GHZ)[1] (1999/519/EC) THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 152(4), second subparagraph, Having regard to the proposal from the Commission, Having regard to the opinion of the European Parliament (2), Whereas: (1) In accordance with point (p) of Article 3 of the Treaty, Community action must include a contribution to the attainment of a high level of health protection; the Treaty also makes provision for protecting the health of workers and of consumers;

OJ L 199, 30.7.1999, p. 59. OJ C 175, 21.6.1999.

1 2

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(2) In its resolution of 5 May 1994 on combating the harmful effects of non-ionising radiation (3), the European Parliament called on the Commission to propose legislative measures seeking to limit the exposure of workers and the public to non-ionising electromagnetic radiation; (3) Community minimum requirements for the protection of health and safety of workers in relation to electromagnetic fields exist for work with display screen equipment (4); Community measures were introduced to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (5) which oblige, inter alia, employers to assess activities which involve a specific risk of exposure to non-ionising radiation; minimum requirements have been proposed for the protection of workers from physical agents (6) which include measures against non-ionising radiation; whereas, therefore, this recommendation does not address the protection of workers against occupational exposure to electromagnetic fields; (4) It is imperative to protect members of the general public within the Community against established adverse health effects that may result as a consequence of exposure to electromagnetic fields; (5) Measures with regard to electromagnetic fields should afford all Community citizens a high level of protection; provisions by Member States in this area should be based on a commonly agreed framework, so as to contribute to ensuring consistency of protection throughout the Community; (6) In accordance with the principle of subsidiarity, any new measure taken in an area which does not fall within the exclusive competence of the Community, such as non-ionising radiation protection of the public, may be taken up by the Community only if, by reason of the scale or effects of the proposed action, the objectives proposed can be better achieved by the Community than by Member States; (7) Actions on limiting the exposure of the general public to electromagnetic fields should be balanced with the other health, safety and security benefits that devices emitting electromagnetic fields bring to the quality of life, in such areas as telecommunications, energy and public security; (8) There is a need to establish by means of recommendations addressed to Member States a Community framework with regard to exposure to electromagnetic fields with the objective of protecting the public; (9)

This recommendation has as its objective the protection of the health of the public and it therefore applies, in particular, to relevant areas where members of the public spend significant time in relation to the effects covered by this recommendation;

(10) The Community framework, which draws on the large body of scientific documentation that already exists, must be based on the best available scientific data and advice in this area and should comprise basic restrictions and reference levels on exposure to electromagnetic fields; recalling that only established effects have been used as the basis for the recommended limitation of exposure; advice on this matter has been given by the International Commission on Non-Ionising 5 6 3 4

OJ C 205, 25.7.1994, p. 439. OJ L 156, 21.6.1990, p. 14. OJ L 348, 28.11.1992, p. 1. OJC 77, 18.3.1993, p. 12 and, OJ C 230, 19.8.1994, p.3.



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Radiation Protection (ICNIRP) and has been endorsed by the Commission’s Scientific Steering Committee; the framework should be regularly reviewed and reassessed in the light of new knowledge and developments in technology and applications of sources and practices giving rise to exposure to electromagnetic fields; (11) Such basic restrictions and reference levels should apply to all radiations emitted by electromagnetic fields with the exception of optical radiation and ionising radiation; for optical radiation the relevant scientific data and advice still require further consideration, and for ionising radiation Community provisions already exist; (12) In order to assess compliance with the basic restrictions provided in this recommendation, the national and European bodies for standardisation (e.g. Cenelec, CEN) should be encouraged to develop standards within the framework of Community legislation for the purposes of the design and testing of equipment; (13) Adherence to the recommended restrictions and reference levels should provide a high level of protection as regards the established health effects that may result from exposure to electromagnetic fields but such adherence may not necessarily avoid interference problems with, or effects on the functioning of, medical devices such as metallic protheses, cardiac pacemakers and defibrillators, cochlear implants and other implants; interference problems with pacemakers may occur at levels below the recommended reference levels and should therefore be the object of appropriate precautions which, however, are not within the scope of this recommendation and are dealt with in the context of legislation on electromagnetic compatibility and medical devices; (14) In accordance with the principle of proportionality, this recommendation provides general principles and methods for the protection of members of the public while leaving it to the Member States to provide for detailed rules as regards the sources and practices which give rise to exposure to electromagnetic fields and the classification, as work-related or not, of conditions of exposure of individuals, in accordance with Community provisions concerning the safety and health protection of workers; (15) Member States may, in accordance with the Treaty, provide for a higher level of protection than that set out in this recommendation; (16) Measures by the Member States in this area, whether binding or non-binding, and the way in which they have taken account of this recommendation should be the object of reports at national and Community level; (17) In order to increase awareness of the risks of, and measures of protection against, electromagnetic fields, Member States should promote the dissemination of information and rules of practice in this field, in particular with regard to the design, installation and use of equipment, so as to aim at obtaining levels of exposure that do not exceed the recommended restrictions; (18) Attention should be paid to achieving appropriate communication and understanding regarding the risks related to electromagnetic fields, while taking into account public perceptions of such risks; (19) The Member States should take note of progress made in scientific knowledge and technology with respect to non-ionising radiation protection, taking into account the aspect of precaution, and should provide for regular scrutiny and review with an assessment being made at regular intervals in the light of guidance issued by

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competent international organisations, such as the International Commission on Non-Ionising Radiation Protection, HEREBY RECOMMENDS THAT: I.

For the purpose of this recommendation Member States should assign to the physical quantities listed in Annex I.A the meanings given to them therein.

II.

Member States, in order to provide for a high level of health protection against exposure to electromagnetic fields, should: (a) adopt a framework of basic restrictions and reference levels using Annex I.B as the basis; (b) implement measures according to this framework, in respect of sources or practices giving rise to electromagnetic exposure of the general public when the time of exposure is significant with the exception of exposure for medical purposes where the risks and benefits of exposure, above the basic restrictions, must be properly weighed; (c)

aim to achieve respect of the basic restrictions given in Annex II for public exposure.

III. Member States, in order to facilitate and promote respect of the basic restrictions given in Annex II: (a)

should take into account the reference levels given in Annex III for exposure assessment purposes or, when they exist, as far as they are recognised by the Member State, European or national standards based on agreed scientifically proven measurement and calculation procedures designed to evaluate compliance with the basic restrictions;

(b) should evaluate situations involving sources of more than one frequency in accordance with the formulae set out in Annex IV, both in terms of basic restrictions and reference levels; (c) may take into account criteria, where appropriate, such as duration of the exposure, exposed parts of the body, age and health status of the public. IV.

Member States should consider both the risks and benefits in deciding whether action is required or not, pursuant to this recommendation, when deciding on policy or adopting measures on exposure of members of the public to electromagnetic fields.

V.

Member States, in order to increase understanding of risks and protection against exposure to electromagnetic fields should provide, in an appropriate format, information to the public on the health impact of electromagnetic fields and the measures taken to address them.

VI. Member States, in order to enhance knowledge about the health effects of electromagnetic fields, should promote and review research relevant to electromagnetic fields and human health in the context of their national research programmes, taking into account Community and international research recommendations and efforts from the widest possible range of sources. VII. Member States, in order to contribute to the establishment of a consistent system of protection against risks of exposure to electromagnetic fields, should prepare reports on the experience obtained with measures that they take in the field covered by this recommendation and should inform the Commission thereof after a period of three years following the adoption of this recommendation, indicating how it has been taken into account in these measures,



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HEREBY INVITES the Commission to 1. Work towards the establishment of European standards as referred to in section III(a), including methods of calculation and measure. 2. Encourage research into long and short-term effects of exposure to electromagnetic fields at all relevant frequencies in the implementation of the current research framework programme. 3. Continue to participate in the work of international organisations competent in this field and promote the establishment of an international consensus in guidelines and advice on protective and preventive measures. 4. Keep the matters covered by this recommendation under review, with a view to its revision and updating, taking into account also possible effects, which are currently the object of research, including relevant aspects of precaution and to prepare a report, within five years, taking into account the reports of the Member States and the latest scientific data and advice. Done at Brussels, 12 July 1999. For the Council The President S. NIINISTÖ ANNEX I DEFINITIONS For the purposes of this recommendation, the term electromagnetic fields (EMF) includes static fields, extremely low frequency (ELF) fields and radiofrequency (RF) fields, including microwaves, encompassing the frequency range of 0 Hz to 300 GHz. A. Physical quantities In the context of EMF exposure, eight physical quantities are commonly used: Contact current (IC) between a person and an object is expressed in amperes (A). A conductive object in an electric field can be charged by the field. Current density (J) is defined as the current flowing through a unit cross section perpendicular to its direction in a volume conductor such as the human body or part of it, expressed in amperes per square metre (A/m²). Electric field strength is a vector quantity (E) that corresponds to the force exerted on a charged particle regardless of its motion in space. It is expressed in volts per metre (V/m). Magnetic field strength is a vector quantity (H), which, together with the magnetic flux density, specifies a magnetic field at any point in space. It is expressed in amperes per metre (A/m). Magnetic flux density is a vector quantity (B), resulting in a force that acts on moving charges, it is expressed in teslas (T). In free space and in biological materials, magnetic flux density and magnetic field strength can be interchanged using the equivalence 1 A m–1 = 4π 10–7 T. Power density (S) is the appropriate quantity used for very high frequencies, where the depth of penetration in the body is low. It is the radiant power incident perpendicular to a surface, divided by the area of the surface and is expressed in watts per square metre (W/m²). Specific energy absorption (SA) is defined as the energy absorbed per unit mass of biological tissue, expressed in joules per kilogram (J/kg). In this recommendation it is used for limiting non-thermal effects from pulsed microwave radiation.

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Specific energy absorption rate (SAR) averaged over the whole body or over parts of the body, is defined as the rate at which energy is absorbed per unit mass of body tissue and is expressed in watts per kilogram (W/kg). Whole body SAR is a widely accepted measure for relating adverse thermal effects to RF exposure. Besides the whole body average SAR, local SAR values are necessary to evaluate and limit excessive energy deposition in small parts of the body resulting from special exposure conditions. Examples of such conditions are: a grounded individual exposed to RF in the low MHz range and individuals exposed in the near field of an antenna. Of these quantities, magnetic flux density, contact current, electric and magnetic field strengths and power density can be measured directly. B.

Basic restrictions and reference levels For the application of restrictions based on the assessment of possible health effects of electromagnetic fields, differentiation should be made between basic restrictions and reference levels. Note: These basic restrictions and reference levels for limiting exposure have been developed following a thorough review of all published scientific literature. The criteria applied in the course of the review were designed to evaluate the credibility of the various reported findings; only established effects were used as a basis for the proposed exposure restrictions. Induction of cancer from longterm EMF exposure was not considered to be established. However, since there are safety factors of about 50 between the threshold values for acute effects and the basis restrictions, this recommendation implicitly covers possible long-term effects in the whole frequency range. Basic restrictions. Restrictions on exposure to time-varying electric, magnetic, and electromagnetic fields which are based directly on established health effects and biological considerations are termed “basic restrictions”. Depending upon the frequency of the field, the physical quantities used to specify these restrictions are magnetic flux density (B), current density (J), specific energy absorption rate (SAR), and power density (S). Magnetic flux density and power density can be readily measured in exposed individuals. Reference levels. These levels are provided for practical exposure-assessment purposes to determine whether the basic restrictions are likely to be exceeded. Some reference levels are derived from relevant basic restrictions using measurements and/or computational techniques and some reference levels address perception and adverse indirect effects of exposure to EMFs. The derived quantities are electric field strength (E), magnetic field strength (H), magnetic flux density (B), power density (S), and limb current (IL). Quantities that address perception and other indirect effects are (contact) current (IC) and, for pulsed fields, specific energy absorption (SA). In any particular exposure situation, measured or calculated values of any of these quantities can be compared with the appropriate reference level. Respect of the reference level will ensure respect of the relevant basic restriction. If the measured value exceeds the reference level, it does not necessarily follow that the basic restriction will be exceeded. Under such circumstances, however, there is a need to establish whether there is respect of the basic restriction. Quantitative restrictions on static electric fields are not given in this recommendation. However, it is recommended that annoying perception of surface electric charges and spark discharges causing stress or annoyance should be avoided.



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Some quantities such as magnetic flux density (B) and power density (S) serve both as basic restrictions and reference levels, at certain frequencies (see Annexes II and III). ANNEX II BASIC RESTRICTIONS Depending on frequency, the following physical quantities (dosimetric/exposimetric quantities) are used to specify the basic restrictions on electromagnetic fields: •

between 0 and 1 Hz basic restrictions are provided for magnetic flux density for static magnetic fields (0 Hz) and current density for time-varying fields up to 1 Hz, in order to prevent effects on the cardiovascular and central nervous system,

•

between 1 Hz and 10 MHz basic restrictions are provided for current density to prevent effects on nervous system functions,

•

between 100 kHz and 10 GHz basic restrictions on SAR are provided to prevent whole-body heat stress and excessive localised heating of tissues. In the range 100 kHz to 10 MHz, restrictions on both current density and SAR are provided,

•

between 10 GHz and 300 GHz basic restrictions on power density are provided to prevent heating in tissue at or near the body surface. The basic restrictions, given in Table 1, are set so as to account for uncertainties related to individual sensitivities, environmental conditions, and for the fact that the age and health status of members of the public vary. Table 1 Basic restrictions for electric, magnetic and electromagnetic fields (0 Hz to 300 GHz) Frequency range

Magnetic flux density (mT)

Current density (mA/m2) (rms)

Whole body average SAR (W/kg)

Localised SAR (head and trunk) (W/kg)

Localised SAR (limbs) (W/kg)

Power density, S (W/m2)

0 Hz

40

—

—

—

—

—

>0-1 Hz

—

8

—

—

—

—

1-4 Hz

—

8/f

—

—

—

—

4-1 000 Hz

—

2

—

—

—

—

1 000 Hz-100 kHz —

f/500

—

—

—

—

100 kHz-10 MHz

f/500

0,08

2

4

—

—

10 MHz-10 GHz

—

—

0,08

2

4

—

10-300 GHz

—

—

—

—

—

10

Notes: 1. f is the frequency in Hz. 2. The basic restriction on the current density is intended to protect against acute exposure effects on central nervous system tissues in the head and trunk of the body and includes a safety factor. The basic restrictions for ELF fields are based on established adverse effects on the central nervous system. Such acute effects are essentially instantaneous and there is no scientific justification to modify the basic restrictions for exposure of short duration. However, since the basic restriction refers to adverse effects on the central nervous system, this basic restriction may

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permit higher current densities in body tissues other than the central nervous system under the same exposure conditions. 3.

Because of electrical inhomogeneity of the body, current densities should be averaged over a cross section of 1 cm² perpendicular to the current direction.

4.

For frequencies up to 100 kHz, peak current density values can be obtained by multiplying the rms value by √2 (~1,414). For pulses of duration tp the equivalent frequency to apply in the basic restrictions should be calculated as f = 1/(2tp).

5.

For frequencies up to 100 kHz and for pulsed magnetic fields, the maximum current density associated with the pulses can be calculated from the rise/fall times and the maximum rate of change of magnetic flux density. The induced current density can then be compared with the appropriate basic restriction.

6.

All SAR values are to be averaged over any six-minute period.

7.

Localised SAR averaging mass is any 10g of contiguous tissue; the maximum SAR so obtained should be the value used for the estimation of exposure. These 10g of tissue are intended to be a mass of contiguous tissue with nearly homogeneous electrical properties. In specifying a contiguous mass of tissue, it is recognised that this concept can be used in computational dosimetry but may present difficulties for direct physical measurements. A simple geometry such as cubic tissue mass can be used provided that the calculated dosimetric quantities have conservative values relative to the exposure guidelines.

8.

For pulses of duration tp the equivalent frequency to apply in the basic restrictions should be calculated as f = 1/(2tp). Additionally, for pulsed exposures, in the frequency range 0,3 to 10 GHz and for localised exposure of the head, in order to limit and avoid auditory effects caused by thermoelastic expansion, an additional basic restriction is recommended. This is that the SA should not exceed 2mJ kg-1 averaged over 10 g of tissue.

ANNEX III REFERENCE LEVELS Reference levels of exposure are provided for the purpose of comparison with values of measured quantities. Respect of all recommended reference levels will ensure respect of basic restrictions. If the quantities of measured values are greater than the reference levels, it does not necessarily follow that the basic restrictions have been exceeded. In this case, an assessment should be made as to whether exposure levels are below the basic restrictions. The reference levels for limiting exposure are obtained from the basic restrictions for the condition of maximum coupling of the field to the exposed individual, thereby providing maximum protection. A  summary of the reference levels is given in Tables 2 and 3. The reference levels are generally intended to be spatially averaged values over the dimension of the body of the exposed individual, but with the important proviso that the localised basic restrictions on exposure are not exceeded. In certain situations where the exposure is highly localised, such as with hand-held telephones and the human head, the use of reference levels is not appropriate. In such cases respect of the localised basic restriction should be assessed directly. Field levels



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Table 2 Reference levels for electric, magnetic and electromagnetic fields (0 Hz to 300 GHz, unperturbed rms values) Frequency range

E-field strength (V/m)

H-field strength (A/m)

B-field (µT)

0-1 Hz

—

3,2 × 104

4 × 104

1-8 Hz

10 000

3,2 × 10 /f

4 × 10 /f

—

8-25 Hz

10 000

4 000/f

5 000/f

—

0,025-0,8 kHz

250/f

4/f

5/f

—

0,8-3 kHz

250/f

5

6,25

—

3-150 kHz

87

5

6,25

—

0,15-1 MHz

87

0,73/f

0,92/f

—

1-10 MHz

87/f1/2

0,73/f

0,92/f

—

10-400 MHz

28

0,073

0,092

2

400-2 000 MHz

1,375 f1/2

0,0037 f1/2

0,0046 f1/2

f/200

2-300 GHz

61

0,16

0,20

10

4

2

4

Equivalent plane wave power density Seq(W/m2) — 2

Notes: 1. f as indicated in the frequency range column. 2. For frequencies between 100 kHz and 10 GHz, Seq, E², H², and B² are to be averaged over any six-minute period. 3. For frequencies exceeding 10 GHz, Seq, E², H², and B² are to be averaged over any 68/f1.05 -minute period (f in GHz). 4. No E-field value is provided for frequencies 1 Hz, which are effectively static electric fields. For most people the annoying perception of surface electric charges will not occur at field strengths less than 25 kV/m. Spark discharges causing stress or annoyance should be avoided. Note: No higher reference levels on exposure to ELF fields are provided when exposures are of short duration (see Note 2 of Table 1). In many cases, where the measured values exceed the reference level, it does not necessarily follow that the basic restriction will be exceeded. Provided that adverse health impacts of indirect effects of exposure (such as microshocks) can be avoided, it is recognised that the general-public reference levels can be exceeded provided that the basic restriction on the current density is not surpassed. In many practical exposure situations external ELF fields at the reference levels will induce current densities in central nervous-system tissues that are below the basic restrictions. Also it is recognised that a number of common devices emit localised fields in excess of the reference levels. However, this generally occurs under conditions of exposure where the basic restrictions are not exceeded because of weak coupling between the field and the body. For peak values, the following reference levels apply to the E-field strength (V/m), H-field strength (A/m) and the B-field (μT): •

for frequencies up to 100 kHz, peak reference values are obtained by multiplying the corresponding rms values by √2(=1,414). For pulses of duration tp the equivalent frequency to apply should be calculated as f = 1 /(2tp),

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for frequencies between 100 kHz and 10 MHz peak reference values are obtained by multiplying the corresponding rms values by 1Oa, where α = (O,665 log(f/105) + O,176), f in Hz, for frequencies between 10 MHz and 300 GHz peak reference values are obtained by multiplying the corresponding rms values by 32.

Note: Generally, with regard to pulsed and/or transient fields at low frequencies, there are frequency-dependent basic restrictions and reference levels from which a hazard assessment and exposure guidelines on pulsed and/or transient sources can be derived. A  conservative approach involves representing a pulsed or transient EMF signal as a Fourier spectrum of its components in each frequency range, which can then be compared with the reference levels for those frequencies. The summation formulae for simultaneous exposure to multiple frequency fields can also be applied for the purposes of determining compliance with the basic restrictions. Although little information is available on the relation between biological effects and peak values of pulsed fields, it is suggested that, for frequencies exceeding 10 MHz, Seq as averaged over the pulse width should not exceed 1000 times the reference levels or that field strengths should not exceed 32 times the fields strength reference levels. For frequencies between about 0,3 GHz and several GHz and for localised exposure of the head, in order to limit or avoid auditory effects caused by thermoelastic expansion, the specific absorption from pulses must be limited. In this frequency range, the threshold SA of 4-16 mJ kg-1 for producing this effect corresponds, for 30-μ.s pulses, to peak SAR values of 130-520 W kg-1 in the brain. Between 100 kHz and 10 MHz, peak values for the fields strengths are obtained by interpolation from the 1,5-fold peak at 100 kHz to the 32-fold peak at 10 MHz. Contact currents and limb currents For frequencies up to 110 MHz additional reference levels are recommended in order to avoid hazards due to contact currents. The contact current reference levels are presented in Table 3. The reference levels on contact current were set to account for the fact that the threshold contact currents that elicit biological responses in adult women and children are approximately two-thirds and one-half, respectively, of those for adult men. Table 3 Reference levels for contact currents from conductive objects (f in KHz) Frequency range 0 Hz-2,5 kHz 2,5 kHz-100 kHz 100 kHz-110 MHz

Maximum contact current (mA) 0,5 0,2 f 20

For the frequency range 10 MHz to 110 MHz, a reference level of 45mA in terms of current through any limb is recommended. This is intended to limit the localised SAR over any six-minute period. ANNEX IV EXPOSURE FROM SOURCES WITH MULTIPLE FREQUENCES In situations where simultaneous exposure to fields of different frequencies occurs, the possibility that these exposures will be additive in their effects must be considered. Calculations based on such additivity should be performed separately for each effect; thus separate evaluations shoud be made for thermal and electrical stimulation effects on the body.



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Basic restrictions In the case of simultaneous exposure to fields of different frequencies, the following criteria should be satisfied in terms of the basic restrictions. For electric stimulation, relevant for frequencies from 1 Hz up to 10 MHz, the induced current densities should be added according to: 10 MHz

Ji

∑

JL,i

≤1

i = 1 Hz For thermal effects, relevant from 100 kHz, specific energy absorption rates and power densities should be added according to: 10 GHz

∑

300 GHz

SAR1

+

SARL

S1

∑

SL

≤1

i > 10 GHz i = 100 kHz where Ji is the current density at frequency i; JL, i is the current density basic restriction at frequency i as given in Table 1; SARi is the SAR caused by exposure at frequency i; SARL is the SAR basic restriction given in Table 1; Si is the power density at frequency i; SL is the power density basic restriction given in Table 1. Reference levels For application of the basic restrictions, the following criteria regarding reference levels of field strengths should be applied. For induced current densities and electrical stimulation effects, relevant up to 10 MHz, the following two requirements should be applied to the field levels: 1 MHz

∑

i = 1 Hz

E1

10 MHz +

EL,i

∑

i > 1 MHz

E1 a

≤1

and 150 kHz

∑

Hj HL,i

10 MHz +

∑

Hj b

≤1

j > 150 MHz j = 1 Hz where Ei is the electric field strength at frequency i; EL,i is the electric field strength reference level from Table 2; Hj is the magnetic field strength at frequency j; HL, j is the magnetic field strength reference level from Table 2; a is 87 V/m and b is 5 A/m (6,25 µT). Compared to the ICNIRP guidelines (7) which deal with both occupational and general public exposure, cut off points in the summations correspond to exposure conditions for members of the public.

International Commission on Non-Ionising Radiation Protection. Guidelines for limiting exposure to time-varying electric, magnetic, and electromagnetic fields (up to 300 GHz). Health Physics 74(4): 494522(1998). Response to questions and comments on ICNIRP. Health Physics 75(4): 438-439 (1998).

7

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The use of the constant values (a and b) above 1 MHz for the electric field and above 150 kHz for the magnetic field is due to the fact that the summation is based on induced current densities, and should not be mixed with thermal effect circumstances. The latter forms the basic for EL, i and HL,j above 1 MHz and 150 kHz respectively, found in Table 2. For thermal effect circumstances, relevant from 100 kHz, the following two requirements should be applied to the field levels: 1 MHz

∑

(

300 GHz )

2

+

c

i = 100 kHz 150 kHz

∑

E1

(

Hj

∑

(

300 GHz )

+

d

∑

)2

≤1

)2

≤1

E1,i

i > 1 MHz 2

E1

(

Hj HL,i

j > 150 MHz j = 100 kHz and where Ei is the electric field strength at frequency i; EL,i is the electric field strength reference level from Table 2; Hj is the magnetic field strength at frequency j; HL, j is the magnetic field strength reference level derived from Table 2; c is 87/f1/2 V/m and d 0,73/f A/m. Again, compared to the ICNIRP guidelines some cut-off points have been adjusted for public exposure only. For limb current and contact current, respectively, the following requirements should be applied: 110 MHz

∑

(

Ik IL,k

110 MHz )2

≤1

∑

(

In IC,n

)2

≤1

n > 1 Hz k = 10 MHz where lk is the limb current component at frequency k; IL,k is the reference level for limb current, 45 mA; ln is the contact current component at frequency n; IC, n is the reference level for contact current at frequency (see Table 3). The above summation formulae assume worst-case phase conditions among the fields from the multiple sources. As a result, typical exposure situations may in practice result in less restrictive exposure levels than indicated by the above formulae for the reference levels.



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COMMISSION RECOMMENDATION of 20 March 2003 on the harmonisation of the provision of public R-LAN access to public electronic communications networks and services in the Community[8] (Text with EEA relevance) (2003/203/EC) THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Community, Having regard to 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) (9), hereinafter referred to as “the Framework Directive”, and in particular Article 19 thereof, Whereas: (1)

The European Council on 15 and 16 March 2002 in Barcelona advocated fostering multiple broadband access platforms to the Information Society and stressed the need to complete the internal market for electronic communications services.

(2)

In accordance with Article 19(1) of the Framework Directive, the Communications Committee delivered its favourable opinion on 24 January 2003.

(3) As the least onerous authorisation system possible should be used to allow the provision of electronic communications networks and services, pursuant to Article  3(2) of Directive 2002/20/EC of the European Parliament and of the Council of 7  March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (10), hereinafter referred to as “the Authorisation Directive”, the provision of electronic communications networks or services may, without prejudice to specific obligations referred to in Article 6(2) or rights of use referred to in Article  5 of that Directive, only be subject to a general authorisation. (4) Pursuant to Article  5(1) of the Authorisation Directive, Member States are required, where possible, and in particular where the risk of harmful interference is negligible, not to make the use of radio frequencies subject to the grant of individual rights of use; furthermore, pursuant to Article  2(1) and Article  4 of Directive 2002/77/EC (11) of the Commission, Member States shall not adopt or maintain measures limiting the number of undertakings authorised to provide services or to use radio frequencies unless they are objective, proportional and non-discriminatory. (5) Pursuant to policy objectives and regulatory principles defined by Article 8 of the Framework Directive, the national regulatory authorities should take all reasonable measures to promote competition in the provision of electronic communications networks, electronic communications services and associated facilities and services by promoting innovation and by encouraging efficient use and ensuring the effective management of radio frequencies; national regulatory authorities should also remove obstacles to the provision of electronic communications networks, associated facilities and services and electronic communications services at European level. OJ L 78, 25.3.2003, p. 12. OJ L 108, 24.4.2002, p. 33. 10 OJ L 108, 24.4.2002, p. 21. 11 Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services (OJ L 249, 17.9.2002, p. 21). 8 9

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(6) Radio Local Area Networks (R-LAN) are an innovative means for the provision of broadband wireless access to the Internet and to corporate intranet networks not only for private uses but also for the public in general in areas such as airports, train stations and shopping malls. (7) A majority of Member States already allow R-LAN access to public electronic communications networks and services on a commercial or non-commercial basis; considering the importance of R-LAN as an alternative platform for broadband access to Information Society services, it is now desirable to promote a harmonised approach for the provision of such public R-LAN access throughout the Community; a distinction is to be drawn between the provision of services and the use of radio spectrum; the provision of R-LAN access to public electronic communications networks and services on a commercial basis should be allowed under the least onerous system, i.e. to the extent possible without any sector specific conditions. (8) R-LAN may use all or part of either the 2400,0 – 2483,5 MHz (hereinafter the 2,4 GHz band) or the 5150-5350 MHz or 5470-5725 MHz bands (hereinafter the 5 GHz bands); part of these bands may currently not be available to R-LAN in certain Member States; further harmonisation of these bands may therefore be necessary in the framework of Decision 676/2002/EC of the European Parliament and of the Council of 7 March 2002 on a regulatory framework for radio spectrum policy in the European Community (Radio Spectrum Decision) (12). (9) The risk of interference between the various different users who may share the 2,4 GHz band and between coexisting R-LAN systems is accepted by the parties involved; as long as R-LAN users do not create harmful interference to possible protected users in the same bands, the use of the 2,4 and 5 GHz bands should not be subject to individual rights nor, to the extent possible, to general authorisation conditions other than as allowed under point 17 of the Annex to the Authorisation Directive; opening the 5 GHz band to public R-LAN access services would also reduce the pressure on the 2,4 GHz band. (10) In order to minimise the risk of harmful interference, general authorisation conditions might be imposed where justified and in a proportionate manner; such general authorisation may refer to appropriate requirements, in conformity with Directive 1999/5/EC of the European Parliament and of the Council of 9 March 1999 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity (R& TTE Directive) (13), the harmonisation of which may be achieved pursuant to the Radio Spectrum Decision and the R& TTE Directive. (11) In line with Community competition rules, Article 8(1) of the Framework Directive lays down the principle of technologically neutral regulation, so that there should be no discrimination between the various R-LAN and other technologies giving access to communications networks and services. (12) The terms on which access may be allowed to public and private property for providers of public R-LAN access services are subject to competition rules of the Treaty, as well as, where relevant, to the Framework Directive.

OJ L 108, 24.4.2002, p. 1. OJ L 91, 7.4.1999, p. 10.

12 13



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(13) Security and confidentiality are regulated at present by Articles 4 and 5 of Directive 97/66/EC of the European Parliament and of the Council of 15 December 1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector (14); on the forthcoming repeal of that Directive, those provisions will be replaced by Articles 4 and 5 of Directive 2002/58/EC 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 (15) as from 1 November 2003, HEREBY RECOMMENDS: 1.

That, in applying the measures necessary to comply with Directives 2002/20/EC and 2002/21/EC, Member States should allow the provision of public R-LAN access to public electronic communications networks and services in the available 2,4 GHz and 5 GHz bands to the extent possible without sector specific conditions and in any case subject only to general authorisation.

2.

That Member States should not make the use of the available 2,4 GHz or 5 GHz bands for the operation of R-LAN systems subject to the grant of any individual right.

3.

That Member States should not restrict the choice of R-LAN equipment to be used by service providers where these meet the requirements laid down under Directive 1999/5/EC.

4.

That Member States should pay special attention to the requirements of Articles 4 and 5 of Directive 97/66/EC and the equivalent provisions in Directive 2002/58/ EC, which regulate security and confidentiality of public communications networks and services.

Done at Brussels, 20 March 2003. For the Commission Erkki LIIKANEN Member of the Commission

OJ L 24, 30.1.1998, p. 1. OJ L 201, 31.7.2002, p. 37.

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COMMISSION RECOMMENDATION of 19 September 2005 on accounting separation and cost accounting systems under the regulatory framework for electronic communications[16] (Text with EEA relevance) (2005/698/EC) THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to 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) (17), and in particular to Article  19(1) thereof, After consulting the Communications Committee, Whereas: (1) Certain provisions of the regulatory framework for electronic communications networks and services require necessary and appropriate cost accounting mechanisms to be implemented, namely Articles 9, 11, 13 and 6(1) in connection with Annex I, of Directive 2002/19/EC of the European Parliament and of the Council of 7  March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) (18); Articles  17 and 18(1) of and Annex VII(2) to Directive 2002/22/EC of the European Parliament and of the Council of 7  March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (19); and Article 13 of Directive 2002/21/EC. (2) Operators designated as having significant market power (SMP) on a relevant market (hereinafter referred to as notified operators), as a result of a market analysis carried out in accordance with Article 16 of Directive 2002/21/EC, may be subject,  inter alia, to obligations concerning the preparation of separated accounts and/or implementation of a cost accounting system. The purpose of imposing such obligations is to make transactions between operators more transparent and/or to determine the actual cost of services provided. Furthermore, accounting separation and the implementation of cost accounting systems may be used by national regulatory authorities to complement the application of other regulatory measures (e.g. transparency, non discrimination, cost orientation) on notified operators. (3) This Recommendation updates Commission Recommendation 98/322/EC of 8 April 1998 on interconnection in a liberalised telecommunications market (Part 2 — Accounting separation and cost accounting) (20), following the application of the regulatory framework for electronic communications (25 July 2003). This revision is necessary since the regulatory framework of 2002 brought about some important changes to the regulatory package of 1998 such as the enlarged scope of application of the framework; a different approach to the imposition of ex ante obligations; a different scope of application of the specific provisions concerning cost accounting and accounting separation; and the application of the principle of technology neutrality.

18 19 20 16 17

OJ L 266, 11.10.2005, p. 64 OJ L 108, 24.4.2002, p. 33. OJ L 108, 24.4.2002, p. 7. OJ L 108, 24.4.2002, p. 51. OJ L 141, 13.5.1998, p. 6.



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(4) The overall objectives of this Recommendation are to foster the application of consistent accounting principles and methodologies at EU level, taking into account the experience gained by the national regulatory authorities in the domain of cost accounting and accounting separation; improve the transparency of the accounting systems, the methodologies, the data elaborated, the auditing and reporting process to the benefit of all involved parties. (5) Operators may operate in markets in which they have been designated as having significant market power, as well as in competitive markets where they are not so designated. In order to carry out its regulatory tasks, a national regulatory authority may need information about markets where operators do not have SMP. When an obligation for accounting separation is imposed on a notified operator with SMP on one or more markets, the imposition of accounting separation may cover markets where the operator does not have SMP, e.g. to ensure the coherence of data. (6) Any mandated cost accounting or accounting separation methodology used in particular as a basis for price control decisions should be specified in a way that encourages efficient investment, identifies potential anti-competitive behaviour, notably margin squeezes, and should be in accordance with the national regulatory authority’s policy objectives as set out in Article 8 of Directive 2002/21/EC. (7) The implementation of a new or revised costing methodology may indicate that current levels of regulated charges and/or price mechanisms are inappropriate or misaligned in some way. If a national regulatory authority believed corrective action is required then due regard should be taken of the commercial and economic environment to minimise risk and uncertainty in the relevant markets. This action could include, for example, spreading any price adjustment over a reasonable period of time. (8) When implementing an accounting system that uses a forward-looking approach (such as long run incremental cost) based not on historic costs but on current costs, e.g. where assets are revalued based on the cost of using a modern equivalent infrastructure built with the most efficient technology available, national regulatory authorities may need to adjust the parameters of the cost methodology in order to achieve these objectives. The coordinated use of top-down and bottomup approaches should be envisaged, where applicable. Accounting systems should be based on the principle of cost causation, such as activity based costing. (9) When current cost accounting (CCA) is applied to network assets, such as the local loop which is considered to be less replicable in the medium term, consistent application of costing methodologies requires parameters (such as cost of capital, depreciation profiles, mark-ups, time varying components) to be adjusted by the national regulatory authorities accordingly. (10) When the implementation of a cost accounting system is mandated in accordance with Article 13(4) of Directive 2002/19/EC, rules used for the allocation of costs should be displayed at a level of detail that makes clear the relationship between costs and charges of networks components and services; the basis on which directly and indirectly attributable costs have been allocated between different accounts also needs to be provided. (11) This Recommendation provides guidance on how to implement cost accounting and accounting separation under the new regulatory framework of 2002. Recommendation 98/322/EC provides guidance on the implementation of cost accounting and accounting separation under the regulatory framework of 1998.

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The Recommendation of 1998 continues to apply in situations where Member States have not completed the review of existing obligations concerning cost accounting and accounting separation in accordance with Article 16 of Directive 2002/21/EC. (12) Where a compensation mechanism which involves financial transfers is implemented by Member States, Annex IV, part B  to the Universal Service Directive requires that these transfers are undertaken in an objective, transparent, non-discriminatory and proportionate manner. In order to meet these purposes, any compensation received for the provision of universal service obligations should be duly reported in the systems for accounting separation. (13) As regards the funding of universal service obligations, the Recommendation does not prejudice Commission Directive 80/723/EEC of 25 June 1980 on transparency of financial relations between Member States and public undertakings as well as on financial transparency within certain undertakings(21). (14) The application of the principles of this Recommendation is without prejudice to the duty of the Member States and of undertakings to comply fully with the Community competition rules. (15) Commission Recommendation 2002/590/EC of 16  May 2002 on ‘Statutory Auditor’s Independence in the EU: A  Set of Fundamental Principles’ (22), establishes a sound framework against which the auditor’s independence can be tested, where relevant. (16) The European Regulators Group (ERG) (23)  has provided an opinion on the revision of Commission Recommendation on accounting separation and cost accounting of 1998 which includes a detailed annex on aspects of cost accounting and accounting separation, HEREBY RECOMMENDS: 1.

This Recommendation concerns the implementation of accounting separation and cost accounting systems by operators designated by their national regulatory authority as having significant market power on relevant markets as a result of a market analysis carried out in accordance with Article 16 of Directive 2002/21/EC. Operators with such obligations are hereinafter referred to as ‘notified operators’. The purpose of imposing an obligation to implement a cost accounting system is to ensure that fair, objective and transparent criteria are followed by notified operators in allocating their costs to services in situations where they are subject to obligations for price controls or cost-oriented prices. The purpose of imposing an obligation regarding accounting separation is to provide a higher level of detail of information than that derived from the statutory financial statements of the notified operator, to reflect as closely as possible the performance of parts of the notified operator’s business as if they had operated as separate businesses, and in the case of vertically integrated undertakings, to prevent discrimination in favour of their own activities and to prevent unfair cross-subsidy.

OJ L 195, 29.7.1980, p. 35. Directive as last amended by Directive 2000/52/EC (OJ L 193, 29.7.2000, p. 75). 22 OJ L 191, 19.7.2002, p. 22. 23 The ERG was established by Commission Decision 2002/627/EC (OJ L 200, 30.7.2002, p. 38) as amended by Decision 2004/641/EC (OJ L 293, 16.9.2004, p. 30). 21



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2.

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It is recommended that national regulatory authorities require from the notified operators the disaggregation of their operating costs, capital employed and revenues to the level required to be consistent with the principles of proportionality, transparency and regulatory objectives mandated by national or Community law. It is recommended that the allocation of costs, capital employed and revenue be undertaken in accordance with the principle of cost causation (such as activitybased costing, ‘ABC’). The cost accounting and accounting separation systems of the notified operators need to be capable of reporting regulatory financial information to demonstrate full compliance with regulatory obligations. It is recommended that this capability be measured against the qualitative criteria of relevance, reliability, comparability and materiality. It is recommended that national regulatory authorities satisfy themselves as to the adequacy and effectiveness of the cost accounting and accounting separation systems; such systems may be subject to public consultation.

3.

It is recommended that a national regulatory authority, when assessing the features and specification of the cost accounting system, reviews the capability of the notified operator’s cost accounting system to analyse and present cost data in a way that supports regulatory objectives. In particular, the cost accounting system of the notified operator should be capable of differentiating between direct costs (24), and indirect costs (25). It is recommended that national regulatory authorities, having adopted a decision on a cost accounting system based on current costs set clear deadlines and a base year for their notified operators’ implementation of new cost accounting systems based on current costs. Evaluation of network assets at forward-looking or current value of an efficient operator, that is, estimating the costs faced by equivalent operators if the market were vigorously competitive, is a key element of the ‘current cost accounting’ (CCA) methodology. This requires that the depreciation charges included in the operating costs be calculated on the basis of current valuations of modern equivalent assets. Consequently, reporting on the capital employed also needs to be on a current cost basis. Other cost adjustments may be required to reflect the current purchase cost of an asset and its operating cost base. Evaluation of network assets at forward-looking or current value may be complemented by the use of a cost accounting methodology such as long run incremental costs (LRIC), where appropriate. It is recommended that national regulatory authorities have due regard to price and competition issues that might be raised when implementing CCA, such as in the case of local loop unbundling. It is recommended that national regulatory authorities take due regard to further adjustments to financial information in respect of efficiency factors, particularly when using cost data to inform pricing decisions since the use of cost accounting systems (even applying CCA) may not fully reflect efficiently incurred or relevant

Direct costs are those costs wholly and unambiguously incurred against specified activities. Indirect costs are those costs that require apportionment using a fair and objective attribution methodology.

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costs (26). Efficiency factors may consist of evaluations of different network topology and architecture, of depreciation techniques, of technology used or planned for use in the network. 4.

It is recommended that notified operators required to report accounting separation provide a profit and loss statement and statement of capital employed for each of the regulatory reporting entities (based on the relevant markets and services). Transfer charges or purchases between markets and services need to be clearly identified in sufficient detail to justify compliance with non discrimination obligations. These accounting separation reporting obligations may require the preparation and disclosure of information for markets where an operator does not have SMP. For consistency and data integrity, it is recommended that the financial reports of the regulatory accounts be consolidated into a profit and loss statement and a statement of capital employed for the undertaking as a whole. A  reconciliation of the separate regulatory accounts to the statutory accounts of the operator is also required. These statements should be subject to an independent audit opinion or a national regulatory authority compliance audit (subject to the availability of suitably qualified staff).

5.

It is recommended that national regulatory authorities make relevant accounting information from notified operators available to interested parties at a sufficient level of detail. The detail of information provided should serve to ensure that there has been no undue discrimination between the provision of services internally and those provided externally and allow identification of the average cost of services and the method by which costs have been calculated. In providing information for these purposes, national regulatory authorities should have due regard for commercial confidentiality. In this respect, the publication by the notified operator of sufficiently detailed cost statements showing, for example, the average cost of network components will increase transparency and raise confidence on the part of competitors that there are no anti-competitive cross-subsidies. This is considered to be particularly important for wholesale services. Implementing guidelines on reporting requirements and publication of information are set out in the Annex.

6.

Certain undertakings may be designated as universal service providers in accordance with Article 8 of the Universal Service Directive and may be subject to regulatory control on retail tariffs in accordance with the provisions of Article 17 of the universal service Directive. For those Member States that operate schemes to finance universal service obligations, it is recommended that any contribution that designated undertaking(s) receive as part of a compensation mechanism is identified in the systems for accounting separation.

7.

These accounting guidelines are concerned with regulatory reporting and they are not intended as a replacement for any statutory financial reporting that may be required in the Member State.

8.

This Recommendation will be reviewed not later than three years after the date of application.

Some of the assets may be in excess of requirements or network architecture may be suboptimal. Implementation of a bottom-up economic/engineering model helps providing information about inefficient and unnecessary incurred costs, which should be removed.

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This Recommendation is addressed to the Member States.

Done at Brussels, 19 September 2005. For the Commission Viviane REDING Member of the Commission ANNEX GUIDELINES ON REPORTING REQUIREMENTS AND PUBLICATION OF INFORMATION This Annex outlines the periodic reporting framework, publication issues and the statement of compliance. Pursuant to the principles recommended at point 2 of the Recommendation, cost accounting and accounting separation systems must produce financial information at a level of detail which demonstrates compliance with the principles of non-discrimination and transparency, adequately identifying and attributing revenues, costs, capital employed and volumes for the various activities performed by the operator. Such accounting information should be made available promptly to the national regulatory authority. Good presentation of regulatory accounts ensures that the essential messages of the financial statements are communicated clearly and effectively and in as simple and straightforward a manner as possible. The presentation of information in financial statements involves some degree of abstraction and aggregation. If this process is carried out in an orderly manner, greater knowledge will result because such a presentation will satisfy the various regulatory objectives such as demonstrating that charges are costorientated or that there is no undue discrimination. Accounting reports comprise supporting notes and supplementary schedules that amplify and explain the financial statements. Both the financial statements and the supporting notes form an integrated whole. Regulatory accounting information serves national regulatory authorities and other parties that may be affected by regulatory decisions based on that information, such as competitors, investors and consumers. In this context, publication of information may contribute to an open and competitive market and also add credibility to the regulatory accounting system. However, full disclosure may be restricted by national and Community rules regarding business confidentially. Therefore, it is recommended that national regulatory authorities, having taken the opinion of operators, define what information can be considered as confidential and should not be made available. 1. Preparation and publication of information The following financial information should be prepared and published (subject to confidentiality and national law obligations) for the relevant market/service: • profit and loss statements, • capital employed statement (detailed calculation methodology and value of parameters used), • consolidation and reconciliation with statutory accounts or other source of costing information, • a description of the costing methodologies including reference to cost base and standards, allocation and valuation methodologies, identification and treatment of indirect costs, • non-discrimination notes (detailed transfer charges), • audit opinion (if required by the national regulatory authority),

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•

a description of accounting policies and regulatory accounting principles,

•

a statement of compliance with Community and national rules,

• other supplementary schedules as required. Reporting formats, which may follow standard statutory accounting design, should be defined in advance by the national regulatory authority, in consultation with operators. The statement of compliance with Community and national legislation, audit opinion and description of accounting principles, policies, methodologies and procedures used, namely the cost allocation methodologies, cannot be considered confidential. Without prejudice to national and Community laws on business confidentiality, the audit results should be made publicly available. 2. The statement of compliance The annual statement of compliance should at least include: •

the conclusions of the auditor,

•

all identified irregularities,

•

recommendations made by the auditor (with a description of the corresponding effects),

•

the full description of the verification methodology followed, and

•

some aggregate financial and accounting data (such as CCA adjustments, main assumptions made on attribution methodologies, level of costs allocated and the level of granularity of the model). Publication of the statement of compliance and of the audit results should be presented in a form easily accessible by interested parties, such as a paper or electronic version, or published on the operator’s or national regulatory authority’s website. 3. Reporting period Publication of regulatory accounts should take place annually and as soon as possible after the end of the accounting (reporting) year. Publication of the statement must take place no later than two months after the completion of the regulatory audit or no later than the current practice as specified by regulatory obligations.



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COMMISSION RECOMMENDATION of 19 March 2010 on the authorisation of systems for mobile communication services on board vessels (MCV services)[27] (Text with EEA relevance) (2010/167/EU) THE EUROPEAN COMMISSION, Having regard to the Treaty on the Functioning of the European Union, Having regard to 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) (28), and in particular Article 19(1) thereof, Whereas: (1) The i2010 policy, as the strategic framework for a European Information Society, promotes an open and competitive digital economy in the European Union, emphasises ICT as a driver of inclusion and quality of life, and stresses the benefits of ready access to information and communication resources in all areas of daily life. (2)

Mobile communication services on board vessels (MCV services) are used on board freight and passenger vessels sailing within the territorial seas in the European Union and in international waters and are often pan-European or inter-State in nature. Systems providing MCV services (‘MCV systems’) aim to complement existing mobile connectivity when operating in those areas of the territorial seas of the EU Member States, as defined in the United Nations Convention on the Law of the Sea, that are not covered by land-based mobile networks.

(3) An MCV system (‘dedicated MCV system’) generally consists of one or more pico-cell base stations on board a vessel (vessel-BS), providing access to a GSM core network via a backhaul link, for example via satellite. The vessel-BS of such a system serve roaming GSM mobile terminals carried by ship passengers or crew. (4) MCV services are currently operated commercially using only the GSM standard and only in bands 880-915 MHz and 1 710-1 785 MHz for uplink (terminal transmit and base station receive) and 925-960 MHz and 1 805-1 880 MHz for downlink (base station transmit and terminal receive). In future, however, they may be extended to other terrestrial public mobile communication systems, operating in accordance with other standards and in other frequency bands. (5) The operation of dedicated MCV systems should be distinguished from the extended coverage provided by land-based mobile electronic communications networks in territorial seas to the extent that this is based on operators’ rights to establish and operate land-based mobile networks. (6)

A coordinated approach to the regulation of MCV services would help to facilitate the provision of these services across the European Union, thereby contributing to achievement of the objectives of the EU single market. It would also help to ensure seamless mobile connectivity for consumers and business users and would enhance the potential of innovative maritime communication services.

(7) When authorising use of spectrum for the provision of MCV services, Member States must comply with Directive 2002/21/EC and with Directive 2002/20/EC of

OJ L 72, 20.3.2010, p. 42. OJ L 108, 24.4.2002, p. 33.

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the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (29). In particular, under Article 9(1) and (2) of Directive 2002/21/EC, Member States should ensure the effective management of radio frequencies for electronic communication services in their territory and promote harmonisation of the use of radio frequencies across the European Union, consistent with the need to ensure effective and efficient use thereof. (8)

Under Directive 2002/21/EC, national regulatory authorities in the Member States should contribute to the development of the single market, inter alia, by removing remaining obstacles to the provision of electronic communications networks, associated facilities and services, and electronic communication services at European level and by encouraging the establishment and development of transEuropean networks, the interoperability of pan-European services, and end-to-end connectivity. They should also promote competition in the provision of electronic communications networks, electronic communication services and associated facilities and services by, inter alia, encouraging efficient use and ensuring the effective management of radio frequencies and numbering resources.

(9)

Pursuant to Directive 2002/20/EC, the least onerous authorisation system possible should be used to allow the provision of electronic communications networks and services in order to stimulate the development of new electronic communication services and pan-European communications networks and services and to allow service providers and consumers to benefit from the economies of scale of the single market.

(10) In accordance with Article 3(2) of Directive 2002/20/EC, the provision of electronic communications networks or the provision of electronic communication services may, without prejudice to the specific obligations referred to in Article  6(2) or rights of use referred to in Article 5, only be subject to a general authorisation. (11) Following Article  5(1) of Directive 2002/20/EC, Member States should, where possible, in particular where the risk of harmful interference is negligible, not make the use of radio frequencies subject to individual rights of use but to general authorisations that include the conditions of their usage. (12) Provided the technical conditions set out in Commission Decision 2010/166/EU (30) are fulfilled, the risk of harmful interference caused by MCV operation will be negligible, so, in principle, general authorisations should be granted by Member States for the use of the radio spectrum for the provision of MCV services. (13) Some Member States currently make the use of spectrum for the provision of MCV services subject to individual rights. This authorisation approach should be reassessed, including on the basis of any experience as regards the provision of MCV services in the territorial seas of Member States. (14) According to Article 1 of Directive 2009/114/EC of the European Parliament and of the Council of 16 September 2009 amending Council Directive 87/372/EEC on the frequency bands to be reserved for the coordinated introduction of public panEuropean cellular digital land-based mobile communications in the Community (31) Member States should examine whether the existing assignment of the 900

OJ L 108, 24.4.2002, p. 21. See page 38 of this Official Journal. 31 OJ L 274, 20.10.2009, p. 25. 29 30



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MHz band to the competing mobile operators in their territory is likely to distort competition in the mobile markets concerned and should address such distortions in accordance with Article 14 of Directive 2002/20/EC. Member States should, where appropriate, consider using this occasion to change any existing exclusive rights of use granted to operators of land-based mobile networks so that they do not exclude the provision of MCV services in the relevant frequencies. (15) Member States should share information amongst each other and with the Commission in order to resolve any harmful interference issues caused by MCV services. In as much as involvement of the Communications Committee and the Radio Spectrum Committee could facilitate the resolution of such issues, these Committees should be informed by the Commission. (16) Pursuant to Directive 2002/22/EC of the European Parliament and of the Council of 7  March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (32) Member States should ensure that transparent and up-to-date information on applicable prices and tariffs, and on standard terms and conditions, in respect of access to and use of publicly available telephone services is available to end-users and consumers. The Directive also calls upon Member States to ensure that, where subscribing to services providing connection and/or access to the public telephone network, consumers have a right to a contract with an undertaking or undertakings providing such services, specifying, among other things particulars of prices and tariffs and the means by which up-to-date information on all applicable tariffs and maintenance charges may be obtained. (17) International agreements in the area of maritime safety and/or public security should not be prejudiced by the operation of MCV services. (18) The regulatory and technical elements of the common approach to authorisation of the use of spectrum for the provision of MCV services in the European Union should be kept under scrutiny to ensure that they remain satisfactory for the overall purpose of avoiding harmful interference, failing which appropriate remedial measures will be considered. (19) The measures provided for in this Recommendation are in accordance with the opinion of the Communications Committee, HAS ADOPTED THIS RECOMMENDATION: 1.

This Recommendation aims to coordinate national authorisation conditions and procedures relating to the use of the radio spectrum for mobile communication services on board vessels (MCV services) in the territorial seas of Member States in order to facilitate the deployment of such services across the European Union while avoiding harmful interference caused by MCV services to land-based mobile electronic communication services. The national authorisation conditions and procedures referred to in this Recommendation will apply without prejudice to legal obligations concerning maritime safety and public security and regulations and/or administrative provisions concerning equipment for MCV services put in place by Member States, in compliance with European Union law, in particular Directive 1999/5/EC of the European Parliament and of the Council of 9  March 1999 on radio equipment and telecommunications terminal equipment and the mutual recognition of their

OJ L 108, 24.4.2002, p. 51.

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conformity (33) and any applicable EU and international instruments concerning maritime equipment. 2.

‘Mobile communication services on board vessels (MCV services)’ means electronic communication services, as defined in Article  2(c) of Directive 2002/21/EC, provided by an undertaking to enable persons on board a vessel to communicate via public communication networks using a GSM system without establishing direct connections with land-based mobile networks.

3.

This Recommendation applies to authorisation of the use of radio spectrum in the frequency bands defined in Decision 2010/166/EU for the provision of MCV services in the territorial seas of Member States, as defined in the United Nations Convention on the Law of the Sea. The provision of MCV services in the high seas, satellite communications between vessels and space stations, and the provision of mobile satellite services (MSS) to end-users on board vessels are outside the scope of this Recommendation.

4.

No later than 12 months after adoption of this Recommendation, Member States should take all steps necessary to be able to authorise, in the frequency bands or sub-bands made available in accordance with Decision 2010/166/EU, the use of spectrum for the provision of MCV services in their territorial seas on board vessels of their nationality and the use of spectrum for the provision of MCV services in their territorial seas, as applicable.

5.

Member States should not authorise use of spectrum for the provision of MCV services, unless such use satisfies the technical conditions set out in Decision 2010/166/EU.

6.

Member States may require that MCV systems only use the specific frequency bands or sub-bands made available, in accordance with Decision 2010/166/EU, for the operation of MCV systems in their territorial seas.

7.

Member States should make use of spectrum for the provision of MCV services subject to general authorisation. Without prejudice to Article  5(1) of Directive 2002/20/EC, where the use of spectrum for the provision of MCV services is subject to individual rights, Member States should reassess the need for such individual rights with the objective of incorporating the conditions attached to such rights into a general authorisation as soon as possible and at the latest within three years after adoption of this Recommendation.

8.

No later than 12 months after adoption of this Recommendation, Member States should not require any additional authorisation for the use of spectrum made available for the provision of MCV services in their territorial seas if the use of spectrum by the relevant MCV system is already authorised by another Member State, in accordance with its authorisation regime and in compliance with this Recommendation.

9.

Member States should consider not requiring an additional authorisation for the use of spectrum in their territorial seas for the provision of MCV services on board vessels of third country nationality, provided that the use of spectrum for the provision of MCV services on such vessels is already authorised by the relevant countries under the same conditions as those set out in Decision 2010/166/EU.

OJ L 91, 7.4.1999, p. 10.

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10. Member States that, prior to the adoption of this Recommendation, have granted in the frequency bands or sub-bands made available for operation of MCV systems, exclusive individual rights of use for the provision of land-based mobile electronic communications networks and/or services extending to their territorial seas should, on the occasion of the first review, modification, extension or renewal of such exclusive rights of use, based on either EU or national law, where appropriate, change such rights of use in order to allow for the operation of MCV systems in their territorial seas. Pending such first review, modification, extension or renewal, the Member States concerned should promote the provision of MCV services in their territorial seas on the basis of spectrum trading, spectrum sharing or any other comparable arrangements with the land-based mobile operators enjoying the relevant exclusive rights. 11. Member States should cooperate actively, constructively and in a spirit of solidarity, using existing procedures where appropriate, to manage any issues concerning harmful interference allegedly caused by the operation of MCV systems. 12. Member States should promptly bring issues concerning harmful interference allegedly caused by the operation of an MCV system falling under the jurisdiction of another Member State to the attention of the latter Member State and should inform the Commission. Where appropriate, the Commission should inform the Communications Committee and the Radio Spectrum Committee of the abovementioned issues in order to seek solutions to any difficulties. 13. Member States that have jurisdiction over the MCV systems suspected of interfering harmfully with services in the territory of another Member State should respond and promptly resolve any such interference. 14. Member States should take any appropriate measures in order to ensure that consumers and other end-users are adequately informed about the terms and conditions for the use of MCV services. 15. Member States should keep the use of spectrum for the provision of MCV services under scrutiny, in particular concerning actual or potential harmful interference, and should report their findings to the Commission in order to allow a timely review of this Recommendation if necessary. Done at Brussels, 19 March 2010. For the Commission Neelie KROES Vice-President

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COMMISSION RECOMMENDATION of 20 September 2010 on regulated access to Next Generation Access Networks (NGA)[34] (Text with EEA relevance) (2010/572/EU) THE EUROPEAN COMMISSION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 292 thereof, Having regard to 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) (35), and in particular Article 19(1) thereof, Having regard to the opinions of the Body of European Regulators for Electronic Communications (BEREC) and of the Communication Committee (COCOM), Whereas: (1)

The EU single market for electronic communications services, and in particular the development of very high-speed broadband services, is key to creating economic growth and achieving the goals of the Europe 2020 Strategy. The fundamental role of telecommunications and broadband deployment in terms of EU investment, job creation and overall economic recovery was notably highlighted by the European Council in the conclusions of its March 2009 meeting. One of the seven flagship initiatives of Europe 2020 is the development of the ‘Digital Agenda for Europe’, which was presented in May 2010.

(2) The Digital Agenda for Europe sets targets for the deployment and take up of fast and very fast broadband, and foresees a number of measures to foster the deployment of Next Generation Access Networks (NGA) based on optical fibre and to support the substantial investments required in the coming years. The present Recommendation, which is to be seen in this context, aims at promoting efficient investment and innovation in new and enhanced infrastructure, taking due account of the risks incurred by all investing undertakings and the need to maintain effective competition, which is an important driver of investment over time. (3)

National Regulatory Authorities (NRAs) under Article 16(4) of Directive 2002/21/ EC are developing regulatory responses to the challenges raised by the transition from copper to fibre-based networks. The relevant markets in this connection are the markets for wholesale network infrastructure access (Market 4) and wholesale broadband access (Market 5). Consistency of regulatory approaches taken by NRAs is of fundamental importance to avoiding distortions of the single market and to creating legal certainty for all investing undertakings. It is therefore appropriate to provide guidance to NRAs aimed at preventing any inappropriate divergence of regulatory approaches, while allowing NRAs to take proper account of national circumstances when designing appropriate remedies. The appropriate array of remedies imposed by an NRA should reflect a proportionate application of the ladder of investment principle.

(4) The scope of this Recommendation primarily covers remedies to be imposed upon operators designated with Significant Market Power (SMP) on the basis of a market analysis procedure carried out under Article  16 of Directive 2002/21/ EC. However, where it is justified on the grounds that duplication of infrastructure is economically inefficient or physically impracticable, Member States may also OJ L 251, 25.9.2010, p.35. OJ L 108, 24.4.2002, p. 33.

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impose obligations of reciprocal sharing of facilities on undertakings operating an electronic communications network in accordance with Article 12 of that Directive which would be appropriate to overcome bottlenecks in the civil engineering infrastructure and terminating segments. (5) Demand and supply conditions are expected to change significantly at both wholesale and retail level following the deployment of NGA networks. Therefore new remedies may need to be imposed, and a new combination of active and passive access remedies on Markets 4 and 5 may be necessary. (6) Regulatory certainty is key to promoting efficient investments by all operators. Applying a consistent regulatory approach over time is important to give investors confidence for the design of their business plans. In order to mitigate the uncertainty associated with periodical market reviews, NRAs should clarify to the greatest extent possible how foreseeable changes in market circumstances might affect remedies. (7) Where new fibre networks are installed on greenfield sites, NRAs should revise and, if necessary, adjust existing regulatory obligations to make sure they apply independently of the network technology deployed. (8) The deployment of NGA networks is likely to lead to important changes in the economics of service provision and the competitive situation. (9) In such context, NRAs should carefully examine the emerging conditions of competition resulting from the deployment of NGAs. NRAs should define subnational geographic markets in accordance with Commission Recommendation 2007/879/EC of 17  December 2007 on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services (36) if they can clearly identify substantially and objectively different conditions of competition which are stable over time. In situations where it cannot be concluded that the different competition conditions would justify the definition of sub-national geographic markets, it could nevertheless be appropriate for NRAs to respond to diverging competitive conditions between different areas within a geographically defined market, for instance due to the presence of several alternative infrastructures or infrastructure-based operators, by imposing differentiated remedies and access products. (10) The transition from copper-based to fibre-based networks may change the conditions of competition in different geographic areas and may necessitate a review of the geographical scope of Markets 4 and 5 or of Market 4 and 5 remedies in cases where such markets or remedies have been segmented on the basis of competition from local loop unbundling (LLU). (11) Where SMP is found within Market 4 an appropriate set of remedies should be applied. (12) Access to civil engineering infrastructure is crucial for the deployment of parallel fibre networks. It is therefore important that NRAs obtain the necessary information to assess whether and where ducts and other local loop facilities are available for the purpose of deploying NGA networks. NRAs should use their powers under Directive 2002/21/EC to obtain all relevant information on location, OJ L 344, 28.12.2007, p. 65.

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capacity and availability of such facilities. Alternative operators should ideally have the possibility to deploy their fibre networks at the same time as the SMP operator, sharing the costs of civil engineering works. (13) Mandating access to civil engineering will be effective only if the SMP operator provides access under the same conditions to its own downstream arm and to third-party access seekers. NRAs should build on their experience in developing procedures and tools for LLU to put in place the necessary business processes concerning ordering and operational access to civil engineering facilities. Mandating the publication by the SMP operator of an adequate reference offer, as soon as possible after it has been requested by an access seeker, is proportionate to the objective of encouraging efficient investment and infrastructure competition. Such reference offer should specify the conditions and procedures of access to the civil engineering infrastructure, including access prices. (14) Cost-oriented prices imply a reasonable return on capital employed. When investments in non-replicable physical assets such as civil engineering infrastructure are not specific to the deployment of NGA networks (and do not entail a similar level of systematic risk), their risk profile should not be considered to be different from that of existing copper infrastructure. (15) Where possible NRAs should work towards ensuring that newly-built facilities of the SMP operator are designed so as to allow several operators to deploy their fibre lines. (16) In a Fibre to the Home (FTTH) context duplication of the terminating segment of the fibre loop will normally be costly and inefficient. To allow for sustainable infrastructure competition, it is therefore necessary that access be provided to the terminating segment of the fibre infrastructure deployed by the SMP operator. To ensure efficient entry, it is important that access is granted at a level in the network of the SMP operator which enables entrants to achieve minimum efficient scale to support effective and sustainable competition. Where necessary specific interfaces could be required to ensure efficient access. (17) Transparency and non-discrimination obligations are required to ensure the effectiveness of access to the terminating segment. Where so requested, the publication by the SMP operator of an adequate reference offer within a short timeframe is necessary in order to allow access seekers to make investment choices. (18) NRAs need to ensure that access prices reflect the costs effectively borne by the SMP operator, including due consideration of the level of investment risk. (19) Networks based on multiple fibre lines can be deployed at a marginally higher cost than single fibre networks, while allowing alternative operators each to control their own connection up to the end-user. These are likely to be conducive to longterm sustainable competition in line with the objectives of the EU regulatory framework. It is thus desirable that NRAs use their powers to facilitate the deployment of multiple fibre lines in the terminating segment, taking into account in particular demand and costs involved. (20) Alternative operators, some of whom have already deployed their own networks to connect to the unbundled copper loop of the SMP operator, need to be provided with appropriate access products in order to continue to compete in an NGA context. For FTTH these may consist of access to civil engineering infrastructure, to the terminating segment, to the unbundled fibre loop (including dark fibre) or



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of wholesale broadband access, as the case may be. Where remedies imposed on Market 4 lead to effective competition in the corresponding downstream market, in the whole market or in certain geographic areas, other remedies could be withdrawn in the market or areas concerned. Such withdrawal would be indicated, for instance, if the successful imposition of physical access remedies were to render additional bitstream remedies redundant. Moreover, in exceptional circumstances, NRAs could refrain from imposing unbundled access to the fibre loop in geographic areas where the presence of several alternative infrastructures, such as FTTH networks and/or cable, in combination with competitive access offers on the basis of unbundling, is likely to result in effective competition on the downstream level. (21) Obligations imposed under Article  16 of Directive 2002/21/EC are based on the nature of the problem identified, without regard to the technology or the architecture implemented by an SMP operator. Therefore the fact of whether an SMP operator deploys a point-to-multipoint or point-to-point network topology should not as such affect the choice of remedies, keeping in mind the availability of new unbundling technologies to deal with potential technical problems in this respect. NRAs should be able to adopt measures for a transitional period mandating alternative access products which offer the nearest equivalent constituting a substitute to physical unbundling, provided that these are accompanied by the most appropriate safeguards to ensure equivalence of access and effective competition (37). In any event, NRAs should in such cases mandate physical unbundling as soon as technically and commercially feasible. (22) Where unbundled access to the fibre loop is mandated, the existing LLU reference offer should be amended to include all relevant access conditions including financial conditions relative to the unbundling of the fibre loop, according to Annex II to Directive 2002/19/EC of the European Parliament and of the Council (38). Such amendment should be published without unnecessary delay to create the necessary degree of transparency and planning security for access seekers. (23) The deployment of FTTH will normally entail considerable risks, given its high deployment costs per household and the currently still limited number of retail services requiring enhanced characteristics (such as higher throughput) which can only be delivered via fibre. Investments into fibre depend for their amortisation on the take-up of new services provided over NGA networks in the short and medium terms. The costs of capital of the SMP operator for the purpose of setting access prices should reflect the higher risk of investment relative to investment into current networks based on copper. (24) Diversifying the risk of deployment may lead to more timely and more efficient deployment of NGA networks. NRAs should therefore assess pricing schemes proposed by the SMP operator to diversify the risk of the investment. (25) Where SMP operators offer lower access prices to the unbundled fibre loop in return for up-front commitments on long-term or volume contracts, these should not be regarded as unduly discriminatory where NRAs are satisfied that the lower prices appropriately reflect an actual reduction of the investment risk. However,

See also recital 60 of Directive 2009/140/EC of the European Parliament and of the Council (OJ L 337, 18.12.2009, p. 37). 38 OJ L 108, 24.4.2002, p. 7. 37

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NRAs should ensure that such pricing arrangements do not lead to a marginsqueeze preventing efficient market entry. (26) Margin squeeze can be demonstrated by showing that the SMP operator’s own downstream operations could not trade profitably on the basis of the upstream price charged to its competitors by the upstream operating arm of the SMP operator (‘equally efficient competitor’ test). Alternatively, a margin squeeze can also be demonstrated by showing that the margin between the price charged to competitors on the upstream market for access and the price which the downstream arm of the SMP operator charges in the downstream market is insufficient to allow a reasonably efficient service provider in the downstream market to obtain a normal profit (reasonably efficient competitor test). In the specific context of ex ante price controls aiming to maintain effective competition between operators not benefiting from the same economies of scale and scope and having different unit network costs, a ‘reasonably efficient competitor test’ will normally be more appropriate. Moreover the assessment of any margin squeeze should be performed over an appropriate timeframe. To foster predictability, NRAs should properly specify in advance the methodology they will follow to identify the imputation test, the parameters to be used and the remedial mechanisms in case of established margin squeeze. (27) Networks based on multiple fibre lines ensure that access seekers can obtain full control over fibre lines, without having to duplicate costly investments or risking discriminatory treatment in case of mandated single fibre unbundling. Networks based on multiple fibre lines are therefore likely to lead to more timely and more intense competition on the downstream market. Co-investment into NGA networks can reduce both the costs and the risk incurred by an investing undertaking, and can thus lead to more extensive deployment of FTTH. (28) Arrangements for co-investment in FTTH based on multiple fibre lines may in certain conditions lead to a situation of effective competition in the geographic areas covered by the co-investment. These conditions relate in particular to the number of operators involved, the structure of the jointly controlled network and other arrangements between the co-investors which aim at ensuring effective competition on the downstream market. In such a situation, if competitive conditions in the areas concerned are substantially and objectively different from those prevailing elsewhere, this could justify the definition of a separate market where, after the market analysis according to Article 16 of Directive 2002/21/EC, no SMP is found. (29) NRAs should assess the costs of sub-loop unbundling. NRAs should, where appropriate, organise a prior consultation of alternative operators potentially interested in sharing street cabinets, and on this basis determine where street cabinets should be adapted and how costs should be allocated. (30) When imposing sub-loop unbundling remedies, NRAs should adopt appropriate backhaul measures to make such remedies effective. Access seekers should be able to select the solution best fitting their requirements, whether dark fibre (and where relevant copper), Ethernet backhaul or duct access. NRAs could, where necessary, take measures pertaining to the adequate size of the street cabinets owned by the SMP operator. (31) The transparency of access conditions to sub-loops can best be ensured by their inclusion in the existing LLU  Reference Offer. It is important that this transparency requirement applies to all items necessary for the provision of sub-



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loop unbundling, including backhaul and ancillary services to allow continuity of existing competitive offerings. The reference offer should incorporate all pricing conditions to allow entrants to calculate the business case for sub-loop unbundling. (32) Consistent with the pricing of local loop unbundling, the pricing of all items necessary for the provision of sub-loop unbundling is to be cost-oriented and in line with current methodologies used for pricing access to the unbundled copper loop. The replacement of copper by fibre up to an intermediary distribution point represents an important investment entailing some risk, even though the risk is deemed to be lower than for FTTH networks, at least in densely populated areas, in view of the relative deployment costs per household involved and the uncertainty of demand for improved or up-graded services. (33) NRAs should apply non-discrimination principles in order to avoid any timing advantage for the retail arm of the SMP operator. The latter should be obliged to update its wholesale bitstream offer before it launches new retail services based on fibre to allow competing operators enjoying access a reasonable period to react to the launch of such products. Six months is considered a reasonable period to make the necessary adjustments, unless other effective safeguards exist which guarantee non-discrimination. (34) It is expected that wholesale broadband access products based on fibre may be technically configured in ways that allow for more flexibility and enhanced service characteristics compared to copper-based bitstream products. To foster retail product competition it is important that such different service characteristics are reflected in various regulated NGA-based products, including business grade services. (35) Different bitstream products, capable of being distinguished downstream in terms of for instance bandwidth, reliability, quality of services or other parameters, might be delivered via a given NGA network. (36) New access remedies will need to be carefully specified, for instance with respect to technical protocols and interfaces serving the interconnection of optical networks or the scope and characteristics of new bitstream remedies. NRAs should cooperate with each other, international standards bodies and industry stakeholders to develop common technical standards in this regard. (37) Where ex ante price regulation is applied, wholesale bitstream access prices should be derived by means of cost-orientation. NRAs could use other appropriate price control methodologies including, e.g. retail-minus, where there are sufficient competitive constraints on the downstream retail arm of the SMP operator. NRAs should set different prices for different bitstream products to the extent that such price differences can be justified by the underlying costs of service provision so as to enable all operators to benefit from sustained price differentiation at both wholesale and retail levels. The risk incurred by the SMP operator should be duly taken into account in setting the access price. (38) Effective physical access remedies might render, in certain areas, the imposition of an obligation of wholesale broadband access unnecessary for achieving effective competition on the downstream market. In particular, where the SMP operator has deployed an FTTH network and effective access to the unbundled fibre loop is available to alternative operators (in particular in point-to-point deployments), an NRA may consider that such access is sufficient to ensure effective competition on the downstream market, especially in densely populated areas. Refraining from imposing an obligation of wholesale broadband access under such circumstances

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may result in better investment incentives for all operators and foster timely deployment. (39) Where there is a proven track record that functional separation or similar arrangements have resulted in fully equivalent access to NGA networks by alternative operators and the downstream arm of the SMP operator, and where there are sufficient competitive constraints on the SMP operator’s downstream arm, NRAs have more flexibility when designing remedies for wholesale broadband access. In particular, the price of the bitstream product could be left to the market. However, careful monitoring as well as performance of an appropriate margin-squeeze test as set out above would be essential to avoid anti-competitive outcomes. (40) Operators currently enjoying access have a legitimate interest to have an appropriate time to prepare for the changes that substantially affect their investments and their business case. In the absence of a commercial agreement NRAs should ensure that there is an appropriate migration path put in place. Such migration path should be transparent and developed at the necessary level of detail so that operators currently enjoying access can prepare for the changes, including rules for any necessary joint work by access seekers and the SMP operator as well as for the precise modalities of de-commissioning points of interconnection. Existing SMP obligations should be maintained for an appropriate transitional period. This transitional period should be aligned with the standard investment period for the unbundling of a local loop or local sub-loop which is in general 5 years. In case the SMP operator provides equivalent access at the MDF, the NRA may decide to set a shorter period. (41) Where the SMP operator envisages to replace part of its existing copper access network with fibre and plans to de-commission currently used points of interconnection, NRAs should obtain the relevant information from the SMP operator, and should under Article  9(1) of Directive 2002/19/EC ensure that undertakings enjoying access to the SMP operator’s network receive all necessary information in timely fashion to adjust their own networks and network extension plans accordingly. NRAs should define the format and level of detail of such information, while ensuring that such information is used only for the purpose it is intended to serve and that the confidentiality of information is ensured throughout the process, HAS ADOPTED THIS RECOMMENDATION: Aim and Scope 1.

The aim of this Recommendation is to foster the development of the single market by enhancing legal certainty and promoting investment, competition and innovation in the market for broadband services in particular in the transition to next generation access networks (NGAs).

2.

This Recommendation sets out a common approach for promoting the consistent implementation of remedies with regard to NGAs, on the basis of a market analysis procedure pursuant to Directives 2002/19/EC and 2002/21/EC.

3.

Where in the context of market analysis procedures carried out under Article 16 of Directive 2002/21/EC NRAs consider the imposition of regulatory remedies, they should design effective remedies in accordance with the aforementioned Directives and the common approach set out in this Recommendation. The regulatory framework provides NRAs with a range of remedies, allowing them to design appropriate measures to tackle market failures and achieve intended regulatory



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objectives in each Member State. NRAs should take into account arrangements entered into by operators aimed at diversifying the risk of deploying optical fibre networks to connect homes or buildings, and at promoting competition. Consistent approach 4.

NRAs should use their powers under Article 5 of Directive 2002/21/EC to ensure that the SMP operator provides all information necessary for designing appropriate regulatory remedies in the transition to NGAs, such as information on planned changes to its network topology or on availability of ducts.

5.

The review of Markets 4 and 5 of Recommendation 2007/879/EC should take account of NGA networks and should be performed in a coordinated and timely manner by each NRA. NRAs should ensure that remedies mandated in Markets 4 and 5 are consistent with each other.

6.

Where the relevant market analyses indicate that the market conditions remain broadly constant, NRAs should apply a consistent regulatory approach over appropriate review periods. Where possible, NRAs should explain in their decisions how they intend to adapt remedies in Markets 4 and 5 in future market reviews in reaction to likely changes in market circumstances.

7.

When applying symmetric measures under Article  12 of Directive 2002/21/EC granting access to an undertaking’s civil engineering infrastructure and terminating segment, NRAs should take implementing measures under Article 5 of Directive 2002/19/EC.

8.

Where fibre is deployed in the access network on greenfield sites, NRAs should not require the SMP operator additionally to deploy a parallel copper network in order to meet its existing obligations, including universal service obligations, but allow for the provision of any existing regulated products or services by functionally equivalent products or services over fibre.

Geographical variation 9.

NRAs should examine differences in conditions of competition in different geographical areas in order to determine whether the definition of sub-national geographic markets or the imposition of differentiated remedies are warranted. Where divergences in the conditions of competition are stable and substantial, NRAs should define sub-national geographic markets in accordance with Recommendation 2007/879/EC. In other cases, NRAs should monitor whether the deployment of NGA networks and the subsequent evolution of competitive conditions within a geographically defined market warrant the imposition of differentiated remedies.

10. Where in the past sub-national geographic markets or remedies have been identified in Market 5 that depend on access products in Market 4, which may become redundant owing to NGA deployment, such segmentations or remedies should be reviewed. Definitions 11. For the purpose of this Recommendation, the following definitions should apply: ‘Next generation access (NGA) networks’ (NGAs) means wired access networks which consist wholly or in part of optical elements and which are capable of delivering broadband access services with enhanced characteristics (such as higher throughput) as compared to those provided over already existing copper

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networks. In most cases NGAs are the result of an upgrade of an already existing copper or co-axial access network. ‘Civil engineering infrastructure’ means physical local loop facilities deployed by an electronic communications operator to host local loop cables such as copper wires, optical fibre and co-axial cables. It typically refers, but is not limited to, subterranean or above-ground assets such as sub-ducts, ducts, manholes and poles. ‘Duct’ means an underground pipe or conduit used to house (fibre, copper or coax) cables of either core or access networks. ‘Manholes’ means holes, usually with a cover, through which a person may enter an underground utility vault used to house an access point for making cross-connections or performing maintenance on underground electronic communications cables. The ‘Metropolitan Point of Presence’ (MPoP) means the point of inter-connection between the access and core networks of an NGA operator. It is equivalent to the Main Distribution Frame (MDF) in the case of the copper access network. All NGA subscribers’ connections in a given area (usually a town or part of a town) are centralised to the MPoP on an Optical Distribution Frame (ODF). From the ODF, NGA loops are connected to the core network equipment of the NGA operator or of other operators, possibly via intermediate backhaul links where equipment is not co-located in the MPoP. The ‘distribution point’ means an intermediary node in an NGA network from where one or several fibre cables coming from the MPoP (the feeder segment) are split and distributed to connect to end-users’ premises (the terminating or drop segment). A distribution point generally serves several buildings or houses. It can be located either at the base of a building (in case of multi-dwelling units), or in the street. A  distribution point hosts a distribution frame mutualising the drop cables, and possibly un-powered equipment such as optical splitters. The ‘terminating segment’ means the segment of an NGA access network which connects an end-user’s premises to the first distribution point. The terminating segment thus includes vertical in-building wiring and possibly horizontal wiring up to an optical splitter located in a building’s basement or a nearby manhole. ‘FTTH’ or ‘fibre-to-the-home’ is an access network consisting of optical fibre lines in both the feeder and the drop segments of the access network, i.e. connecting a customer’s premises (the home or in multi-dwelling units the apartment) to the MPoP by means of optical fibre. For present purposes, FTTH shall refer to both ‘fibre-to-the-home’ and ‘fibre-to-the-building’ (FTTB) ‘Multiple fibre FTTH’ is a form of fibre deployment in which the investor deploys more fibre lines than needed for its own purposes in both the feeder and the drop segments of the access network in order to sell access to additional fibre lines to other operators, notably in the form of indefeasible rights of use (IRU). ‘Co-investment in FTTH’ means an arrangement between independent providers of electronic communications services with a view to deploying FTTH networks in a joint manner, in particular in less densely populated areas. Co-investment covers different legal arrangements, but typically co-investors will build network infrastructure and share physical access to that infrastructure.



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Access to wholesale physical network infrastructure (Market 4) 12. Where SMP is found on Market 4, NRAs should impose an appropriate set of remedies taking into account in particular the principles set out below. Access to civil engineering infrastructure of the SMP operator 13. Where duct capacity is available, NRAs should mandate access to civil engineering infrastructure. Access should be provided in accordance with the principle of equivalence as set out in Annex II. 14. NRAs should ensure that access to existing civil engineering infrastructure is provided at cost-oriented prices in accordance with Annex I. 15. Where there is a request for a reference offer for access to civil engineering infrastructure, NRAs should mandate such offer as soon as possible. The reference offer should be in place not later than 6 months after such request has been made. 16. NRAs should, in accordance with market demand, encourage, or, where legally possible under national law, oblige the SMP operator, when building civil engineering infrastructure, to install sufficient capacity for other operators to make use of these facilities. 17. NRAs should work with other authorities with a view to establishing a data-base containing information on geographical location, available capacity and other physical characteristics of all civil engineering infrastructure which could be used for the deployment of optical fibre networks in a given market or market segment. Such data-base should be accessible to all operators. Access to the terminating segment in the case of FTTH 18. Where an SMP operator deploys FTTH, NRAs should, in addition to mandating access to civil engineering infrastructure, mandate access to the terminating segment of the access network of the SMP operator, including wiring inside buildings. For this purpose, NRAs should oblige the SMP operator to provide detailed information on its access network architecture and, following consultation with potential access seekers on viable access points, determine where the distribution point of the terminating segment of the access network should be for the purpose of mandating access, in accordance with Article 12(1) of Directive 2002/19/EC. In making such determination, NRAs should take into account the fact that any distribution point will need to host a sufficient number of end-user connections to be commercially viable for the access seeker. 19. The SMP operator should be obliged to provide access to the distribution points in accordance with the principle of equivalence as set out in Annex II. Where there is a request for a reference offer for access to the terminating segment, NRAs should mandate such offer as soon as possible. The reference offer should be in place not later than 6 months after such request has been made. 20. NRAs should ensure that access to the terminating segment is provided at costoriented prices in accordance with Annex I. 21. NRAs should, in accordance with market demand, encourage, or, where legally possible under national law, oblige the SMP operator to deploy multiple fibre lines in the terminating segment. Unbundled access to the fibre loop in the case of FTTH 22. In accordance with the principles provided for in Directive 2002/19/EC (39), where the SMP operator deploys FTTH, NRAs should in principle mandate unbundled See in particular recital 19.

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access to the fibre loop. Any exception could be justified only in geographic areas where the presence of several alternative infrastructures, such as FTTH networks and/or cable, in combination with competitive access offers is likely to result in effective competition on the downstream level. The imposition of unbundled access to the fibre loop should be accompanied by appropriate measures assuring co-location and backhaul. Access should be given at the most appropriate point in the network, which is normally the Metropolitan Point of Presence (MPoP). 23. NRAs should mandate unbundled access to the fibre loop irrespective of the network architecture and technology implemented by the SMP operator. 24. The existing LLU reference offer should be complemented as soon as possible to include unbundled access to the fibre loop. Directive 2002/19/EC Annex II sets a minimum list of conditions that must be part of the reference offer for LLU, and which should apply mutatis mutandis to unbundled access to the fibre loop. The reference offer should be in place as soon as possible and in any case not later than 6 months after an NRA has imposed the obligation to grant access. 25. The price of access to the unbundled fibre loop should be cost-oriented. NRAs should duly take into account additional and quantifiable investment risk incurred by the SMP operator when setting the price of access to the unbundled fibre loop. In principle, this risk should be reflected in a premium included in the cost of capital for the relevant investment as set out in Annex I. 26. NRAs should also assess pricing schemes proposed by the SMP operator to diversify the risk of investment. NRAs should agree to such schemes only where they are satisfied that the SMP operator has provided all relevant information related to the investment, and only if such schemes do not have discriminatory or exclusionary effect. Criteria for assessing such pricing schemes are set out in Annex I. 27. In such cases NRAs should ensure that a sufficient margin remains between wholesale and retail prices to allow for market entry by an efficient competitor. NRAs should thus verify the SMP operator’s pricing behaviour by applying a properly specified margin-squeeze test over an appropriate timeframe. NRAs should specify in advance the methodology they will follow for identifying the imputation test, the parameters for the margin-squeeze test and the remedial mechanisms in case of established margin-squeeze. 28. Where the conditions of competition in the area covered by the joint deployment of FTTH networks based on multiple fibre lines by several co-investors are substantially different, i.e. such as to justify the definition of a separate geographic market, NRAs should examine, in the course of their market analysis, whether, in the light of the level of infrastructure competition resulting from the co-investment, a finding of SMP is warranted with regard to that market. In this context, NRAs should in particular examine whether each co-investor enjoys strictly equivalent and cost-oriented access to the joint infrastructure and whether the co-investors are effectively competing on the downstream market. They should also examine whether the co-investors install sufficient duct capacity for third parties to use and grant cost-oriented access to such capacity. Access obligations in the case of FTTN 29. NRAs should impose an obligation of unbundled access to the copper subloop. A  copper sub-loop unbundling remedy should be supplemented by backhaul measures, including fibre and Ethernet backhaul where appropriate, and by ancillary remedies ensuring its effectiveness and viability, such as non-



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discriminatory access to facilities for co-location, or in their absence, equivalent co-location. The reference offer should be in place as soon as possible and in any case not later than 6 months after an NRA has imposed the obligation to grant access. 30. When NRAs impose copper sub-loop unbundling, the SMP operator should be required to complement the existing LLU reference offer with all necessary items. The price of access to all items should be cost-oriented in accordance with Annex I. Wholesale broadband access (Market 5) 31. Where SMP is found on Market 5, wholesale broadband access remedies should be maintained or amended for existing services and their chain substitutes. NRAs should consider wholesale broadband access over VDSL as a chain substitute to existing wholesale broadband access over copper-only loops. 32. NRAs should oblige the SMP operator to make new wholesale broadband access products available in principle at least 6 months before the SMP operator or its retail subsidiary markets its own corresponding NGA retail services, unless there are other effective safeguards to guarantee non-discrimination. 33. NRAs should mandate the provision of different wholesale products that best reflect in terms of bandwidth and quality the technological capabilities inherent in the NGA infrastructure so as to enable alternative operators to compete effectively, including for business grade services. 34. NRAs should cooperate with each other in order to define appropriate technical specifications for wholesale broadband access products provided over NGAs and provide information to international standards bodies in order to facilitate the development of relevant industry standards. 35. NRAs should in principle impose cost orientation on mandated wholesale broadband access products in accordance with Annex I, taking into account differences in bandwidth and quality of the various wholesale offers. 36. NRAs should analyse whether an obligation of cost orientation on mandated wholesale broadband access is necessary to achieve effective competition in case functional separation or other forms of separation have proved effectively to guarantee equivalence of access. In the absence of cost orientation NRAs should monitor the SMP operator’s pricing behaviour by applying a properly specified margin-squeeze test. 37. Where NRAs consider that, in a given geographic area, there is effective access to the unbundled fibre loop of the SMP operator’s network and that such access is likely to result in effective competition on the downstream level, NRAs should consider removing the obligation of wholesale bitstream access in the area concerned. 38. In examining whether SMP is present NRAs should, in the case of co-investment, be guided by the principles set out in paragraph 28. Migration 39. Existing SMP obligations in relation to Markets 4 and 5 should continue and should not be undone by changes to the existing network architecture and technology, unless agreement is reached on an appropriate migration path between the SMP operator and operators currently enjoying access to the SMP operator’s network. In the absence of such agreement, NRAs should ensure that alternative operators

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are informed no less than 5 years, where appropriate taking into account national circumstances, before any de-commissioning of points of interconnection such as the local loop exchange. This period may be less than 5 years if fully equivalent access is provided at the point of interconnection. 40. NRAs should put in place a transparent framework for the migration from copper to fibre-based networks. NRAs should ensure that the systems and procedures put in place by the SMP operator, including operating support systems, are designed so as to facilitate the switching of alternative providers to NGA-based access products. 41. NRAs should use their powers under Article 5 of Directive 2002/21/EC to obtain information from the SMP operator concerning any network modification plans that are likely to affect the competitive conditions in a given market or sub-market. Where the SMP operator envisages to replace part of its existing copper access network with fibre and plans to de-commission currently used points of interconnection, NRAs should under Article 9(1) of Directive 2002/19/EC ensure that undertakings enjoying access to the SMP operator’s network receive all necessary information in timely fashion to adjust their own networks and network extension plans accordingly. NRAs should define the format and level of detail of such information, and ensure that strict confidentiality of the information disclosed is respected. 42. This Recommendation is addressed to the Member States. Done at Brussels, 20 September 2010. For the Commission Neelie KROES Vice-President ANNEX I Pricing principles and risk 1. COMMON PRINCIPLES FOR THE PRICING OF NGA ACCESS Under Article 8(2) of Directive 2002/21/EC, NRAs are to promote competition in the provision of electronic communications networks, electronic communications services and associated facilities and services, inter alia, by encouraging efficient investment in infrastructure. In determining the cost base used for cost-orientation obligations, pursuant to Article 13(1) of Directive 2002/19/EC, NRAs should consider whether duplication of the relevant NGA access infrastructure is economically feasible and efficient. Where this is not the case, the overriding aim is to create a genuine level playing field between the downstream arm of the SMP operator and alternative network operators. A consistent regulatory approach may therefore imply that NRAs use different cost bases for the calculation of cost-oriented prices for replicable and non-replicable assets, or at least adjust the parameters underpinning their cost methodologies in the latter case. In cases where investment into NGAs depends for its profitability on uncertain factors such as assumptions of significantly higher ARPUs or increased market shares, NRAs should assess whether the cost of capital reflects the higher risk of investment relative to investment into current networks based on copper. Additional mechanisms serving to allocate the investment risk between investors and access seekers and to foster market penetration could also be used, such as long-term access pricing or volume discounts. Such pricing mechanisms should be reviewed by the NRA in accordance with the criteria set out in sections 7 and 8 below. In order to enforce cost-orientation obligations, NRAs should impose accounting separation pursuant to Article 11 of Directive 2002/19/EC. Separated accounts for the NGA infrastructure and/or service elements to which access is mandated should be set



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up in such a manner that the NRA can (i) identify the cost of all relevant assets for the determination of access prices (including depreciation and valuation changes) and (ii) monitor effectively whether the SMP operator grants access under the same conditions and prices to other market participants as to its own downstream arm. Such monitoring should include the performance of margin-squeeze tests. Costs should be allocated on the basis of objective criteria amongst the various wholesale and retail products which rely on such inputs, to avoid double counting. NRAs should estimate the incremental costs required to provide access to the facilities concerned. Such costs relate to the ordering and provisioning of access to civil engineering infrastructure or fibre; operating and maintenance costs for IT systems; and operating costs associated with wholesale product management. These costs should be allocated on a proportionate basis between all undertakings enjoying access, including the downstream arm of the SMP operator. 2. PRICING OF ACCESS TO CIVIL ENGINEERING INFRASTRUCTURE Access to existing civil engineering infrastructure of the SMP operator on Market 4 should be mandated at cost-oriented prices. NRAs should regulate access prices to civil engineering infrastructure consistently with the methodology used for pricing access to the unbundled local copper loop. NRAs should ensure that access prices reflect the costs effectively borne by the SMP operator. NRAs should in particular take into account actual lifetimes of the relevant infrastructure and possible deployment economies of the SMP operator. Access prices should capture the proper value of the infrastructure concerned, including its depreciation. When setting the price for access to civil engineering infrastructure, NRAs should not consider the risk profile to be different from that of copper infrastructure, except where the SMP operator had to incur specific civil engineering costs — beyond the normal maintenance costs — to deploy an NGA network. 3. PRICING OF ACCESS TO THE TERMINATING SEGMENT IN THE CASE OF FTTH NRAs should set prices for access to the distribution point consistently with the methodology used for pricing access to the unbundled local copper loop. NRAs should ensure that access prices reflect the costs effectively borne by the SMP operator, including, where appropriate, a higher risk premium to reflect any additional and quantifiable risk incurred by the SMP operator. 4. PRICING OF ACCESS TO FIBRE AT THE MPOP IN THE CASE OF FTTH (UNBUNDLED FIBRE LOOP) When setting access prices to the unbundled fibre loop, NRAs should include a higher risk premium to reflect any additional and quantifiable investment risk incurred by the SMP operator. The risk premium should be estimated in accordance with the methodology set out in section 6 below. Additional price flexibility could be granted in accordance with sections 7 and 8 below. Under the principle of non-discrimination, the price charged to the SMP operator’s downstream arm should be the same as the price charged to third parties. 5. PRICING OF ACCESS TO THE COPPER SUB-LOOP IN THE CASE OF FTTN NRAs should impose cost-based access to all items necessary to allow sub-loop unbundling, including backhaul measures and ancillary remedies, such as nondiscriminatory access to facilities for co-location, or in their absence, equivalent colocation. Regulated access prices should not be higher than the cost incurred by an efficient operator. For this purpose, NRAs may consider to evaluate these costs using bottom-up modelling or benchmarks, where available. When setting the price for access to the copper sub-loop, NRAs should not consider the risk profile to be different from that of existing copper infrastructure.

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6. CRITERIA FOR SETTING THE RISK PREMIUM Investment risk should be rewarded by means of a risk premium incorporated in the cost of capital. The return on capital allowed ex ante for investment into NGA networks should strike a balance between on the one hand providing adequate incentives for undertakings to invest (implying a sufficiently high rate of return) and promoting allocative efficiency, sustainable competition and maximum consumer benefits on the other (implying a rate of return that is not excessive). To do so, NRAs should, where justified, include over the pay-back period of the investment a supplement reflecting the risk of the investment in the WACC calculation currently performed for setting the price of access to the unbundled copper loop. The calibration of revenue streams for calculating the WACC should take into account all dimensions of capital employed, including appropriate labour costs, building costs, anticipated efficiency gains and the terminal asset value, in accordance with recital 20 of Directive 2002/19/EC. NRAs should estimate investment risk, inter alia, by taking into account the following factors of uncertainty: (i) uncertainty relating to retail and wholesale demand; (ii) uncertainty relating to the costs of deployment, civil engineering works and managerial execution; (iii) uncertainty relating to technological progress; (iv) uncertainty relating to market dynamics and the evolving competitive situation, such as the degree of infrastructure-based and/or cable competition; and (v) macroeconomic uncertainty. These factors may change over time, in particular due to the progressive increase of retail and wholesale demand met. NRAs should therefore review the situation at regular intervals and adjust the risk premium over time, considering variations in the above factors. Criteria such as the existence of economies of scale (especially if the investment is undertaken in urban areas only), high retail market shares, control of essential infrastructures, OPEX savings, proceeds from the sale of real estate as well as privileged access to equity and debt markets are likely to mitigate the risk of NGA investment for the SMP operator. These aspects should also be periodically reassessed by NRAs when reviewing the risk premium. The above considerations apply in particular to investment into FTTH. Investment into FTTN, on the other hand, which is a partial upgrade of an existing access network (such as for example VDSL), normally has a significantly lower risk profile than investment into FTTH, at least in densely populated areas. In particular, there is less uncertainty involved about the demand for bandwidth to be delivered via FTTN/VDSL, and overall capital requirements are lower. Therefore, while regulated prices for WBA based on FTTN/VDSL should take account of any investment risk involved, such risk should not be presumed to be of a similar magnitude as the risk attaching to FTTH based wholesale access products. When setting risk premia for WBA based on FTTN/VDSL, NRAs should give due consideration to these factors, and should not in principle approve the pricing schemes set out in sections 7 and 8 below. NRAs should publicly consult on their methodology to determine the risk premium. 7. CRITERIA TO ASSESS LONG-TERM ACCESS PRICING IN CASE OF FTTH Access prices adjusted for risk based on long-term access may vary as a function of time over which access commitments are made. Long-term access contracts would be priced at a lower level per access line than short term access contracts. Long-term access prices should only reflect the reduction of risk for the investor and therefore cannot be lower than the cost-oriented price to which no higher risk premium reflecting the systematic risk of the investment is added. Under long-term contacts, entrants would acquire full control of physical assets, also offering them the possibility to engage in secondary trading. Short-term contracts would be available without long commitments and thus normally be priced higher per access line, with access prices reflecting the potential value attaching to the flexibility of such form of access which benefits the access seeker.



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Long-term access pricing may however be abused by the SMP operator over time to sell its retail services at prices lower than those for its regulated wholesale services (since it would charge its own downstream retail arm low long-term commitment prices), thereby in effect foreclosing the market. Furthermore, alternative providers with smaller customer bases and unclear business perspectives face higher levels of risk. They might be unable to commit to purchasing over a long period. They might thus have to stagger their investment and purchase regulated access at a later stage. For these reasons, long-term access pricing would be acceptable only if NRAs ensure that the following conditions are met: (a) long-term commitment prices only reflect the reduction of risk for the investor; and (b) over an appropriate timeframe there is a sufficient margin between wholesale and retail prices to allow for market entry by an efficient competitor in the downstream market. 8. CRITERIA TO ASSESS VOLUME DISCOUNTS IN CASE OF FTTH Access prices adjusted for risk based on volume discounts reflect the fact that investment risk decreases with the total number of fibre loops already sold in a given area. Investment risk is closely tied to the number of fibre loops which remain unused. The higher the share of used fibre loops, the lower the risk. Access prices could therefore vary in accordance with the volume purchased. A single level of discount should be authorised, available at a uniform price per line to all qualifying operators. NRAs should identify the volume of lines which should be purchased to get access to such volume discount, taking into account the estimated minimum operating scale necessary for an access seeker efficiently to compete in the market and the need to maintain a market structure with a sufficient number of qualifying operators to ensure effective competition. The volume discount should only reflect the reduction of risk for the investor and therefore cannot result in access prices which are lower than the cost-oriented price to which no higher risk premium reflecting the systematic risk of the investment is added. Considering that the risk premium should normally decrease following the overall increase of retail and wholesale demand met, the volume discount should also decrease accordingly and may no longer be justified once retail and wholesale demand are met at high levels. A volume discount should only be accepted by NRAs provided the following conditions are met: (a) a single level volume discount is calculated per area as appropriately sized by the NRA taking account of national circumstances and network architecture, and applies equally to all access seekers which, in the area concerned, are willing to purchase at least the volume of lines giving access to the discount; and (b) the volume discount only reflects the reduction of risk for the investor; and (c)

over an appropriate timeframe there is a sufficient margin between wholesale and retail prices to allow for market entry by an efficient competitor.

ANNEX II Application of the principle of equivalence for access to the civil engineering infrastructure of the SMP operator for the purpose of rolling out NGA networks 1. PRINCIPLE OF EQUIVALENCE Access to civil engineering infrastructure of the SMP operator can represent an important input for the deployment of NGA networks. In order to create a level playing field among entrants and the SMP operator, it is important that such access is provided on a strictly equivalent basis. NRAs should require the SMP operator to provide access to its civil engineering infrastructure under the same conditions to internal and to third-party access

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seekers. In particular the SMP operator should share all necessary information pertaining to infrastructure characteristics, and apply the same procedures for access ordering and provisioning. Reference offers and service level agreements are instrumental to ensuring a proper application of the principle of equivalence. Conversely, it is important that any asymmetric knowledge the SMP operator possesses of the rollout plans of third-party access seekers is not used by the SMP operator to gain undue commercial advantage. 2. INFORMATION ON THE CIVIL ENGINEERING INFRASTRUCTURE AND THE DISTRIBUTION POINTS The SMP operator should provide third-party access seekers with the same level of information on its civil engineering infrastructure and distribution points as is available internally. This information should cover the organisation of the civil engineering infrastructure as well as the technical characteristics of the different elements of which the infrastructure consists. Where available, the geographical location of these elements, including ducts, poles and other physical assets (e.g. maintenance chambers) should be provided, as well as the available space in ducts. The geographical location of distribution points and a list of connected buildings should also be provided. The SMP operator should specify all intervention rules and technical conditions relating to access and use of its civil engineering infrastructure and distribution points, and of the different elements the infrastructure consists of. The same rules and conditions should apply to third-party access seekers as to internal access seekers. The SMP operator should provide the tools for ensuring proper information access, such as easily accessible directories, data bases or web portals. Information should be regularly updated, so as to take account of the infrastructure’s evolution and development and of further information collected, in particular on the occasion of fibre deployment projects by the SMP operator or other access seekers. 3. ORDERING AND PROVISIONING OF ACCESS The SMP operator should implement the procedures and tools necessary for ensuring efficient access and use of its civil engineering infrastructure and distribution points, and the different elements the infrastructure consists of. In particular, the SMP operator should provide third-party access seekers with end-to-end ordering, provisioning and fault management systems equivalent to those provided to internal access seekers. This should include measures aimed at de-congestioning currently used ducts. Requests for information, access and use of the civil engineering infrastructure, the distribution points and the different elements the infrastructure consists of by thirdparty access seekers should be processed within the same delays as equivalent requests by internal access seekers. The same level of visibility on the progress of the requests should also be provided, and negative answers should be objectively justified. The information systems of the SMP operator should keep track records of the handling of requests which should be available to the NRA. 4. SERVICE LEVEL INDICATORS In order to ensure that access and use of the civil engineering infrastructure of the SMP operator is provided on an equivalent basis, service level indicators should be defined and calculated for both internal and third-party access seekers. Service level indicators should measure the responsiveness of the SMP operator to perform those actions necessary to provide access to its civil engineering infrastructure. Target service levels should be agreed with access seekers. Service level indicators should include delays for replying to requests for information on availability of elements of infrastructure, including ducts, poles, other physical assets (e.g. manholes), or distribution points; delays for replying to a request for feasibility to use elements of infrastructure; a measure of responsiveness to handle requests for access and use of elements of infrastructure; a measure of responsiveness for fault resolution processes.



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The calculation of the service level indicators should be performed at regular, fixed intervals and submitted to third-party access seekers. The NRA should control that service levels delivered to third-party access seekers are equivalent to those delivered internally by the SMP operator. The SMP operator should commit to adequate compensation in case of failure to comply with target service levels agreed with thirdparty access seekers. 5. REFERENCE OFFER The different items required to provide equivalent access to the civil engineering infrastructure of the SMP operator should be published in a reference offer, if a request for such an offer has been made by an access seeker. At a minimum, the reference offer should contain the relevant procedures and tools for retrieving civil engineering asset information; describe the access and usage conditions to the different elements which make up the civil engineering infrastructure; describe the procedures and tools for access ordering, provisioning and fault management; and fix target service levels and the penalties for breach of those service levels. Internal access provision should be based on the same terms and conditions as contained in the reference offer provided to third-party access seekers. 6. MONITORING BY THE NRA NRAs should ensure that the principle of equivalence is effectively applied. For this purpose they should make sure that upon request, a reference offer for access to civil engineering infrastructure is provided to third party access seekers in due time. Also in addition to service level reports, NRAs should ensure that SMP operators keep track of all elements necessary to monitor compliance with the equivalence of access requirement. This information should allow NRAs to run regular controls, verifying that the required level of information is provided to third-party access seekers by the SMP operator and that the procedures for access ordering and provisioning are correctly applied. In addition, NRAs should ensure that a fast-track ex-post procedure is available to settle disputes. 7. ASYMMETRY OF INFORMATION The incumbent has prior knowledge of third-party access seekers’ deployment plans. To prevent such information from being used to gain undue competitive advantage, the SMP operator in charge of operating the civil engineering infrastructure should not share such information with its downstream retail arm. NRAs at a minimum should ensure that those persons involved in the retail arm activities of the SMP operator may not participate in company structures of the SMP operator responsible, directly or indirectly, for managing access to civil engineering infrastructure.

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COMMISSION RECOMMENDATION of 11 September 2013 on consistent non-discrimination obligations and costing methodologies to promote competition and enhance the broadband investment environment[40] (2013/466/EU) THE EUROPEAN COMMISSION, Having regard to 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) (41), and in particular Article 19(1) thereof, Having regard to the opinions of the Body of European Regulators for Electronic Communications (BEREC) and of the Communications Committee (COCOM), Whereas: (1) In order to encourage innovation and increase productivity, employment and competitiveness, and ultimately to create economic growth and achieve the goals of the Europe 2020 Strategy, it is essential to further develop the EU internal market for electronic communications networks and services, in particular through the roll-out of high-speed internet networks. The Commission, national regulatory authorities (NRAs) and BEREC contribute to the development of the internal market for electronic communications by developing common approaches for the consistent application of the regulatory framework defined by Directive 2002/21/ EC (the Regulatory Framework). (2) The deployment of high-speed broadband plays an important role in Union investment, job creation and overall economic recovery. The Commission and the European Council have thus set ambitious roll-out targets for high-speed broadband, as part of the Union’s Digital Agenda for Europe (DAE), one of the flagship initiatives of Europe 2020. (3) One of the core objectives of the Digital Agenda for Europe is the deployment of next generation access networks (NGA  Networks). The Digital Agenda for Europe aims to support the substantial investments, which will be required in the coming years. The present Recommendation aims to promote efficient investment and innovation in new and enhanced infrastructures whilst recognising the need to maintain effective competition, which is an important long-term investment incentive. The present Recommendation seeks: (i) to ensure a level playing field through the application of stricter non-discrimination rules; (ii) to establish predictable and stable regulated wholesale copper access prices; as well as (iii) to increase certainty on the circumstances which should lead to the nonimposition of regulated wholesale access prices for NGA services. Increasing legal and regulatory predictability in this manner should further help to trigger the investment needed in the near to medium-term future. (4) Creating regulatory predictability is essential to promoting efficient investment and innovation in new and enhanced infrastructure. Applying a consistent and stable regulatory approach over time is crucial to give investors the confidence needed to design sustainable business plans. In order to provide the necessary predictability over a longer time period, i.e. beyond the lifetime of an individual market review, NRAs should clarify in measures that impose regulatory remedies under Regulatory Framework as far as possible how foreseeable changes in market circumstances might affect the relevant remedies. OJ L 251, 21.9.2013, p. 13. OJ L 108, 24.4.2002, p. 33.

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(5) During the assessment of draft measures notified to the Commission under Article 7 of Directive 2002/21/EC, it appeared that significant inconsistencies still exist across the Union in the application of non-discrimination obligations under Article 10 and of price control and cost accounting obligations under Article 13 of Directive 2002/19/EC of the European Parliament and of the Council (42) for the market for wholesale network infrastructure access (market 4) and to the wholesale broadband access market (market 5) referred to in Commission Recommendation 2007/879/EC (43). (6) Regulatory obligations imposed under Article  10 of Directive 2002/19/EC still vary considerably across the Union, even where the underlying market problems are comparable. While an increasing number of NRAs have recently considered a more detailed application of a general non-discrimination obligation using Key Performance Indicators and ensuring strict equivalence of access, the draft measures notified to the Commission under Article 7 of Directive 2002/21/EC in this respect show a significant divergence among the approaches of NRAs with regard to the scope, the application, compliance monitoring and enforcement of this obligation, in particular with regards to the equivalence model chosen (if one is applied at all). (7) Similarly, regulatory obligations regarding access pricing imposed under Article  13 of Directive 2002/19/EC in markets 4 and 5 also vary considerably across the Member States of the Union although such variations are not justified by underlying differences in national circumstances. In this respect, the Commission has consistently urged NRAs under its powers pursuant to Article 7 of Directive 2002/21/EC: (i) to use appropriate cost-accounting methods and ensure consistent pricing of access products along the same value chain to safeguard the investment ladder principle; (ii) to apply the principles of the relevant cost model consistently to all relevant input data; and (iii) to recognise the importance of using the costs of a modern efficient network to set access prices. (8) The significant variations in the regulatory approaches chosen by NRAs with regard to these two remedies hold back the development of the internal market for electronic communications networks and services and, thus, hamper potentially significant welfare gains for the overall economy. Such variations create regulatory uncertainty and result in a lack of consistent access regulation, thus limiting opportunities to realise economies of scale. (9) Where SMP is found within markets 4 and/or 5 an appropriate set of remedies should be applied in accordance with the principles provided for in Directive 2002/19/EC, in particular Article 8(4) thereof. As such, the remedies stipulated in this Recommendation have to be applied in accordance with the principles of Directives 2002/21/EC and 2002/19/EC.

Directive 2002/19/EC of the European Parliament and of the Council of 7  March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) (OJ L 108, 24.4.2002, p. 7). 43 Commission Recommendation 2007/879/EC of 17  December 2007 on relevant product and service markets within the electronic communications sector susceptible to ex-ante regulation in accordance with Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services (Recommendation on Relevant Markets) (OJ L 344, 28.12.2007, p. 65). 42

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(10) This Recommendation is consistent with Commission Recommendation 2010/572/EU (44) and builds upon the Commission’s guidance regarding the application of specific obligations in the Regulatory Framework provided in Recommendation 2010/572/EU. For example, it sets out in more detail when cost oriented wholesale access to NGA broadband may not be necessary, as stipulated in point 36 of Recommendation 2010/572/EU and sets out scenarios, in which established competitive safeguards should lead to NRAs deviating from the general principle of cost-oriented NGA access as expressed in point 25 of Recommendation 2010/572/EU. As a result, the principles set out in the present Recommendation, in particular in recitals 25 to 28 as well as 49 and 50 and point 58 should be taken into account in interpreting both Recommendations. (11) This Recommendation also deals with matters that are not addressed by Recommendation 2010/572/EU, for example the consistent application of Article  10 of Directive 2002/19/EC and a consistent approach to calculating wholesale copper access prices. APPLICATION OF A NON-DISCRIMINATION OBLIGATION Ensuring equivalence of access (12) One of the main obstacles to the development of a true level playing field for access seekers to electronic communication networks is the preferential treatment of the downstream businesses, for example the retail arm, of a vertically integrated operator with significant market power (SMP operator) through price and non-price discrimination (for example, discrimination regarding quality of service, access to information, delaying tactics, undue requirements and the strategic design of essential product characteristics). In this respect it is particularly difficult to detect and address non-price discriminatory behaviour through the mere application of a general non-discrimination obligation. It is, therefore, important to ensure true equivalence of access by strictly applying non-discrimination obligations and employing effective means to monitor and enforce compliance. (13) With regard to tackling and preventing non-price related discriminatory behaviour the Commission witnessed a considerable variation in the regulatory approach chosen by NRAs. The Commission considers that equivalence of inputs (EoI) is in principle the surest way to achieve effective protection from discrimination as access seekers will be able to compete with the downstream business of the vertically integrated SMP operator using exactly the same set of regulated wholesale products, at the same prices and using the same transactional processes. In addition, and contrary to an Equivalence of Output (EoO) concept, EoI is better equipped to deliver transparency and address the problem of information asymmetries. (14) NRAs are required under Article  8(4) of Directive 2002/19/EC to ensure that the regulatory obligations imposed in response to a designation of an operator as having SMP are based on the nature of the problem identified and proportionate in light of Article 8(5) of Directive 2002/21/EC and in particular Article 8(5)(b) thereof. Providing regulated wholesale inputs on an EoI basis is likely to trigger higher compliance costs than less strict forms of non-discrimination obligations due to the necessary system adjustments. In addition, an SMP operator would not be able to benefit from some vertical synergies as it would only be allowed to use

Commission Recommendation 2010/572/EU of 20 September 2010 on regulated access to Next Generation Access Networks (NGA) (OJ L 251, 25.9.2010, p. 35).

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for itself the same wholesale products that it provides or offers to its competitors. However, these higher compliance costs should be measured against the benefits of more vigorous competition downstream. (15) In this respect, requiring the SMP operator to provide legacy copper-based wholesale inputs over existing systems on an EoI basis is less likely to create sufficient net benefits to pass a proportionality test due to the higher costs of redesigning existing provisioning and operational support systems to make them EoI compliant. Conversely, requiring the SMP operator to provide NGA wholesale inputs, which in many cases are provided over new systems, on an EoI basis is likely to create sufficient net benefits, and thus be proportionate, given the comparatively lower incremental compliance costs to ensure newly built systems are EoI-compliant. Before supplying new inputs to its downstream divisions, the SMP operator should be able to build in EoI at the design stage for new products at a proportionate cost. (16) Given the potentially high compliance costs, it may be disproportionate to require the SMP operator to apply EoI at each and every level of the value chain. Therefore, NRAs would first need to identify the level at which, given their national circumstances, the imposition of EoI would deliver the greatest benefits to competition and innovation, and then assess whether EoI would also be appropriate and proportionate for additional levels as well. Given the ability of EoI to deliver faster innovation in the retail market, EoI should, in principle, be introduced at the deepest possible network level at which competition will be effective and sustainable in the long term. In Member States with a high number of small scale SMP operators, the imposition of EoI on each of these operators may be disproportionate. (17) Where NRAs conclude that an obligation to provide regulated wholesale inputs on an EoI basis is disproportionate, an EoO model should be applied, which ensures that the wholesale inputs provided to alternative operators — while not using the same systems and processes — are comparable, in terms of functionality and price, to those the vertically integrated SMP operator consumes itself. (18) A  decision to impose EoI, where appropriate, justified and proportionate and following consultation in accordance with Articles 6 and 7 of Directive 2002/21/ EC, is a non-discrimination obligation under Article 10 of Directive 2002/19/EC, without prejudice to: (i) the potential imposition of an obligation for functional separation under Article 13a of Directive 2002/19/EC where an NRA concludes that the appropriate obligations (including non-discrimination obligations such as EoI) have failed to achieve effective competition; (ii) any voluntary separation in accordance with Article  13b of Directive 2002/19/EC; and (iii) an analysis of the conditions of competition in the areas covered by the joint deployment of fibre-to-the-home (FTTH) networks, which is recommended in point 28 of Recommendation 2010/572/EU. (19) Volume discounts and/or long-term access pricing agreements are an important tool to foster NGA investment, in particular where take-up by consumers is still low, and can be compatible with an EoI and EoO approach. However, in order to ensure that market entry by efficient competitors is possible, NRAs should accept volume discounts by SMP operators to their own downstream businesses, for example their retail arm, only if they do not exceed the highest volume discount offered in good faith to third party access seekers. Equally, NRAs should accept long-term access pricing agreements by SMP operators to their own downstream businesses, e.g. its retail arm, only if they do not exceed

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the highest discount for long-term access that has been offered in good faith to third party access seekers. Ensuring technical replicability of the SMP operator’s new retail offers as a minimum (20) Independently of the exact equivalence concept imposed by the NRA, where the NRA decides that a non-discrimination obligation under Article 10 of Directive 2002/19/EC is appropriate, proportionate and objectively justified, it is important for a level playing field to ensure that alternative access seekers can technically replicate the retail offer of the SMP operator on the basis of the regulated wholesale input they receive. While NRAs do not need to prescribe in detail the exact design of the relevant wholesale access products, they should ensure that a technical replicability test for a new retail service or bundle is carried out, ensuring that a number of factors are examined. (21) When carrying out the technical replicability test or assessing the results of the test carried out by the SMP operator, NRAs should also take into account the risk of monopolisation of the downstream market through the new offer and the impact on innovation. For example, the relevant wholesale access product should be available to access seekers within a reasonable time prior to the launch of a corresponding retail offer by the SMP operator to avoid any undue timing advantage for the SMP operator taking into account the need for an efficient alternative operator to develop and adapt its own systems and processes in order to be able to offer a competitive new retail service. (22) Given the importance for competition of ensuring technical replicability, it is crucial that the regulated SMP provider ensures technical replicability of new retail offers before their launch and at all times thereafter. Consequently, a technical replicability test may be carried out prior to and after the launch of a new retail offer, depending on when the NRA finds it appropriate. For example, when an NRA’s ability to make public the SMP operator’s business data is limited by confidentiality rules under its national law, the NRA may choose to conduct the technical replicability test after the launch of the retail services. COMPLIANCE MONITORING OF NON-DISCRIMINATION OBLIGATIONS Key performance indicators (23) Given the lack of transparency concerning a comparison between the quality of service the SMP operator supplies to itself and the quality of service it provides to third-party access seekers, it is often difficult to detect discriminatory behaviour, and as a result to enforce non-discrimination in compliance under Article 10 of Directive 2002/19/EC. KPIs are the most appropriate tools to detect potential discriminatory behaviour and enhance transparency with respect to the delivery and quality of the SMP operator’s regulated wholesale access products in the relevant markets. In order to enhance transparency and foster market confidence, NRAs may facilitate through appropriate industry forums the agreement between the SMP operator and third-party access seekers on the detailed KPIs and ensure that such KPIs are audited and published in a manner that allows for the early detection of potential discriminatory behaviour. The KPIs should be related to the key activities in the provisioning cycle, covering all its stages, i.e. the ordering process, the delivery or provision of the service, the quality of service including faults and fault repair times, and migration by access seekers between different regulated wholesale inputs.



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Service Level Agreements and Service Level Guarantees (24) In order to fully ensure non-discrimination, KPIs should be complemented by SLAs and SLGs. Imposing SLAs ensures that access seekers are provided with an agreed quality of service, whereas the use of corresponding SLGs acts as a deterrent against discriminatory behaviour. NRAs should be closely involved in the development of SLAs, for instance, by approving the SLAs developed by the SMP operator as part of a regulatory reference offer. COSTING METHODOLOGY The recommended costing methodology (25) A costing methodology that leads to access prices replicating as much as possible those expected in an effectively competitive market is appropriate to meet the objectives of the Regulatory Framework. Such a costing methodology should be based on a modern efficient network, reflect the need for stable and predictable wholesale copper access prices over time, which avoid significant fluctuations and shocks, in order to provide a clear framework for investment and be capable of generating cost-oriented wholesale copper access prices serving as an anchor for NGA services, and deal appropriately and consistently with the impact of declining volumes caused by the transition from copper to NGA networks, i.e. avoiding an artificial increase in wholesale copper access prices which would otherwise be observed as a result of customers migrating to the NGA network of the SMP operator. (26) Cost recovery is a key principle in a costing methodology. It ensures that operators can cover costs that are efficiently incurred and receive an appropriate return on invested capital. (27) A costing methodology that provides the appropriate ‘build-or-buy’ signal strikes an appropriate balance between ensuring efficient entry and sufficient incentives to invest and, in particular, to deploy NGA networks and hence deliver new, faster and better-quality broadband services. (28) The recommended costing methodology should ensure transparency and consistency within the Union. It should also ensure that specific national circumstances are reflected under a consistent modelling approach. (29) The bottom-up long-run incremental costs plus (BU LRIC +) costing methodology best meets these objectives for setting prices of the regulated wholesale access services. This methodology models the incremental capital (including sunk) and operating costs borne by a hypothetically efficient operator in providing all access services and adds a mark-up for strict recovery of common costs. Therefore, the BU LRIC + methodology allows for recovery of the total efficiently incurred costs. (30) The BU LRIC + methodology calculates the current costs on a forward-looking basis (i.e. based on up-to-date technologies, expected demand, etc.) that an efficient network operator would incur to build a modern network today, one able to provide all required services. Therefore, BU LRIC + provides correct and efficient signals for entry. (31) Where cable, fibre (FttX) and, to a lesser extent, mobile networks (in particular Long-Term Evolution or LTE mobile networks) are competing against copper networks, SMP operators react by upgrading their copper networks and progressively replace them with NGA to address this competitive threat. Therefore, since no operator would today build a pure copper network, the BU

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LRIC + methodology calculates the current costs of deploying a modern efficient NGA network. (32) Such an efficient NGA network would consist wholly or partly of optical elements, depending on national circumstances, and should be capable of delivering the targets of the Digital Agenda for Europe set out in terms of bandwidth, coverage and take-up. (33) Valuation of the assets of such an NGA network at current costs best reflects the underlying competitive process and, in particular, the replicability of the assets. (34) Unlike assets such as the technical equipment and the transmission medium (for example fibre), civil engineering assets (for example ducts, trenches and poles) are assets that are unlikely to be replicated. Technological change and the level of competition and retail demand are not expected to allow alternative operators to deploy a parallel civil engineering infrastructure, at least where the legacy civil engineering infrastructure assets can be reused for deploying an NGA network. (35) In the recommended costing methodology the Regulatory Asset Base (RAB) corresponding to the reusable legacy civil engineering assets is valued at current costs, taking account of the assets’ elapsed economic life and thus of the costs already recovered by the regulated SMP operator. This approach sends efficient market entry signals for build or buy decisions and avoids the risk of a cost overrecovery for reusable legacy civil infrastructure. An over-recovery of costs would not be justified to ensure efficient entry and preserve the incentives to invest because the build option is not economically feasible for this asset category. (36) The indexation method would be applied to calculate current costs for the RAB corresponding to the reusable legacy civil engineering assets. This method is preferred due to its practicability, robustness and transparency. It would rely on historical data on expenditure, accumulated depreciation and asset disposal, to the extent that these are available from the regulated SMP operator’s statutory and regulatory accounts and financial reports and on a publically available price index such as the retail price index. (37) Therefore, the initial RAB corresponding to the reusable legacy civil engineering assets would be set at the regulatory accounting value, net of the accumulated depreciation at the time of calculation and indexed by an appropriate price index, such as the retail price index. (38) The initial RAB would then be locked-in and rolled forward from one regulatory period to the next. The locking-in of the RAB ensures that once a non-replicable reusable legacy civil engineering asset is fully depreciated, this asset is no longer part of the RAB and therefore no longer represents a cost for the access seeker, in the same way as it is no longer a cost for the SMP operator. Such an approach would further ensure adequate remuneration for the SMP operator and at the same time provide regulatory certainty for both the SMP operator and access seekers over time. (39) Active copper lines are decreasing due to customers migrating to cable, fibre and/ or mobile networks. Modelling a single efficient NGA network for copper and NGA access products neutralises the inflationary volume effect that arises when modelling a copper network, where fixed network costs are distributed over a decreasing number of active copper lines. It allows for progressively transferring the traffic volume from copper to NGA with deployment of and switching to NGA. Only traffic volume moving to other infrastructures (for example cable, mobile), which are not included in the cost model, will entail a rise in unit costs.



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(40) In the light of the principle of technological neutrality and in view of different national circumstances, NRAs need a degree of flexibility to model such a modern efficient NGA network. The NGA network can therefore be based on any of the various access technologies and network topologies available to operators for rolling out an NGA network. (41) An FttH network, an FttC network or a combination of both can be considered a modern efficient NGA network. Under this approach the cost calculated for the NGA network should be adjusted to reflect the different features of a copper network. This requires estimating the cost difference between an access product based on NGA and an access product based entirely on copper by making the relevant network engineering adjustments to the NGA model to determine the wholesale copper access price. When setting the economic life time of the assets in a modelled FttC network NRAs should take into account the expected technological and network developments of the different network components. (42) Where the topology of the NGA network to be modelled differs from the copper network to an extent that engineering adjustments to the NGA engineering model are not feasible, NRAs could obtain the copper cost by modelling an NGA overlay network, where two parallel networks (copper and fibre, either FttH or FttC) share to an extent the same civil infrastructure network. Under this approach, the inflationary volume effect would be neutralised for civil engineering assets because the modelled copper and fibre networks would share civil engineering assets. The unit costs of these assets, which represent the largest part of the costs of an access network, would therefore remain stable. Implementation of the costing methodology (43) A sufficiently long transitional period is needed to avoid unnecessary disruption and provide a stable and transparent regulatory approach. Given that NRAs should implement the recommended costing methodology, and therefore operators need to adapt their business plans accordingly, a transitional period until 31 December 2016 is considered appropriate. NRAs are not required to maintain cost models for calculating wholesale copper access prices in circumstances when there is no ex-ante price regulation imposed, for example absent demand for such services. (44) In line with the principles of regulatory transparency and predictability as well as the need to ensure price stability, the Commission set out a band of prices within which it anticipates the Union’s average monthly full unbundled copper localloop rental access price (net of all taxes) to fall when the recommended costing methodology is applied. (45) The main role of the band is to guide NRAs when implementing the costing methodology to meet the Recommendation’s overall objective of stability and predictability of copper access prices. Where, at the time of entry into force of this Recommendation, regulated monthly copper LLU access prices are outside the band in given Member States, NRAs implementing the recommended costing methodology in such Member States should do so as soon as possible. This is for them to assess whether the recommended costing methodology requires gradual price adjustments by 31  December 2016, in particular in those Member States where access prices are currently not cost-oriented, and which are thus likely to require more significant price adjustments. For the avoidance of doubt, this Recommendation does not require NRAs to impose access prices within the band when the NRA applies the recommended costing methodology or the methodology used pursuant to point 40.

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(46) Access prices are considered to be stable even where they follow a trend in nominal terms. They should, however, not fluctuate significantly over the relevant time period, thus remaining predictable. (47) In accordance with the principles of regulatory transparency and predictability as well as the need to ensure pricing stability, currently applied methodologies other than the recommended costing methodology may also meet the conditions set out in point 40. The application of this principle to individual Member States should be assessed on a case-by-case basis and warrants early assessment through notification to the Commission, BEREC and other NRAs ahead of 31 December 2016. (48) For NRAs with limited resources, an additional transitional period beyond 2016 may exceptionally be needed to prepare the recommended cost model. In such circumstances, an NRA should consider setting interim prices based on a benchmark that only considers an average of the access rates set by NRAs in compliance with the terms of this Recommendation. In the interim period, NRAs concerned may request BEREC’s practical support and guidance to overcome this limitation of resources and, in particular, the cost of implementing the recommended costing methodology. NON-IMPOSITION OF REGULATED WHOLESALE ACCESS PRICES ON NGA NETWORKS (49) Due to current demand uncertainty regarding the provision of very high-speed broadband services it is important in order to promote efficient investment and innovation, in accordance with Article 8(5)(d) of Directive 2002/21/EC, to allow those operators investing in NGA networks a certain degree of pricing flexibility to test price points and conduct appropriate penetration pricing. This would allow SMP operators and access seekers to share some of the investment risk by differentiating wholesale access prices according to the access seekers’ level of commitment. This could result in lower prices for long-term agreements with volume guarantees, which could reflect access seekers taking on some of the risks associated with uncertain demand. In addition, pricing flexibility at wholesale level is necessary to allow both the access seeker and the SMP operator’s retail business to introduce price differentiation on the retail broadband market in order to better address consumer preferences and foster penetration of very high-speed broadband services. (50) In line with points 48-57, to prevent such pricing flexibility leading to excessive prices in markets where SMP has been found, it should be accompanied by additional safeguards to protect competition. To this end, the stricter nondiscrimination obligation, i.e. EoI and technical replicability, should be complemented by guaranteed economic replicability of downstream products in conjunction with price regulation of copper wholesale access products. (51) In order to ensure transparency and to facilitate the monitoring of the evolution of the investment environment for NGA broadband as well as of competitive conditions NRAs should ask operators to provide the NRA with up-to-date information, including investment and NGA roll-out plans on a regular basis. The results of any such monitoring exercise will also serve as an input for the monitoring process by the dedicated BEREC and Commission network of experts as referred to in recital 69. (52) In view of the benefits of pricing flexibility in these circumstances, under the recommended approach, wholesale access prices for passive NGA wholesale inputs or non-physical or virtual NGA wholesale inputs offering equivalent



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functionalities are deemed to be sufficiently constrained (i.e. price-related competition problems are considered to be effectively addressed) when: (i) there is a demonstrable retail price constraint resulting from the infrastructure competition or a price anchor stemming from cost oriented wholesale copper access prices; and (ii) the ex-ante economic replicability test is in place in those cases where wholesale price regulation should not be imposed; and (iii) there is an obligation of providing wholesale access services on the basis of EoI. In other words, where EoI is applied and NRAs consider that the above competitive safeguards are in place, they should not impose a regulated access price for those NGA wholesale inputs. (53) For active NGA wholesale inputs, sufficient competitive safeguards exist if access seekers can rely on upstream products in the market for network infrastructure access (for example unbundled access or virtually unbundled access), which are provided on an EoI basis, provided that the actual take-up of such upstream products or the presence of alternative infrastructures create a demonstrable retail price constraint, so that no additional safeguards are necessary at the wholesale level. (54) Such demonstrable retail price constraint would not be sufficiently strong to conclude that the relevant wholesale market is effectively competitive and therefore that no operator has SMP. This retail price constraint, however, should prevent the operator that has SMP at the wholesale level from setting excessive retail prices. (55) The non-imposition or lifting of regulated wholesale access prices on NGA networks under points 48 and 49 is without prejudice to measures taken to address insufficient margins identified under the ex-ante economic replicability test as set out in this Recommendation for the purpose of safeguarding competition in cases where wholesale price regulation should not be imposed on the SMP operator. (56) If the product offered by the SMP operator on the legacy access network is no longer able to exercise a demonstrable retail price constraint on the NGA product (for example in the event of a copper switch-off), it could in principle be replaced by an NGA-based product that is tailored to have the same product features. However, it is not envisaged that such an NGA-based anchor will be required in the immediate future or before 2020. (57) The process for implementing EoI should be established by the NRA after having consulted the SMP operator and interested parties. A detailed roadmap setting the key milestones necessary for the complete implementation of EoI for the relevant access products should be part of the adopted measure. (58) The benefit of a firm commitment to timely implementation of non-discrimination measures should provide sufficient safeguards for allowing pricing flexibility before full implementation of the roadmap, and can have an immediate positive effect on investment incentives. On the other hand, some discretion for NRAs on the timing of implementing pricing flexibility is necessary, in order to safeguard competition, in particular to avoid the risk of disrupting existing access agreements. (59) A  failure by the regulated SMP operator to abide by its commitments in the roadmap should result in consequences that have a deterrent effect. In particular, non-compliance with one or several milestones of the roadmap should lead to a reversal of the assumption that EoI has been imposed, as expressed in point 51 of this Recommendation. As a result, the non-discrimination conditions for not imposing or maintaining regulated wholesale access prices on NGA networks are

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no longer met and should lead to the reimposition of regulated wholesale access prices or to the NRA’s making use of its powers to impose penalties in accordance with the Regulatory Framework. (60) For regulated wholesale access prices to be imposed following failure to comply with the non-discrimination obligation as established in point 54 without the need for NRAs to conduct a new market analysis, such possible consequence should be part of the initially notified measure and the market data on which the NRA based its initial market analysis should not have significantly changed. The absence of the requirement to conduct a new market analysis is without prejudice to the need to notify any amendments of remedies according to the Article 7 procedure. (61) In order to establish whether alternative access seekers can economically replicate a downstream offer provided by the SMP operator with the regulated wholesale input available, in cases where wholesale price regulation should not be imposed, an NRA should undertake an economic replicability test. (62) Given the uncertainties surrounding current demand for NGA-based retail services, SMP operators whose NGA-wholesale inputs are not subject to regulated access prices can use penetration pricing strategies in order to foster retail demand for such NGA-based retail services. The purpose of the economic replicability test is to ensure, in combination with the other competitive safeguards introduced such as EoI, the technical replicability test, and a demonstrable retail price constraint resulting from a copper anchor or alternative infrastructures, that SMP operators do not abuse this pricing flexibility in order to exclude (potential) competitors from the market. The guidance provided in Annex II is limited to the application of point 56. (63) Such a test will be without prejudice to ex-post margin squeeze tests applied pursuant to competition law by the Commission and/or national competent authorities. In addition, NRAs may also apply an ex-ante margin squeeze test to regulated wholesale inputs in order to ensure that wholesale access pricing of copper-based access products does not hinder competition at retail level or to ensure an adequate economic space between the different copper access inputs. However, penetration pricing strategies should not be considered for legacy copper-based inputs given the maturity of the market and the cost orientation generally applicable to copper-based wholesale inputs. (64) NRAs should ensure that the margin between the retail price of the SMP operator and the price of the NGA wholesale input covers the incremental downstream costs and a reasonable percentage of common costs. Where wholesale price regulation for NGA wholesale inputs should not be imposed on the SMP operator when additional safeguards are implemented in accordance with this Recommendation, a lack of economic replicability can be demonstrated by showing that the SMP operator’s own downstream retail arm could not trade profitably on the basis of the upstream price charged to its competitors by the upstream operating arm of the SMP operator (‘equally efficient operator’ (EEO) test). The use of the EEO standard enables NRAs to support the SMP operators’ investments in NGA networks and provides incentives for innovation in NGA-based services. (65) Where specific market circumstances apply, such as where market entry or expansion has been frustrated in the past, NRAs may make adjustments for scale to the SMP operator’s costs, in order to ensure that economic replicability is a realistic prospect. In such cases, the reasonably efficient scale identified by the NRA should not go beyond that of a market structure with a sufficient number of qualifying operators to ensure effective competition.



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(66) The NRA should set out and make public in advance in its adopted measure following a market analysis the procedure and parameters it will apply when running the ex-ante economic replicability test. The NRA may run the test before the launch of a new retail offer by the SMP operator, e.g. if the NRA considers it appropriate to align the timing of the economic replicability test with the technical replicability test if also undertaken before launch. The NRA need not to run the test for each and every new retail offer but only in relation to flagship products to be identified by the NRA. An NRA may run the test at its own initiative, for example in the initial stages of the implementation of a measure that allows pricing flexibility on NGA networks, particularly where regulated wholesale access prices were imposed in the past, or to respond to changes in the structure of the market, for example as a result of technological developments. (67) The economic replicability test set out by the NRA in advance should be adequately detailed and should include as a minimum a set of relevant parameters in order to ensure predictability and the necessary transparency for operators. NRAs should apply a LRIC + model while taking into account the SMP operator’s audited downstream costs and assess the margin earned between the most relevant retail products including broadband services (flagship products) and the regulated NGA access input most used, or identified, under a forward-looking approach, as the most relevant for delivering the retail products for the market review period in question. The design of the test, applying to the SMP operator’s audited downstream costs and only for flagship products, aims to ensure that NGA investments and the effect of the recommended pricing flexibility are not hindered by this safeguard. In order to exclude cross-subsidisation between different products in a bundle or portfolio, NRAs should conduct only a single-level test, i.e. between the retail services and the most relevant NGA access input for the access seekers (for example fibre access at the cabinet, virtual unbundling). However, a new NGA access input can in time become more prominent (for example fibre unbundling at the ODF) so the economic replicability test should be run with reference to this new input instead of the input initially most used. Should national competitive circumstances show a difference between geographic areas in terms of the NGA access input used (for example in rural and densely populated areas) NRAs should vary the test based on specific inputs identified as the most relevant. (68) NRAs might not be able to find the abovementioned competitive constraints across the entire defined market. Where the NRA cannot conclude that the different competitive conditions are stable over time and are such that they could justify the definition of subnational markets, NRAs should nevertheless consider responding to these diverging competitive conditions by applying differentiated remedies, i.e. by lifting wholesale price regulation for only those areas where the necessary competition safeguards can be established. Where an NRA considers that competitive and regulatory conditions are such that the SMP operator is sufficiently constrained in its price setting, the NRA may refrain, in application of the Regulatory Framework, from imposing price regulation. The implementation of functional or voluntary separation in accordance with Article  13a or 13b of Directive 2002/19/EC (Access Directive) respectively should be duly taken into account in the assessment of the appropriateness of not imposing price regulation on next generation networks. (69) BEREC and the Commission are in agreement that the implementation of this Recommendation will be closely followed in a dedicated network of experts between the Commission and BEREC in order to monitor the practical impacts of the Recommendation, notably the impact on investment, competition and retail

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prices and provide, as necessary, further guidance to the NRAs. This should aid to address any unintended consequences in a timely and cooperative manner. This dedicated network of experts will benefit from the input provided by NRAs regarding up-to-date information on operators’ investment and NGA roll-out plans as provided for in point 55, HAS ADOPTED THIS RECOMMENDATION: AIM AND SCOPE 1.

The aim of this Recommendation is to improve the regulatory conditions needed to promote effective competition, enhance the single market for electronic communications networks and services, and foster investments in next-generation access (NGA) networks. It contributes, in a technologically neutral manner, to the overall Europe 2020 Strategy objectives of boosting growth and jobs, stimulating innovation and ultimately more efficient digital services for end users in the Union, and furthering digital inclusion. It also aims to increase legal certainty and regulatory predictability in view of the long-term horizons for investment in NGA networks.

2.

Where, in the course of the market analysis procedures carried out under Article 15 and Article 16(4) of Directive 2002/21/EC, national regulatory authorities (NRAs) determine that a market referred to in point 5 below is not effectively competitive and identify undertakings that individually or jointly have significant market power (SMP) on that market (as SMP operator(s)), they shall impose, where appropriate, obligations of non-discrimination in relation to interconnection and/ or access, pursuant to Article 10 of Directive 2002/19/EC and price control and cost accounting obligations, in particular cost orientation, pursuant to Article 13 of Directive 2002/19/EC.

3.

This Recommendation concerns the application of those obligations and sets out a common approach for promoting their consistent and effective implementation with regard to legacy and NGA networks where they allow for the provision of broadband services.

4.

This Recommendation provides further guidance on the regulatory principles established by Recommendation 2010/572/EU, in particular the conditions under which regulation of wholesale access prices should or should not be applied.

5.

The principles set out in this Recommendation apply to the market for wholesale network infrastructure access (market 4) and to the wholesale broadband access market (market 5) referred to in Recommendation 2007/879/EC or any markets susceptible to ex-ante regulation identified by NRAs during a market analysis which substitute for these and cover the same network layers. This includes, inter alia: (i) access to the civil engineering infrastructure; (ii) unbundled access to the copper and fibre loops; (iii) unbundled access to the copper sub-loop; (iv) nonphysical or virtual network access; and (v) wholesale broadband access (bitstream services) over copper and fibre networks (comprising, among others, ADSL, ADSL2+, VDSL and Ethernet). DEFINITIONS

6.

For the purpose of this Recommendation, the definitions in Directives 2002/21/EC and 2002/19/EC and in Recommendation 2010/572/EU shall apply. The following definitions shall also apply: (a) ‘Bottom-up modelling approach’ means an approach that develops a cost model starting from the expected demand in terms of subscribers and



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traffic. It then models the efficient network required to meet the expected demand, and assesses the related costs using a theoretical networkengineering model, for the purpose of calculating the cost on the basis of an efficient network using the latest technology employed in large-scale networks. (b) ‘Common costs’ are shared costs for products or services produced jointly which are not attributable to any single product or service. (c) ‘Copper anchor’ is a cost oriented copper wholesale access product which constrains the NGA prices in such a way that NGA services will be priced in accordance with the consumers’ willingness to pay for the additional capacity and functionalities an NGA-based retail product can provide in comparison with a copper-based retail product. (d) ‘Current costs’ means the costs resulting from valuing an asset at its replacement cost, i.e. the cost of replacing it with either the same asset or another asset of similar performance characteristics, allowing for wear and tear and adjustments for efficiency. (e)

‘Depreciation methods’ are methods for allocating the value of an asset over the life of the asset, thus influencing the profile of the allowable earnings for the asset owner in any given period.

(f)

‘Downstream costs’ are the costs of retail operations, including marketing, customer acquisition, billing, and other network costs, incurred in addition to those network costs already included in the wholesale access service.

(g) ‘Equivalence of Inputs (EoI)’ means the provision of services and information to internal and third-party access seekers on the same terms and conditions, including price and quality of service levels, within the same time scales using the same systems and processes, and with the same degree of reliability and performance. EoI as defined here may apply to the access products and associated and ancillary services necessary for providing the ‘wholesale inputs’ to internal and third-party access seekers. (h) ‘Equivalence of Output (EoO)’ means the provision to access seekers of wholesale inputs comparable, in terms of functionality and price, to those the SMP operator provides internally to its own downstream businesses albeit using potentially different systems and processes. (i)

‘Incremental costs’ are costs that are directly associated with the production of a business increment, i.e. the additional cost of supplying a service over and above the situation where the service was not provided, assuming all other production activities remain unchanged.

(j)

‘Key Performance Indicators (KPIs)’ are indicators that measure the level of performance in the provision of the relevant wholesale services.

(k) ‘Long Run Incremental Costs (LRIC)’ means the incremental costs corresponding to a time horizon where all factors of production, including capital equipment, are variable in response to changes in demand due to changes in the volume or in the structure of production. Therefore all investments are considered as variable costs. (l)

‘Mark-up’ means the addition made to the incremental cost of a specific service in order to allocate and recover the common costs through allocation to all services for which those common costs are relevant.

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(m) ‘New retail offer’ means any new retail offer of services, including bundles of services, by an SMP operator based on already existing or new regulated ‘wholesale inputs’. (n) ‘NGA-based wholesale layer’ means a network layer at which access is granted to access seekers on an NGA-based network and where several ‘wholesale inputs’ can be provided. The wholesale access products offered on this network layer may consist of active inputs, for example bitstream over fibre, passive inputs, for example fibre unbundling in the ODF, in the cabinet, or at the concentration point or non-physical or virtual wholesale inputs offering equivalent functionalities to passive inputs. (o) ‘Non-reusable civil engineering assets’ are those legacy civil engineering assets that are used for the copper network but cannot be reused to accommodate an NGA network. (p) ‘Regulatory accounting value’ is the value of an asset as recorded in the audited regulatory accounts of an undertaking which considers actual utilisation and lifetimes of the assets, which are typically longer than those recorded in statutory accounts and which are more in line with technical lifetimes. (q) ‘Regulatory Asset Base (RAB)’ means the total capital value of the assets used to calculate the costs of the regulated services. (r)

‘Reusable civil engineering assets’ are those legacy civil engineering assets that are used for the copper network and can be reused to accommodate an NGA network.

(s) ‘Service Level Agreements (SLAs)’ means commercial agreements under which the SMP operator is obliged to provide access to wholesale services with a specified level of quality. (t) ‘Service Level Guarantees (SLGs)’ form an integral part of SLAs and specify the level of compensation payable by the SMP operator if it provides wholesale services with a quality inferior to that specified in the SLA. (u) ‘Wholesale inputs’ means an access product required for access seekers to supply end-users with a broadband service on a retail market and consisting of an active or passive product or a virtual access product offering equivalent functionalities to a passive access product. Wholesale inputs can be provided over legacy copper network infrastructures or NGA-based infrastructures. APPLICATION OF A NON-DISCRIMINATION OBLIGATION Ensuring equivalence of access 7.

The surest way to achieve effective non-discrimination is by the application of ‘equivalence of input’ (EoI), which ensures a level playing field between the SMP operator’s downstream businesses, for example, its retail arm, and thirdparty access seekers, and promotes competition. Where NRAs consider that the imposition of a non-discrimination obligation on SMP operators under Article 10 of Directive 2002/19/EC is appropriate, proportionate and justified pursuant to Article 16(4) of Directive 2002/21/EC and Article 8(4) of Directive 2002/19/EC, they should examine whether it would be proportionate to require SMP operators to provide relevant wholesale inputs on an EoI basis. In doing so, NRAs should consider, among other things, whether the compliance costs, for example due to the redesign of existing systems, are outweighed by the envisaged competition



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benefits. In doing so, the NRA should take into account in the proportionality assessment, inter alia, the following considerations: (i) incremental costs of compliance with EoI are likely to be low when new systems are being designed; (ii) the potentially linked non-imposition of regulated wholesale access prices on NGA networks as recommended in points 48 and 49; (iii) the potentially positive effect the application of EoI might have on innovation and competition; (iv) any voluntary commitment by the SMP operator to provide wholesale inputs to access seekers on an EoI basis, as long as such a voluntary offer meets the conditions set out in this Recommendation; and (v) the number and size of the SMP operator(s). 8.

Where proportionate, EoI should be applied at the most appropriate level(s) in the value chain to those wholesale inputs which the SMP operator provides to its own downstream businesses, for example its retail arm, unless it can be demonstrated to the NRA, having sought the views of third-party access seekers, that there is no reasonable demand for the wholesale input in question.

9.

Where EoI is disproportionate, NRAs should ensure that the SMP operator provides the wholesale inputs to access seekers on an ‘equivalence of output’ (EoO) basis.

10. NRAs should ensure that when a non-discrimination obligation is imposed, access seekers can use the relevant systems and processes with the same degree of reliability and performance as the SMP operators’ own downstream retail arm. Ensuring technical replicability of the SMP operator’s new retail offers 11. NRAs should require SMP operators subject to a non-discrimination obligation to provide access seekers with regulated wholesale inputs that allow the access seeker to effectively replicate technically new retail offers of the downstream retail arm of the SMP operator, in particular where EoI is not fully implemented. 12. To that end, and in order to guarantee a level playing field between the SMP operator’s downstream retail arm and third-party access seekers, NRAs should ensure that internal and third-party access seekers have access to the same technical and commercial information regarding the relevant regulated wholesale input, without prejudice to applicable rules regarding business confidentiality. The relevant information includes information on new regulated wholesale inputs or on changes to already existing regulated wholesale inputs, to be provided in accordance with lead-times defined on a case-by-case basis. 13. When assessing the technical replicability of the SMP operator’s new retail offer, the NRA should take into account: (i) whether the corresponding wholesale input(s) for ordering, delivery and repair necessary for an efficient operator to develop or adapt its own systems and processes in order to offer competitive new retail services are made available at a reasonable period before the SMP operator or its downstream retail arm launches its own corresponding retail service taking into account the factors set out in Annex I; and (ii) the availability of corresponding SLAs and KPIs. 14. The required technical replicability test can be carried out by either the SMP operator or the NRA. 15. If the SMP operator conducts the technical replicability test itself, the NRA should require the SMP operator to provide it with the results of the test including all information needed to demonstrate that technical replicability is fully ensured, with sufficient notice for NRA to validate the results of the test and for access seekers to replicate the relevant retail offer in accordance with the parameters specified in Annex I.

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16. Alternatively, if the NRA conducts the technical replicability test, it should require the SMP operator to notify to the NRA the details of the new retail offers that consume a relevant regulated wholesale input together with all information needed for the NRA to assess replicability, with sufficient notice prior to the launch of such retail offers. Such notice should be sufficient for NRA to conduct the technical replicability test and for access seekers to replicate the relevant retail offer in accordance with the parameters specified in Annex I. 17. Where the NRA considers that technical replicability of the new retail offer is not ensured, it should require the SMP operator to amend the relevant regulated wholesale input(s) in a way that ensures technical replicability. 18. Where the NRA considers that a retail offer which is not technically replicable would result in significant harm to competition, it should require, under Article 10 of Directive 2002/20/EC of the European Parliament and of the Council (45), the SMP operator to cease or delay the provision of the relevant retail offer pending compliance with the requirement of technical replicability. COMPLIANCE MONITORING OF NON-DISCRIMINATION OBLIGATIONS Key Performance Indicators 19. When imposing a non-discrimination obligation under Article  10 of Directive 2002/19/EC, NRAs should impose on the SMP operator the use of KPIs in order to monitor effectively compliance with the non-discrimination obligation. 20. The KPIs should measure performance at least in relation to the following key elements in the provision of regulated wholesale services: (a)

Ordering process;

(b) Provision of service; (c)

Quality of service, including faults;

(d) Fault repair times; and (e) Migration between different regulated wholesale inputs (excluding one-off bulk migrations). 21. NRAs should impose KPIs for each of the abovementioned key elements in the provision of regulated wholesale services. KPIs should allow for comparison between services provided internally to the downstream retail arm, of the SMP operator and those provided externally to third-party access seekers. 22. The specific details of KPIs imposed by the NRA pursuant to point 21 could be agreed between the SMP operator and third-party access seekers and should be updated on a regular basis as necessary. 23.

In imposing the KPIs, the NRA should take account of already existing performance measurements, even when only used for internal purposes of the SMP operator.

24. In order to ensure early discovery of potential discriminatory behaviour and transparency with regard to the provision of regulated wholesale services, the NRAs should ensure that KPIs are published at least on a quarterly basis, in an appropriate form either on the NRAs website or on the website of an independent third party designated by the NRA. Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (OJ L 108, 24.4.2002, p. 21).

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25. NRAs should ensure that the KPIs are regularly audited by the NRA or, alternatively, by an independent auditor. 26. Where the results of the KPIs indicate that the SMP operator may not comply with its non-discrimination obligation, the NRA should intervene by investigating the matter in more detail, and where necessary enforce compliance. NRAs should make public, for example on their website, their decision to remedy noncompliance. Service Level Agreements and Service Level Guarantees 27. NRAs should require the SMP operator to implement corresponding SLAs alongside KPIs. 28. NRAs should require the SMP operator to provide corresponding SLGs in case of a breach of the SLAs. 29. NRAs should ensure that SLG payments are, in principle, made among the operators without undue delay and through a pre-established process for payment and billing. The level of such penalties should be sufficiently dissuasive to ensure that the SMP operator complies with its delivery obligations. COSTING METHODOLOGY The recommended costing methodology 30. For the purposes of setting copper and NGA wholesale access prices where cost orientation is imposed as a remedy, where appropriate, proportionate and justified pursuant to Article 16(4) of Directive 2002/21/EC and Article 8(4) of Directive 2002/19/EC, NRAs should adopt a bottom-up long-run incremental costs-plus (BU LRIC +) costing methodology which includes a bottom up modelling approach using LRIC as the cost model and with the addition of a mark-up for the recovery of common costs. 31. NRAs should adopt a BU LRIC + costing methodology that estimates the current cost that a hypothetical efficient operator would incur to build a modern efficient network, which is an NGA network. This is without prejudice to whether an NGA network in the relevant geographic market is subject to an obligation of regulated wholesale access pricing, which is addressed in point 36 of Recommendation 2010/572/EU and points 48 and 49 of this Recommendation. 32. When modelling an NGA network NRAs should define a hypothetical efficient NGA network, capable of delivering the Digital Agenda for Europe targets set out in terms of bandwidth, coverage and take-up, which consists wholly or partly of optical elements. When modelling an NGA network, NRAs should include any existing civil engineering assets that are generally also capable of hosting an NGA network as well as civil engineering assets that will have to be newly constructed to host an NGA network. Therefore, when building the BU LRIC + model, NRAs should not assume the construction of an entirely new civil infrastructure network for deploying an NGA network. 33. NRAs should value all assets constituting the RAB of the modelled network on the basis of replacement costs, except for reusable legacy civil engineering assets. 34.

NRAs should value reusable legacy civil engineering assets and their corresponding RAB on the basis of the indexation method. Specifically, NRAs should set the RAB for this type of assets at the regulatory accounting value net of the accumulated depreciation at the time of calculation, indexed by an appropriate price index, such as the retail price index. NRAs should examine the accounts of the SMP operator

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where available in order to determine whether they are sufficiently reliable as a basis to reconstruct the regulatory accounting value. They should otherwise conduct a valuation on the basis of a benchmark of best practices in comparable Member States. NRAs should not include reusable legacy civil engineering assets that are fully depreciated but still in use. 35. When applying the method for asset valuation set out in point 34, NRAs should lock-in the RAB corresponding to the reusable legacy civil engineering assets and then roll it forward from one regulatory period to the next. 36. NRAs should set the lifetime of the civil engineering assets at a duration corresponding to the expected period of time during which the asset is useful and to the demand profile. This is normally not less than 40 years in the case of ducts. 37. In light of the principle of technological neutrality NRAs should consider various approaches to modelling the hypothetical efficient NGA network depending on the access technology and network topology that best fit national circumstances. When determining the access prices of services that are entirely based on copper, NRAs should adjust the cost calculated for the modelled NGA network to reflect the different features of wholesale access services that are based entirely on copper. For this purpose, the NRAs should estimate the cost difference between an access product based on for example FttC/FttH and an access product based entirely on copper by replacing the optical elements with efficiently priced copper elements, where appropriate, in the NGA engineering model. Where appropriate, NRAs could otherwise obtain the copper cost by modelling an NGA overlay network, where two networks (copper and fibre, either FttH or FttC) share to an extent the same civil infrastructure. Implementation of the costing methodology 38. NRAs should take into account the principle of regulatory transparency and predictability and the need to ensure stability without significant fluctuations when setting cost-oriented access prices, both when developing the costing methodology recommended in points 30 to 37 (the ‘recommended costing methodology’) and when implementing it once it is finalised or when using a methodology in accordance with point 40. 39. NRAs should ensure that the recommended costing methodology is implemented by 31 December 2016 at the latest, with the exception of the NRAs complying with point 40. 40. When imposing cost-oriented access prices, NRAs may continue to apply beyond 31 December 2016 the costing methodology that they use at the time of entry into force of this Recommendation, if it meets the objectives of the recommended costing methodology as set out in recitals 25 to 28 and satisfies the following criteria: (i) if not modelling an NGA network, it should reflect a gradual shift from a copper network to an NGA network; (ii) it should apply an asset valuation method that takes into account that certain civil infrastructure assets would not be replicated in the competitive process; (iii) it should be accompanied by documented projections of copper network prices showing that they will not fluctuate significantly and therefore will remain stable over a long time period and that the alternative methodology meets the objective of regulatory transparency and predictability as well as the need to ensure price stability; and (iv) it should require only minimal modifications with respect to the costing methodology already in place in that Member State in order to meet the first three criteria.



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41. The Commission anticipates that, in light of access prices in Member States observed and bearing in mind the potential for limited local cost variations, the application of the key features of the recommended costing methodology, i.e. being based on a modern efficient network, reflecting the need for stable and predictable wholesale copper access prices over time, and dealing appropriately and consistently with the impact of declining volumes, and of the methodologies used pursuant to point 40, is likely to lead to stable copper access prices and a Union average monthly rental access price for the full unbundled copper local loop within a band between EUR 8 and EUR 10 (net of all taxes) expressed in 2012 prices (the price band). 42. As a result of the above, in those Member States, where at the time of entry into force of this Recommendation, the monthly rental prices for the full unbundled copper local loop fall within the price band, as adjusted according to the Union average (annual) retail price index, NRAs may continue to apply until 31 December 2016 the costing methodology that they use at the time of entry into force of this Recommendation. This is without prejudice to the possibility for NRAs complying with point 40 to continue to apply such methodology beyond this period. NRAs must bear in mind the objectives of regulatory transparency and predictability as well as the need to ensure price stability without significant fluctuations. 43. Save in cases covered by point 40, in those Member States, where, at the time of entry into force of this Recommendation, monthly rental prices for the full unbundled copper local loop fall outside the price band, NRAs should calculate costs and resulting access prices on the basis of the recommended costing methodology as soon as possible and notify the corresponding draft measure in accordance with the consultation procedure in Article  7 of Directive 2002/21/ EC in due time, to ensure full implementation of the recommended costing methodology by 31  December 2016, bearing in mind the potential need for gradual price adjustments, in particular in those Member States where access prices are currently not cost oriented. The timing of the notification should take into account that where the difference between the regulated rate in place at the time of entry into force of this Recommendation and the rate resulting from the NRA’s application of the recommended costing methodology is significant, the NRA should impose access prices which ensure gradually that the rate resulting from the NRA’s application of the recommended costing methodology is reached by 31  December 2016 at the latest, taking into account the impact that sudden price adjustments may have on competition. For the avoidance of doubt, NRAs are not required to impose access prices within the band when they apply the recommended costing methodology or a methodology used pursuant to point 40. 44. NRAs intending to apply point 40 should notify the corresponding draft measure in accordance with the consultation procedure in Article 7 of Directive 2002/21/ EC as soon as possible and in due time for the Commission to review compliance with the Regulatory Framework, and this Recommendation in particular, and to ensure timely implementation. 45. In exceptional circumstances where an NRA is not in a position, in particular due to limited resources, to finalise the recommended costing methodology by 31 December 2016, it should set interim access prices on the basis of a benchmark that only considers an average of the access rates set by NRAs in comparable countries (in terms of cost inputs) and in compliance with this Recommendation. BEREC, including its related working groups, in cooperation with the Commission, should assist the NRA in implementing the recommended costing methodology as

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soon as possible in order to overcome this limitation of resources, in particular, the cost of implementing the recommended costing methodology. 46. Once NRAs have finalised the recommended costing methodology, they should consider maintaining it, in application of Article 8(5)(a) of Directive 2002/21/EC in order to promote regulatory predictability by ensuring stable access prices over at least two appropriate review periods, provided they maintain a price control obligation throughout this period. 47. When implementing the recommended costing methodology or alternative costing methodologies that comply with points 40 and 44, and the NRA maintains the methodology in line with point 46, NRAs should only update the data input into the costing methodology when conducting a new market review, in principle after three years. When updating the model, the NRAs should in principle, and provided that market conditions have remained stable, only adjust such data in line with the real evolution of individual input prices and should in any case ensure the full recovery over time of the costs incurred to provide the regulated wholesale access services. NRAs should publish the updated outcome of the costing methodology and resulting access prices over the relevant three-year period. NON-IMPOSITION OF REGULATED WHOLESALE ACCESS PRICES ON NGA NETWORKS 48. The NRA should decide not to impose or maintain regulated wholesale access prices on active NGA wholesale inputs, except those inputs specified in point 49 pursuant to Article 13 of Directive 2002/19/EC, where — in the same measure — the NRA imposes on the SMP operator non-discrimination obligations concerning passive and active NGA wholesale inputs pursuant to Article  10 of Directive 2002/19/EC that are consistent with: (a)

EoI, following the procedure in point 51;

(b) obligations relating to technical replicability under the conditions set out in points 11 to 18 when EoI is not yet fully implemented; and (c) obligations relating to the economic replicability test as recommended in point 56; provided that the actual take-up of upstream passive wholesale inputs or nonphysical or virtual wholesale inputs offering equivalent functionalities or the presence of alternative infrastructures create a demonstrable retail price constraint. 49. The NRA should decide not to impose or maintain regulated wholesale access prices on passive NGA wholesale inputs or non-physical or virtual wholesale inputs offering equivalent functionalities, pursuant to Article  13 of Directive 2002/19/ EC, where — in the same measure — the NRA imposes on the SMP operator non-discrimination obligations concerning passive NGA wholesale inputs or nonphysical or virtual wholesale inputs offering equivalent functionalities, pursuant to Article 10 of Directive 2002/19/EC, that are consistent with: (a)

EoI, following the procedure in point 51;

(b) obligations relating to technical replicability under the conditions set out in points 11 to 18 when EoI is not yet fully implemented; and (c) obligations relating to the economic replicability test as recommended in point 56; under the condition that:



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(d)

the NRA can show that a legacy access network product offered by the SMP operator subject to a cost-oriented price control obligation in accordance with the costing methodology specified in points 30 to 37 or 40 constitutes a copper anchor and thus exercises a demonstrable retail price constraint; or

(e)

the NRA can show that operators providing retail services over one or more alternative infrastructures that are not controlled by the SMP operator can exercise a demonstrable retail price constraint. For the purposes of this condition, ‘control’ should be interpreted in accordance with competition law principles.

50. In geographic markets where the conditions listed in points 48 and 49 are fulfilled only in some areas within such markets, NRAs should differentiate remedies and maintain or impose price control obligations in accordance with Article  13 of Directive 2002/19/EC only in those areas where such conditions are not fulfilled. NRAs should implement the recommended costing methodology so that the outcome is not affected by the imposition of differentiated remedies within a particular geographic market. 51. An NRA is deemed to impose EoI in accordance with points 48(a) and 49(a) when it includes this remedy, which has been subject to a consultation under Article 7 of Directive 2002/21/EC, in the same final measure in which it decides not to impose or maintain regulated wholesale access prices on NGA wholesale inputs. The measure should include the details and the timing of the implementation of EoI (the ‘roadmap’). The roadmap should include specific milestones with a timetable for implementation of each milestone. The first milestones should, as a minimum, include obligations to ensure technical replicability and provide for imposition of the most relevant KPIs, SLAs and SLGs necessary for the provision of the key regulated wholesale services as soon as possible and no later than six months from the imposition of the EoI obligation. 52. NRAs should not impose regulated wholesale access prices on any regulated NGA wholesale input within the same market where the conditions set out in points 48 and 49 are met, irrespective of whether the EoI obligation is imposed on the full set of inputs in that market or if it only applies to those levels of that market that the NRA deems proportionate. 53. The NRA’s decision not to impose or maintain regulated wholesale access prices should not apply to civil engineering infrastructure access, whether part of the product market or imposed as an ancillary remedy. 54. When an NRA has decided to lift previously imposed regulated wholesale access prices on the basis of an agreed EoI roadmap, and the SMP operator fails to deliver the agreed milestones, the NRAs should consider to reimpose regulated wholesale access prices in line with the methodology in this Recommendation and in accordance with the principles provided for in Directive 2002/19/EC or consider to make use of its powers to impose penalties in accordance with the Regulatory Framework. 55. NRAs should accompany the decision not to impose or maintain regulated wholesale access prices with measures, which monitor the evolution of the investment environment for NGA broadband and of competitive conditions, namely by asking operators to provide the NRA with up-to-date information on investment and NGA roll-out plans on a regular basis, which the NRA should, where legally possible, then share with the dedicated network of experts between the Commission and BEREC described in recital 69.

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56. An NRA is deemed to impose the economic replicability obligations referred to in points 48(c) and 49(c) when it includes the elements listed in points (a), (b) and (c), which have been subject to a consultation under Article 7 of Directive 2002/21/EC, in the same final measure in which it decides not to impose or maintain regulated wholesale access prices on NGA wholesale inputs: (a) The details of the ex-ante economic replicability test that the NRA will apply, which should specify, at least the following parameters in accordance with the guidance provided in Annex II below: (i)

the relevant downstream costs taken into account;

(ii) the relevant cost standard; (iii) the relevant regulated wholesale inputs concerned and the relevant reference prices; (iv) the relevant retail products; and (v) the relevant time period for running the test. (b) The procedure that the NRA will follow to conduct an ex-ante economic replicability test, specifying that the NRA can start the procedure on its own initiative or at the request of third parties, at any time but no later than three months after the launch of the relevant retail product, and will conclude it as soon as possible and in any case within four months from starting the procedure. The procedure should make clear that the ex-ante economic replicability test to be performed by NRAs under points 48(c) and 49(c) is different from and without prejudice to margin squeeze tests that may be conducted ex post pursuant to competition law. (c)

The remedy it will adopt when the test is not passed using the enforcement tools provided under the Regulatory Framework to ensure compliance, including where appropriate a request for the SMP operator to address the economic replicability issue in accordance with the NRA’s guidance and on the basis of the results of the ex-ante economic replicability test performed. Where the NRA considers that a retail offer which is not economically replicable would significantly harm competition, it should make use of its powers under Article  10 of Directive 2002/20/EC to request the SMP operator to cease or delay the provision of the relevant retail offer pending compliance with the requirement for economic replicability.

57. Once the measure has been adopted, the NRA should make public on its website the roadmap and the details of the ex-ante economic replicability test as part of the final measure. The NRA should consider using all the enforcement tools provided under the Regulatory Framework to ensure compliance with all aspects of the imposed measures. 58. The conditions set out in the points 48-57 should not be seen as the only circumstances under which NRAs can decide not to impose regulated access prices for NGA wholesale inputs. Depending on the demonstration of effective equivalence of access and on competitive conditions, in particular effective infrastructure-based competition, there may be additional scenarios where the imposition of regulated wholesale access prices is not warranted under the Regulatory Framework. FINAL PROVISIONS 59. This Recommendation is without prejudice to market definitions, results of market analyses and regulatory obligations adopted by national regulatory authorities in



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accordance with Article 15(3) and Article 16 of Directive 2002/21/EC prior to the date of entry into force of this Recommendation. 60. This Recommendation foresees a transition period until 31 December 2016 for the implementation of the recommended costing methodology under points 3037. As a result, it is deemed to produce its effect progressively and over a longer time period. The impact on investment, competition and retail prices will be closely monitored by BEREC and the Commission, also based on the information provided by NRAs pursuant to point 55. This Recommendation will be reviewed once its impact can be fully assessed, which is not expected to be the case before seven years following entry into force. The Commission may decide to conduct an earlier review in light of market developments. This Recommendation is addressed to the Member States. Done at Brussels, 11 September 2013. For the Commission Neelie KROES Vice-President ANNEX I Specification of Lead time and provisions of information When assessing the reasonable length of the required lead time, NRAs should take into account the following factors: (1) if the product is a new product or is an update of an existing product; (2) the time necessary to consult and agree on the wholesale processes for the provision of the relevant services; (3) the time necessary to produce a reference offer and sign contracts; (4) the time necessary to modify or update relevant IT systems; (5) the time necessary to market the new retail offer. ANNEX II Parameters of the ex-ante economic replicability test When the EoI obligations are already implemented or are in the process of being implemented in accordance with point 51 and when technical replicability is ensured, the ex-ante economic replicability test referred to in point 56 assesses whether the margin between the retail price of the relevant retail products and the price of the relevant NGAbased regulated wholesale access inputs covers the incremental downstream costs and a reasonable percentage of common costs. When setting the parameters of the ex-ante economic replicability test, NRAs should ensure that the SMP operator is not put at a disadvantage vis-à-vis access seekers regarding the sharing of the investment risk. The parameters referred to in point 56(a) are: (i) Relevant downstream costs Downstream costs are estimated on the basis of the costs of the SMP operator’s own downstream businesses (EEO test). NRAs should use the SMP operator’s audited downstream costs, provided they are sufficiently disaggregated. Where market entry or expansion has been frustrated in the past (as shown for example, by past behavioural findings) or where very low volumes of lines and their significantly limited geographic reach as compared to the SMP operator’s NGA network indicate that objective economic conditions do not favour the acquisition of scale by alternative operators, NRAs may make adjustments for scale to the SMP operator’s downstream costs in order to ensure that economic replicability

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is a realistic prospect. In such cases, the reasonably efficient scale identified by the NRA should not go beyond that of a market structure with a sufficient number of qualifying operators to ensure effective competition, bearing in mind also competition from other platforms. (ii) Relevant cost standard The incremental cost of providing the relevant downstream service is the appropriate standard. A LRIC + model should be used to calculate the incremental cost (including sunk costs) and to add a mark-up for common costs related to the downstream activities. (iii) Relevant regulated wholesale inputs and the relevant reference prices NRAs should identify the most relevant regulated inputs used or expected to be used by access seekers at the NGA-based wholesale layer that is likely to be prevalent within the time-frame of the current market review period in view of the SMP operator’s rollout plans, chosen network topologies and take-up of wholesale offers. Such an input may consist of an active input, a passive input or a non-physical or virtual input offering equivalent functionalities to a passive input. NRAs should undertake the ex-ante economic replicability test in order to assess the margin earned between the retail product(s) referred to in (iv) below and the most relevant regulated input identified at the chosen NGA-based wholesale layer. In addition, where justified, in particular when a retail product referred to in point (iv) is launched based on a different input than the one previously identified, or when there is a substantial demand for access at a new NGA-based wholesale layer, NRAs should also assess the margin earned between the retail product and the new NGA-based regulated wholesale input. If the SMP operator’s network characteristics and the demand for wholesale offers vary greatly throughout the territory of a Member State, the NRA should assess the feasibility of differentiating the most relevant NGA-based regulated wholesale layer per geographic area and adapt the test accordingly. When identifying the relevant reference wholesale price, NRAs should consider the access price that the SMP operator effectively charges third-party access seekers for the relevant regulated wholesale input. These wholesale access prices should be equivalent to the prices that the SMP operator charges to its own retail arm. In particular, in order to ensure the right balance in national circumstances between incentivising efficient and flexible pricing strategies at the wholesale level and at the same time ensuring a sufficient margin for access seekers to maintain sustainable competition, NRAs should give due weight to the presence of volume discounts and/or long-term access pricing agreements between the SMP operator and access seekers. (iv) Relevant retail products NRAs should assess the most relevant retail products including broadband services (‘flagship products’) offered by the SMP operator on the basis of the identified NGA-based wholesale access layer. NRAs should identify flagship products on the basis of their current and forward-looking market observations, in particular taking account of their relevance for current and future competition. This should include an assessment of retail market shares in terms of the volume and value of products based on NGA regulated wholesale inputs and, where



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available, advertising expenditure. Flagship products are likely to be offered as a bundle. NRAs should assess innovative variations of such bundles, if they are likely to replace the flagship product. In addition, NRAs should consider whether a particular retail product, which may not be among the most relevant retail products of the SMP operator, is particularly attractive to alternative operators that may focus on a certain niche or lower quality retail products. NRAs may decide to include such a product among the flagship products. (v) Relevant time period NRAs should evaluate the profitability of the flagship products on the basis of a dynamic multi-period analysis, such as the discounted cash flow (DCF) approach. NRAs should identify an adequate reference time period over which to assess whether the margin between the retail price of the flagship product and the price of the relevant NGA-based wholesale access input allows for the recovery of the downstream costs (including a reasonable percentage of common costs) calculated on the basis of (i) and (ii) above. The relevant period for this ex-ante economic replicability test should be set in accordance with the estimated average customer lifetime. Such average customer lifetime would be the period of time over which the customer contributes to the recovery of the: (a) downstream costs that are annualised according to a depreciation method that is appropriate to the asset in question and the economic lifetime of the corresponding assets required for the retail operations (including network costs that are not included in the wholesale NGA access service); and (b) other downstream costs that are normally not annualised (typically the subscriber acquisition costs) and which the operator incurs to gain customers and should seek to recover over the latters’ average lifetime. When estimating the average customer lifetime, NRAs should take due account of the different characteristics and competitive conditions of the provision of services over NGA networks compared to the legacy copper network, where these are likely to result in users of NGA networks having different average customer lifetimes compared to users of the copper network. The guidance provided for the ex-ante economic replicability test referred to in point 56 and in the present Annex is limited to the scope of this Recommendation, which relate to the application of Articles 15 and 16 of Directive 2002/21/EC together with Articles 10 and 13 of Directive 2002/19/EC, and therefore applies in different circumstances than ex-ante margin squeeze tests applied on regulated wholesale access prices and is entirely without prejudice to application of the competition rules by the Commission and/or national competent authorities, and to their interpretation by the General Court and the Court of Justice of the European Union. This guidance is also without prejudice to any action that the Commission may take or any guidelines that the Commission may issue in the future with regard to the application of competition law in the Union.

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COMMUNICATION FROM THE COMMISSION Guidelines on market analysis and the assessment of significant market power under the EU regulatory framework for electronic communications networks and services[46] (Text with EEA relevance) (2018/C 159/01) 1. INTRODUCTION 1.1. Scope and purpose 1. The Commission adopted the guidelines on market analysis and the assessment of significant market power (SMP Guidelines) in accordance with Article 15(2) of Directive 2002/21/EC of the European Parliament and of the Council (47), following a public consultation, the results of which have been duly taken into account. The SMP Guidelines are accompanied by an Explanatory Note (48), and shall be read in light of the additional information contained therein. 2. The SMP Guidelines are addressed to national regulatory authorities (NRAs) to carry out their duties related to the analysis of markets susceptible to ex ante regulation and the assessment of significant market power under the EU Regulatory Framework for electronic communications and services which consists of Directive 2002/21/EC, three specific Directives 2002/19/EC (49), 2002/20/EC (50), 2002/22/EC (51) and Regulation (EU) No 531/2012 (52) (the Framework). In line with Article 15 of Directive 2002/21/EC NRAs shall take utmost account of both the Commission Recommendation 2014/710/EU (53) and these SMP Guidelines in order to define relevant markets for ex ante regulation. 3. In line with Article  8 of Directive 2002/21/EC, the SMP  Guidelines intend to contribute to the development of the internal market in the electronic communications sector by, inter alia, developing a consistent regulatory practice and a consistent application of the Framework. 4. The SMP Guidelines do not in any way restrict the rights conferred by EU law on individuals or undertakings. They are without prejudice to the application of EU law OJ C 159, 7.5.2018, p. 1. 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 (OJ L 108, 24.4.2002, p. 33). 48 Explanatory Note accompanying Guidelines on market analysis and the assessment of significant market power under the EU regulatory framework for electronic communications networks and services, SWD(2018)124. 49 Directive 2002/19/EC of the European Parliament and of the Council of 7  March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive) (OJ L 108, 24.4.2002, p. 7). 50 Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive) (OJ L 108, 24.4.2002, p. 21). 51 Directive 2002/22/EC of the European Parliament and of the Council of 7  March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) (OJ L 108, 24.4.2002, p. 51). 52 Regulation (EU) No 531/2012 of the European Parliament and of the Council of 13 June 2012 on roaming on public mobile communications networks within the Union (OJ L 172, 30.6.2012, p. 10), as amended by Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25  November 2015 (OJ L 310, 26.11.2015, p. 1) and Regulation (EU) 2017/920 of the European Parliament and of the Council of 17 May 2017 (OJ L 147, 9.6.2017, p. 1). 53 Commission Recommendation 2014/710/EU of 9 October 2014 on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services (OJ L 295, 11.10.2014, p. 79). 46 47



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in general, and of competition rules more specifically, and to their interpretation by the Court of Justice of the European Union. The SMP Guidelines do not prejudice any action the Commission may take or any guidance the Commission may issue in the future with regard to the application of EU competition law. 5.

The Commission will replace the SMP Guidelines, whenever appropriate, taking into account evolving case-law of the Court of Justice of the European Union, economic thinking and actual market experience with the objective of ensuring that they remain appropriate in rapidly developing markets.

6.

These SMP Guidelines specifically address issues of market definition as well as single and collective SMP.

7.

The SMP Guidelines do not deal with coordination in the context of concerted practices under Article 101(1) of the Treaty on the Functioning of the European Union (the Treaty). Nor do they address market structures with a limited number of market players where the criteria of joint dominance as applied by the Court of Justice of the European Union are not met.

1.2. Preliminary remarks 8.

Under Article 8 of Directive 2002/21/EC NRAs shall ensure that in carrying out the regulatory tasks under the Framework they take all reasonable measures which are aimed at achieving the regulatory objectives contained therein, inter alia, promoting efficient investment in and access to new and enhanced infrastructures.

9.

Under the Framework, the definition of relevant markets and the assessment of significant market power should be based on the same methodologies as under EU competition law. This ensures that it reflects the applicable jurisprudence of the Court of Justice of the European Union and the Commission Notice on the definition of relevant markets for the purposes of Community competition law (the 1997 Notice on Market Definition) (54) and that it takes into account, to the extent relevant, the Commission’s decisional practice in the enforcement of Article 102 of the Treaty and Article 2 of Council Regulation (EC) No 139/2004 (55). When NRAs consistently apply established methodologies to define markets and assess significant market power, they contribute to ensuring regulatory predictability and limit regulatory intervention to cases of market failures identified by analytical tools.

10. When examining similar issues in similar circumstances and with the same overall objectives in mind, NRAs and competition authorities, should, in principle, reach similar conclusions. However, given the differences in scope and objectives of their intervention, and in particular the distinct focus and circumstances of the NRAs’ assessment as set out below, markets defined for the purposes of EU competition law and those defined for the purposes of sector-specific regulation might not always be identical. 11. Similarly, the designation of an undertaking as having significant market power in a market identified for the purpose of ex ante regulation does not automatically Commission Notice on the definition of relevant market for the purposes of Community competition law (OJ C 372, 9.12.1997, p. 5) (1997 Notice on Market Definition). For the purposes of the application of competition law, the 1997 Notice on Market Definition explains that the concept of the relevant market is closely linked to the objectives pursued under relevant policies, ex post enforcement under Articles 101 and 102 of the Treaty or ex ante assessment under the EU Merger Regulation. 55 Council Regulation (EC) No  139/2004 of 20  January 2004 on the control of concentrations between undertakings (OJ L 24, 29.1.2004, p. 1). 54

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imply that this undertaking is also dominant for the purpose of Article 102 of the Treaty or for the purpose of application of Council Regulation (EC) No 139/2004 (56) or similar national provisions. Moreover, a significant market power (SMP) designation has no direct bearing on whether that undertaking has also abused a dominant position under Article 102 of the Treaty. It merely implies that, within the scope of Article 14 of the Directive 2002/21/EC, from a structural perspective, and in the short to medium term, in the relevant market identified the operator has and will have, sufficient market power to behave to an appreciable extent independently of its competitors, customers, and ultimately consumers. 12. In practice, it cannot be excluded that parallel procedures under ex ante regulation and EU competition law may apply with respect to different types of competition problem(s) identified on the underlying retail market(s). In this respect, ex ante obligations imposed by NRAs on undertakings designated as having significant market power aim to remedy market failures identified and fulfil the specific objectives set out in the Framework. On the other hand EU competition law instruments serve to address and remove concerns in relation to illegal agreements, concerted practices or unilateral abusive behaviour which restrict or distort competition in the relevant market. 1.3. The regulatory approach to market analysis 13. In carrying out a market analysis in accordance with Article  16 of Directive 2002/21/EC, NRAs will conduct a forward-looking, structural evaluation of the relevant market over the relevant period. 14. The length of the relevant period (the next review period) is the one between the end of the ongoing review and the end of the next market review (57), within which the NRA should assess specific market characteristics and market developments. 15. The starting point for the identification of wholesale markets susceptible for ex ante regulation should always be the analysis of corresponding retail market(s). 16. NRAs should determine whether the underlying retail market(s) is (are) prospectively competitive in absence of wholesale regulation based on a finding of single or collective significant market power, and thus whether any lack of effective competition is durable (58). 17. To this aim, NRAs should take into account existing market conditions as well as expected or foreseeable market developments over the course of the next review period in the absence of regulation based on significant market power; this is known as a Modified Greenfield Approach (59). On the other hand, the analysis should take into account the effects of other types of (sector-specific) regulation, decisions or legislation applicable to the relevant retail and related wholesale market(s) during the relevant period. 18. If the underlying retail market(s) is (are) prospectively competitive under the Modified Greenfield Approach, the NRA should conclude that regulation is no longer needed at wholesale level.

OJ L 24, 29.1.2004, p. 1. Article 16(6) of the Framework Directive currently states that NRAs shall notify the Commission of new draft measures within three years of the adoption of a previous measure relating to that market. 58 Recital 27 of the Framework Directive. 59 Explanatory Note accompanying the Commission Recommendation 2014/710/EU, SWD(2014) 298, p. 8. 56 57



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19. NRAs should consider past and present data in their analysis when such data is relevant to the developments in that market over the next review period. In this respect, it needs to be underlined that any readily available evidence of past practice does not automatically suggest that this practice is likely to continue in the next review period. However, past practice is relevant if the market’s characteristics have not appreciably changed or are unlikely to do so over the next review period. 20. It follows from the above that both static and dynamic considerations should be reflected by the NRAs in the market analysis, with a view to addressing market failure(s) identified at retail level by imposing appropriate wholesale regulatory obligations, which should, inter alia, promote competition and contribute to the development of the internal market. These obligations should be based on regulatory principles set out in Article  8 of Directive 2002/21/EC, such as promoting regulatory predictability, efficient investment and innovation and infrastructure-based competition. 21. The analysis should be based on a functional understanding of links between the relevant wholesale and underlying retail market(s), as well as on other related market(s), if deemed appropriate by the NRAs. The Commission has underlined in previous decisions (60) that retail market conditions may inform an NRA of the structure of the wholesale market, but are not in themselves conclusive as regards a finding of significant market power at the wholesale level. As established in several Commission decisions under Article 7 of Directive 2002/21/EC (61), there is no need to prove single or collective significant market power at retail level, in order to establish that (an) undertaking(s) enjoy(s) single or collective significant market power in the relevant wholesale market(s). In line with recital 18 of the Recommendation 2014/710/EU, ex ante regulation at the wholesale level should be sufficient to tackle competition problems on the related downstream markets(s). 22. When analysing the market boundaries and market power within (a) corresponding relevant wholesale market(s) to determine whether it is/they are effectively competitive, direct and indirect competitive constraints should be taken into account irrespective of whether these constraints result from electronic communications networks, electronic communications services or other types of services or applications that are comparable from the end-user’s perspective (62). 23. According to recital 27 of Directive 2002/21/EC, emerging markets, where de facto the market leader is likely to have a substantial market share, should not be subject to inappropriate ex ante regulation. This is because the premature imposition of ex ante regulation may unduly influence the competitive conditions taking shape within a new and emerging market. At the same time, foreclosure of such emerging markets by the leading undertaking should be prevented. 2. MARKET DEFINITION 2.1. Main criteria for defining the relevant market 24. In assessing whether an undertaking has significant market power, that is whether it ‘enjoys a position of economic strength affording it the power to behave to an appreciable extent independently of its competitors, customers and ultimately

Cases FI/2004/0082, ES/2005/0330 and NL/2015/1727. See also CZ/2012/1322. Cases IE/2004/0121, ES/2005/0330, SI/2009/0913 and NL/2015/1727. 62 See point 4 of the Commission Recommendation 2014/710/EU and its Explanatory Note and Case FR/2014/1670. 60 61

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consumers’ (63), defining the relevant market (64) is of fundamental importance as effective competition can only be assessed against this definition (65). 25. As explained in paragraph  9, the market must be defined in line with the methodology described in the 1997 Notice on Market Definition. Market definition is not a mechanical or abstract process but requires the analysis of all available evidence of past market behaviour and an overall understanding of the mechanics of a given sector. In particular, a dynamic rather than a static approach is required when carrying out a prospective, or forward-looking, market analysis (66). 26. The starting point of any analysis should be an assessment of relevant retail market(s), taking into account demand-side and supply-side substitutability from the end-user’s perspective over the next review period based on existing market conditions and their likely development. Having identified the relevant retail market(s) and established whether absent regulatory intervention upstream, a risk of consumer harm due to a lack of competition in the retail market(s) would persist, NRAs should then identify the corresponding wholesale market(s) to assess whether they are susceptible to ex ante regulation under Article 16 of Directive 2002/21/EC (67). They should start by identifying and analysing the wholesale market that is most upstream of the retail market in which said competition problems have been found, and defining market boundaries by taking into account demand-side and, to the extent relevant, supply-side substitutability of products. 27. The extent to which the supply of a product or the provision of a service in a given geographical area constitutes a relevant market depends on the existence of competitive constraints on the price-setting behaviour of the service provider(s) concerned. There are two main competitive constraints to consider in assessing the behaviour of undertakings in the market; (i) demand-side; and (ii) supply-side substitution (68). A third source of competitive constraint on an operator’s behaviour – to be considered not at the stage of market definition but when assessing whether a market is effectively competitive within the meaning of Directive 2002/21/EC – is the existence of potential competition (69). 28. Demand-side substitutability is used to measure the extent to which customers are prepared to substitute other services or products for the service or product

Article 14(2) of Directive 2002/21/EC. The use of the term ‘relevant market’ implies the description of the products or services that make up the market and the assessment of the geographical scope of that market and the terms ‘products’ and ‘services’ are used interchangeably throughout this text. According to paragraph 7 of the 1997 Notice on Market Definition, a relevant product market ‘comprises all those products and/or services which are regarded as interchangeable or substitutable by the consumer, by reason of the products’ characteristics, their prices and their intended use’. 65 Case C-209/98, Entreprenørforeningens Affalds EU:C:2000:279, paragraph 57 and Case C-242/95 GTLink EU:C:1997:376, paragraph 36. It should be recognised that the objective of market definition is not an end in itself, but part of a process, namely assessing the degree of an undertaking’s market power. 66 Joined Cases C-68/94 and C-30/95, France and Others v Commission EU:C:1998:148. See, also, 1997 Notice on Market Definition at paragraph 12. 67 The main product and service markets whose characteristics may be such as to warrant, in principle, the imposition of ex ante regulatory obligations are identified in the Recommendation 2014/710/EU, of which NRAs are required to take utmost account when defining relevant markets. 68 As is also stated in the 1997 Notice on Market Definition, from an economic point of view, for the definition of the relevant market, demand-side substitution constitutes the most immediate and effective disciplinary force on the suppliers of a given product, in particular in relation to their pricing decisions. 69 See also 1997 Notice on Market Definition, paragraph 24. 63 64



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in question (70), whereas supply-side substitutability indicates whether suppliers other than those offering the product or service in question would switch their line of production in the immediate-to-short term (71) or offer the relevant products or services without incurring significant additional costs (72). Supply-side substitution is particularly relevant for network industries, such as electronic communications, as the same network may be used to provide different types of services (73). The difference between potential competition and supply-substitution lies in the fact that supply-side substitution responds promptly to a price increase whereas potential entrants may need more time before starting to supply the market. Supply substitution involves no additional significant costs whereas potential entry may occur at significant sunk costs (74) and is, for this reason, not taken into account at the stage of market definition (75). 29. One possible way of assessing the existence of any demand and supply-side substitution is to apply a so-called ‘hypothetical monopolist’ or SSNIP test (76). Under this test, an NRA should ask what would happen if there was a small but significant and non-transitory increase in the price of a given product or service, assuming that the prices of all other products or services remain constant (‘relative price increase’). While the significance of a relative price increase will depend on each individual case, NRAs should consider customer (consumer or undertaking) reactions to a small but non-transitory price increase of between 5 to 10 %. Customer responses will help determine whether substitutable products exist and, if so, where the boundaries of the relevant product market should be delineated (77). 30. As a starting point, the NRA should first identify an electronic communications service or product that is offered in a given geographical area and may be subject to the imposition of regulatory obligations. Subsequently, the NRA may add additional products or areas depending on whether competition from these constrains the price of the main product or service in question. Since a relative price increase of a set of products is likely to lead some customers to switch to It is not necessary that all consumers switch to a competing product; it suffices that enough or sufficient switching takes place so that a relative price increase is not profitable. This requirement corresponds to the principle of ‘sufficient interchangeability’ laid down in the case-law of the Court of Justice; see footnote 27. 71 The notion of ‘short term’ depends on market characteristics and national circumstances. In COMP/39.525, Telekomunikacja Polska, the Commission set out, in paragraph 580 that ‘there is supply-side substitution where suppliers are able to switch production to the relevant products and market them in short term in response to small and permanent changes in relative prices’. According to footnote 4 in paragraph 20 of the 1997 Notice on Market Definition, the relevant period is ‘such a period that does not entail a significant adjustment of existing and intangible assets’. 72 See also 1997 Notice on Market Definition, paragraph 20. 73 See COMP/39.525, Telekomunikacja Polska, paragraph 580. 74 See, also, the 1997 Notice on Market Definition, paragraphs 20-23, Case IV/M.1225 – Enso/Stora, OJ L 254, 29.9.1999, paragraph 39. 75 See also 1997 Notice on Market Definition, paragraph 24. 76 See Case T-83/91, Tetra Pak v Commission EU:T:1994:246, paragraph 68. The test is also known as the SSNIP (small but significant non-transitory increase in price) test. Although the SSNIP test is but one example of a method used for defining the relevant market and notwithstanding its formal econometric nature or its margin for errors (the so-called ‘cellophane fallacy’), its importance lies primarily in its use as a conceptual tool for assessing evidence of competition between different products or services. 77 In other words, where the cross-price elasticity of demand between two products is high, one may conclude that consumers view these products as close substitutes. Where consumer choice is influenced by considerations other than price increases, the SSNIP test may not be an adequate measurement of product substitutability; see Case T-25/99, Colin Arthur Roberts and Valérie Ann Roberts v Commission, EU:T:2001:177. See also 1997 Notice on Market Definition, paragraph 17. 70

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alternative services or products resulting in sales being lost, the key issue is to determine whether the sales lost by the operators would be sufficient to offset their increased profits, which would otherwise be made following the price increase. Assessing demand- and supply-side substitution provides a way of measuring the ‘critical loss’ of sales (rendering a relative price increase unprofitable) and consequently of determining the scope of the relevant market. The NRA should therefore apply this test up to the point where it can be established that a relative price increase within the geographic and product markets defined will be profitable, i.e., will no longer cause a critical loss of sales to readily available substitutes or to suppliers located in other areas. 31. In competition law, the hypothetical monopolist test is applied with regard to products or services, the prices of which are freely determined and not subject to regulation. In the area of ex ante regulation, i.e. where a product or service is already offered at regulated, cost-based price, a regulated price will be assumed to be set at competitive levels (78) and should be taken as the starting point for the hypothetical monopolist test. 32. It is likely to be difficult to apply the SSNIP test empirically where there is not a readily available product and price. If no such product, commercial or regulated, exists on a network but could (potentially) technically and commercially be offered, NRAs should consider self-supply on that network for the delineation of markets and construct a notional market encompassing the self-supply, where there is consumer harm at the retail market and potential demand for such product exists (79). 2.2. Product market definition 33. According to settled case-law, the relevant product market comprises all products or services that are sufficiently interchangeable or substitutable, not only in terms of their objective characteristics, their prices or their intended use, but also in terms of the conditions of competition and/or the structure of supply and demand in the market in question (80). Products or services that are only interchangeable to a small or relative degree do not form part of the same market (81). NRAs should thus commence the exercise of defining the relevant product or service market by

This assumption can be rebutted if there are strong indications that the previously regulated price has not been set at competitive levels. In such circumstances it may be appropriate to use as a starting point a price resulting from an updated cost model or benchmarking. 79 Explanatory note to the Recommendation 2014/710/EU, SWD(2014)298, page 18; Case NL/2015/1727, C(2015)3078. See also CZ/2017/1985. 80 Case C-333/94  P, Tetra Pak v Commission EU:C:1996:436, paragraph  13, Case 31/80  L’Oréal EU:C:1980:289, paragraph  25, Case 322/81, Michelin v Commission EU:C:1983:313, paragraph  37, Case C-62/86, AkzoChemie v Commission EU:C:1991:286, paragraph  51, Case T-504/93, Tiercé Ladbroke v Commission EU:T:1997:84, paragraph 81, T-65/96, Kish Glass v Commission EU:T:2000:93, paragraph  62, Case C-475/99, Ambulanz Glöckner and Landkreis Südwestpfalz EU:C:2001:577, paragraph 33. The test of sufficient substitutability or interchangeability was first laid down by the Court of Justice in Case 6/72, Europemballage and Continental Can v Commission EU:C:1973:22, paragraph 32 and Case 85/76, Hoffmann La-Roche v Commission EU:C:1979:36, paragraph 23. 81 Case C-333/94  P, Tetra Pak v Commission EU:C:1996:436, paragraph  13, Case 66/86, Ahmed Saeed EU:C:1989:140, paragraphs 39 and 40, Case 27/76, United Brands v Commission EU:C:1978:22, paragraphs 22 and 29, and 12; Case T-229/94, Deutsche Bahn v Commission EU:T:1997:155, paragraph 54. In Tetra Pak, the Court confirmed that the fact that demand for cartons used for packaging fruit juice was marginal and stable over time compared to the demand for cartons used for packaging milk was evidence of a very little interchangeability between the milk and the non-milk packaging sector, idem, paragraphs 13 and 15. 78



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grouping together products or services that are used by consumers for the same purpose (end use). 34. Although the end use of a product or service is closely related to its physical characteristics, different types of products or services may be used to achieve the same end. 35. Product substitutability between different services may arise through the increasing convergence of various technologies, which often allows operators to offer similar retail product bundles. The use of digital transmission systems, for example, can lead to similarities in the performance and characteristics of network services using distinct technologies. 36. In addition, so called ‘over-the-top’ (OTT) services or other internet-related communications paths have emerged as a potential competing force to established retail communications services. As a result, NRAs should assess whether such services may, on a forward-looking basis, provide partial or full substitutes to traditional telecommunications services (82). 37. Therefore, in addition to considering products or services whose objective characteristics, prices and intended use make them sufficiently interchangeable, NRAs should also examine, where necessary, the prevailing conditions of demand and, where appropriate, supply substitution by applying a hypothetical monopolist or SSNIP test in order to complete their market-definition analysis. Demand-side substitution 38. Demand-side substitution makes it possible for NRAs to determine the substitutable products or range of products to which customers could easily switch in response to a hypothetical small but significant and non-transitory relative price increase. In determining the existence of demand substitutability, NRAs should make use of any evidence of previous customers’ behaviour as well as assess the likely response of customers and suppliers to such price increase of the service in question. 39. The possibility for customers to substitute a product or a service for another because of a small but significant and non-transitory relative price increase may, however, be hindered by, inter alia, significant switching costs. Customers who have invested in a specific technology or made any other necessary investments in order to receive a service or use a product may be unwilling to incur any additional costs involved in switching to an otherwise substitutable service or product or may find the costs of switching prohibitively high. In the same vein, customers of existing providers may be locked in by long-term contracts. Accordingly, in a situation where customers face significant switching costs in order to substitute product A for product B, these two products may not belong to the same relevant market. 40. At retail level, technological developments have generally led to inter-platform competition, as retail services have been found to be equivalent and increasingly

Where no sufficient substitutability patterns can be established to warrant including such OTT-based services in the relevant product market, NRAs should, nevertheless, consider the potential competitive constraints exercised by these services at the stage of the SMP assessment (see also cases CZ/2017/1985 as well as CZ/2012/1322 and further below).

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interchangeable (83). In order to determine whether different wholesale platforms such as copper, fibre and cable should be included in a single wholesale market the SSNIP test should be applied. Given the forward-looking character of the analysis, such assessment should take into account that potential access seekers who are not yet providing access-based services do not have to consider switching costs when choosing their access platform. This assessment should address, on a case-by-case basis, the significance of such entry, while bearing in mind that the scale of future entry is inherently difficult to predict. Furthermore, such analysis should assume a hypothetical competitive access regime facilitated by regulation, disregarding non-objectively justifiable impediments to switch which may have been artificially inflated by the network operators to prevent switching away from, or to a given platform. Supply-side substitution 41. In assessing the scope for supply substitution, NRAs may also take into account the likelihood that undertakings not currently active on the relevant product market may decide to enter the market, within a short timeframe, following a small but significant and non-transitory relative price increase. The exact timeframe to be used to assess the likely responses of other suppliers to a relative price increase will inevitably depend on the characteristics of each market and should be decided on a case-by-case basis. In circumstances where the overall costs of switching production to the product in question are relatively negligible, the product may be included into the product market definition. NRAs will need to ascertain whether a given supplier would actually use or switch its productive assets to produce the relevant product or offer the relevant service (for instance, whether their capacity is committed under long-term supply agreements, etc.). 42. Account should also be taken of any existing legal or other regulatory requirements that could hinder time-efficient entry into the relevant market and as a result discourage supply-side substitution. Chain of substitution 43. The boundaries of the relevant market may be expanded to take into consideration products or geographical areas which, although not directly substitutable, should be included in the market definition because of chain substitutability (84). Chain substitutability occurs where it can be demonstrated that although products A and C are not directly substitutable, product B is a substitute for both product A and product C  and therefore products A  and C  may be in the same product market since their pricing might be constrained by the substitutability of product B. The same reasoning also applies to defining the geographic market. Given the inherent risk of unduly widening the scope of the relevant market, findings of chain substitutability should be adequately substantiated (85). While NRA’s have generally found retail services provided over fixed networks to be in the same retail market irrespective of the underlying transmission platform (i.e. irrespective of whether the retail service was provided via coaxial cable, fibre or copper), they generally found retail services provided over fixed and mobile networks to be in separate markets. 84 See 1997 Notice on Market Definition, paragraphs 57 and 58. For instance, chain substitutability could occur where an undertaking providing services at national level constrains the prices charged by undertakings providing services in separate geographical markets. This may be the case where the prices charged by undertakings providing cable networks in particular areas are constrained by a dominant undertaking operating nationally. See also: Case COMP/M.1628 – TotalFina/Elf, paragraph 188. 85 Evidence should show clear price interdependence at the extremes of the chain. The degree of substitutability between the relevant products or geographical areas should be sufficiently strong. 83



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44. Where prices for previous or current generations of technologies can constrain prices for future generations, it is likely that a chain of substitution exists, which would justify the grouping of all generations of technologies in the same relevant product market. As such price-constraints will normally be observable for different generations of technology, they are generally considered to be in the same market. 45. Once most customers have switched to a higher performing infrastructure, a group of users may still be using the legacy technology. In this event, NRAs should take a regulatory approach that does not unduly perpetuate the cycle of captivity by defining overly narrow markets. 2.3. Geographic market definition 46. Once the relevant product market has been identified, the next step is to define its geographical dimension. It is only when the geographical dimension of the product or service market has been defined that an NRA may properly assess the competitive conditions on this market. 47. The process of delineating geographic markets follows the same principles as those discussed in the section above in relation to assessing demand- and supplyside substitution in response to a relative price increase. 48. According to established case-law, the relevant geographic market comprises an area in which the undertakings concerned are involved in the supply and demand of the relevant products or services, in which the conditions of competition are sufficiently homogeneous, and which can be distinguished from neighbouring areas in which the prevailing conditions of competition are significantly different (86). Areas in which the conditions of competition are heterogeneous do not constitute a uniform market (87). 49. With regard to the choice of the geographic unit from which an NRA should start its assessment, the Commission has frequently stated (88) that NRAs should ensure that these units: (a) are of an appropriate size, i.e. small enough to avoid significant variations of competitive conditions within each unit but big enough to avoid a resource-intensive and burdensome micro-analysis that could lead to market fragmentation, (b) are able to reflect the network structure of all relevant operators, and (c) have clear and stable boundaries over time. 50. If regional differences are found, but not considered to be sufficient to warrant different geographic markets or SMP findings, NRAs may pursue geographically differentiated remedies (89). The stability of the differentiation – specifically the degree to which the boundary of the competitive area can be clearly identified and remains consistent over time – is the key to distinguishing between a geographical segmentation at market-definition level and remedy segmentation. 51. In the electronic communications sector, the geographical scope of the relevant market has traditionally been determined based on to two main criteria (90): United Brands, op. cit., paragraph 44, Michelin, op. cit., paragraph 26, Case 247/86 Alsatel v Novasam EU:C:1988:469, paragraph 15; Tiercé Ladbroke v Commission, op. cit., paragraph 102. 87 Deutsche Bahn v Commission, op. cit., paragraph 92. Case T-139/98 AAMS v Commission, EU:T:2001:272, paragraph 39. 88 See, for example, Section 2.5 of the Explanatory Note accompanying the Recommendation 2014/710/EU, SWD(2014)298. 89 Explanatory Note to the Recommendation 2014/710/EU, SWD(2014)298, page 14. See also CZ/2012/1322. 90 See, for instance, Case IV/M.1025 Mannesmann/Olivetti/Infostrada, paragraph 17, and Case COMP/JV.23 – Telefónica/Portugal Telecom/Médi Telecom. 86

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(a)

the area covered by a network (91); and

(b) the existence of legal and other regulatory instruments (92). 3. ASSESSING SMP 52. Under Article 14(2) of Directive 2002/21/EC an undertaking is deemed at having SMP if, either individually or jointly with others, it enjoys a position equivalent to dominance, that is to say a position of economic strength affording it the power to behave to an appreciable extent independently of competitors, customers and consumers (93). 3.1. Single SMP 53. Single SMP is found based on a number of criteria, the assessment of which, in light of requirements specified in Article 16 of Directive 2002/21/EC as referred to in paragraph 13 of the present Guidelines, is set out below. 54. When considering the market power of an undertaking it is important to consider the market share of the undertaking (94) and its competitors as well as constraints exercised by potential competitors in the medium term. Market shares can provide a useful first indication for the NRAs of the market structure and of relative importance of the various operators active on the market. However, the Commission will interpret market shares in the light of the relevant market conditions, and in particular of the dynamics of the market and of the extent to which products are differentiated (95). 55. According to established case-law, very large market share held by an undertaking for some time – in excess of 50 % – is in itself, save in exceptional circumstances, evidence of the existence of a dominant position (96). Experience suggests that the higher the market share and the longer the period of time over which it is held, the more likely it is that it constitutes an important preliminary indication of SMP (97). 56. However, even an undertaking with a high market share may not be able to act to an appreciable extent independently of customers with sufficient bargaining

In practice, this area will correspond to the limits of the area in which an operator is authorised to operate. In Case COMP/M.1650 – ACEA/Telefónica, the Commission pointed out that since the notified joint venture would have a licence limited to the area of Rome, the geographical market could be defined as local, paragraph 16. 92 For example, mobile operators may provide mobile services only in the geographic areas for which they have been granted authorisations for the use of radio spectrum, thus contributing to the geographical dimension of the relevant markets; see Case IV/M.1439 – Telia/Telenor, paragraph 124, Case IV/M.1430 – Vodafone/Airtouch, paragraphs 13-17, Case COMP/JV.17 – Mannesmann/Bell Atlantic/Omnitel, paragraph 15. 93 This definition corresponds to the definition that the case-law ascribes to the concept of dominant position in Article 102 of the Treaty. See United Brands, op. cit., paragraph 65; Hoffmann-La Roche v Commission, op. cit., paragraph 38. 94 In terms of value, volume, connection lines, subscriber numbers, as appropriate in a given market. 95 See point 13 of the Communication from the Commission – Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings. 96 AKZO  Chemie v Commission, op. cit., paragraph  60; Case T-228/97, Irish Sugar v Commission EU:T:1999:246, para 70, Hoffmann-La Roche v Commission, op. cit, paragraph 41, AAMS and Others v Commission op. cit., paragraph 51. However, large market share can function as an accurate indicator only on the assumption that competitors are unable to expand their output by sufficient volume to meet the shifting demand resulting from a rival’s price increase. Irish Sugar v Commission, op. cit., paragraphs 97 to 104. 97 See point 15 of the Communication from the Commission – Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings. 91



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strength (98). In addition, the fact that an undertaking with a strong position in the market is gradually losing market share may well indicate that the market is becoming more competitive, but does not preclude a finding of SMP. Significant fluctuation of market share over time may be indicative of a lack of market power in the relevant market. The ability of a new entrant to increase its market share quickly may also reflect that the relevant market in question is more competitive and that entry barriers (99) can be overcome within a reasonable timeframe (100). 57. If the market share is high (101) but below the 50 % threshold, NRAs should rely on other key structural market features to assess SMP. They should carry out a thorough structural evaluation of the economic characteristics of the relevant market before drawing any conclusions on the existence of SMP. 58. The following non-exhaustive criteria are relevant to measure the market power of an undertaking to behave to an appreciable extent independently of its competitors, customers and consumers (102): —

barriers to entry,

—

barriers to expansion,

—

absolute and relative size of the undertaking,

—

control of infrastructure not easily duplicated,

—

technological and commercial advantages or superiority,

—

absence of or low countervailing buying power,

—

easy or privileged access to capital markets/financial resources,

—

product/services diversification (for example, bundled products or services),

—

economies of scale,

—

economies of scope,

—

direct and indirect network effects (103),

—

vertical integration,

—

a highly developed distribution and sales network,

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conclusion of long-term and sustainable access agreements;

See point 18 of the Communication from the Commission – Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings. 99 Barriers to entry in this sector may be structural, legal or regulatory. Structural barriers to entry result from original cost or demand conditions that create asymmetric conditions between incumbents and new entrants impeding or preventing market entry of the latter. Legal or regulatory barriers are not based on economic conditions, but result from legislative, administrative or other measures that have a direct effect on the conditions of entry and/or the positioning of operators in the relevant market. See Commission Recommendation 2014/710/EU. 100 Case COMP/M.5532 – Carphone Warehouse/TiscaliUK. 101 The Commission’s experience suggests that dominance is not likely if the undertaking’s market share is below 40 % in the relevant market. However, there may be specific cases below that threshold where competitors are not in a position to constrain effectively the conduct of a dominant undertaking. See United Brands, op. cit. and Case COMP/M.1741 – MCI WorldCom/Sprint. 102 Cases NL/2017/1958-59 and NL/2017/1960. See Case PT/2017/2023. 103 Direct network effects are present when the value of a good or service for a consumer derives from the increased use of such good/service by others. Indirect network effects occur when such increased value derives from the increased use of a complementary good or service. 98

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engagement in contractual relations with other market players that could lead to market foreclosure (104),

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absence of potential competition.

If taken separately, the above criteria may not necessarily be determinative of a finding of SMP. Such finding must be based on a combination of factors. 59. An SMP finding depends on an assessment of the ease of market entry. In the electronic communications sector, barriers to entry are often high due to, in particular, the existence of technological barriers such as scarcity of spectrum which may limit the amount of available spectrum or where entry into the relevant market requires large infrastructure investments and the programming of capacities over a long time in order to be profitable (105). 60. However, high barriers to entry may become less relevant in markets characterised by ongoing technological progress, in particular, due to the emergence of new technologies permitting new entrants to provide qualitatively different services that can challenge the SMP operator (106). In electronic communications markets, competitive constraints may come from innovative threats of potential competitors not currently in the market. 61. NRAs should therefore take into account the likelihood that undertakings not currently active on the relevant product market may in the medium term decide to enter the market. Undertakings which, in case of a price increase, are in a position to switch or extend their line of production/services and enter the market should be treated by NRAs as potential market participants even if they do not currently produce the relevant product or offer the relevant service. 62. Market entry is more likely when potential new entrants are already present in neighbouring markets (107) or provide services that are relevant in order to supply or contest the relevant retail services (108). The ability to achieve the minimum cost-efficient scale of operations may be critical to determine whether entry is likely and sustainable (109). 63. NRAs should also carefully take into account the economies of scale and scope, the network effects, the importance of accessing to scarce resources and the sunk costs linked to the network roll-out. 64. NRAs should also consider whether the market power of an incumbent operator can be (price) constrained by products or services from outside the relevant market and underlying retail market(s), such as OTT players operating on the basis of providing online communications services. Thus, even where an NRA has considered that constraints coming from these products and services at retail level In particular, roaming agreements, network sharing agreements as well as co-investment agreements not opened to third parties, that could, inter alia, eliminate an independent trading partner with whom the smaller operator can deal. See Case COMP/M.7612 – Hutchinson 3G UK/Telefónica UK. 105 Hoffmann-La Roche v Commission, op. cit., at paragraph  48. The most important types of entry barriers are economies of scale and sunk costs. These barriers are particularly relevant to the electronic communications sector in view of the fact that large investments are necessary to create, for instance, an efficient electronic communications network for the provision of access services and it is likely that little could be recovered if a new entrant decides to exit the market. 106 Case COMP/M.5532 – Carphone Warehouse/Tiscali UK, Case COMP/M.7018 – Telefónica Deutschland/ E-Plus and Case COMP/M.7612 – Hutchinson 3G UK/Telefónica UK. 107 Case COMP/M.1564 – Astrolink JV. 108 Case COMP/M.1564 – Astrolink JV. 109 Case COMP/M.1741 – MCI WorldCom/Sprint. 104



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are not sufficiently strong for the retail market to be effectively competitive or are not sufficiently strong to act as indirect constraint for the provision of wholesale services (for the purpose of the wholesale market definition), potential constraints should still be assessed at the SMP assessment stage (110). Since, currently, OTT providers do not provide access services themselves, they do not generally exercise competitive pressure on access markets. 3.2. Joint SMP 65. The definition of what constitutes a position of joint dominance in competition law is provided by the jurisprudence of the Court of Justice of the European Union and has evolved over time. The joint SMP concept is to be derived from the same basis. A dominant position can be held by several undertakings, which are legally and economically independent of each other, provided that – from an economic point of view – they present themselves or act together on a particular market as a collective entity (111). In the Gencor case (112) the Court examined how appropriate market characteristics could lead to a relationship of interdependence between parties, allowing them to anticipate one another’s behaviour. As clearly stated in Airtours (113), the existence of an agreement or of other links in law is not indispensable to a finding of a collective position of dominance. Such a finding may be based on other connecting factors and would depend on an economic assessment, and in particular an assessment of the structure of the market (114). 66. A collective dominant position exists where, in view of actual characteristics of the relevant market, each member of the dominant oligopoly in question, as it becomes aware of common interests, considers it possible, economically rational, and hence preferable, to adopt – on a lasting basis – a common policy for their market conduct with the aim of selling at above competitive prices, without having to enter into an agreement or resort to a concerted practice within the meaning of Article  101 of the Treaty and without any actual or potential competitors, customers or consumers, being able to react effectively (115). 67. The General Court held in Airtours that three cumulative conditions are necessary for a finding of collective dominance as defined (116): —

First, each member of the dominant oligopoly must have the ability to know how the other members are behaving in order to monitor whether or not they are adopting a common policy. It is not enough for each member of the dominant oligopoly to be aware that interdependent market conduct is profitable for all of them but each member must also have a means of knowing whether the other operators are adopting the same strategy and whether they are maintaining it. There must, therefore, be sufficient market transparency for all members of the dominant oligopoly to be aware, sufficiently precisely and quickly, of the way in which the other members’ market conduct is evolving;

Case FR/2014/1670. Case C-395/96 P, Compagnie Maritime Belge EU:C:2000:132, paragraphs 35-36. 112 Case T-102/96, Gencor Ltd v Commission EU:T:1999:65, paragraph 163. 113 Case T-342/99, Airtours plc v Commission EU:T:2002:146. 114 Compagnie Maritime Belge, paragraph 45. 115 Case T-342/99, Airtours plc v Comission EU:T:2002:146, paragraph  61; Case C-413/06 Impala II EU:C:2008:392, paragraph 122. 116 Ibid, paragraph 62. 110 111

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Second, the situation of tacit coordination must be sustainable over time, that is to say, there must be an incentive not to depart from the common policy in the market. It is only if all the members of the dominant oligopoly maintain the parallel conduct that all can benefit. The notion of retaliation in respect of conduct deviating from the common policy is thus inherent in this condition. For a situation of collective dominance to be viable, there must be adequate deterrents to ensure that there is a long-term incentive in not departing from the common policy, which means that each member of the dominant oligopoly must be aware that highly competitive action on its part designed to increase its market share would provoke identical actions from others, so it would derive no benefits from its initiative;

—

Third, to prove the existence of a dominant position to the requisite legal standard, it must also be established that the foreseeable reaction of current and future competitors, as well as customers, would not jeopardise the results expected from the common policy.

68. In Impala II (117) case the Court of Justice confirmed these criteria as identifying the conditions in the presence of which tacit coordination is more likely to emerge. According to the Court of Justice, such tacit collusion is more likely if competitors can easily arrive at a common perception as to how the coordination should work, and, in particular, of the parameters that lend themselves to being a focal point (118) of the proposed coordination. At the same time, it indicated the necessity to avoid a mechanical approach involving the separate verification of each of those criteria taken in isolation, while taking no account of the overall economic mechanism of a hypothetical tacit coordination (119). Market characteristics must be assessed by reference to that mechanism of hypothetical coordination. 69. Against this background, when determining whether two or more undertakings in a relevant market have joint SMP, for the purposes of determining whether to impose ex ante regulatory obligations on them, NRAs must conduct an analysis of likely developments during the next review period (120). They must consider whether, in light of all considerations, market conditions would be conducive to a mechanism of tacit coordination, on the basis of the economic test set out by the Court. As set out in recital 26 of Directive 2002/21/EC, two or more undertakings can be found to enjoy a dominant position not only where there exist structural or other links between them but also where the structure of the relevant market is conducive to coordinated effects. 70. A prospective analysis must consider expected or foreseeable market developments over the course of the next review period to ascertain whether tacit collusion is the likely market outcome. The likelihood of the elements of the economic test set out by the Court must be established considering market structures and any available evidence of market behaviour, that are conducive to the hypothetical mechanism of coordination developing and to a tacitly collusive equilibrium being reached. A postulated mechanism must be analysed as forming part of a plausible theory

Impala II, paragraph 123. Which is understood as the tacit understanding of the terms of the coordination between the jointly dominant undertakings, a solution that tacitly colluding operators will tend to adopt in the specific market circumstances and which requires market transparency to become established. See paragraph  123 of Impala II judgement. 119 Ibid, paragraph 125. 120 Ibid, paragraph 123. 117 118



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of tacit coordination (121), including considerations as regards available evidence and data, as well as hypothetical considerations. As can be derived from the above cited case-law, a checklist approach should be avoided. 71. Similarly to the Commission’s guidance on horizontal mergers (122), all available relevant information on the characteristics of the markets concerned, including both structural features and the past behaviour of market participants, must be taken into account in a prospective analysis. 72. Arriving at a common understanding on coordinated behaviour is generally easier in less complex and more stable economic environments. Given that coordination is generally simpler among fewer players, it would seem relevant in particular to examine the number of market participants. Further, it may be easier to reach a common understanding on the terms of coordination if a relative symmetry can be observed, especially in terms of cost structures, market shares, capacity levels including coverage, levels of vertical integration and the capacity to replicate bundles. 73. Transparency of prices can be more easily assumed for retail mass markets, and homogeneity of products can increase the level of transparency, but even product and tariff complexity at retail level can be reduced by establishing simpler pricing rules, such as the identification of a small number of flagship reference products. In electronic communications markets with near complete mobile and fixed penetration, demand volatility tends to be low and new customers can only be acquired from other market players, increasing transparency in relation to market shares (123). 74. When making a forecast of current data and of the most likely future developments, NRAs should do so under a Modified Greenfield Approach, as set out in paragraph 17, which requires that the effects of any regulation based on significant market power in place are excluded from the assessment (124). 75. The type of evidence that is available to NRAs in markets that are regulated at the time of the analysis will be different in character to the evidence that is available in markets that are not regulated. However, NRAs might still be able to adduce evidence on market structure and behaviour, for example in cases where the regulation in place may not have fully redressed the observed market failures. This does not mean that the standard of proof should be lower, or that the mechanism of tacit coordination that is hypothesised should be different. 76. Having regard to paragraph  15 when assessing the presence of joint SMP to determine whether to impose ex ante regulation, NRAs can therefore take into account all market circumstances to establish that a tacit collusive behaviour is likely to emerge as a market outcome, in the absence of ex ante regulation, if (i) these circumstances are consistent with the economics of the tacit collusion theory advanced by the NRA and (ii) when assessed, they are found to be relevant Ibid, paragraph 130. Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings (OJ C 31, 5.2.2004, p. 5). 123 In the merger context, these considerations were discussed in depth in relation to the electronic communications market, for example, in case COMP M.7758 – Hutchison 3G Italy/WIND/JV. 124 See Case SI/2009/0913, in which the Commission clarified that this approach is well suited to assess a market’s conduciveness to tacit collusion in the presence of existing regulation based on single SMP, stating that ‘what counts here is the situation which would prevail absent the regulatory obligations imposed on Mobitel in this specific market (modified greenfield approach)’. 121 122

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in explaining that the market is conducive to the described hypothetical tacit collusive behaviour, on the basis of an integrated analysis, based on the criteria set out in the Airtours case and later confirmed and further clarified in the Impala cases. 77. The analysis of joint SMP has to take account of specificities of the electronic communications sector, in particular the fact that due to the links which typically exist between the wholesale and retail markets, the economic mechanism of tacit collusion is not limited to the wholesale level but should be assessed, taking into account the interaction of both levels. In this respect, focal point(s) can be identified either at retail or wholesale level and retaliation can take place within the functionally connected wholesale and downstream retail market(s) as well as related retail markets, or even outside those markets if the oligopolists are present there and interact there. 78. As stated by the Court of Justice in Impala II, besides market transparency, a market structure conducive to tacit collusion may also be characterised by market concentration and product homogeneity (125). Other characteristics that may lead to the same conclusion can be extrapolated from case-law or prior regulatory decisions. A non-exhaustive list of market characteristics that the NRAs may consider in their case by case assessment are, by a way of an example, market shares, elasticity of demand, vertical integration, cost and output compatibilities, comprehensive network coverage, profitability and Average Revenue per User (ARPU) levels, relative symmetry of operator and related similarity of retail operations. However, no exhaustive list is suggested. In addition, the relevance of these parameters should be established and assessed on a case-by-case basis and account should be taken of the national circumstances. If NRAs wish to use parameters inspired by ex post competition practice or merger review, they should do so taking account of the specificities of ex ante regulation in the electronic communications sector (126), with the aim of identifying in the specific circumstances, whether the characteristics of the relevant market are such that each member of the dominant oligopoly considers it possible, economically rational, and hence preferable, to adopt – on a lasting basis – a common policy for their market conduct (127). Transparency 79. Based on guidance set out in paragraphs 72, 73 and 77, a starting point for finding joint SMP is the establishment of a common policy on which to align future behaviour. 80. When examining whether a market is sufficiently transparent to enable tacit coordination, it should be examined whether market operators have a strong incentive to converge to an identifiable coordinated market outcome and refrain from reliance on competitive conduct. This is the case where long-term benefits of anti-competitive conduct outweigh any short-term gains resulting from competitive behaviour. As set out in paragraph 78, implementing and sustaining tacit coordination is facilitated by certain market characteristics which can make a particular market more prone to coordination. Impala II, paragraph 121. The assessment for the purposes of ex ante regulation requires a specific framework of analysis in certain aspects, such as the aforementioned need to disregard regulation currently in place, the need to take into account a specific timeframe of regulation, or the lack of a specific binary counterfactual which is present in a merger analysis. 127 Airtours plc v Comission, op. cit., pararaph 61; Case C-413/06, Impala II EU:C:2008:392, paragraph 122. 125 126



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81. In the specific circumstances of electronic communications, which have high barriers to entry and high sunk costs, newcomers have an incentive to increase their market share to ensure cost recovery. On the other hand, market share symmetry is not necessary for an incentive to tacitly collude, as long as a minimum scale (128) has been achieved or cost structures are comparable (129). 82. In the context of the assessment of existence of collective significant market power and without prejudice to the criteria described in paragraph 67 above, close alignment of prices over a long period, especially if they are above competitive level, together with other factors typical of a collective dominant position, might, in the absence of an alternative reasonable explanation, suffice to demonstrate the existence of a collective dominant position, even where there is no firm direct evidence of strong market transparency, as such transparency may be presumed in such circumstances (130). The investigation of such circumstances must be carried out with care, and, above all, should adopt an approach based on the analysis of plausible coordination strategies that may exist in the circumstances (131). In particular, for the purpose of ex ante regulation in the electronic communications sector, a finding of pre-existing coordination as described above is not a perquisite but may be relevant in particular if the market’s characteristics have not appreciably changed and/or are unlikely to do so in the next review period. 83. Where past behaviour can inform the NRA’s forward-looking assessment of likely market dynamics in the next review period, NRAs should be conscious of the fact that even in the presence of regulation, the mere imposition of price-controlled wholesale access products may not be a sufficient explanation of an observed alignment of prices over a long period at the retail level. Such an alignment, in the absence of an alternative reasonable explanation, can be sign of a tacit collusive behaviour, if other factors typical for a collective dominant position are present. Alternative reasonable explanations, aside from regulatory obligations setting price levels, may be, for example, economic in nature, if price levels can be justified in view of costs structures in a competitive market. 84. Further, for the purposes of assessing the transparency criterion, in the specific circumstances of ex ante regulation of electronic communications markets, where barriers to entry for new entrants are typically high, a refusal by network owners to provide wholesale access on reasonable terms may be a potential focal point of a common policy adopted by members of an oligopoly. Such a refusal by network operators may therefore point towards the existence of a common policy, which is taken into account alongside other factors when carrying out a joint SMP analysis. A focal point based on the denial of access can either be observed in the case of operators that are not subject to ex ante access obligations, or foreseen in the case of operators that are subject to such obligations at the time of the analysis, provided certain conditions are met. Such conditions include a shared incentive in sustaining significant or abnormally high rents (profits) on downstream or related retail markets, which the NRA finds to be out of proportion to investments made

This is to be assessed under the national circumstances and relevant market in question, taking into account the need to promote efficient entry. See for example the Annex to Commission Recommendation 2009/396/EC of 7 May 2009 on the regulatory treatment of fixed and mobile termination rates in the EU (OJ L 124, 20.5.2009, p. 67). 129 Case ES/2005/0330. 130 Case T-464/04, Impala I EU:T:2006:216, paragraph 252. 131 Impala II, paragraph 129. 128

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and risks incurred (132), or other non-price-related types of common policy in a market conducive to tacit coordination incompatible with a well-functioning retail market as set out by the Court in the Impala II judgment (133), that can also be adduced as evidence that refusal of access is a credible focal point. It is also relevant to assess whether the operator in question has a sufficient scale to justify the provision of a wholesale service to third parties. Sustainability 85. In order to make the common policy sustainable over time, there must be an incentive for each member of the oligopoly not to depart from the terms of coordination. This derives from the fact that members of the dominant oligopoly can benefit only if they all maintain the parallel conduct. The existence of a credible threat of retaliation, deterring deviation, is a necessary requirement to ensure that the coordination mechanism remains credible over time. 86. As regards the need to resort to the exercise of a sanction, the General Court clarified that the mere existence of an effective deterrent mechanism is, in principle, sufficient since if the members of the oligopoly conform with the common policy, there is no need to resort to the exercise of a sanction. The most effective deterrent mechanism is that which has not been used (134). 87. This clarification is particularly relevant, by way of an example, in cases where an NRA considers that the focal point of tacit collusion at the wholesale level consists of a (constructive) refusal of wholesale access (135), and where wholesale transactions are typically scarce. In such cases, NRAs do not need to establish that the retaliation would consist of the conclusion of another access agreement by the other tacitly colluding operator(s), but may identify a different (136) credible retaliatory mechanism on the underlying or related retail market(s) (such as shortterm price wars) (137). Considerations related to portability and churn (138) in the specific circumstances could further substantiate the assumed responsiveness of consumers to price changes and help the NRA to predict the likelihood of retaliation at retail level being effective (139). 88. The credibility of a threat of sanction (mechanism) and/or its exercise is to be considered by the NRAs in the case-by-case analysis. External factors 89. The assessment of countervailing factors to the theory of tacit collusion includes economic considerations as to whether the operators currently present in the 134 135 136

Case ES/2005/0330. Impala II, paragraph 121. See also this Explanatory note, section ‘market failures at the retail level.’ Impala I, paragraph 466. Access that would enable an access seeker to effectively compete at retail level. While the second criterion of the Airtours test requires ‘identical action from others’ this is to be read as highly competitive action by one member of the dominant oligopoly in response to highly competitive action of the other member of the dominant oligopoly which may however take a different form, see Airtours, op. cit., paragraph 62. 137 This is important because a sanction against oligopolist 1 for its grant of access to a competitor through grants of access by oligopolist 2 to other competitors could have long-term effects on the market, further undermining profits of the retaliating party, and thus not be a credible deterrent of opportunistic behaviour. See also Case ES/2005/0330. 138 Number portability is the possibility for end-users to retain a number from the national telephone numbering plan independently of the undertaking providing the service, and churn is the percentage of subscribers to a service who discontinue their subscriptions to that service over certain period. 139 Case ES/2005/0330. 132 133



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market outside the tacitly colluding oligopoly act as fringe competitor(s) or have the potential to become maverick(s), or to whether customers have sufficient countervailing buyer power to jeopardise the collusive mechanism. 90. In the framework of ex ante regulation in the electronic communications sector the market position and strength of the rivals can be assessed based on various factors, related to barriers of entry for potential competitors and the competitive situation of and barriers to expansion for existing market players. The relevant parameters in this assessment will include market share in the market under assessment, related economies of scope, potential to provide input to all products requested by the customers at the retail level, its relative strength in the major area of activity, the existence of fringe or maverick competitors, etc. In this respect, NRAs should include in their draft measure an assessment as to whether or not fringe competitors have the ability to challenge the anti-competitive coordinated outcome (140). 91. As mentioned in paragraph  59, markets for the provision of electronic communications services have high barriers to entry, in particular of an economic nature, as network roll-out, in the absence of wholesale access agreement, is costly and time-consuming; but also barriers of a legal nature, as in particular spectrum policy can limit the number of mobile network operators (141). For this reason, a hypothetical new entrant that could disrupt a tacit collusive equilibrium is likely to have to rely, at least partly, on the infrastructure of others. In the absence of regulatory intervention or sustainable commercial agreements or disruptive technological innovation, it can typically be assumed that the likelihood of a disruptive entry is generally low in the short and medium term. 92. As regards customers, consumers in mass markets are unlikely to be able to individually exercise buyer power of any significance. On the other hand, some business end-users who purchase business-grade or tailored products may be able to exercise countervailing buyer power and their potential reaction should be analysed, if appropriate, in the specific market. 93. This Communication is addressed to the Member States. For the Commission, Mariya GABRIEL Member of the Commission

Case IE/2004/0121. See footnote 52 and Explanatory note to the Recommendation 2014/710/EU, SWD(2014)298, page 4.

140 141

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COMMISSION RECOMMENDATION (EU) 2020/2245 of 18 December 2020 on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive (EU) 2018/1972 of the European Parliament and of the Council establishing the European Electronic Communications Code[142] (notified under document C(2020) 8750) (Text with EEA relevance) THE EUROPEAN COMMISSION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 292 thereof, Having regard to Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (143) (the Code), and in particular Article 64(1) thereof, Whereas: (1) Directive (EU) 2018/1972 seeks, in addition to the three primary objectives of promoting competition, the internal market and end-user interests, to promote connectivity and access to, and take-up of, very high capacity networks, including fixed, mobile and wireless networks, for the benefit of all citizens and businesses of the Union. (2) The appropriate incentives for investment in new, very high capacity networks, which support innovation in content-rich internet services, will strengthen the international competitiveness of the Union while delivering benefits to its consumers and businesses. It is therefore crucial to promote sustainable investment in the development of very high capacity networks by means of an appropriately adapted and predictable regulatory framework. (3) One of the aims of the new regulatory framework is to progressively reduce ex ante sector-specific rules as competition in the markets develops and, ultimately, to ensure that electronic communications markets are governed only by competition law. In line with this objective, the purpose of this Recommendation is to identify those product and service markets in which ex ante regulation may be justified. (4) The definition of relevant markets may change over time as the characteristics of products and services available on such markets evolve and the possibilities for demand and supply substitution change due to technological, market and regulatory developments. For this reason, this Recommendation should therefore replace the 2014 Recommendation (144). (5) Article  64(1) of the Code requires the Commission to identify markets within the electronic communications sector, the characteristics of which may be such as to justify the imposition of regulatory obligations in accordance with the principles of competition law. Competition law principles are therefore used in this Recommendation to define relevant product markets in the electronic communications sector.

OJ L 439, 29.12.2020, p. 23. OJ L 321, 17.12.2018, p. 36. 144 Commission Recommendation 2014/710/EU of 9 October 2014 on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services (OJ L 295, 11.10.2014, p. 79). 142 143



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(6) The ultimate objective of regulatory intervention is to produce benefits for endusers in terms of price, quality and choice by achieving sustainable competition at retail level. The starting point for the identification of relevant markets in this Recommendation should be the definition of retail markets in a forward-looking perspective over a given time horizon, guided by competition law. Indeed, where retail markets are effectively competitive in the absence of wholesale regulation, national regulatory authorities should conclude that regulation is no longer needed on related wholesale markets. (7) In accordance with Article  67(1) of the Code, imposition of ex ante regulatory obligations may be justified only in markets where the three criteria referred to in Article 67(1)(a), (b), (c) are cumulatively met. This Recommendation includes product and service markets, which the Commission, after observing the overall trends in the Union, found to meet the three criteria. Hence these markets are considered by the Commission to have characteristics which may justify the imposition of regulatory obligations at least in some geographic areas and over a foreseeable period. It should be for the national regulatory authorities to consider in their analyses of these markets whether the further requirements set in Article 67(2) are met. (8) The first criterion relates to the presence of high and non-transitory barriers to entry. It seeks to establish whether, when, and to what extent market entry is likely to occur, and to identify the relevant factors for a successful entry into an electronic communications market. From a static point of view, two types of barriers to entry are particularly relevant for the purpose of this Recommendation: structural barriers and legal or regulatory barriers. (9) Structural barriers to entry derive from different cost or demand conditions that determine asymmetric conditions between incumbents and new entrants, impeding or preventing market entry of the latter. High structural barriers may also be found, for instance, when the market is characterised by absolute cost advantages or substantial economies of scale and/or network effects, capacity constraints and/or high sunk costs. Structural barriers can also exist where the provision of service requires a network component that cannot be technically duplicated or its duplication is not economically feasible. (10) Legal or regulatory barriers may have a direct effect on the conditions of entry and/or the positioning of operators on the relevant market. In regulated sectors, authorisation procedures, territorial restrictions, safety and security standards, and other legal requirements may deter or delay entry. However, the relevance of legal and regulatory barriers in electronic communications markets is decreasing. Legal or regulatory barriers that are likely to be removed within the relevant time horizon of 5 years should not normally constitute a barrier to entry such as to fulfil the first criterion. (11) In innovation-driven markets characterised by ongoing technological progress, such as the electronic communications markets, barriers to entry may progressively become less relevant. In such markets, competitive constraints often come from threats exerted by potential innovative competitors that are not currently in the market. Therefore, the possibilities to overcome barriers to entry within the relevant time horizon should also be taken into consideration when identifying the relevant markets for possible ex ante regulation. This Recommendation identifies markets where barriers to entry are expected to persist for the period of the next 5-10 years. (12) Different barriers to entry should not be considered in isolation but cumulatively. While an entry barrier when regarded individually may not be considered as high,

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together with other barriers might create effects which cumulatively would prevent or impede entry into the market. (13) The second criterion addresses whether a market structure tends towards effective competition within the relevant time horizon, having regard to the state and prospect of infrastructure-based competition and other sources of competition behind the barriers to entry. An analysis of effective competition implies that the market will become effectively competitive absent ex ante regulation within the period of review, or will do so after that period, provided that clear evidence of positive dynamics in the market is observable already within the period of review. For instance convergence of products, delivered via different network technologies, may give rise to competitive constraints being exercised by operators active in distinct product markets and may lead to the convergence of markets. (14) Even when a market is characterised by high barriers to entry, other structural factors in that market may indicate that the market still tends towards effective competition within the relevant time horizon. In markets where an increased number of networks can be expected on a forward-looking basis, the application of this criterion entails primarily examining the state and likely future development of infrastructure-based competition. (15) In assessing the adequacy of competition and the need for regulatory intervention, national regulatory authorities should also take into account whether wholesale access is available to any interested undertaking on reasonable commercial terms permitting sustainable competitive outcomes for end-users on the retail market. Commercial agreements, including agreements on wholesale access, co-investment agreements and reciprocal access agreements between operators, which have been entered on a lasting basis and are sustainable, have the potential to improve competitive dynamics and may ultimately resolve competition concerns at the related retail market and therefore lead to deregulation of the wholesale markets. Thus, provided that they comply with principles of competition law, they should be taken into consideration when assessing whether a market is expected to become competitive on a forward-looking basis. (16) Technological developments, or the convergence of products and markets, may give rise to competitive constraints being exercised between operators active in distinct product markets. In this respect, over-the-top (OTT) services, which today are generally not considered as direct substitutes to traditional services provided by electronic communication service providers, and which in any case do not provide physical and data connectivity, might nevertheless play a more important role in certain retail markets in the coming years due to further technological developments and their continuous expansion and subsequently exercise indirect constraint on wholesale markets. (17) The decision to define a market as susceptible to ex ante regulation should also depend on an assessment of the sufficiency of competition law to address adequately the market failures identified. This third criterion aims to assess the adequacy of competition law to tackle identified persistent market failure(s), in particular given that ex ante regulatory obligations may effectively prevent competition law infringements. Competition law based interventions are likely to be insufficient where frequent and/or timely intervention is indispensable to redress persistent market failure(s). In such circumstances, ex ante regulation should be considered an appropriate complement to competition law. In general, the application of general competition rules in markets characterised by sustainable and effective infrastructure-based competition should be sufficient.



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(18) The application of these three cumulative criteria should limit the number of regulated markets within the electronic communications sector and thereby contribute to reducing ex ante sector-specific regulation progressively as competition in those markets develops. Failure to meet any of the three criteria would indicate that a market is not susceptible to ex ante regulation. It is essential that ex ante regulatory obligations are imposed on a wholesale market in order to ensure sustainable competition only where there are one or more undertakings with significant market power and where competition law remedies are not sufficient to address the problem. (19) Newly emerging markets are considered to comprise products or services where, due to their novelty, it is difficult to predict demand conditions or market entry and supply conditions, and consequently difficult to apply the three-criteria test. Such markets should not be subject to inappropriate ex ante regulatory obligations in order to promote innovation, while preventing, at the same time, foreclosure by the leading undertaking (145). Incremental upgrades to existing network infrastructure rarely lead to the creation of new or emerging market. The lack of substitutability of a product has to be established from both demand and supply side perspectives before it can be concluded that it is not part of an already existing market. The emergence of new retail services may give rise to a new derived wholesale market to the extent that such retail services cannot be provided using existing wholesale products. (20) Given the evolution of competition, including infrastructure-based competition, this Recommendation identifies only relevant markets at the wholesale level, as was the case in the 2014 Recommendation. Ex ante regulation imposed at the wholesale level should be considered sufficient to tackle potential competition problems on the related downstream retail market(s). (21) In line with Recital 165 of the Code, national regulatory authorities should at least analyse the markets that are listed in the Recommendation, including those markets that are listed but no longer regulated in the specific national or local context. With respect to the markets listed in the Annex to this Recommendation, national regulatory authorities may still consider it appropriate, based on specific national circumstances, to conduct the three-criteria test. National regulatory authorities may conclude that the three-criteria test is not met in the specific national circumstances. If the three-criteria test is not met for a specific market listed in the Recommendation, national regulatory authorities should not impose regulatory obligations on that market. (22) National regulatory authorities should also analyse markets that are not contained in this Recommendation, but that are regulated within the territory of their jurisdiction on the basis of previous market analyses, or other markets, if they have sufficient grounds to consider that the three criteria test is met. Hence, the national regulatory authorities can also define other relevant product and service markets, not listed in this Recommendation, if they can prove that in their national context, the markets meet the three criteria test. (23) When carrying out a market analysis under Article  67 of the Code, both the national regulatory authorities and the Commission should start the analysis from

See Recital 23 of the Commission guidelines on market analysis and the assessment of significant market power under the Community regulatory framework for electronic communications networks and services (OJ C 159, 7.5.2018, p. 1) and Recital 163 of the EECC.

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the retail markets. The assessment of a market should be done with a forwardlooking perspective in the absence of regulation based on a finding of significant market power and starting from existing market conditions. The analysis should assess whether the market is prospectively competitive and whether any lack of competition is durable, by taking into account expected or foreseeable market developments. The analysis should take into account the effects of other types of regulation applicable to the relevant retail and related wholesale market(s) throughout the relevant regulatory period. (24) If the retail market concerned is not effectively competitive from a forward-looking perspective in the absence of ex ante regulation, the corresponding wholesale market(s) susceptible to ex ante regulation in line with Article  67 of the Code should be defined and analysed. In addition, when analysing the boundaries and market power within (a) corresponding relevant wholesale market(s) to determine whether it is/they are effectively competitive, direct and indirect competitive constraints should be taken into account, irrespective of whether these constraints result from electronic communications networks, electronic communications services or other types of services or applications that are equivalent from the endusers’ perspective. (25) When defining the relevant wholesale markets which may be susceptible to ex ante regulation, national regulatory authorities should start by analysing the market which is most upstream of the retail market in which competitive problems have been identified. National regulatory authorities should conduct an analysis of the markets that are situated downstream from a regulated upstream input, to determine whether they would be effectively competitive in the presence of regulation upstream, until it reaches the retail market. (26) The most upstream market may, depending on national circumstances, consist of or include more generic cross-market wholesale products such as physical infrastructure access (e.g. duct access) or passive access products. In particular, where civil engineering infrastructure exists and is reusable, effective access to such infrastructure may significantly facilitate the roll-out of very high capacity networks and encourage development of infrastructure-based competition to the benefit of end-users. (27) For these reasons, the Commission has considered the appropriateness of including a separate market for access to physical infrastructure in this Recommendation. However, as there are significant differences in network topologies, availability of ubiquitous ducts and level of demand for access to ducts and poles across the Union, the Commission concluded that a separate market for access to physical infrastructure cannot, at present, be identified at Union level and should therefore not be included in the list of markets susceptible to ex ante regulation. (28) Furthermore, Article  72 of the Code allows national regulatory authorities to impose access to civil engineering as a stand-alone remedy on any relevant wholesale market. Such obligation to provide access to civil engineering may be justified irrespective of whether the physical infrastructure to which access is granted is part of the regulated relevant market and should be considered by national regulatory authorities before other access obligations are imposed downstream, if proportionate and sufficient to promote competition in the benefit of the end-users. (29) As regards wholesale broadband markets, virtual access products may be designed in a way that they display similar or equal product features, regardless of the



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location of the handover point for access. Therefore, it could be technically possible to provide wholesale broadband access at central or local level with comparable quality of service from both the access seeker and the end-users’ perspectives. In this context both the product features and the willingness of access seekers to migrate between access points or to make use of various handover points within the network architecture need to be analysed as part of the substitutability analysis. (30) Many alternative operators climbed the ladder of investments and developed their own networks to the local access point. Those operators would likely not consider central access products as a substitute for local access as it would leave the investments into their own network infrastructure stranded. At the same time, it has to be acknowledged that the access network is the most difficult part of the network to replicate due to the high sunk deployment costs in relation to the number of customers that can benefit from the deployment. (31) Despite the observed increase of infrastructure-based competition, local access is still characterised by high entry barriers and regulated in the majority of Member States. The wholesale local access market still meets the three-criteria test, given that the access network is the part of the network most difficult to replicate. However, on a forward-looking basis, the barriers to entry into the central access market can no longer be regarded as high and non-transitory at Union level as the market tends towards effective competition due to the presence of alternative platforms, the widespread commercial availability of trunk capacity and the possibility of locally interconnected operators to provide central access. Where access products, provided at various handover points, are identified as being substitutes under specific national circumstances, the market should be found to encompass all such products. Whether such a broad market meets the three criteria test needs to be established on a case by case basis. (32) The increased capabilities of electronic communications networks providing mass-market products may satisfy the connectivity needs even of certain business customers. However, an important segment of the business market, as well as the new demand emerging from digitization of industry and from socioeconomic drivers such as public services e.g. hospitals and schools, will require also dedicated connections. Therefore, certain businesses still require products with characteristics that are distinct from those of mass-market products. (33) With a view to delineating the boundaries of the market for dedicated capacity and other business access products national regulatory authorities should, while ensuring that the relevant wholesale products correspond to the retail market problem identified, take into account several factors such as different product functionalities and intended use, price evolution over time and cross-price elasticity. The distinguishing product characteristics of dedicated capacity are their ability to provide dedicated and uncontended connections and symmetrical speeds and should be assessed, as for products in other markets, by means of a substitutability analysis. (34) The deployment of alternative infrastructures providing a dedicated fibre connectivity for business has increased significantly in particular in more densely populated areas, commercial centres and business districts. However, there may be areas in which, even though the deployment of an alternative infrastructure for mass-market connectivity may be economically viable, it may be less economically viable to duplicate networks providing isolated dedicated connections due to the size of the addressable market. In those less densely populated areas, due to lack of infrastructure-based competition, there is a risk that the demand for dedicated capacity would not be served by competitive offers in the absence of regulation.

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(35) In both the above wholesale access markets, competitive problems are unlikely to persist uniformly across a given Member State and such markets should be subject to a thorough geographical analysis. Therefore, when defining relevant markets in accordance with Article  64(3) of the Code, national regulatory authorities should identify geographic areas where the conditions of competition are sufficiently homogeneous and which can be distinguished from neighbouring areas in which the prevailing conditions of competition are appreciably different, having particular regard to the question whether the potential operator having significant market power acts uniformly across its network area or whether it faces appreciably different conditions of competition to a degree that its activities are constrained in some areas but not in others. (36) To date, national regulatory authorities have found most markets to be national because the incumbent’s copper network had a national coverage. However, as the deployment of alternative networks progresses, competitive conditions can vary significantly and sustainably between different areas of the same Member State (for instance between urban and rural areas), thus making necessary the definition of separate geographic markets. (37) For the purpose of the geographic market definition, national regulatory authorities should define a basic geographic unit as a starting point for assessing competitive conditions. Such unit might follow the network topology or administrative boundaries, depending on national circumstances. In all cases, following the Commission’s practice (146), the geographic unit should be (a) of an appropriate size, i.e. small enough to avoid significant variations of competitive conditions within each unit but big enough to avoid a resource-intensive and burdensome micro-analysis that could lead to market fragmentation, (b) able to reflect the network structure of all relevant operators, and (c) have clear and stable boundaries over time. As regards condition (b), national regulatory authorities should rely, where relevant, on the geographical survey of networks conducted in accordance with Article 22 of the Code. (38) Following the principles of competition law, and based on the analysis of the geographic units previously described, national regulatory authorities should then establish a first definition of the scope of the geographic markets by aggregating together units that exhibit similar competitive conditions. National regulatory authorities should assess competitive conditions in a forward-looking manner, by looking at structural and behavioural indicators, taking into account in particular, in line with Article  64(3) of the Code, the importance of infrastructure-based competition. Such indicators can be, inter alia, the networks footprint, the number of competing networks, their respective market shares, trends in market shares, localized or uniform pricing behaviour, characteristics of demands and customer switching and churn. The resulting definition of geographic markets should be checked against an analysis of demand and supply side substitutability. Non-adjacent geographic markets that present similar competitive conditions may be analysed together at this stage. (39) Significant variations of competitive conditions should be taken into account on a forward-looking basis at the stage of market definition. Segmentation of remedies may be used to address less significant or less stable variations in competitive conditions, including by adjusting remedies periodically or punctually, without thereby undermining regulatory predictability. In particular, Communication from the Commission C/2018/2374 – Guidelines on market analysis and the assessment of significant market power under the EU regulatory framework for electronic communications networks and services (OJ C 159, 7.5.2018, p. 1).

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(40) Article  75 of the Code empowers the Commission to adopt a delegated act setting a single maximum Union-wide mobile voice termination rate and a single maximum Union-wide fixed voice termination rate (together referred to as ‘the Union-wide voice termination rates’). The Union-wide voice termination rates will directly apply to any provider of fixed and mobile termination services in the Union. The Union-wide single voice termination rates are based on the efficient costs of providing termination services. The application of the Union-wide voice termination rates will limit the ability of mobile and fixed operators to set excessive termination rates. Thus, the risk of excessive termination rates, which has been the most serious threat to competition on these markets, would disappear. Due to the strict cost orientation applied in setting the Union-wide voice termination rates, as required by the Code, the termination rates should be similar to those expected in case of competitive markets. Therefore, the termination markets would no longer meet the three-criteria test at Union level. (41) Nevertheless, specific circumstances may justify regulation of selected aspects of the termination markets in some Member States. Specific national circumstances may indicate that these markets do not tend towards competition on a forwardlooking basis or that competitive problems continue to exist. This may be the case where operators were denied interconnection or have experienced problems with terminating calls from their network in other operators’ networks. National regulatory authorities should address such problems, either by imposing SMP based obligations other than price control, if the three-criteria test is fulfilled, or by using other appropriate regulatory tools, i.e. Article 61(2) of the Code, if the conditions specified there are met. (42) The markets listed in the Annex to this Recommendation no longer include three markets that were listed in 2014 Recommendation as they do not fulfil the threecriteria test, i.e. the markets for wholesale call termination on individual public telephone networks provided at a fixed location (market 1), wholesale voice call termination on individual mobile networks (market 2), and wholesale central access provided at a fixed location for mass-market products (market 3b). (43) The remaining markets of the 2014 Recommendation, namely markets 3a (local wholesale access provided at fixed location) and 4 (wholesale high quality access provided at fixed location), the latter partially redefined, still warrant ex ante regulation as they meet the three-criteria test at Union level. National regulatory authorities should take into account their national circumstances when delineating these markets, in particular as regards their geographic dimension. (44) With a view to ensuring adequate consideration of the impact of regulation imposed on related markets when determining whether a given market warrants ex ante regulation, national regulatory authorities should ensure that related markets are analysed in a consistent manner and, where possible, at the same time or as close as possible to each other in time. (45) When considering whether to amend or maintain existing regulatory obligations, national regulatory authorities should also apply the three-criteria test to those markets listed in the Annexes to Commission Recommendation 2003/311/EC (147), Commission Recommendation 2003/311/EC of 11 February 2003 on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communication networks and services (OJ  L  114, 8.5.2003, p. 45).https://eur-lex.europa.eu/ legal-content/EN/TXT/?uri=CELEX%3A32003H0311

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Recommendation 2007/879/EC (148) and Recommendation 2014/710/EU but are no longer listed in the Annex to this Recommendation. (46) The Body of European Regulators for Electronic Communications was consulted in accordance with Article 64(1) of Directive (EU) 2018/1972 and delivered an opinion on 16 October 2020, HAS ADOPTED THIS RECOMMENDATION: 1.

In defining relevant markets appropriate to national circumstances in accordance with Article  64(3) of Directive (EU) 2018/1972, national regulatory authorities should analyse the product and service markets identified in the Annex.

2.

When considering that any of the markets listed in the Annex is not susceptible to ex ante regulation in the specific national circumstances, national regulatory authorities should perform the three criteria test and demonstrate, and the Commission will verify, that at least one of the three criteria referred to in Article 67(1) of Directive (EU) 2018/1972 is not met.

3.

When identifying relevant geographic markets within their territory in accordance with Article  64(3) of the Code, national regulatory authorities should carry out a granular analysis of demand and supply-side substitutability, starting from an appropriate geographic unit, and aggregating such units that exhibit similar competitive conditions. The assessment of competitive conditions should be forward-looking and should be based, inter alia, on the number and characteristics of competing networks, distribution of and trends in market shares, prices and behavioural patterns.

4.

This Recommendation is without prejudice to market definitions, results of market analyses and regulatory obligations adopted by national regulatory authorities in accordance with the regulatory framework in force prior to the date of adoption of this Recommendation.

5.

This Recommendation is addressed to Member States.

Done at Brussels, 18 December 2020. For the Commission Thierry BRETON Member of the Commission ANNEX Market 1: Wholesale local access provided at a fixed location Market 2: Wholesale dedicated capacity

Commission Recommendation 2007/879/EC of 17  December 2007 on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services (OJ L 344, 28.12.2007, p. 65).https://eur-lex.europa. eu/legal-content/EN/TXT/?uri=celex:32007H0879

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COMMISSION RECOMMENDATION (EU) 2021/554 of 30 March 2021 on the form, content, time limits and level of detail to be given in notifications under the procedures set in Article 32 of Directive (EU) 2018/1972 of the European Parliament and of the Council establishing the European Electronic Communications Code[149] THE EUROPEAN COMMISSION, Having regard to the Treaty on the Functioning of the European Union, Having regard to Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (150) (the Code), and in particular Article 34 thereof, Whereas: (1) Under the Code, the national regulatory authorities (NRAs) are to contribute to the development of the internal market by working with each other, with the Commission and with the Body of European Regulators of Electronic Communications (BEREC) under Regulation (EU) 2018/1971 of the European Parliament and of the Council (151), in a transparent manner in order to ensure the consistent application of the Code in all Member States. (2) To ensure that decisions taken at national level do not adversely affect the internal market for electronic communications or the objectives of the regulatory framework, NRAs are required to notify the Commission, BEREC and the NRAs in other Member States of the draft measures referred to in Article 32(3) of the Code. This notification therefore constitutes an essential procedural requirement. Consequently, failure to comply with this requirement, including in the case of draft decisions specifying or modifying previously notified regulatory obligations, may lead to the annulment of the measure in conformity with national law (152). (3) Articles  32 and 33 of the Code lay down certain procedures and binding time limits for the consideration of the notifications. (4) To ensure the effectiveness of cooperation and the consultation mechanism, and to contribute to legal certainty, recommendations concerning the main procedural aspects of the notifications made under the relevant provisions were introduced by Commission Recommendation 2003/561/EC (153). Recommendation 2003/561/ OJ L 112, 31.3.2021, p. 5. OJ L 321, 17.12.2018, p. 36. 151 Regulation (EU) 2018/1971 of the European Parliament and of the Council of 11  December 2018 establishing the Body of European Regulators for Electronic Communications (BEREC) and the Agency for Support for BEREC (BEREC Office), amending Regulation (EU) 2015/2120 and repealing Regulation (EC) No 1211/2009 (OJ L 321, 17.12.2018, p. 1). 152 Judgment of the European Court of Justice of 20 December 2017, Polkomtel sp. z o.o v Prezes Urzędu Komunikacji Elektronicznej, C-277/16 paragraph 45, ECLI:EU:C:2017:989; judgment of the European Court of Justice of 14 April 2016, Polkomtel, C-397/14, paragraph 56 and reply of the Court to question 2, EU:C:2016:256; judgment of the European Court of Justice of 17 September 2015, KPN BV v Autoriteit Consument en Markt (ACM) C-85/14 point 47, ECLI:EU:C:2015:610. Please also see national court judgments of the Italian Consiglio di Stato, n. 3722/2019, which annulled AgCom’s decision n. 259/14/ CONS based on purely procedural grounds (without entering in the merits of the dispute) for failure to comply with the internal market consultation procedure. Also, the Polish courts annulled the national regulatory decisions, affecting trade between Member States which imposed regulatory obligations without mandatory prior EU consultations (VI ACa 1148/11, VI ACa 137/14). 153 Commission Recommendation 2003/561/EC of 23 July 2003 on notifications, time limits and consultations provided for in Article  7 of Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services (OJ  L  190, 30.7.2003, p. 13). 149 150

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EC was later replaced by Recommendation 2008/850/EC (154) with a view to further simplifying and improving guidance on the notification process. This Recommendation updates the applicable guidance to reflect recent practice and accommodates the provisions of the Code. (5) Pre-notification contacts to discuss formal and substantive issues concerning draft measures before formal notification have proven to be very useful for both the Commission and the NRAs, which have often requested them. During such exchanges, NRAs have the opportunity to present their draft measures and have an open discussion with the Commission services on the proposed national measures. Therefore, NRAs should be encouraged to request pre-notification contacts as early as possible, before or/and after their national consultations, especially for draft measures concerning market reviews. (6) Contacts between the Commission services and the notifying NRAs are foreseen at different stages of the notification process, including when the Commission services request additional information from the NRA or immediately after the Commission adopts comments or no comments letters or decisions opening an in-depth phase of investigation. (7) The Code allows NRAs to withdraw a notified draft measure at any time. Where a notified draft measure is withdrawn in the initial 1-month period, the notified measure is always removed from the register in the secure electronic interface (155). Where, however, the notified draft measure is withdrawn only after the Commission has issued a decision requiring the NRA to withdraw that draft measure under Article 32(6), point (a) of the Code, the initially notified measure remains in the secure electronic interface for transparency purposes. In either case, a notice of withdrawal is published in the public section of the secure electronic interface. (8) To give further guidance to NRAs on the content of draft measures, this Recommendation identifies certain minimum information that should be provided on the content of draft measures in order for them to be properly assessed. This should also reduce the amount of information subsequently requested by the Commission during the assessment of the notification. (9) Account has to be taken of the need to ensure effective assessment, on the one hand, and to simplify administrative procedures as far as possible, on the other. In this respect, the notification mechanism should not involve any unnecessary administrative burdens on the parties concerned. To help simplify the examination of a notified draft measure by the Commission, BEREC and other NRAs, and to make the process faster, NRAs should use a set of forms for notifications. (10) In order to increase transparency on a notified draft measure and to facilitate the exchange of information about such measures between NRAs, BEREC and the Commission, both the Standard and the Short Notification Forms that are made public should contain a clear, summarised description of the main elements of the draft measure to be notified. The templates of those forms indicate that the

Commission Recommendation 2008/850/EC of 15  October 2008 on notifications, time limits and consultations provided for in Article 7 of Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services (OJ L 301, 12.11.2008, p. 23). 155 CIRCABC, https://circabc.europa.eu/ui/welcome 154



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information required in the template sections should be provided where applicable, meaning that not all the information may be relevant in every single case. (11) A Short Notification Form should be used for certain categories of draft measures of a recurring and/or technical character in order to reduce the administrative burden on all parties concerned. NRAs frequently amend technical details of the remedies previously imposed to take account of changes in relevant economic indicators or factors (such as changes in the cost of equipment, cost of labour, inflation rate, or property rental rates), or to update forecasts or assumptions. Only changes or updates of details that do not change the nature or the general scope of preexisting remedies should be notified by means of the Short Notification Form. The assessment of such types of draft measures is likely to be less complex; therefore, as it has happened already in the past, it may be completed by the Commission in less than 1-month period. Similarly, the Commission’s past practice shows that the assessment of those types of draft measures has often not given rise to comments by the Commission to the NRA in accordance with Article 32(3) of the Code. Therefore, it is clarified in the Recommendation in which situations a Short Notification Form can be used. (12) On the other hand, material changes to the nature or scope of remedies that have an appreciable impact on the market, such as amendments to the methodologies used to calculate costs or prices (156), determination of glide paths or changes in price levels (except for price updates that simply reflect changes in the relevant economic indicators or factors described above), should be notified using the Standard Notification Form. (13) The set of notification forms should also include, where applicable, indications on the content of notifications related to the new provisions introduced by the Code. This includes in particular notifications falling under the scope of Articles 61 and 76 of the Code (symmetric access obligations and co-investment offers) and under the scope of Articles 78 to 81 of the Code (voluntary separation, commitments, wholesale-only undertakings and migration from legacy infrastructure). (14) The mechanism allowing the Commission to require NRAs to withdraw planned measures concerning market definition and the designation of undertakings as having significant market power, where such measures would create a barrier to the internal market or would be incompatible with Union law, has contributed significantly to consistent regulatory approaches amongst Member States. The mechanism has proven to be effective in clarifying the circumstances in which ex ante regulation should be applied. (15) The experience of the internal market procedure under Articles 7 and 7a of Directive 2002/21/EC of the European Parliament and of the Council (157) has shown that inconsistencies in the NRAs’ application of remedies under similar market conditions may undermine the internal market in electronic communications. (16) The Code has conferred new powers on the Commission, where BEREC shares its concerns, to require an NRA to withdraw draft measures relating to (i) the extension of obligations beyond the first concentration or distribution point to

For example, information regarding the calculation of the Weighted Average Cost of Capital in line with the Notice on the calculation of the cost of capital for legacy infrastructure (WACC Notice) (2019/C 375/01). 157 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) (OJ L 108, 24.4.2002, p. 33). 156

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address high and non-transitory economic or physical barriers to replication (Article 61(3) of the Code), or (ii) to the regulatory treatment of new very highcapacity networks (VHCN) (Article 76 of the Code). (17) To meet the general objectives laid down in Article 3 of the Code, in particular the objectives of removing remaining obstacles to the internal market and promoting regulatory predictability, full compliance with the notification mechanism laid down in Article 32 of the Code is essential. (18) With the aim to increase the transparency and effectiveness of Article  32 consultation mechanism, the Commission, other NRAs and BEREC should be able to verify readily whether and how the notifying NRA has taken into account the comments provided on a notified draft measure. To this purpose, when an NRA communicates the adopted measure to the Commission, BEREC or other NRAs, after having received comments from them, it should specify the manner in which it took the utmost account of those comments. (19) NRAs’ requests to extend the deadline to notify a new market analysis under Article  67(5) of the Code are to contain sufficient and reasoned information to allow the Commission to assess whether to grant the requested extension. (20) Pursuant to Article  34 of the Code, BEREC provided its opinion on this Recommendation (158) on 12 February 2021, HEREBY RECOMMENDS: Communication channels 1.

NRAs are encouraged to avail themselves of the opportunity to discuss informally with the Commission services any preliminary findings or questions related to future draft measures in a pre-notification meeting (including a phone call or videoconference, where more convenient). These pre-notification contacts should be encouraged, before and/or after the national consultation provided for in Article 23(1) of the Code. These pre-notification contacts are of particular importance for draft measures consisting of market reviews but also relevant for remedies. In those cases, in particular where the draft measure is subject to significant changes following the public consultation, additional pre-notification contacts are encouraged before the formal notification of such measures under Article 32(3) of the Code.

2.

NRAs should submit notifications via the secure electronic interface identified by the Commission.

3.

Where, for technical or other reasons, documents related to the notification cannot be uploaded to the secure electronic interface, the NRA may send the documents to the Commission by electronic mail. Other NRAs and BEREC may nevertheless access those documents in the secure electronic interface where they are saved without delay by the Commission. The NRA should upload any document, exceptionally sent by electronic mail, to the secure electronic interface as soon as technically possible.

4.

Following the upload of a notification to the secure electronic interface (registration) of a notification, the Commission may send the NRA a request for information or clarification, in accordance with Article 20(2) of the Code. It is recommended that

BoR (21) 20.

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NRAs provide the information requested within 3 working days (159), where this is readily available. NRAs should inform the Commission services of any problem they might encounter to meet this deadline. 5.

Where another NRA or BEREC makes comments on a notification, it may issue these comments in any official language it chooses, which may facilitate their consultation by all other NRAs. It should communicate those comments to the Commission, BEREC and the other NRAs, by electronic means, preferably by uploading them into the public section of the Commission’s secure electronic interface.

6.

NRAs should identify and redact any confidential information, and request correction of any errors contained in the Commission comments or no comments letter within 3 working days, before the latter is published in the public section of the Commission secure electronic interface.

7.

An NRA may decide at any time to withdraw the notified draft measure. In this case, the NRA should upload a Notice of Withdrawal in the secure electronic interface.

8.

Where an NRA adopts a draft measure, previously notified under Article 32(3) of the Code, after having received comments from the Commission, BEREC or another NRA, it should communicate to the Commission, BEREC and other NRAs both the adopted measure and the manner in which it took the utmost account of the comments made. In order to increase transparency, and facilitate procedures for the communication of adopted measures, NRAs should communicate to the Commission their adopted measures by completing and submitting the form set out in Annex IV, along with the adopted measure.

Level of detail to be contained in notifications 9.

Notifications should be in any of the official languages of the Union. The Standard Notification Form (Annexes I and II) or the Short Notification Form (Annex III), together referred to as the ‘set of notification forms’, and the communication of adopted measures (Annex IV) may be in any official language, which may facilitate exchanges between NRAs and BEREC.

10. Draft measures notified by an NRA should be duly substantiated and accompanied by any other documentation needed for the assessment of the measure. All information submitted by NRAs should be complete and summarised in the notification form. 11. In order to improve the efficiency of the notification mechanism, to increase legal certainty for NRAs and market players and to ensure timely implementation of regulatory measures, it is desirable that a notification by an NRA covering a market analysis also include the remedies proposed by the NRA to address the market failures identified, where possible. Where the draft measure relates to a market that is found to be competitive and remedies already exist in relation to that market, the notification should also include the proposal to withdraw those obligations. 12. The set of notification forms are not meant to replace the notified draft measure, but their correct use should enable the Commission, BEREC and the NRAs of other Member States to verify that the notified draft measure does indeed contain

Time limits are calculated according to Regulation (EEC, Euratom) No 1182/71 of the Council of 3 June 1971 determining the rules applicable to periods, dates and time limits (OJ L 124, 8.6.1971, p. 1).

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all the information needed to carry out their tasks under Articles 32 and 33 of the Code within the time frame set therein. 13. The requested information should be provided by the NRA in the relevant sections of the notification form, with cross-references to the part of the notified draft measure where this information is to be found. 14. NRAs are encouraged to discuss in advance with the Commission, especially during informal pre-notification contacts any questions on whether a given national measure would fall in the scope of Article 32(3) of the Code, and on the form or substance of planned notifications. Accordingly, NRAs are encouraged to consult the Commission on any aspect of or question on the set of notification forms and, in particular, on the kind of information they are requested to supply. Notification by way of Standard Notification Form 15. Draft measures should be made available to the Commission, BEREC and other NRAs accompanied by a duly completed Standard Notification Form as set out in Annex I and II, except in the cases referred in point 18 of this Recommendation. 16. The notified draft measures should include each of the following, where applicable: (a) information required for all notifications by way of a Standard Notification Form (1) the dates and results of the prior public consultation carried out by the NRA; (2) the opinion issued by the national competition authority, where provided; (b) additional information required for notifications of draft measure related to market analysis and imposition of remedies (Articles 64, 67 and 68 of the Code) (1) the relevant product or service market (160), in particular, a description of the products and services to be included in and excluded from the relevant market on the basis of demand-side and supply-side substitutability; where, for the purposes of the market analysis, a draft measure defines a relevant market which differs from those in the Commission Recommendation (EU) 2020/2245 (161), NRAs should demonstrate that the criteria set in Article 67(1) of the Code are met; (2) the relevant geographic market, including a reasoned analysis of the competitive conditions on the basis of demand-side and supply-side substitutability as well as information and data used in the geographic analysis, regarding the choice of the basic geographic unit, the structural and behavioural indicators used (that is to say, where applicable, number of competing networks, market shares and shares trends, analysis of pricing behaviours or different prices at regional level, and behavioural patterns) (162); See in particular point 24 to 51 of the Commission Guidelines on market analysis and the assessment of significant market power under the EU regulatory framework for electronic communications networks and services (2018/C 159/01). 161 Commission Recommendation (EU) 2020/2245 of 18  December 2020 on relevant product and service markets within the electronic communications sector susceptible to  ex ante  regulation in accordance with Directive (EU) 2018/1972 of the European Parliament and of the Council establishing the European Electronic Communications Code (OJ L 439, 29.12.2020, p. 23). 162 See Recommendation (EU) 2020/2245 and Explanatory Note (SWD(2020) 337 final) accompanying the Recommendation. 160



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(3) the main undertakings active on the relevant market; (4) the results of the analysis of the relevant market, in particular findings on the presence or absence of effective competition on the relevant wholesale market and, the analysis of the corresponding retail market, including the reasons for that presence or absence i.e. the notified draft measure should contain the market shares (preferably both in terms of value and volume) of the different undertakings and trends in these market shares and a reference to other relevant criteria, as appropriate, such as barriers to entry, economies of scale and scope, vertical integration, control of infrastructure not easily duplicated, technological advantages or superiority, absence of or low countervailing buying power, easy or privileged access to capital markets/ financial resources, overall size of the undertaking, product/services diversification, highly developed distribution and sales network, absence of potential competition and barriers to expansion; (5) where the case, the undertakings to be designated as having, individually or jointly, significant market power and the reasoning, evidence and any other relevant factual information in support of such designation; (6) in the case of notification of draft measures which fall within the scope of Articles 68 of the Code, the specific regulatory obligations proposed to address the lack of effective competition in the relevant market concerned or, in cases where a relevant market is found to be effectively competitive and such obligations have already been imposed on that market, the draft measures proposed to withdraw those obligations; (7) for draft measures falling in the scope of Article  76(2) of the Code, the notification should contain in particular: a detailed description of the commitment offered by the significant market power operator and how it complies with the conditions of Article 76(1) of the Code, a description of the regulatory treatment of the new very high-capacity networks network elements subject to the commitment, the entities co-investing, the degree of their co-investment and their likely competitive role on the market, and, where relevant a description of the remedies imposed on the basis of the third subparagraph of Article  76(2) of the Code and the justification for imposing, maintaining or adapting such remedies; (8) for draft measures falling under Article  79 of the Code, the notification should include the commitment decision (where it is distinct from the draft measure), a detailed description of the conditions accepted by the NRA and the nature and results of the market test performed; (9) for draft measures falling under the scope of Article  80 of the Code, the notification should include the relevant information showing in detail that the conditions for removing some of the significant market power obligations, under Article 80(1) of the Code, are met; (10) notifications made in accordance with Article 68(3) second subparagraph of the Code should also contain adequate reasoning to support the request to the Commission as to why obligations for access or interconnection other than those listed in Articles  69 to 74 and Articles  76 and 80 of the Code should be imposed on operators with significant market power;

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(11) notifications falling within the scope of Article  68(5) of the Code should also contain adequate reasoning as to why the intended draft measures are required in order to comply with international commitments; (c) additional information required for notifications of other type of draft measures (Article 61 of the Code) (1)

in the case of notification of draft measures falling under Article 61(1) to 61(4) of the Code, the draft measure should include the affected undertakings, the justification of the draft measure under the legal basis used, the description of the obligations to be imposed, and a reference to any related previously notified draft measures including the results of the analysis of the relevant market which may be affected, as described in point (4);

(2) in particular, draft measures falling under Article  61(3) of the Code should include a description of how the NRA determined the first concentration or distribution point (FCDP), and/or the point beyond the FCDP capable of hosting a sufficient number of enduser connections to enable an efficient undertaking to overcome the significant replicability barriers identified, and information and reasoning supporting the conclusion that the concerned network elements are not replicable, and that therefore obligations are justified; in particular, regarding obligations proposed under Article  61(3), second subparagraph, NRAs should include a description of which economic or physical barriers to replication they consider high and non-transitory and the competition problems and market failures at the retail level that the proposed obligations seek to address, and the justifications for any exception that would apply, such as the determination of which network deployments can be considered new and which projects can be considered small. Notifications by way of Short Notification Form 17. The following draft measures should be made available by duly completing the Short Notification Form, set out in Annex III: (a) draft measures of a purely technical nature that update details of previously imposed regulatory remedies and do not have an appreciable impact on the market; such draft measures may be modifications to reference offers that contain minor adjustments of the obligations already defined, and notifications in second instances (163) when there is no change made or it is of technical nature; (b) updates of decisions concerning the Economic Replicability Test, which do not change the underlying methodology (such as testing of new prices/offers); (c) subsequent notifications of other operators’ obligations using the same approach/methodology that was already used (such as update of obligations on termination markets), if those amendments are limited to remedies, and do not concern market definition and significant market power designation; (d) draft measures falling under the scope of Article 76(2) of the Code, only to the extent that they are limited to subsequent individual draft decisions under That may be the case when a national court annuls an NRA’s decision on procedural grounds, and that NRA has to renotify the Commission the same measure.

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a previously notified and assessed co-investment scheme, and provided there was no material change in circumstances since the assessment of the co-investment scheme (164). 18. For draft measures listed in point 17, it should be sufficient for the NRA to complete and submit a Short Notification Form and to upload the draft measure to the Commission’s secure electronic interface so that it can be publicly accessible. In case the Commission considers, during the assessment of the notified measure, that additional documentation is needed, it can request it at any stage of the procedure. 19. However, if the Commission, upon verification of the conditions for a Short Notification Form to fall within the categories listed under point 17 within 5 working days, considers that those conditions are not met, the notifying NRA should submit the draft measure using the Standard Notification Form without delay. In such cases the 1-month review period would not be interrupted. 20. In planning notifications made pursuant to Article  68(3), second to fourth subparagraphs, of the Code, the NRAs should envisage that a period of at least 5 months would be necessary for the adoption of the authorising decision by the Commission, given the need to consult with BEREC these measures that need to be adopted as implementing acts under Article 118(3). Registration of notifications 21. Notifications made by means of the set of notification forms listed in points 16 and 17, are registered in the order in which they are notified. NRAs should note that the 1-month review period starts immediately at the moment of reception of the notification of the draft measure. 22. The acknowledgement and allocation of a notification number should be registered, and notice by electronic means should be given to all NRAs, BEREC and other registered users of the Commission’s secure electronic interface. This registration notice should include the following: (a)

the registration date of the notification;

(b) the subject matter of the notification; (c)

the notification form;

(d) any supporting documentation received. Processing of Confidential Information 23. Where the NRA considers that information related to a notification is confidential in accordance with Union and national rules on commercial confidentiality the originator of the information should mark it clearly as ‘Confidential’, before uploading it to the Commission’s secure electronic interface or, where applicable, sending it by electronic means. See recital 201 of the Code: in the specific case of co-investment schemes falling under Article 76 of the Code. Recital 201 indicates that: ‘In the interest of efficiency, a national regulatory authority should be able to submit a single notification to the Commission of a draft measure that relates to a co-investment scheme that meets the relevant conditions. Where the Commission does not exercise its powers to require the withdrawal of the draft measure, it would be disproportionate for subsequent simplified notifications of individual draft decisions of the national regulatory authority on the basis of the same scheme, including in addition evidence of actual conclusion of an agreement with at least one co-investor, to be subject to a decision requiring withdrawal in the absence of a change in circumstances.’

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24. To ensure transparency for notifications, any notification submitted as ‘Confidential’ should also be submitted in a redacted or adapted non-confidential version that will be made public. 25. When completing the notification forms referred to in point 9, NRAs should not include confidential information. 26. This Recommendation is addressed to the Member States. Done at Brussels, 30 March 2021. For the Commission Thierry BRETON Member of the Commission ___ ANNEX I STANDARD NOTIFICATION FORM Draft measure related to market analysis and imposition of remedies (Articles 64, 67 and 68 of the Code) (referred to in points 16(a) and (b)) Section 1 – Market definition Please provide information on the following, where applicable: 1.1

The relevant product/service market.

1.2

The relevant geographic market/s

1.3

If the National Competition Authority (‘NCA’) issued an opinion, indication of whether it agrees or not with the proposed draft analysis of the relevant market

Agreement □

Disagreement □

If the NCA disagrees, please outline the reasons:

1.4

Dates of the national public consultation

From________ to__________

1.5

A brief overview of the results of the public consultation on the proposed market definition. Please indicate whether any change was made to the draft measure subsequently to the public consultation, and if so, briefly describe the changes.

(e.g. how many comments were received, which respondents agreed with the proposed market definition, which respondents disagreed with it and for which reasons).

1.6

Where the relevant market is different from those listed in the Recommendation (EU) 2020/2245, a summary of the main reasons justifying the proposed market definition in light of the three criteria set in Article 67(1) of the Code (1).

Section 2 – Designation of undertakings with Significant Market Power (SMP) Please provide information on the following, where applicable: 2.1

The name of the undertakings designated as having, individually or jointly, SMP. Where applicable, the name of the undertakings considered as no longer having SMP.

2.2

The criteria used to designate whether or not an undertaking has individual or joint SMP.

2.3

The name of the main undertakings (competitors) active in the relevant market.



Related Recommendations and Guidelines 2.4

The market shares of the undertakings mentioned above and the basis for calculation of market share (e.g. turnover, number of subscribers).

2.5

If the National Competition Authority (‘NCA’) issued an opinion, indication of whether it agrees or not with the proposed draft SMP assessment.

2.6

Agreement □

Section 3 – Regulatory obligations Please provide information on the following, where applicable: The legal basis for the obligations to be imposed, maintained, amended or withdrawn (Articles 69 to 74 and Articles 76 to 81 of the Code).

3.2

The reasons for which the imposition, maintenance or amendment of obligations on undertakings is considered proportional and justified in light of the legal provision they are based on. Alternatively, indicate the paragraphs, sections or pages of the draft measure where such information is to be found.

3.3

Where the remedies proposed are other than those set out in Articles 69 to 74, and Articles 76 and 80 of the Code, please indicate what ‘exceptional circumstances’ within the meaning of Article 68(3) of the Code justify the imposition of such remedies. Alternatively, indicate the paragraphs, sections or pages of the draft measure where such information is to be found.

Section 3a – Draft measures under Article 76(2) of the Code Please provide information on the following, where applicable: 3a.1

Short description of the commitments offered by the SMP operator and how they comply with the conditions of Article 76(1).

3a.2

A description of the regulatory treatment of the new VHCN network elements subject to the commitment under Article 76(2), first subparagraph.

3a.3

If applicable, a description of the remedies imposed on the basis of the third subparagraph of Article 76(2).

Section 3b – Draft measures under Article 79 of the Code Please provide information on the following, where applicable: 3b.1

Short description of the attached commitment decision (or, indication of the paragraphs, sections or pages of the draft measure where such information is to be found).

Disagreement □

If the NCA disagrees, please outline the reasons:

The results of the public consultation on the proposed designation(s) as undertakings having SMP (e.g. total number of comments received, numbers agreeing/disagreeing). Please indicate whether any change was made to the draft measure subsequently to the public consultation, and if so, briefly describe the changes.

3.1

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Section 3c – Draft measures under Article 80 of the Code Please provide information on the following, where applicable: 3c.1

Short description of the structure of the undertaking (or indication of the paragraphs, sections or pages of the draft measure where such information is to be found).

3c.2

If applicable, a description of the remedies imposed or withdrawn.

(1) Directive (EU) 2018/1972 of the European Parliament and of the Council establishing the European Electronic Communications Code.

ANNEX II STANDARD NOTIFICATION FORM Symmetric obligations under Article 61 of the Code (referred to in points 16(a) and (c)) Section 1 – Draft measures concerning imposition of symmetric obligations Please provide information on the following, where applicable: 1.1.

A brief summary of the content of the notified draft measure.

1.2.

The legal basis for the obligations to be imposed, maintained, amended or withdrawn (Articles 61 paragraph 1, 2, 3 or 4).

□ Article 61(1) Article 61(2) □ point (a)

□ point (b)

□ point (c)

□ point (d)



Article 61(3)

□ First subparagraph □ Second subparagraph □ Article 61(4) 1.3.

The Article 32 notification reference of any related previously notified draft measures, where applicable.

1.4.

The names of the affected undertakings.

1.5.

The obligations to be imposed, maintained or withdrawn.

1.6.

The reasons for which the imposition, maintenance or amendment of obligations on undertakings is considered proportional and justified in the light of the legal provision they are based on. Alternatively, indicate the paragraphs, sections or pages of the draft measure where such information is to be found.

1.7.

The opinion of the national competition authority, where provided.

1.8.

The date(s) of the public consultation on the proposed obligations and a brief overview of the results of that public consultation. Please indicate whether any change was made to the draft measure subsequently to the public consultation, and if so, briefly describe the changes.



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ANNEX III SHORT NOTIFICATION FORM (referred to in point 17) Section 1 – Draft measures that change the technical details of previously imposed regulatory remedies(1) or subsequent notifications of other operators’ obligations using the same approach/methodology that was already used Please provide information on the following, where applicable: 1.1

The notification reference number/s of the previously notified draft measure/s).

1.2

Short description of the technical detail/s being changed (indicating the relevant market concerned), or in the case of a subsequent notification of other operators’ obligations using the same approach/ methodology that was already used, indication of the remedies to be imposed.

1.3

If the technical details updated relate to a pricing structure (e.g. annual updates of costs and estimates of accounting models) explanation on whether this is a routine update.

1.4

Was the NCA consulted on the proposed draft measure? If so, what was its opinion?

1.5

Comments:

Section 2 – Draft measures in the form of subsequent individual draft decision under a previously notified and assessed co-investment scheme provided there was no change in circumstances. (Article 76 of the Code) Please provide information on the following, where applicable: 2.1.

Short description of the content of the draft measure, indicating evidence of conclusion of an agreement with at least one co-investor.

2.2.

Notification reference number/s of the previously notified draft measure/s

2.3.

List of the operators to whom this draft measure is applicable.

2.4.

Was the NCA consulted on the proposed draft measure? If so, what was its opinion?

2.5.

Comments.

( ) NRAs frequently amend technical details of the remedies previously imposed to take account of changes in relevant economic indicators or factors (such as changes in the cost of equipment; cost of labour; inflation rate; or property rental rates), or to update forecasts or assumptions. Only changes or updates of details that do not change the nature or the general scope of pre-existing remedies should be notified by means of the Short Notification Form. On the other hand, material changes to the nature or scope of the remedies (such as amendments to the methodologies used to calculate costs or prices; to the determination of glide paths or to price levels, except for the price changes that simply reflect changes in relevant economic indicators or factors mentioned above,) should be notified using the Standard Notification Form. 1

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ANNEX IV COMMUNICATION OF ADOPTED MEASURE/S (referred to in point 8) Section 1 – Identification of Adopted Measure Please provide information on the following, where applicable: 1.1.

Date of entry into force of the adopted measure

1.2.

Registration number and title of notification previously made to the Commission on the measure at draft stage.

1.3.

Did your NRA receive comments from the Commission, other NRAs or BEREC in reaction to the notification of the draft measure under Article 32(3) Code?

Yes □

No □

Section 2 – Detail on how utmost account was taken of comments made Please provide information on the following, where applicable: 2.1.

Explanation on how the NRA took utmost account of the comments raised. Where, in order to reflect comments made, changes have been made to the text of the draft measure please provide the relevant references to the updated Articles/section/page number.

[Heading of the comment 1] Explanations how it was taken into account and/or reference to the section of the adopted measure where this information can be found [Heading of the comment 2] Explanations how it was taken into account and/or reference to the section of the adopted measure where this information can be found [Heading of the comment 3] Explanations how it was taken into account and/or reference to the section of the adopted measure where this information can be found



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GUIDELINES ON THE APPLICATION OF EEC COMPETITION RULES IN THE TELECOMMUNICATIONS SECTOR (91/C 233/02) PREFACE These guidelines aim at clarifying the application of Community competition rules to the market participants in the telecommunications sector. They must be viewed in the context of the special conditions of the telecommunications sector, and the overall Community telecommunications policy will be taken into account in their application. In particular, account will have to be taken of the actions the Commission will be in a position to propose for the telecommunications industry as a whole, actions deriving from the assessment of the state of play and issues at stake for this industry, as has already been the case for the European electronics and information technology industry in the communication of the Commission of 3 April 1991165. A major political aim, as emphasized by the Commission, the Council, and the European Parliament, must be the development of efficient Europe-wide networks and services, at the lowest cost and of the highest quality, to provide the European user in the single market of 1992 with a basic infrastructure for efficient operation. The Commission has made it clear in the past that in this context it is considered that liberalization and harmonization in the sector must go hand in hand. Given the competition context in the telecommunications sector, the telecommunications operators should be allowed, and encouraged, to establish the necessary cooperation mechanisms, in order to create — or ensure — Community-wide full interconnectivity between public networks, and where required between services to enable European users to benefit from a wider range of better and cheaper telecommunications services. This can and has to be done in compliance with, and respect of, EEC competition rules in order to avoid the diseconomies which otherwise could result. For the same reasons, operators and other firms that may be in a dominant market position should be made aware of the prohibition of abuse of such positions. The guidelines should be read in the light of this objective. They set out to clarify, inter alia, which forms of cooperation amount to undesirable collusion, and in this sense they list what is not acceptable. They should therefore be seen as one aspect of an overall Community policy towards telecommunications, and notably of policies and actions to encourage and stimulate those forms of cooperation which promote the development and availability of advanced communications for Europe. The full application of competition rules forms a major part of the Community’s overall approach to telecommunications. These guidelines should help market participants to shape their strategies and arrangements for Europe-wide networks and services from the outset in a manner which allows them to be fully in line with these rules. In the event of significant changes in the conditions which prevailed when the guidelines were drawn up, the Commission may find it appropriate to adapt the guidelines to the evolution of the situation in the telecommunications sector. I. SUMMARY 1.

The Commission of the European Communities in its Green Paper on the development of the common market for telecommunications services and equipment (COM(87)290) dated 30 June 1987 proposed a number of Community positions. Amongst these, positions (H) and (I) are as follows:

The European electronics and information technology industry: state of play, issues at stake and proposals for action, SEC(91) 565, 3 April 1991.

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‘(H) strict continuous review of operational (commercial) activities of telecommunications administrations according to Articles  85, 86 and 90 of the EEC  Treaty. This applies in particular to practices of crosssubsidization of activities in the competitive services sector and of activities in manufacturing; (J)

2.

strict continuous review of all private providers in the newly opened sectors according to Articles  85 and 86, in order to avoid the abuse of dominant positions;’.

These positions were restated in the Commission’s document of 9  February 1988‘Implementing the Green Paper on the development of the common market for telecommunications services and equipment/state of discussions and proposals by the Commission’ (COM(88)48). Among the areas where the development of concrete policy actions is now possible, the Commission indicated the following: ‘Ensuring fair conditions of competition: Ensuring an open competitive market makes continuous review of the telecommunications sector necessary. The Commission intends to issue guidelines regarding the application of competition rules to the telecommunications sector and on the way that the review should be carried out.’ This is the objective of this communication. The telecommunications sector in many cases requires cooperation agreements,  inter alia,  between telecommunications organizations (TOs) in order to ensure network and services interconnectivity, one-stop shopping and one-stop billing which are necessary to provide for Europe-wide services and to offer optimum service to users. These objectives can be achieved, inter alia, by TOs cooperating — for example, in those areas where exclusive or special rights for provision may continue in accordance with Community law, including competition law, as well as in areas where optimum service will require certain features of cooperation. On the other hand the overriding objective to develop the conditions for the market to provide European users with a greater variety of telecommunications services, of better quality and at lower cost requires the introduction and safeguarding of a strong competitive structure. Competition plays a central role for the Community, especially in view of the completion of the single market for 1992. This role has already been emphasized in the Green Paper. The single market will represent a new dimension for telecoms operators and users. Competition will give them the opportunity to make full use of technological development and to accelerate it, and encouraging them to restructure and reach the necessary economies of scale to become competitive not only on the Community market, but worldwide. With this in mind, these guidelines recall the main principles which the Commission, according to its mandate under the Treaty’s competition rules, has applied and will apply in the sector without prejudging the outcome of any specific case which will have to be considered on the facts. The objective is,  inter alia,  to contribute to more certainty of condititions for investment in the sector and the development of Europe-wide services. The mechanisms for creating certainty for individual cases (apart from complaints and ex-officio investigations) are provided for by the notification and negative



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clearance procedures provided under Regulation No  17, which give a formal procedure for clearing cooperation agreements in this area whenever a formal clearance is requested. This is set out in further detail in this communication. II. INTRODUCTION 3.

The fundamental technological development worldwide in the telecommunications sector166 has caused considerable changes in the competition conditions. The traditional monopolistic administrations cannot alone take up the challenge of the technological revolution. New economic forces have appeared on the telecoms scene which are capable of offering users the numerous enhanced services generated by the new technologies. This has given rise to and stimulated a wide deregulation process propagated in the Community with various degrees of intensity. This move is progressively changing the face of the European market structure. New private suppliers have penetrated the market with more and more transnational value-added services and equipment. The telecommunications administrations, although keeping a central role as public services providers, have acquired a business-like way of thinking. They have started competing dynamically with private operators in services and equipment. Wide restructuring, through mergers and joint ventures, is taking place in order to compete more effectively on the deregulated market through economies of scale and rationalization. All these events have a multiplier effect on technological progress.

4.

In the light of this, the central role of competition for the Community appears clear, especially in view of the completion of the single market for 1992. This role has already been emphasized in the Green Paper.

5.

In the application of competition rules the Commission endeavours to avoid the adopting of State measures or undertakings erecting or maintaining artificial barriers incompatible with the single market. But it also favours all forms of cooperation which foster innovation and economic progress, as contemplated by competition law. Pursuing effective competition in telecoms is not a matter of political choice. The choice of a free market and a competition-oriented economy was already envisaged in the EEC Treaty, and the competition rules of the Treaty are directly applicable within the Community. The abovementioned fundamental changes make necessary the full application of competition law.

6.

There is a need for more certainty as to the application of competition rules. The telecommunication administrations together with keeping their duties of public interest, are now confronted with the application of these rules practically without transition from a long tradition of legal protection. Their scope and actual implications are often not easily perceivable. As the technology is fast-moving and huge investments are necessary, in order to benefit from the new possibilities on the market-place, all the operators, public or private, have to take quick decisions, taking into account the competition regulatory framework.

7.

This need for more certainty regarding the application of competition rules is already met by assessments made in several individual cases. However, assessments of individual cases so far have enabled a response to only some of the

Telecommunications embraces any transmission, emission or reception of signs, signals, writing, images and sounds or intelligence of any nature by wire, radio, optical and other electromagnetic systems (Article 2 of WATTC Regulation of 9 December 1988).

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numerous competition questions which arise in telecommunications. Future cases will further develop the Commission’s practice in this sector. Purpose of these guidelines 8.

These guidelines are intended to advise public telecommunications operators, other telecommunications service and equipment suppliers and users, the legal profession and the interested members of the public about the general legal and economic principles which have been and are being followed by the Commission in the application of competition rules to undertakings in the telecommunications sector, based on experience gained in individual cases in compliance with the rulings of the Court of Justice of the European Communities.

9.

The Commission will apply these principles also to future individual cases in a flexible way, and taking the particular context of each case into account. These guidelines do not cover all the general principles governing the application of competition rules, but only those which are of specific relevance to telecommunication issues. The general principles of competition rules not specifically connected with telecommunications but entirely applicable to these can be found,  inter alia,  in the regulatory acts, the Court judgments and the Commission decisions dealing with the individual cases, the Commission’s yearly reports on competition policy, press releases and other public information originating from the Commission.

10. These guidelines do not create enforceable rights. Moreover, they do not prejudice the application of EEC competition rules by the Court of Justice of the European Communities and by national authorities (as these rules may be directly applied in each Member State, by the national authorities, administrative or judicial). 11. A change in the economic and legal situation will not automatically bring about a simultaneous amendment to the guidelines. The Commission, however, reserves the possibility to make such an amendment when it considers that these guidelines no longer satisfy their purpose, because of fundamental and/or repeated changes in legal precedents, methods of applying competition rules, and the regulatory, economic and technical context. 12. These guidelines essentially concern the direct application of competition rules to undertakings, i.e. Articles 85 and 86 of the EEC Treaty. They do not concern those applicable to the Member States, in particular Articles 5 and 90 (1) and (3). Principles ruling the application of Article 90 in telecommunications are expressed in Commission Directives adopted under Article 90 (3) for the implementation of the Green Paper167. Relationship between competition rules applicable to undertakings and those applicable to Member States 13. The Court of Justice of the European Communities168 has ruled that while it is true that Articles  85 and 86 of the Treaty concern the conduct of undertakings Commission Directive 88/301/EEC of 16 May 1988 on competition in the markets in telecommunications terminal equipment (OJ No L 131, 27. 5. 1988, p. 73). Commission Directive 90/388/EEC of 28 June 1990 on competition in the markets for telecommunications services (OJ No L 192, 24. 7. 1990, p. 10). 168 Judgment of 10. 1. 1985 in Case 229/83, Leclerc/gasoline [1985]  ECR  17; Judgment of 11. 7. 1985 in Case 299/83, Leclerc/books [1985]  ECR  2517; Judgment of 30. 4. 1986 in Cases from 209 to 213/84, Ministère public v. Asjes [1986]  ECR  1425; Judgment of 1. 10. 1987 in Case 311/85, Vereniging van VlaamseReisbureaus v. SocialeDienst van de PlaatselijkeenGewestelijkeOverheidsdiensten [1987] ECR 3801. 167



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and not the laws or regulations of the Member States, by virtue of Article 5 (2) of the EEC Treaty, Member States must not adopt or maintain in force any measure which could deprive those provisions of their effectiveness. The Court has stated that such would be the case, in particular, if a Member State were to require or favour prohibited cartels or reinforce the effects thereof or to encourage abuses by dominant undertakings. If those measures are adopted or maintained in force vis-à-vis public undertakings or undertakings to which a Member State grants special or exclusive rights, Article 90 might also apply. 14. When the conduct of a public undertaking or an undertaking to which a Member State grants special or exclusive rights arises entirely as a result of the exercise of the undertaking’s autonomous behaviour, it can only be caught by Articles 85 and 86. When this behaviour is imposed by a mandatory State measure (regulative or administrative), leaving no discretionary choice to the undertakings concerned, Article 90 may apply to the State involved in association with Articles 85 and 86. In this case Articles 85 and 86 apply to the undertakings’ behaviour taking into account the constraints to which the undertakings are submitted by the mandatory State measure. Ultimately, when the behaviour arises from the free choice of the undertakings involved, but the State has taken a measure which encourages the behaviour or strengthens its effects, Articles 85 and/or 86 apply to the undertakings’ behaviour and Article  90 may apply to the State measure. This could be the case,  inter alia,  when the State has approved and/or legally endorsed the result of the undertakings’ behaviour (for instance tariffs). These guidelines and the Article 90 Directives complement each other to a certain extent in that they cover the principles governing the application of the competition rules: Articles 85 and 86 on the one hand, Article 90 on the other. Application of competition rules and other Community law, including open network provision (ONP) rules 15. Articles 85 and 86 and Regulations implementing those Articles in application of Article 87 of the EEC Treaty constitute law in force and enforceable throughout the Community. Conflicts should not arise with other Community rules because Community law forms a coherent regulatory framework. Other Community rules, and in particular those specifically governing the telecommunications sector, cannot be considered as provisions implementing Articles 85 and 86 in this sector. However it is obvious that Community acts adopted in the telecommunications sector are to be interpreted in a way consistent with competition rules, so to ensure the best possible implementation of all aspects of the Community telecommunications policy. 16. This applies, inter alia, to the relationship between competition rules applicable to undertakings and the ONP rules. According to the Council Resolution of 30 June 1988 on the development of the common market for telecommunications services and equipment up to 1992169, ONP comprises the ‘rapid definition, by Council Directives, of technical conditions, usage conditions, and tariff principles for open network provision, starting with harmonized conditions for the use of leased lines’. OJ No C 257, 4. 10. 1988, p. 1.

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The details of the ONP procedures have been fixed by Directive 90/387/EEC170 on the establishment of the internal market for telecommunications services through the implementation of open network provision, adopted by Council on 28 June 1990 under Article 100a of the EEC Treaty. 17. ONP has a fundamental role in providing European-wide access to Communitywide interconnected public networks. When ONP harmonization is implemented, a network user will be offered harmonized access conditions throughout the EEC, whichever country they address. Harmonized access will be ensured in compliance with the competition rules as mentioned above, as the ONP rules specifically provide. ONP rules cannot be considered as competition rules which apply to States and/ or to undertakings’ behaviour. ONP and competition rules therefore constitute two different but coherent sets of rules. Hence, the competition rules have full application, even when all ONP rules have been adopted. 18. Competition rules are and will be applied in a coherent manner with Community trade rules in force. However, competition rules apply in a non-discriminatory manner to EEC undertakings and to non-EEC ones which have access to the EEC market. III. COMMON PRINCIPLES OF APPLICATION OF ARTICLES 85 AND 86 Equal application of Articles 85 and 86 19. Articles  85 and 86 apply directly and throughout the Community to all undertakings, whether public or private, on equal terms and to the same extent, apart from the exception provided in Article  90 (2)171. The Commission and national administrative and judicial authorities are competent to apply these rules under the conditions set out in Council Regulation No 17172. 20. Therefore, Articles  85 and 86 apply both to private enterprises and public telecommunications operators embracing telecommunications administrations and recognized private operating agencies, hereinafter called ‘telecommunications organizations’ (TOs). TOs are undertakings within the meaning of Articles  85 and 86 to the extent that they exert an economic activity, for the manufacturing and/or sale of telecommunications equipment and/or for the provision of telecommunications services, regardless of other facts such as, for example, whether their nature is economic or not and whether they are legally distinct entities or form part of the State organization173. Associations of TOs are associations of undertakings within the meaning of Article 85, even though TOs participate as undertakings in organizations in which governmental authorities are also represented.

OJ No L 192, 24. 7. 1990. p. 1. Article 90 (2) states: ‘Undertakings entrusted with the operation of services of general economic interest or having the character of a revenue-producing monopoly shall be subject to the rules contained in this Treaty, in particular to the rules on competition, in so far as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them. The development of trade must not be affected to such an extent as would be contrary to the interests of the Community’. 172 OJ No 13, 21. 2. 1962, p. 204/62 (Special Edition 1959-62, p. 87). 173 See Judgment of the Court 16. 6. 1987 in Case 118/85, Commission v. Italy — Transparency of Financial Relations between Member States and Public Undertakings [1987] ECR 2599. 170 171



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Articles  85 and 86 apply also to undertakings located outside the EEC when restrictive agreements are implemented or intended to be implemented or abuses are committed by those undertakings within the common market to the extent that trade between Member States is affected174. Competition restrictions justified under Article 90 (2) or by essential requirements 21. The exception provided in Article 90 (2) may apply both to State measures and to practices by undertakings. The Services Directive 90/388/EEC, in particular in Article 3, makes provision for a Member State to impose specified restrictions in the licences which it can grant for the provision of certain telecommunications services. These restrictions may be imposed under Article 90 (2) or in order to ensure the compliance with State essential requirements specified in the Directive. 22. As far as Article  90 (2) is concerned, the benefit of the exception provided by this provision may still be invoked for a TO’s behaviour when it brings about competition restrictions which its Member State did not impose in application of the Services Directive. However, the fact should be taken into account that in this case the State whose function is to protect the public and the general economic interest, did not deem it necessary to impose the said restrictions. This makes particularly hard the burden of proving that the Article  90 (2) exception still applies to an undertakings’s behaviour involving these restrictions. 23. The Commission infers from the case law of the Court of Justice175 that it has exclusive competence, under the control of the Court, to decide that the exception of Article 90 (2) applies. The national authorities including judicial authorities can assess that this exception does not apply, when they find that the competition rules clearly do not obstruct the performance of the task of general economic interest assigned to undertakings. When those authorities cannot make a clear assessment in this sense they should suspend their decision in order to enable the Commission to find that the conditions for the application of that provision are fulfilled. 24. As to measures aiming at the compliance with ‘essential requirements’ within the meaning of the Services Directive, under Article 1 of the latter176, they can only be taken by Member States and not by undertakings. The relevant market 25. In order to assess the effects of an agreement on competition for the purposes of Article 85 and whether there is a dominant position on the market for the purposes of Article 86, it is necessary to define the relevant market(s), product or service market(s) and geographic market(s), within the domain of telecommunications. In a context of fast-moving technology the relevant market definition is dynamic and variable. (a)  The product market 26. A  product market comprises the totality of the products which, with respect to their characteristics, are particularly suitable for satisfying constant needs and See Judgment of the Court of 27. 9. 1988 in Joined Cases 89, 104, 114, 116, 117, 125, 126, 127, 129/85, Ålström& others v. Commission (‘Woodpulp’), [1988] ECR 5193. 175 Case 10/71, Mueller-Hein [1971]  ECR  723; Judgment of 11. 4. 1989 in Case 66/86, Ahmed Saeed [1989] ECR 803. 176 ‘… the non-economic reasons in the general interest which may cause a Member State to restrict access to the public telecommunications network or public telecommunications services.’ 174

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are only to a limited extent interchangeable with other products in terms of price, usage and consumer preference. An examination limited to the objective characteristics only of the relevant products cannot be sufficient: the competitive conditions and the structure of supply and demand on the market must also be taken into consideration177. The Commission can precisely define these markets only within the framework of individual cases. 27. For the guidelines’ purpose it can only be indicated that distinct service markets could exist at least for terrestrial network provision, voice communication, data communication and satellites. With regard to the equipment market, the following areas could all be taken into account for the purposes of market definition: public switches, private switches, transmission systems and more particularly, in the field of terminals, telephone sets, modems, telex terminals, data transmission terminals and mobile telephones. The above indications are without prejudice to the definition of further narrower distinct markets. As to other services — such as value-added ones — as well as terminal and network equipment, it cannot be specified here whether there is a market for each of them or for an aggregate of them, or for both, depending upon the interchangeability existing in different geographic markets. This is mainly determined by the supply and the requirements in those markets. 28. Since the various national public networks compete for the installation of the telecommunication hubs of large users, market definition may accordingly vary. Indeed, large telecommunications users, whether or not they are service providers, locate their premises depending,  inter alia,  upon the features of the telecommunications services supplied by each TO. Therefore, they compare national public networks and other services provided by the TOs in terms of characteristics and prices. 29. As to satellite provision, the question is whether or not it is substantially interchangeable with terrestrial network provision: (a) communication by satellite can be of various kinds: fixed service (point to point communication), multipoint (point to multipoint and multipoint to multipoint), one-way or two-way; (b) satellites’ main characteristics are: coverage of a wide geographic area not limited by national borders, insensitivity of costs to distance, flexibility and ease of networks deployment, in particular in the very small aperture terminals (VSAT) systems; (c) satellites’ uses can be broken down into the following categories: public switched voice and data transmission, business value-added services and broadcasting; (d) a satellite provision presents a broad interchange-ability with the terrestrial transmission link for the basic voice and data transmission on long distance. Conversely, because of its characteristics it is not substantially interchangeable but rather complementary to terrestrial transmission links for several specific voice and data transmission uses. These uses are: services to peripheral or less-developed regions, links between noncontiguous countries, reconfiguration of capacity and provision of routing Case 322/81, Michelin v. Commission, 9 November 1983 [1983] ECR 3529, Ground 37.

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for traffic restoration. Moreover, satellites are not currently substantially interchangeable for direct broadcasting and multipoint private networks for value-added business services. Therefore, for all those uses satellites should constitute distinct product markets. Within satellites, there may be distinct markets. 30. In mobile communications distinct services seem to exist such as cellular telephone, paging, telepoint, cordless voice and cordless data communication. Technical development permits providing each of these systems with more and more enhanced features. A consequence of this is that the differences between all these systems are progressively blurring and their interchange-ability increasing. Therefore, it cannot be excluded that in future for certain uses several of those systems be embraced by a single product market. By the same token, it is likely that, for certain uses, mobile systems will be comprised in a single market with certain services offered on the public switched network. (b)  The geographic market 31. A geographic market is an area: —

where undertakings enter into competition with each other, and

—

where the objective conditions of competition applying to the product or service in question are similar for all traders178.

32. Without prejudice to the definition of the geographic market in individual cases, each national territory within the EEC seems still to be a distinct geographic market as regards those relevant services or products, where: —

the customer’s needs cannot be satisfied by using a non-domestic service,

—

there are different regulatory conditions of access to services, in particular special or exclusive rights which are apt to isolate national territories,

—

as to equipment and network, there are no Community-common standards, whether mandatory or voluntary, whose absence could also isolate the national markets. The absence of voluntary Community-wide standards shows different national customers’ requirements.

However, it is expected that the geographic market will progressively extend to the EEC territory at the pace of the progressive realization of a single EEC market. 33. It has also to be ascertained whether each national market or a part thereof is a substantial part of the common market. This is the case where the services of the product involved represent a substantial percentage of volume within the EEC. This applies to all services and products involved. 34. As to satellite uplinks, for cross-border communication by satellite the uplink could be provided from any of several countries. In this case, the geographic market is wider than the national territory and may cover the whole EEC. As to space segment capacity, the extension of the geographic market will depend on the power of the satellite and its ability to compete with other satellites for transmission to a given area, in other words on its range. This can be assessed only case by case.

Judgment of 14. 2. 1978 in Case 27/76, United Brands v. Commission [1978] ECR 207, Ground 44. In the telecommunications sector: Judgment of 5. 10. 1988 in Case 247/86, Alsatel-Novasam [1988] ECR 5987.

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35. As to services in general as well as terminal and network equipment, the Commission assesses the market power of the undertakings concerned and the result for EEC competition of the undertakings’ conduct, taking into account their interrelated activities and interaction between the EEC and world markets. This is even more necessary to the extent that the EEC market is progressively being opened. This could have a considerable effect on the structure of the markets in the EEC, on the overall competitivity of the undertakings operating in those markets, and in the long run, on their capacity to remain independent operators. IV. APPLICATION OF ARTICLE 85 36. The Commission recalls that a major policy target of the Council Resolution of 30 June 1988 on the development of the common market for telecommunications services and equipment up to 1992 was that of: ‘… stimulating European cooperation at all levels, as far as compatible with Community competition rules, and particularly in the field of research and development, in order to secure a strong European presence on the telecommunications markets and to ensure the full participation of all Member States’. In many cases Europe-wide services can be achieved by TOs’ cooperation — for example, by ensuring interconnectivity and interoperability (i)

in those areas where exclusive or special rights for provision may continue in accordance with Community law and in particular with the Services Directive 90/388/EEC; and

(ii) in areas where optimum service will require certain features of cooperation, such as so-called ‘one-stop shopping’ arrangements, i.e. the possibility of acquiring Europe-wide services at a single sales point. The Council is giving guidance, by Directives, Decisions, recommendations and resolutions on those areas where Europe-wide services are most urgently needed: such as by recommendation 86/659/EEC on the coordinated introduction of the integrated services digital network (ISDN) in the European Community179 and by recommendation 87/371/EEC on the coordinated introduction of public panEuropean cellular digital land-based mobile communications in the Community180. The Commission welcomes and fully supports the necessity of cooperation particularly in order to promote the development of trans-Europe an services and strengthen the competitivity of the EEC industry throughout the Community and in the world markets. However, this cooperation can only attain that objective if it complies with Community competition rules. Regulation No 17 provides welldefined clearing procedures for such cooperation agreements. The procedures foreseen by Regulation No 17 are: (i)

the application for negative clearance, by which the Commission certifies that the agreements are not caught by Article 85, because they do not restrict competition and/or do not affect trade between Member States; and

(ii) the notification of agreements caught by Article  85 in order to obtain an exemption under Article 85 (3). Although if a particular agreement is caught by Article  85, an exemption can be granted by the Commission under OJ No L 382, 31. 12. 1986, p. 36. OJ No L 196, 17. 7. 1987, p. 81.

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Article 85 (3), this is only so when the agreement brings about economic benefits — assessed on the basis of the criteria in the said paragraph 3 — which outweigh its restrictions on competition. In any event competition may not be eliminated for a substantial part of the products in question. Notification is not an obligation; but if, for reasons of legal certainty, the parties decide to request an exemption pursuant to Article 4 of Regulation No 17 the agreements may not be exempted until they have been notified to the Commission. 37. Cooperation agreements may be covered by one of the Commission block exemption Regulations or Notices181. In the first case the agreement is automatically exempted under Article 85 (3). In the latter case, in the Commission’s view, the agreement does not appreciably restrict competition and trade between Member States and therefore does not justify a Commission action. In either case, the agreement does not need to be notified; but it may be notified in case of doubt. If the Commission receives a multitude of notifications of similar cooperation agreements in the telecommunications sector, it may consider whether a specific block exemption regulation for such agreements would be appropriate. 38. The categories of agreements182 which seem to be typical in telecommunications and may be caught by Article 85 are listed below. This list provides examples only and is, therefore, not exhaustive. The Commission is thereby indicating possible competition restrictions which could be caught by Article  85 and cases where there may be the possibility of an exemption. 39. These agreements may affect trade between Member States for the following reasons: (i)

services other than services reserved to TOs, equipment and spatial segment facilities are traded throughout the EEC; agreements on these services and equipment are therefore likely to affect trade. Although at present crossfrontier trade is limited, there is potentially no reason to suppose that suppliers of such facilities will in future confine themselves to their national market;

(ii) as to reserved network services, one can consider that they also are traded throughout the Community. These services could be provided by an operator located in one Member State to customers located in other Member States, which decide to move their telecommunications hub into the first one because it is economically or qualitatively advantageous. Moreover, agreements on these matters are likely to affect EEC trade at least to the extent they influence the conditions under which the other services and equipment are supplied throughout the EEC. 40. Finally, to the extent that the TOs hold dominant positions in facilities, services and equipment markets, their behaviour leading to — and including the conclusion of — the agreements in question could also give rise to a violation of Article 86, if agreements have or are likely to have as their effect hindering the maintenance of the degree of competition still existing in the market or the growth of that

Reported in ‘Competition Law in the European Communities’ Volume I  (situation at 31. 12. 1989) published by the Commission. 182 For simplification’s sake this term stands also for ‘decisions by associations’ and ‘concerted practices’ within the meaning of Article 85. 181

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competition, or causing the TOs to reap trading benefits which they would not have reaped if there had been normal and sufficiently effective competition. A. Horizontal agreements concerning the provision of terrestrial facilities and reserved services 41. Agreements concerning terrestrial facilities (public switched network or leased circuits) or services (e. g. voice telephony for the general public) can currently only be concluded between TOs because of this legal regime providing for exclusive or special rights. The fact that the Services Directive recognizes the possibility for a Member State to reserve this provision to certain operators does not exempt those operators from complying with the competition rules in providing these facilities or services. These agreements may restrict competition within a Member State only where such exclusive rights are granted to more than one provider. 42. These agreements may restrict the competition between TOs for retaining or attracting large telecommunications users for their telecommunications centres. Such ‘hub competition’ is substantially based upon favourable rates and other conditions, as well as the quality of the services. Member States are not allowed to prevent such competition since the Directive allows only the granting of exclusive and special rights by each Member State in its own territory. 43. Finally, these agreements may restrict competition in non-reserved services from third party undertakings, which are supported by the facilities in question, for example if they impose discriminatory or inequitable trading conditions on certain users. 44. (aa) Price agreements: all TOs’ agreements on prices, discounting or collection charges for international services, are apt to restrict the hub competition to an appreciable extent. Coordination on or prohibition of discounting could cause particularly serious restrictions. In situations of public knowledge such as exists in respect of the tariff level, discounting could remain the only possibility of effective price competition. 45. In several cases the Court of Justice and the Commission have considered price agreements among the most serious infringements of Article  85183. While harmonization of tariff structures may be a major element for the provision of Community-wide services, this goal should be pursued as far as compatible with Community competition rules and should include definition of efficient pricing principles throughout the Community. Price competition is a crucial, if not the principal, element of customer choice and is apt to stimulate technical progress. Without prejudice to any application for individual exemption that may be made, the justification of any price agreement in terms of Article 85 (3) would be the subject of very rigorous examination by the Commission. 46. Conversely, where the agreements concern only the setting up of common tariff structures or principles, the Commission may consider whether this would not constitute one of the economic benefits under Article 85 (3) which outweigh the competition restriction. Indeed, this could provide the necessary transparency on tariff calculations and facilitate users’ decisions about traffic flow or the location

PVC, Commission Decision 89/190/EEC,  OJ  No L  74, 17. 3. 1989, p. 1; Case 123/85, BNIC  v. Clair [1985]  ECR  391; Case 8/72, Cementhandelaren v. Commission (1972)  ECR  977; Polypropylene, Commission Decision 86/398/EEC (OJ No L 230/1, 18. 8. 1986, p. 1) on appeal Casel79/86.

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of headquarters or premises. Such agreements could also contribute to achieving one of the Green Paper’s economic objectives — more cost-orientated tariffs. In this connection, following the intervention of the Commission, the CEPT has decided to abolish recommendation PGT/10 on the general principles for the lease of international telecommunications circuits and the establishment of private international networks. This recommendation recommended,  inter alia, the imposition of a 30 % surcharge or an access charge where third-party traffic was carried on an international telecommunications leased circuit, or if such a circuit was interconnected to the public telecommunications network. It also recommended the application of uniform tariff coefficients in order to determine the relative price level of international telecommunications leased circuits. Thanks to the CEPT’s cooperation with the Commission leading to the abolition of the recommendation, competition between telecoms operators for the supply of international leased circuits is re-established, to the benefit of users, especially suppliers of non-reserved services. The Commission had found that the recommendation amounted to a price agreement between undertakings under Article  85 of the Treaty which substantially restricted competition within the European Community184. 47. (ab) Agreements on other conditions for the provision of facilities These agreements may limit hub competition between the partners. Moreover, they may limit the access of users to the network, and thus restrict third undertakings’ competition as to non-reserved services. This applies especially to the use of leased circuits. The abolished CEPT recommendation PGT/10 on tariffs had also recommended restrictions on conditions of sale which the Commission objected to. These restrictions were mainly: —

making the use of leased circuits between the customer and third parties subject to the condition that the communication concern exclusively the activity for which the circuit has been granted,

—

a ban on subleasing,

—

authorization of private networks only for customers tied to each other by economic links and which carry out the same activity,

—

prior consultation between the TOs for any approval of a private network and of any modification of the use of the network, and for any interconnection of private networks.

For the purpose of an exemption under Article  85 (3), the granting of special conditions for a particular facility in order to promote its development could be taken into account among other elements. This could foster technologies which reduce the costs of services and contribute to increasing competitiveness of European industry structures. Naturally, the other Article  85 (3) requirements should also be met. 48. (ac) Agreements on the choice of telecommunication routes. These may have the following restrictive effects: (i)

to the extent that they coordinate the TOs’ choice of the routes to be set up in international services, they may limit competition between TOs as

See Commission press release IP(90) 188 of 6 March 1990.

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suppliers to users’ communications hubs, in terms of investments and production, with a possible effect on tariffs. It should be determined whether this restriction of their business autonomy is sufficiently appreciable to be caught by Article  85. In any event, an argument for an exemption under Article 85 (3) could be more easily sustained if common routes designation were necessary to enable interconnections and, therefore, the use of a Europe-wide network; (ii) to the extent that they reserve the choice of routes already set up to the TOs, and this choice concerns one determined facility, they could limit the use of other facilities and thus services provision possibly to the detriment of technological progress. By contrast, the choice of routes does not seem restrictive in principle to the extent that it constitutes a technical requirement. 49. (ad) Agreements on the imposition of technical and quality standards on the services provided on the public network Standardization brings substantial economic benefits which can be relevant under Article  85 (3). It facilitates  inter alia  the provision of pan-European telecommunications services. As set out in the framework of the Community’s approach to standardization, products and services complying with standards may be used Community-wide. In the context of this approach, European standards institutions have developed in this field (ETSI and CEN-Cenelec). National markets in the EC would be opened up and form a Community market. Service and equipment markets would be enlarged, hence favouring economies of scale. Cheaper products and services are thus available to users. Standardization may also offer an alternative to specifications controlled by undertakings dominant in the network architecture and in non-reserved services. Standardization agreements may, therefore, lessen the risk of abuses by these undertakings which could block the access to the markets for non-reserved services and for equipment. However, certain standardization agreements can have restrictive effects on competition: hindering innovation, freezing a particular stage of technical development, blocking the network access of some users/service providers. This restriction could be appreciable, for example when deciding to what extent intelligence will in future be located in the network or continue to be permitted in customers’ equipment. The imposition of specifications other than those provided for by Community law could have restrictive effects on competition. Agreements having these effects are, therefore, caught by Article 85. The balance between economic benefits and competition restrictions is complex. In principle, an exemption could be granted if an agreement brings more openness and facilitates access to the market, and these benefits outweigh the restrictions caused by it. 50. Standards jointly developed and/or published in accordance with the ONP procedures carry with them the presumption that the cooperating TOs which comply with those standards fulfil the requirement of open and efficient access (see the ONP  Directive mentioned in paragraph  16). This presumption can be rebutted, inter alia, if the agreement contains restrictions which are not foreseen by Community law and are not indispensable for the standardization sought. 51. One important Article 85 (3) requirement is that users must also be allowed a fair share of the resulting benefit. This is more likely to happen when users are directly involved in the standardization process in order to contribute to deciding what products or services will meet their needs. Also, the involvement of manufacturers



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or service providers other than TOs seems a positive element for Article 85 (3) purposes. However, this involvement must be open and widely representative in order to avoid competition restrictions to the detriment of excluded manufacturers or service providers. Licensing other manufacturers may be deemed necessary, for the purpose of granting an exemption to these agreements under Article 85 (3). 52. (ae) Agreements foreseeing special treatment for TOs’ terminal equipment or other companies’ equipment for the interconnection or interoperation of terminal equipment with reserved services and facilities 53. (af) Agreements on the exchange of information A  general exchange of information could indeed be necessary for the good functioning of international telecommunications services, and for cooperation aimed at ensuring interconnectivity or one-stop shopping and billing. It should not be extended to competition-sensitive information, such as certain tariff information which constitutes business secrets, discounting, customers and commercial strategy, including that concerning new products. The exchange of this information would affect the autonomy of each TO’s commercial policy and it is not necessary to attain the said objectives. B. Agreements concerning the provision of non-reserved services and terminal equipment 54. Unlike facilities markets, where only the TOs are the providers, in the services markets the actual or potential competitors are numerous and include, besides the TOs, international private companies, computer companies, publishers and others. Agreements on services and terminal equipment could therefore be concluded between TOs, between TOs and private companies, and between private companies. 55. The liberalizing process has led mostly to strategic agreements between (i) TOs, and (ii) TOs and other companies. These agreements usually take the form of joint ventures. 56. (ba) Agreements between TOs The scope of these agreements, in general, is the provision by each partner of a value-added service including the management of the service. Those agreements are mostly based on the ‘one-stop shopping’ principle, i.e. each partner offers to the customer the entire package of services which he needs. These managed services are called managed data network services (MDNS). An MDNS essentially consists of a broad package of services including facilities, value-added services and management. The agreements may also concern such basic services as satellite uplink. 57. These agreements could restrict competition in the MDNS market and also in the markets for a service or a group of services included in the MDNS: (i)

between the participating TOs themselves; and

(ii) vis-à-vis other actual or potential third-party providers. 58. (i) Restrictions of competition between TOs Cooperation between TOs could limit the number of potential individual MDNS offered by each participating TO. The agreements may affect competition at least in certain aspects which are contemplated as specific examples of prohibited practices under Article 85 (1) (a) to (c), in the event that:

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— they fix or recommend, or at least lead (through the exchange of price information) to coordination of prices charged by each participant to customers, —

they provide for joint specification of MDNS products, quotas, joint delivery, specification of customers’ systems; all this would amount to controlling production, markets, technical development and investments,

—

they contemplate joint purchase of MDNS hardware and/or software, which would amount to sharing markets or sources of supply.

59. (ii) Restrictive effects on third party undertakings Third parties’ market entry could be precluded or hampered if the participating TOs: —

refuse to provide facilities to third party suppliers of services,

—

apply usage restrictions only to third parties and not to themselves (e.g. a private provider is precluded from placing multiple customers on a leased line facility to obtain lower unit costs),

—

favour their MDNS offerings over those of private suppliers with respect to access, availability, quality and price of leased circuits, maintenance and other services,

—

apply especially low rates to their MDNS offerings, cross-subsidizing them with higher rates for monopoly services.

Examples of this could be the restrictions imposed by the TOs on private network operators as to the qualifications of the users, the nature of the messages to be exchanged over the network or the use of international private leased circuits. 60. Finally, as the participating TOs hold, individually or collectively, a dominant position for the creation and the exploitation of the network in each national market, any restrictive behaviour described in paragraph 59 could amount to an abuse of a dominant position under Article 86 (see V below). 61. On the other hand, agreements between TOs may bring economic benefits which could be taken into account for the possible granting of an exemption under Article 85 (3). Inter alia, the possible benefits could be as follows: —

a European-wide service and ‘one-stop shopping’ could favour business in Europe. Large multinational undertakings are provided with a European communication service using only a single point of contact,

— the cooperation could lead to a certain amount of European-wide standardization even before further EEC legislation on this matter is adopted, — the cooperation could bring a cost reduction and consequently cheaper offerings to the advantage of consumers, — a general improvement of public infrastructure could arise from a joint service provision. 62. Only by notification of the cases in question, in accordance with the appropriate procedures under Regulation No  17, will the Commission be able, where requested, to ascertain, on the merits, whether these benefits outweigh the competition restrictions. But in any event, restrictions on access for third parties seem likely to be considered as not indispensable and to lead to the elimination of competition for a substantial part of the products and services concerned within



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the meaning of Article  85 (3), thus excluding the possibility of an exemption. Moreover, if an MDNS agreement strengthens appreciably a dominant position which a participating TO holds in the market for a service included in the MDNS, this is also likely to lead to a rejection of the exemption. 63. The Commission has outlined the conditions for exempting such forms of cooperation in a case concerning a proposed joint venture between 22 TOs for the provision of a Europe-wide MDNS, later abandoned for commercial reasons185, The Commission considered that the MDNS project presented the risks of restriction of competition between the operators themselves and private service suppliers but it accepted that the project also offered economic benefits to telecommunications users such as access to Europe-wide services through a single operator. Such cooperation could also have accelerated European standardization, reduced costs and increased the quality of the services. The Commission had informed the participants that approval of the project would have to be subject to guarantees designed to prevent undue restriction of competition in the telecommunications services markets, such as discrimination against private services suppliers and cross-subsidization. Such guarantees would be essential conditions for the granting of an exemption under the competition rules to cooperation agreements involving TOs. The requirement for an appropriate guarantee of non-discrimination and noncross-subsidization will be specified in individual cases according to the examples of discrimination indicated in Section V  below concerning the application of Article 86. 64. (bb) Agreements between TOs and other service providers Cooperation between TOs and other operators is increasing in telecommunications services. It frequently takes the form of a joint venture. The Commission recognizes that it may have beneficial effects. However, this cooperation may also adversely affect competition and the opening up of services markets. Beneficial and harmful effects must therefore be carefully weighed. 65. Such agreements may restrict competition for the provision of telecommunications services: (i)

between the partners; and

(ii) from third parties. 66. (i) Competition between the partners may be restricted when these are actual or potential competitors for the relevant telecommunications service. This is generally the case, even when only the other partners and not the TOs are already providing the service. Indeed, TOs may have the required financial capacity, technical and commercial skills to enter the market for non-reserved services and could reasonably bear the technical and financial risk of doing it. This is also generally the case as far as private operators are concerned, when they do not yet provide the service in the geographical market covered by the cooperation, but do provide this service elsewhere. They may therefore be potential competitors in this geographic market. 67. (ii) The cooperation may restrict competition from third parties because:

Commission press release IP(89) 948 of 14. 12. 1989.

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there is an appreci